No.

In the Supreme Court of the United States

_______________
KENNETH M. ASBOTH, JR.,
Petitioner,
v.
STATE OF WISCONSIN,
Respondent.
_______________
On Petition For A Writ Of Certiorari
To The Supreme Court of Wisconsin
_______________

PETITION FOR A WRIT OF CERTIORARI

_______________
ANDREW R. HINKEL MARK T. STANCIL
OFFICE OF THE STATE Counsel of Record
PUBLIC DEFENDER MATTHEW M. MADDEN
Post Office Box 7862 ROBBINS, RUSSELL, ENGLERT,
Madison, WI 53707 ORSECK, UNTEREINER &
(608) 267-1779 SAUBER LLP
1801 K Street, NW
JOHN P. ELWOOD
Washington, D.C. 20006
JEREMY C. MARWELL
(202) 775-4500
VINSON & ELKINS LLP
[email protected]
2200 Pennsylvania Ave.,
NW, Suite 500 West DANIEL R. ORTIZ
Washington, DC 20037 UNIVERSITY OF VIRGINIA
(202) 639-6500 SCHOOL OF LAW SUPREME
COURT LITIGATION CLINIC
580 Massie Road
Charlottesville, VA 22903
 QUESTION PRESENTED
The “community caretaking” exception to the
Fourth Amendment’s warrant requirement permits
warrantless searches and seizures only where they
are “totally divorced from the detection,
investigation, or acquisition of evidence.” Cady v.
Dombrowski, 413 U.S. 433, 441 (1973). More
particularly, this Court has authorized limited police
discretion to seize vehicles without warrants for
community caretaking purposes “so long as that
discretion is exercised according to standard criteria
and on the basis of something other than suspicion of
evidence of criminal activity.” Colorado v. Bertine,
479 U.S. 367, 375 (1987). At least seven federal
circuit courts and eight state high courts have
applied Bertine to require standardized criteria that
limit an officer’s discretion to seize a vehicle without
a warrant after its operator is taken into custody.
Conversely, three federal circuit courts and three
state high courts (including the court below, in
acknowledged conflict with the majority view) have
held that Bertine does not require standardized
criteria. The question presented is:
Whether standardized criteria must guide police
discretion to seize a vehicle without a warrant or
probable cause after its operator has been taken into
police custody.

(i)
 ii

TABLE OF CONTENTS

Page

Question Presented ......................................................i

Table Of Authorities.................................................... v
Opinions Below ............................................................ 1
Jurisdiction .................................................................. 1
Constitutional Provision Involved .............................. 1
Statement .................................................................... 1
A. Factual Background .................................... 2
B. Procedural Background .............................. 5
Reasons For Granting The Petition.......................... 10
I. The Federal Courts Of Appeals And State
High Courts Are Deeply Divided....................... 10
A. At Least Seven Circuits And Eight
State High Courts Require That
Standardized Criteria Limit
Discretion To Invoke The
“Community Caretaking” Rationale
To Seize A Vehicle After Arresting
Its Operator ............................................... 11
B. Three Circuits And Two Other State
High Courts Do Not Require
Standardized Criteria That Limit
Seizure Discretion ..................................... 16
II. The Decision Below Is Wrong............................ 17
A. The Decision Below Undermines
This Court’s Limitations on Vehicle
Seizures and Searches .............................. 18
 iii

TABLE OF CONTENTS—continued

Page

B. Standardized Criteria Must Guide

Police Discretion To Seize Arrestees’
Vehicles Without A Warrant Or
Probable Cause .......................................... 22
III. The Question Presented Is Recurring And
Important, And This Case Presents An
Ideal Vehicle For Review ................................... 25
A. The Question Presented Arises
Frequently ................................................. 26
B. The Question Presented Is
Important................................................... 27
C. This Case Presents An Ideal Vehicle
For Deciding This Question ...................... 29
Conclusion ................................................................. 30
Appendix A: Supreme court opinion (July 6,
2017) ................................................................... 1a
Appendix B: Court of appeals opinion (Sept.
29, 2016) ........................................................... 42a
Appendix C: Circuit court memorandum
decision and order (Mar. 24, 2014).................. 66a
Appendix D: Circuit court memorandum
decision and order (June 26, 2013) ................. 70a
Appendix E: City of Beaver Dam policy ................. 73a
Appendix F: Dodge County policy .......................... 78a
 iv

TABLE OF CONTENTS—continued

Page

Appendix G: Eighth Circuit Cases addressing

community caretaking vehicle seizures,
2012–2017 ........................................................ 83a
 v

TABLE OF AUTHORITIES

Page(s)

Cases
Arizona v. Gant,
556 U.S. 332 (2009)...................................... 9, 20, 21
Atwater v. City of Lago Vista,
532 U.S. 318 (2001)................................................22
Benson v. State,
30 S.W.3d 731 (Ark. 2000) .....................................14
Cady v. Dombrowski,
413 U.S. 433 (1973).......................................... 18, 20
Cannon v. State,
601 So. 2d 1112 (Ala. Crim. App. 1992) ................17
Colorado v. Bertine,
479 U.S. 367 (1987)........................................ passim
Commonwealth v. Hocutt,
No. 0104-15-2, 2015 WL 3877005 (Va. Ct.
App. June 23, 2015) ...............................................15
Commonwealth v. Oliveira,
47 N.E.3d 395 (Mass. 2016)...................................17
Delaware v. Prouse,
440 U.S. 648 (1979)................................................22
Fair v. State,
627 N.E.2d 427 (Ind. 1993)....................................15
Florida v. Wells,
495 U.S. 1 (1990).................................. 13, 18, 22, 23
Illinois v. Lafayette,
462 U.S. 640 (1983)................................................23
 vi

TABLE OF AUTHORITIES—continued

Page(s)

McGaughey v. State,
37 P.3d 130 (Okla. Crim. App. 2001) ....................15
Miranda v. City of Cornelius,
429 F.3d 858 (9th Cir. 2005) .................................13
New York v. Belton,
453 U.S. 454 (1981)................................................20
Patty v. State,
768 So. 2d 1126 (Fla. Dist. Ct. App. 2000) ............15
People v. Ferris,
9 N.E.3d 1126 (Ill. App. Ct. 2014) .........................15
People v. Toohey,
475 N.W.2d 16 (Mich. 1991) ..................................15
People v. Watson,
576 N.Y.S.2d 370 (N.Y. App. Div. 1991) ...............15
Sammons v. Taylor,
967 F.2d 1533 (11th Cir. 1992)..............................13
South Dakota v. Opperman,
428 U.S. 364 (1976)................................ 8, 18, 20, 23
State v. Fox,
157 A.3d 778 (Me. 2017) ........................................14
State v. Gauster,
752 N.W.2d 496 (Minn. 2008) ...............................15
State v. Hudson,
390 A.2d 509 (Me. 1978) ........................................15
State v. Huisman,
544 N.W.2d 433 (Iowa 1996) .................................14
 vii

TABLE OF AUTHORITIES—continued

Page(s)

State v. Kramer,
759 N.W.2d 598 (Wis. 2009) ..................................24
State v. Lizee,
783 A.2d 445 (Vt. 2001) .........................................17
State v. Milliorn,
794 S.W.2d 181 (Mo. 1990) ....................................15
State v. O’Neill,
29 N.E.3d 365 (Ohio Ct. App. 2015) ......................15
State v. Pinkard,
785 N.W.2d 592 (Wis. 2010) ....................................9
State v. Pogue,
868 N.W.2d 522 (N.D. 2015) ..................................15
State v. Weaver,
900 P.2d 196 (Idaho 1995) .....................................15
Taha v. State,
366 P.3d 544 (Alaska Ct. App. 2016) ....................15
Thompson v. State,
995 A.2d 1030 (Md. Ct. Spec. App. 2010) .............17
United States v. Cartrette,
502 Fed. Appx. 311 (4th Cir. 2012) .......................14
United States v. Coccia,
446 F.3d 233 (1st Cir. 2006) ...................... 16, 19, 24
United States v. Duguay,
93 F.3d 346, 351 (7th Cir. 1996)............................12
United States v. Hockenberry,
730 F.3d 645 (6th Cir. 2013) .................................13
 viii

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Jackson,

682 F.3d 448 (6th Cir. 2012) .................................13
United States v. Le,
474 F.3d 511 (8th Cir. 2007) .................................15
United States v. Martinez-Fuerte,
428 U.S. 543 (1976)................................................22
United States v. McKinnon,
681 F.3d 203 (5th Cir. 2012) .................................17
United States v. Petty,
367 F.3d 1009 (8th Cir. 2004)................................12
United States v. Proctor,
489 F.3d 1348 (D.C. Cir. 2007) ..............................14
United States v. Rodriguez-Morales,
929 F.2d 780 (1st Cir. 1991) ..................................16
United States v. Sanders,
796 F.3d 1241 (10th Cir. 2015)...................... passim
United States v. Smith,
522 F.3d 305 (3d Cir. 2008) ............................. 16, 17
United States v. Torres,
828 F.3d 1113 (9th Cir. 2016)................................13
Other Authorities
Wis. Stat. § 808.03(3)(b) ..............................................6
Tami Abdollah, LA Cops Don’t Have to
Impound Unlicensed Drivers’ Cars, Judge
Rules, NBC Los Angeles, Dec. 27, 2014 ................26
 ix

TABLE OF AUTHORITIES—continued

Page(s)

Mark Fazlollah & Dylan Purcell, Too Many

Times, Dangerous Drivers Stay On the Street
Until They Hurt Someone, The Philadelphia
Inquirer, Dec. 14, 2014 ..........................................26
Wayne R. LaFave, Controlling Discretion by
Administrative Regulations: The Use,
Misuse, and Nonuse of Police Rules and
Policies in Fourth Amendment Adjudication,
89 Mich. L. Rev. 442 (1990) ...................................24
Wayne R. LaFave, Search & Seizure: A
Treatise on the Fourth Amendment
(5th ed. 2016) .........................................................26
John Rappaport, Second-Order Regulation of
Law Enforcement,
103 Cal. L. Rev. 205 (2015) ...................................24
David Sheff, If You Want To See Inequality In
The US At Its Worst, Visit An Impound Lot,
Time, Aug. 26, 2014 ...............................................28
Alan M. Voorhees, et al., Motor Vehicles
Affordability and Fairness Task Force: Final
Report (2006) .........................................................28
 OPINIONS BELOW
The opinion of the Supreme Court of Wisconsin
(App., infra, 1a–41a) is reported at 898 N.W.2d 541.
The opinion of the Wisconsin Court of Appeals (App.,
infra, 42a–65a) is unreported. The opinions of the
Circuit Court (App., infra, 66a–72a) are unreported.

JURISDICTION
The Supreme Court of Wisconsin issued its
decision on July 6, 2017. On September 20, 2017,
Justice Kagan extended the time within which to file
a petition for a writ of certiorari to and including
November 20, 2017. This Court’s jurisdiction is
invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States
Constitution provides: “The right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.”

STATEMENT
Police arrested petitioner for a probation
violation while he was visiting an outdoor storage
unit. Without seeking a warrant, the officers then
seized petitioner’s car, which was parked adjacent to
the unit on the storage facility’s private property.
The officers acted pursuant to departmental policies
granting officers unfettered discretion to seize and
(1)
 2

impound any vehicle left unattended in any place as

the result of any arrest. A subsequent inventory
search of the seized car turned up evidence of a
different offense for which police already suspected
petitioner.
A divided Supreme Court of Wisconsin upheld
the warrantless vehicle seizure. The court
acknowledged, however, that “a split exists among
the federal courts of appeals” and state high courts
over whether standardized criteria must guide police
discretion to perform warrantless vehicle seizures
under “community caretaking” rationales. App.,
infra, 15a.
This case presents the opportunity to resolve
that deep and widely recognized split. In Colorado v.
Bertine, this Court held that police can seize
arrestees’ vehicles under the community caretaking
exception to the Fourth Amendment’s warrant
requirement “so long as that discretion is exercised
according to standard criteria.” 479 U.S. 367, 375
(1987). Bertine’s holding has spawned “substantial
debate and disagreement” and a “clear divide” among
the circuits and state high courts over whether
standardized criteria are in fact required. United
States v. Sanders, 796 F.3d 1241, 1242, 1248 (10th
Cir. 2015).

A. Factual Background
Police suspected petitioner, Kenneth M. Asboth,
Jr., of an armed bank robbery that had occurred in
early October 2012. App., infra, 2a. Four weeks later,
acting on a tip, a Dodge County, Wisconsin, sheriff’s
deputy located petitioner next to his car parked in
front of an open unit at a private storage facility. Id.
 3

at 2a. The deputy called in officers from nearby

Beaver Dam (where the bank robbery had occurred),
and together they arrested petitioner on a probation
violation. Ibid.
The Dodge County deputy and Beaver Dam
officers then seized petitioner’s car and had it towed
to the Beaver Dam police station to be impounded
and searched. App., infra, 3a–4a. The officers did not
have a warrant or probable cause to seize or search
the vehicle. Id. at 6a. Rather, they seized the car
pursuant to the community caretaking exception to
the Fourth Amendment’s warrant requirement. Ibid.
Once seized, the car was then subject to an
automatic inventory search. Id. at 4a.
Dodge County and Beaver Dam afford their
officers unfettered discretion to seize arrestees’
vehicles without a warrant. App., infra, 3a–4a, 73a,
79a. Beaver Dam’s policy states that officers “may”
seize any vehicle in their “lawful custody.” Id. at 73a.
They are also granted the “option not to impound”
should they so choose where there is a “reasonable
alternative” to seizure. Ibid. Dodge County likewise
authorizes its deputies to seize any vehicle “left
unattended” when its driver is taken into custody;
that policy also states that a “deputy always has the
discretion to leave the vehicle at the scene and
advise the owner to make proper arrangements for
removal.” Id. at 79a. In short, under either policy,
anything goes when a driver is arrested.
At the time of petitioner’s arrest, his car was
parked between two storage units. App., infra, 2a.
Although another vehicle would not have been able
to park in front of the open unit nor one adjacent to
it, the units were otherwise accessible. Other
 4

vehicles could “maneuver around” petitioner’s car

and “drive through the alley.” Ibid. A police
photograph of the vehicle’s location immediately
before its seizure was introduced in support of
petitioner’s suppression motion, and is reproduced
below:

See Def . ’s Mot. for Recons. on Ruling 18 (Wis. Cir.

Ct. Aug. 13, 2013); see also App. to Br. of Def.-
Appellant-Pet’r 126 (Wis. Feb. 8, 2017).
The officers did not ask petitioner to arrange for
the car to be moved. App., infra, 2a, 24a. Nor did
they contact the storage facility owner to ask if he
wanted the vehicle removed. Id. at 3a. And, after
determining the car was registered to someone other
than petitioner, officers did not contact that person
 5

about relocating the car. Ibid.1 Rather, officers seized

the car and had it towed to the impound facility.
Ibid.
Beaver Dam police conducted an inventory
search of petitioner’s car after impoundment. App.,
infra, 4a. That search turned up a pellet gun in the
spare tire compartment under the floor of the trunk.
Ibid. Police concluded that the pellet gun was similar
to the weapon brandished during the armed robbery
for which they suspected petitioner. Ibid.

B. Procedural Background
1. Petitioner was charged with armed robbery.
App., infra, 5a. He moved to suppress the pellet gun
found in his seized car. Petitioner initially argued
that the inventory search of his vehicle was
unconstitutional, but the trial court upheld the
search. Id. at 72a. Petitioner moved for
reconsideration, contending that the warrantless
seizure of his vehicle was unconstitutional. Id. at
66a–69a. The trial court upheld the seizure under
the community caretaking exception to the Fourth
Amendment’s warrant requirement. Id. at 69a. After
the evidence was deemed admissible, petitioner
pleaded no contest. Id. at 6a.2

1 Petitioner owned the vehicle, but neither he nor the previous

owner had notified Wisconsin’s Department of Transportation
of the sale. App., infra, 3a n.1.
2 See Wis. Stat. § 808.03(3)(b) (providing the right to appeal the
denial of a suppression motion after a plea of no contest).
 6

2. Petitioner appealed, arguing that the

warrantless vehicle seizure had not been “conducted
pursuant to a law enforcement policy setting forth
standardized, sufficiently detailed guidelines
limiting officer discretion” as required by this Court’s
decision in Bertine. App., infra, 45a–46a.
The Wisconsin Court of Appeals acknowledged
that, “[a]s the State points out, federal courts of
appeal are divided as to whether Bertine requires
that seizure of a vehicle must be conducted in
accordance with a standardized policy.” App., infra,
51a; see also id. at 48a (reiterating that “the federal
circuit courts of appeal are in conflict” on that
question). The court observed that “Bertine can be
read, but is not universally read, to describe a
requirement that police exercise their discretion in
light of standardized criteria set forth in a police
policy.” Id. at 48a (quoting Bertine, 479 U.S. 367,
375–76 (1987)).
The court of appeals assumed without deciding
that Bertine established that police must follow
standardized criteria when performing warrantless,
community caretaking vehicle seizures. App., infra,
49a. It nevertheless affirmed by holding that this
requirement was satisfied because one of the two
police departments at the scene had “a written
document that reflected standards governing
seizure.” Id. at 52a.
3. The Supreme Court of Wisconsin granted
review, and a divided court affirmed. App., infra, 1a.
Like the court of appeals, the supreme court
acknowledged that “a split exists” among the federal
circuits and state high courts on “Bertine’s impact on
 7

impoundments by officers performing community

caretaker functions.” App., infra, 15a. “Several
circuits agree with [petitioner],” the court recognized,
“that law enforcement officers may constitutionally
perform a warrantless community caretaker im-
poundment only if standard criteria minimize the
exercise of their discretion.” Ibid. (citing decisions by
the Seventh, Eighth, Ninth, Tenth, and D.C.
Circuits).
“In contrast,” the court explained, “three federal
circuits do not afford dispositive weight to the
existence of standardized criteria or to law
enforcement officers’ adherence thereto.” App., infra,
16a (citing decisions by the First, Third, and Fifth
Circuits). In those circuits, adherence to stan-
dardized criteria is “at most, one factor to consider
when assessing the Fourth Amendment reasonable-
ness of a warrantless community caretaker im-
poundment.” Ibid.
The supreme court did not adopt the court of
appeals’ view that resolution of the conflict was
unnecessary to resolve this case. Rather, the
supreme court ultimately “agree[d]” with the
minority position that does not require standardized
criteria and rejected the other circuits’ rule that “the
absence of standard criteria * * * render[s] a
warrantless community caretaker impoundment
unconstitutional.” App., infra, 18a. “Bertine,” the
court held, “does not mandate adherence to standard
criteria” when an officer conducts a community
caretaker impoundment. Id. at 1a.
The court then concluded the seizure of
petitioner’s car was reasonable because leaving it
unattended would have “inconvenienced” the storage
 8

facility’s owner and customers and generated a risk

of “vandalism or theft.” App., infra, 11a–12a. The
court also noted that the officers had discretion to
decide whether to seize petitioner’s vehicle under
their departmental impoundment policies, which
allowed them free reign to impound any vehicle left
unattended incident to an arrest. Id. at 23a–24a. The
court held that there had been “no sensible
alternative” to seizure, even though, “[a]dmittedly,
the officers did not offer [petitioner] the opportunity
to make arrangements for moving his car after his
arrest.” Ibid.
Justice Ann Walsh Bradley, joined by Justice
Shirley S. Abrahamson, dissented. Justice Bradley
would have “follow[ed] the national trend” and
“majority of federal and state appellate courts” by
adopting “the well-reasoned approach of the Tenth
Circuit.” App., infra, 27a (citing United States v.
Sanders, 796 F.3d 1241, 1248 (10th Cir. 2015)).
In Sanders, the dissent explained, the Tenth
Circuit held that “impoundment of a vehicle located
on private property that is neither obstructing traffic
nor creating an imminent threat to public safety”
must be “justified by both a standard policy and a
reasonable, non-pretextual community-caretaking
rationale.” App., infra, 27a (quoting Sanders, 796
F.3d at 1248). This approach, the dissent concluded,
harmonized this Court’s holdings in South Dakota v.
Opperman, 428 U.S. 364 (1976), and Bertine. App.,
infra, 31a. “Opperman establishe[d]” that war-
rantless community caretaking seizures are con-
stitutional if performed to “protect[ ] public safety
and promot[e] the efficient movement of traffic.” Ibid.
Bertine later established that warrantless
 9

community caretaking seizures are unconstitutional

if performed pretextually or without adherence to
standardized criteria. Ibid.
The dissent also emphasized that a meaningful
standardized criteria requirement for warrantless
vehicle seizures incident to arrest is consistent with
Arizona v. Gant, 556 U.S. 332 (2009). App., infra,
28a–30a. In Gant, the Court narrowed the
circumstances in which warrantless vehicle searches
incident to arrest are constitutional. Id. at 29a. The
“national trend,” the dissent concluded, is to
similarly “limit[ ] police discretion regarding
impoundments.” Id. at 32a. By contrast, unfettered
police discretion to impound a vehicle incident to
every arrest raises “the specter that the [community
caretaking] exception will be misused as a pretext”
for investigative searches; “today's close call will
become tomorrow’s norm.” Id. at 40a (quoting State
v. Pinkard, 785 N.W.2d 592, 609–10 (Wis. 2010)
(Bradley, J., dissenting)).
The dissent accordingly concluded “that the
warrantless impoundment of petitioner’s vehicle
violated his Fourth Amendment rights” for two
reasons. App., infra, 27a–28a.
First, the Beaver Dam and Dodge County
impound policies “insufficiently limit[ ] officer
discretion to impound vehicles from private lots.”
App., infra, 35a (quoting Sanders, 796 F.3d at 1250).
Beaver Dam authorizes warrantless seizures
“whenever officers have custody of a vehicle”—a
“circular” directive without “any limitation at all.”
App., infra, 23a–24a. Dodge County, moreover,
“limits police discretion only when a driver is not in
custody,” id. at 34a (emphasis in original), to
 10

scenarios where, for example, a seizure is “in the

interest of public safety because of fire, flood, storm,
snow or other emergency reasons.” Id. at 79a. When
a driver is taken into custody and thus leaves his
vehicle unattended, however, officers have unlimited
discretion to seize the vehicle. Ibid.
Second, the dissent observed, petitioner’s
“vehicle neither obstructed traffic nor created an
imminent threat to public safety.” App., infra, 28a.
The dissent was unconvinced by the “purely
speculative” “proffered rationales” for the seizure in
the absence of such exigencies. Id. at 37a. The
dissent concluded that “the impoundment may have
been a pretext for an investigatory police motive.” Id.
at 38a. “[T]he lack of a compelling public safety need
to move [petitioner’s] car suggests that the police
were motivated by the investigation of the armed
robbery in which he was a suspect.” Id. at 39a.

REASONS FOR GRANTING THE PETITION

I. The Federal Courts Of Appeals And State

High Courts Are Deeply Divided
The decision below acknowledged that “[a] split
exists” over whether police must follow standardized
criteria when invoking the Fourth Amendment’s
community caretaking exception to seize a vehicle
after taking its operator into custody. App., infra,
15a. This question has “generated controversy”
among the federal circuits and state high courts and
resulted in a “clear divide.” United States v. Sanders,
796 F.3d 1241, 1245, 1248 (10th Cir. 2015). The
circuits are split at least 7–3 on the question
presented, and state high courts are intractably
divided as well. The majority of courts require that
 11

standardized criteria guide police discretion to make

community caretaking seizures of arrestees’ vehicles.
The minority of courts do not require such criteria.

A. At Least Seven Circuits And Eight

State High Courts Require That
Standardized Criteria Limit Discretion
To Invoke The “Community Care-
taking” Rationale To Seize A Vehicle
After Arresting Its Operator
The Fourth, Sixth, Seventh, Eighth, Ninth,
Tenth, and Eleventh Circuits require that
standardized criteria cabin an officer’s discretion to
seize a vehicle without a warrant after the vehicle’s
operator has been taken into custody. State high
courts in Arkansas, Indiana, Iowa, Maine, Michigan,
Missouri, North Dakota, and Oklahoma likewise
impose that requirement pursuant to the Fourth
Amendment.
The Tenth Circuit’s decision in United States v.
Sanders succinctly states the majority view:
“[I]mpoundment of a vehicle located on private
property that is neither obstructing traffic nor
creating an imminent threat to public safety is
constitutional only if justified by both a standardized
policy and a reasonable, non-pretextual community-
caretaking rationale.” 796 F.3d 1241, 1248 (2015).
This rule is rooted in Bertine, which “makes the
existence of standardized criteria the touchstone of
the inquiry into whether an impoundment is lawful.”
Id. at 1248–49.
In Sanders, police arrested the defendant and
then seized his car from where it was “lawfully
parked in a private lot” and not “impeding traffic or
 12

posing a risk to public safety.” 796 F.3d at 1242,

1250. Affirming the suppression of evidence gathered
from a subsequent inventory search, the court of
appeals held that the warrantless seizure was
unlawful because “it was not guided by standardized
criteria.” Id. at 1243. The court rejected the police
officers’ rationale for the seizure—that the car was
parked in a “high-crime area” and was a “likely
target for a crime”—because those factors were not
set forth in standardized criteria that meaningfully
cabined officer discretion. Ibid.
In United States v. Duguay, the Seventh Circuit
likewise held that the “circumstances in which a car
may be impounded” “must be standardized.” 93 F.3d
346, 351 (1996). The seizure in that case “violated
the Fourth Amendment,” the court concluded,
because police lacked “a standardized impoundment
procedure.” Ibid. Rather, the impound policy
authorized seizure of any vehicle incident to its
operator’s arrest. The court held that this policy did
not provide police “sufficiently standardized” criteria
to guide their discretion. Id. at 352. Furthermore, the
court held that it is “irrational and inconsistent with
‘caretaking’ functions” to seize vehicles “based solely
on an arrestee’s status as a driver, owner, or
passenger.” Id. at 353. After all, the court empha-
sized, a warrantless “caretaker” seizure is constitu-
tional only if it is “completely unrelated to an
ongoing criminal investigation.” Id. at 352.
At least five other circuits have recognized the
same requirement. The Eighth Circuit held that
“[s]ome degree of ‘standardized criteria’ or
‘established routine’ must regulate” warrantless
vehicle seizures incident to an arrest. United States
 13

v. Petty, 367 F.3d 1009, 1012 (2004) (quoting Florida

v. Wells, 495 U.S. 1, 4 (1990)). The Eleventh Circuit
also held that where “an arrestee’s vehicle is not
impeding traffic or otherwise presenting a hazard,”
police can seize it only “so long as the decision to
impound is made on the basis of standard criteria
and on the basis of something other than suspicion of
evidence of criminal activity.” Sammons v. Taylor,
967 F.2d 1533, 1543 (1992) (internal quotation
marks omitted).
Likewise, the Ninth Circuit held that
community caretaking seizures must be conducted
“in conformance with the standardized procedures of
the local police department and in furtherance of a
community caretaking purpose, such as promoting
public safety or the efficient flow of traffic.” United
States v. Torres, 828 F.3d 1113, 1118 (2016). “This
requirement ensures that impoundments are
conducted ‘on the basis of something other than
suspicion of evidence of criminal activity.’” Ibid.
(citation omitted); see also Miranda v. City of
Cornelius, 429 F.3d 858, 866 (9th Cir. 2005) (“The
decision to impound must be guided by conditions
which ‘circumscribe the discretion of individual
officers’ in a way that furthers the caretaking
purpose.”) (quoting Colorado v. Bertine, 479 U.S. 367,
376 n.7 (1987)).
So too in the Sixth Circuit, which has explained
that “[d]iscretion as to impoundment is permissible
so long as that discretion is exercised according to
standard criteria.” United States v. Hockenberry, 730
F.3d 645, 658 (2013) (quoting United States v.
Jackson, 682 F.3d 448, 454 (6th Cir. 2012)) (internal
quotations omitted). And the Fourth Circuit has
 14

likewise concluded that “Bertine requires standard

criteria for impounding vehicles.” United States v.
Cartrette, 502 Fed. Appx. 311, 317 (2012).
The D.C. Circuit’s approach is generally
consistent with the majority view. That court has
held that when “a standard impoundment procedure
exists, a police officer’s failure to adhere thereto is
unreasonable and violates the Fourth Amendment.”
United States v. Proctor, 489 F.3d 1348, 1354 (2007);
see also ibid. (declining the government’s invitation
to adopt the First Circuit’s approach, which
exemplifies the minority view, see, infra, p. 16).
Eight state high courts have also understood the
Fourth Amendment to require that standardized
criteria constrain police discretion to seize arrestees’
vehicles without a warrant or probable cause.
The Supreme Court of Iowa held that Bertine
required it to “look for the existence of reasonable
standardized procedures and a purpose other than
the investigation of criminal activity” in determining
whether a warrantless vehicle seizure is permissible.
State v. Huisman, 544 N.W.2d 433, 437 (Iowa 1996).
Likewise, the Supreme Court of Arkansas held that
“police may impound a vehicle and inventory its
contents only if the actions are taken in good faith
and in accordance with standard police procedures or
policies.” Benson v. State, 30 S.W.3d 731, 733 (Ark.
2000).
The Supreme Judicial Court of Maine similarly
described “[t]he requirement of conformity to a
standard practice, or policy” as “essential” when
police determine whether to tow and inventory a
vehicle. State v. Fox, 157 A.3d 778, 785 (Me. 2017)
 15

(quoting State v. Hudson, 390 A.2d 509, 511 (Me.

1978)). North Dakota’s Supreme Court also held that
“[t]he impounding of a vehicle passes constitutional
muster so long as the decision to impound is guided
by a standard policy.” State v. Pogue, 868 N.W.2d
522, 528 (N.D. 2015) (quoting United States v. Le,
474 F.3d 511, 514 (8th Cir. 2007)).
Courts of last resort in Indiana, Michigan,
Missouri, and Oklahoma adopted similar rules after
Bertine. See Fair v. State, 627 N.E.2d 427, 433 (Ind.
1993); People v. Toohey, 475 N.W.2d 16, 25 (Mich.
1991); State v. Milliorn, 794 S.W.2d 181, 186 (Mo.
1990); McGaughey v. State, 37 P.3d 130, 142–43
(Okla. Crim. App. 2001).3

3 Lower appellate courts in six other states have reached the

same conclusion. See Taha v. State, 366 P.3d 544, 548–49
(Alaska Ct. App. 2016); Patty v. State, 768 So. 2d 1126, 1127
(Fla. Dist. Ct. App. 2000); People v. Ferris, 9 N.E.3d 1126, 1137
(Ill. App. Ct. 2014); People v. Watson, 576 N.Y.S.2d 370, 371
(N.Y. App. Div. 1991); State v. O’Neill, 29 N.E.3d 365, 374 (Ohio
Ct. App. 2015); Commonwealth v. Hocutt, No. 0104-15-2, 2015
WL 3877005, at *3 (Va. Ct. App. June 23, 2015). Both the Su-
preme Court of Idaho and the Minnesota Supreme Court have
also held that, in cases where the operator was not arrested,
warrantless vehicle seizures must be conducted pursuant to
standardized criteria. State v. Weaver, 900 P.2d 196, 199–200
(Idaho 1995); State v. Gauster, 752 N.W.2d 496, 503 (Minn.
2008).
 16

B. Three Circuits And Two Other State

High Courts Do Not Require
Standardized Criteria That Limit
Seizure Discretion
In the decision below, the Supreme Court of
Wisconsin “agree[d]” with the First, Third, and Fifth
Circuits, and the highest courts of Massachusetts
and Vermont, that standardized criteria are not
necessary for vehicle seizures under the community
caretaking exception to the Fourth Amendment’s
warrant requirement. App., infra, 18a.
In United States v. Coccia, the First Circuit
concluded that standardized criteria were not
necessary to uphold the warrantless seizure of a car
from private property after its operator was taken
into police custody. 446 F.3d 233, 235–38 (2006). The
court explained that it did “not understand Bertine to
mean that an impoundment decision made without
the existence of standard procedures is per se
unconstitutional.” Id. at 238. A warrantless vehicle
seizure can be “reasonable under the circumstances,”
the court explained, with or without standardized
criteria or procedures cabining officer discretion to
perform the seizure. Id. at 239 (citing United States
v. Rodriguez-Morales, 929 F.2d 780, 786 (1st Cir.
1991)).
The Third Circuit adopted that approach in
United States v. Smith, 522 F.3d 305 (2008). There,
the court surveyed the “conflict” among the circuits
to determine “which of the two lines of cases to
follow.” Id. at 312, 314. The Third Circuit ultimately
joined the First Circuit in concluding that, while
standardized criteria “may be desirable” and “tend to
encourage the police to avoid taking arbitrary
 17

action,” they are not constitutionally required. Id. at

315.
The Fifth Circuit likewise held that “the
reasonableness of [a] vehicle impoundment for a
community caretaking purpose” can be determined
“without reference to any standardized criteria.”
United States v. McKinnon, 681 F.3d 203, 208 (2012)
(per curiam). Two state courts of last resort—now
joined by the Supreme Court of Wisconsin—have
endorsed the same approach. See Commonwealth v.
Oliveira, 47 N.E.3d 395, 398 (Mass. 2016); State v.
Lizee, 783 A.2d 445, 448 (Vt. 2001).4

II. The Decision Below Is Wrong

This Court’s review is further warranted
because the decision below is incompatible with this
Court’s prior decisions. The Supreme Court of
Wisconsin disregarded this Court’s requirements
that community caretaking seizures be “totally
divorced” from any investigatory purpose, and that
the discretion to perform such seizures be guided by
standardized criteria. The decision below also
authorized a boundless exception to limits this Court
has placed on vehicle searches incident to arrest.

4 Lower appellate courts in two other states have also adopted

this approach. See Cannon v. State, 601 So. 2d 1112, 1114 (Ala.
Crim. App. 1992); Thompson v. State, 995 A.2d 1030, 1041 (Md.
Ct. Spec. App. 2010).
 18

A. The Decision Below Undermines This

Court’s Limitations On Vehicle
Seizures And Searches
1. The decision below cannot be squared with
this Court’s established line of community
caretaking cases. In Cady v. Dombrowski, this Court
held that police may seize and search a vehicle
without a warrant or probable cause in the
performance of what the Court called “community
caretaking functions.” 413 U.S. 433, 441, 447–48
(1973). Those functions, the Court emphasized, must
be “totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of
a criminal statute.” Id. at 441 (emphasis added).
This Court next addressed the community
caretaking exception in South Dakota v. Opperman,
428 U.S. 364 (1976). There, the Court observed that
it was “beyond challenge” that police can seize
vehicles that obstruct public thoroughfares or pose
threats to public safety. Id. at 369. An inventory
search of such a seized vehicle may also be
conducted, the Court held, provided the search is
made “pursuant to standard police procedures.” Id.
at 372. Adherence to standards, the Court explained,
prevents an inventory search from turning into “a
pretext concealing an investigatory police motive.”
Id. at 376; see also Florida v. Wells, 495 U.S. 1, 4
(1990).
And in Colorado v. Bertine, this Court applied
Opperman’s requirement that standardized criteria
govern inventory searches to the decision to seize a
vehicle. 479 U.S. 367, 375 (1987). After a vehicle
operator is arrested, the seizure of the vehicle for
community caretaking reasons is valid only “so long
 19

as [police] discretion is exercised according to

standard criteria and on the basis of something other
than suspicion of evidence of criminal activity.” Ibid.
(emphasis added). Such standard criteria, Bertine
explained, will “circumscribe the discretion of
individual officers” deciding whether to seize an
arrestee’s vehicle. Id. at 376 n.7. The Court
ultimately upheld the seizure because police
discretion had been “exercised in light of
standardized criteria” and not “to investigate
suspected criminal activity.” Id. at 375–76.
The Supreme Court of Wisconsin’s decision here
is inconsistent with Bertine and its forebears.
According to the decision below, “Bertine does not
mandate adoption of or adherence to standard
impoundment criteria.” App., infra, 19a (emphasis
added). Instead, following the First Circuit, the court
read Bertine to hold that “standard criteria do not
provide ‘the sine qua non of a reasonable
impoundment decision[.]’” Id. at 17a (quoting United
States v. Coccia, 446 F.3d 233, 239 (1st Cir. 2006)).
This conclusion, however, cannot be squared with
Bertine’s command that nothing “prohibits the
exercise of police discretion so long as that discretion
is exercised according to standard criteria.” 479 U.S.
at 375 (emphasis added).
What is more, the decision below unmoors the
community caretaking exception from its origins in
Cady. The Supreme Court of Wisconsin held that
police discretion is “sufficiently cabined[,]” even
without standardized criteria, if a seizure is “based,
at least in part, on a reasonable community
caretaking concern and not exclusively on” criminal
investigation. App., infra, 18a (quoting Coccia, 446
 20

F.3d at 239) (emphasis added). Accordingly, a seizure

need be based only in part on community
caretaking—and so can, in other part, be premised
on suspicion of criminal activity. That is a far cry
from Cady’s clear holding that community caretaking
searches and seizures must be “totally divorced” from
criminal investigation. 413 U.S. at 441 (emphasis
added).
2. The decision below also undermines this
Court’s decisions concerning warrantless vehicle
searches incident to arrest. In Arizona v. Gant, this
Court limited such searches to two scenarios: (1)
when the arrestee is within reaching distance of the
vehicle, and (2) when an officer believes the vehicle
contains evidence of the offense of arrest. 556 U.S.
332, 346, 351 (2009).
In Gant, police officers stopped Gant for driving
on a suspended license, arrested him, and secured
him in a police car. 556 U.S. at 335. They then
searched his vehicle and discovered a firearm and
cocaine. Id. at 336. Relying on New York v. Belton,
453 U.S. 454 (1981), the state argued that a vehicle
can be searched incident to every arrest. Gant, 556
U.S. at 344–45. This Court rejected that argument as
“untether[ing]” the search incident to arrest
exception to the warrant requirement from its officer
safety and evidence preservation justifications. Id. at
339, 343.
The decision below, however, effectively revives
the broad scope of vehicle searches incident to arrest.
Police need only invoke a community caretaking
function to justify a vehicle’s warrantless seizure,
which in turn authorizes a comprehensive inventory
search. Opperman, 428 U.S. at 373. Indeed, under
 21

the reasoning adopted below, a professed community

caretaking rationale need only have been a “part” of
what motivated an officer’s exercise of his discretion
to make a seizure; it is perfectly permissible for an
officer also to possess an explicit investigatory
purpose for the seizure. App., infra, 18a.
Such a rule cannot be reconciled with Gant.
When limiting vehicle searches incident to arrest,
the Gant Court recognized that a rule authorizing
warrantless vehicle searches “whenever an
individual is caught committing a traffic offense”
would create “a serious and recurring threat to the
privacy of countless individuals.” Gant, 556 U.S. at
345. That threat would “implicate[ ] the central
concern underlying the Fourth Amendment * * * [by]
giving police officers unbridled discretion to
rummage at will among a person’s private effects.”
Ibid. Accordingly, limiting vehicle searches incident
to arrest to specific circumstances prevents routine
driver arrests from becoming a pretext for
investigatory vehicle searches.
Standardless community caretaking seizures
incident to a driver’s arrest thus provide an easily
traversed loophole by which to evade Gant. An officer
need pay no mind to whether the arrestee is “within
reaching distance of the vehicle” or whether the
vehicle is believed to “contain[ ] evidence of the
offense of arrest.” Gant, 556 U.S. at 346. Instead, the
officer need only purport to be acting “in part”
pursuant to a community caretaking function that is
triggered by the mere arrest of the vehicle’s driver.
App., infra, 18a.
The concern that the community caretaking
rationale embraced below could invite investigatory
 22

abuse of the doctrine is heightened by the fact that

police may arrest drivers for even “minor criminal
offense[s], such as a misdemeanor seatbelt violation
punishable only by a fine.” Atwater v. City of Lago
Vista, 532 U.S. 318, 323 (2001). Thus, under the
decision below, police who witness a criminal
suspect’s minor traffic violation may arrest the
driver, seize his or her car for a community
caretaking purpose, and then conduct an inventory
search. That practice is precisely the type of search
Gant was intended to limit.

B. Standardized Criteria Must Guide

Police Discretion To Seize Arrestees’
Vehicles Without A Warrant Or
Probable Cause
1. Requiring standardized criteria prevents
“[t]he ‘grave danger’ of abuse of discretion” by police.
Delaware v. Prouse, 440 U.S. 648, 662 (1979)
(quoting United States v. Martinez-Fuerte, 428 U.S.
543, 559 (1976)). In Prouse, an officer conducted a
“random spot check” of a driver’s documents. 440
U.S. at 659. The Court held that “[t]his kind of
standardless and unconstrained discretion is the evil
the Court has discerned when in previous cases it
has insisted that the discretion of the official in the
field be circumscribed.” Id. at 661. Whenever police
can indiscriminately choose which vehicles to seize
and search, the risk that there will be abuses of that
discretion runs high.
This Court has repeatedly reaffirmed the basic
principle that the community caretaking function
“must not be a ruse for a general rummaging in
order to discover incriminating evidence.” Florida v.
 23

Wells, 495 U.S. 1, 4 (1990). In South Dakota v.

Opperman, for example, adherence to standardized
criteria was required for police to search a vehicle’s
glove compartment during an inventory search. 428
U.S. 364, 374–76 (1976). In Illinois v. Lafayette, this
Court permitted a stationhouse search of an
arrestee’s bag where it was conducted according to
“[a] standardized procedure for making a list or
inventory.” 462 U.S. 640, 646 (1983). And in Wells,
this Court suppressed evidence found during an
inventory search conducted in the absence of
standardized criteria governing whether police would
open closed containers. 495 U.S. at 4–5. Without
such standardized criteria, the Court explained,
police have “so much latitude that inventory
searches are turned into ‘a purposeful and general
means of discovering evidence of crime.’” Id. at 4
(quoting Colorado v. Bertine, 479 U.S. 367, 376
(1987) (Blackmun, J., concurring)).
The same concern arises with vehicle seizures,
which often precede inventory searches. Accordingly,
Bertine correctly recognized that “[n]othing in
Opperman or Lafayette prohibits the exercise of
police discretion so long as that discretion is exercised
according to standard criteria and on the basis of
something other than suspicion of evidence of
criminal activity.” 479 U.S. at 375 (emphasis
added).5

5 Scholars too have recognized the importance of standardized

policies in the Fourth Amendment context. Such policies
“restrict severely the opportunities for undetected (and perhaps
 24

2. According to the decision below, however,

“[t]he absence of a standard criteria requirement
does not * * * imbue law enforcement officers with
‘uncontrolled’ discretion to impound vehicles at will
as a pretext for conducting investigatory inventory
searches.” App., infra, 18a. Instead, the court con-
cluded that officer discretion was cabined because
officers must “have ‘an objectively reasonable basis
for performing a community caretaker function.’” Id.
at 19a (quoting State v. Kramer, 759 N.W.2d 598,
608 (Wis. 2009)). Such an objectively reasonable
basis could be met so long as the “decision to
impound [is] based * * * not exclusively on the
suspicion of criminal activity.” App., infra, 18a
(quoting United States v. Coccia, 446 F.3d at 233,
239 (1st Cir. 2006)) (internal quotations omitted)
(emphasis added).
Not so. To the contrary, the decision below
illustrates how granting officers unfettered
discretion to seize a vehicle after arresting its driver
presents an effectively limitless exception to the
warrant requirement.

undetectable) subterfuge” ab initio. Wayne R. LaFave,

Controlling Discretion by Administrative Regulations: The Use,
Misuse, and Nonuse of Police Rules and Policies in Fourth
Amendment Adjudication, 89 Mich. L. Rev. 442, 460 (1990); see
also John Rappaport, Second-Order Regulation of Law
Enforcement, 103 Cal. L. Rev. 205, 238–40 (2015) (providing
evidence that preventive regulation, rather than ex post judicial
sanctions, are more effective in remedying systemic abuses by
law enforcement).
 25

Both police departments on the scene of

petitioner’s arrest had policies that did not
circumscribe officer discretion to seize any
unattended vehicle upon the arrest of its operator.
Here, petitioner was arrested on a probation
violation, but was also the suspect in an armed
robbery. App., infra, 2a. His car was seized on
private property, without officers asking him to
arrange for its removal or inquiring into whether the
facility owner wanted it moved. Id. at 2a–3a. That
exercise of discretion was not guided by any
standardized criteria, raising the distinct likelihood
that it was ultimately exercised to further the
robbery investigation. Id. at 38a–39a. Indeed, a
primary justification the majority below offered in
support of the seizure was that not seizing the car
could cause “inconvenience” to other users of the
storage facility. Id. at 11a. Protecting potential
customers of a private business from having to avoid
a stationary object is a far cry from the legitimate
moorings of the community caretaking exception.6

III. The Question Presented Is Recurring And

Important, And This Case Presents An
Ideal Vehicle For Review
Warrantless vehicle seizures occur frequently,
and most frequently after an arrest. The absence of
meaningful standards guiding officers’ discretion in

6 And what is more, in at least one of these jurisdictions, the

towing of abandoned vehicles on private property is explicitly
not within the responsibility of officers. App., infra, 82a.
 26

such a common occurrence presents a recurring

harm to important Fourth Amendment principles
recognized in cases like Cady, Bertine, and Gant.
Additionally, vehicle seizures impose real-world con-
sequences on arrestees––regardless of whether a re-
sulting search yields evidence of criminal activity.
There is no reason to wait to resolve this important
issue; indeed, this case presents an ideal vehicle by
which to do so.

A. The Question Presented Arises

Frequently
It is beyond serious dispute that the question
presented here affects police interactions with
motorists on a daily basis. By way of example, in at
least two major metropolitan areas, police depart-
ments seize more than 16,000 vehicles per year. See
Tami Abdollah, LA Cops Don’t Have to Impound
Unlicensed Drivers’ Cars, Judge Rules, NBC Los
Angeles, Dec. 27, 2014, https://tinyurl.com/ y7rzd8kz;
Mark Fazlollah & Dylan Purcell, Too Many Times,
Dangerous Drivers Stay On the Street Until They
Hurt Someone, The Philadelphia Inquirer, Dec. 14,
2014, https://tinyurl.com/yaskd4t7. Those seizures
most often occur when the driver is arrested. See 3
Wayne R. LaFave, Search & Seizure: A Treatise on
the Fourth Amendment § 7.3(c) (5th ed. 2016).
Unsurprisingly, the near-constant occurrence of
vehicle seizures pursuant to arrest has resulted in
scores and scores of lower court decisions on this
issue. The breadth and depth of the split described
above (supra, pp. 10–17) makes that fact plain.
But the split likely understates how often lower
courts confront this question. Comprehensive data
 27

are not available, but a snapshot of just one

jurisdiction confirms that courts routinely wrestle
with the community caretaking exception: In the
past five years alone, district courts in the Eighth
Circuit have examined the assertion of community
caretaking rationales for warrantless vehicle
seizures at least twenty-six times. App., infra, 98a–
100a (listing cases). Police adherence to standardized
criteria was squarely at issue in some, but not all, of
those cases. In all events, though, conclusively
resolving the question presented will undoubtedly
guide the daily activities of law enforcement
personnel and protect the rights of the drivers with
whom they interact. Clear rules will beget certainty
for police and reduce the corresponding burdens on
the lower courts.

B. The Question Presented Is Important

In addition to the sheer frequency with which

the question presented arises, it is tremendously
important in at least two other respects. First, as
explained above (supra pp. 18–25), the decision
below does significant doctrinal damage to this
Court’s settled Fourth Amendment jurisprudence.
Cady, Bertine, and Gant are all but disregarded by
the vast expansion of the community caretaking
doctrine endorsed below. It bears repeating,
moreover, that community caretaking functions are a
necessary but limited exception to the Fourth
Amendment’s warrant and probable cause bulwarks.
The decision below—by authorizing the warrantless
seizure on the ground that a parked car posed an
“inconvenience” to a private storage facility—
illustrates the perils of failing to provide meaningful
 28

guidance for officers’ invocation of that exception.

This Court has repeatedly cautioned that the
community caretaker exception must not be a license
to further investigatory purposes, unconstrained by
the safeguards of the Fourth Amendment. The
decision below grants this license.
Second, the question presented reaches beyond
concerns that manifest during suppression hearings.
Warrantless vehicle impoundment imposes burdens
and costs on citizens even when the resulting
inventory search reveals no incriminating evidence.
Petitioner, for example, incurred a $125 towing fee
and a $25 per day storage fee because officers elected
to seize and impound his car. For many, such
unanticipated costs of a police encounter can touch
off a series of cascading effects. Those who cannot
afford steep impound fees may have to “choose
between essentials and paying fees that would
continue to accumulate and leave them without
another essential, transportation.” David Sheff, If
You Want To See Inequality In The US At Its Worst,
Visit An Impound Lot, Time, Aug. 26, 2014,
http://tinyurl.com/oadm3zg. Loss of transportation
often leads to loss of employment. See Alan M.
Voorhees, et al., Motor Vehicles Affordability and
Fairness Task Force: Final Report, at xii (2006),
available at https://tinyurl.com/yas2wjxc (concluding
that 42% of New Jersey residents surveyed who lost
access to personal transportation as a result of a
suspended license suffered unemployment).
Condoning warrantless vehicle seizures without
standardized criteria imposes significant real-world
consequences.
 29

C. This Case Presents An Ideal Vehicle

For Deciding This Question
This case presents an ideal vehicle for resolving
the deep and acknowledged split presented here. For
starters, the issue was squarely presented below and
extensively addressed by both the majority and
dissenting opinions. App., infra, 2a. Resolution of the
issue is also dispositive of petitioner’s suppression
motion; the Supreme Court of Wisconsin did not
embrace a lower court’s view that the issue could be
avoided, and the two dissenting justices would have
required standardized criteria and reversed on that
ground. See id. at 41a.
Moreover, there is a full and well-developed
record on the nature of petitioner’s interaction with
police, including images of the location and condition
of the vehicle at the time it was seized. App., infra,
81a. There is no suggestion—nor could there be—
that the vehicle posed any imminent threat to public
safety or obstructed a public thoroughfare. And the
parties agree that police made no effort to find an
alternative to seizure, such as contacting the storage
facility owner or asking petitioner to have someone
retrieve the vehicle. Id. at 28a.
Finally, the law enforcement policies that
authorized the seizure of petitioner’s vehicle
unabashedly grant unfettered discretion to officers.
In both of the relevant jurisdictions, any unattended
vehicle may be seized—or not seized—after the
arrest of its driver. App., infra, 4a–5a. No guidance
whatsoever is given as to when such a seizure is
appropriate. As such, this case provides an excellent
vehicle for deciding whether police discretion to seize
 30

arrestees’ vehicles without a warrant or probable

cause must be meaningfully constrained.

CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.

ANDREW R. HINKEL MARK T. STANCIL

OFFICE OF THE STATE Counsel of Record
PUBLIC DEFENDER MATTHEW M. MADDEN
Post Office Box 7862 ROBBINS, RUSSELL, ENGLERT,
Madison, WI 53707 ORSECK, UNTEREINER &
(608) 267-1779 SAUBER LLP
1801 K Street, NW
JOHN P. ELWOOD
Washington, D.C. 20006
JEREMY C. MARWELL
(202) 775-4500
VINSON & ELKINS LLP
[email protected]
2200 Pennsylvania Ave.,
NW, Suite 500 West DANIEL R. ORTIZ
Washington, DC 20037 UNIVERSITY OF VIRGINIA
(202) 639-6500 SCHOOL OF LAW SUPREME
COURT LITIGATION CLINIC
580 Massie Road
Charlottesville, VA 22903

November 2017
APPENDIX
 1a
APPENDIX A
SUPREME COURT OF WISCONSIN
NO.: 2015AP2052-CR
STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,
Plaintiff-Respondent,
v.
Kenneth M. Asboth, Jr.,
Defendant-Appellant-Petitioner.
FILED JULY 6, 2017
Diane M. Fremgen, Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals.

Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. Wisconsin
courts have long applied a community caretaker
exception to the warrant requirement under the
Fourth Amendment to the United States
Constitution. In this case, Kenneth M. Asboth, Jr.,
asks us to decide whether law enforcement officers’
warrantless seizure of his car was a reasonable
exercise of a bona fide community caretaker function.
He also asks us to determine whether Colorado v.
Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739
(1987), requires officers to follow “standard criteria”
when conducting a community caretaker impound-
ment. We hold that Bertine does not mandate
adherence to standard criteria, and because we
 2a
further conclude that officers reasonably effected a
community caretaker impoundment of Asboth’s car,
we affirm the decision of the court of appeals.
I. BACKGROUND
¶2 Asboth was a wanted man in November
2012. He was a suspect in the armed robbery of a
Beaver Dam bank, and there was an outstanding
probation warrant for his arrest. When police
received a tip that he was at a storage facility in
Dodge County, outside the City of Beaver Dam, both
the Dodge County Sheriff’s Department and Beaver
Dam Police responded by sending officers to the
storage facility to apprehend him.
¶3 The sheriff ’s deputy arrived first and saw a
person matching Asboth’s description reaching into
the back seat of a car parked between two storage
sheds. Drawing his weapon, the deputy ordered the
person to come out of the vehicle with his hands up.
Asboth, complying with the command, confirmed his
identity after the deputy arrested him. Officers from
Beaver Dam soon arrived at the storage facility, and
Asboth was placed in the back seat of a squad car
until they could transport him for questioning.
¶4 After Asboth’s arrest, his car remained
parked at the storage facility. None of the arresting
officers asked Asboth if he could arrange to have the
car moved. Although the car sat in the middle of the
alley between two storage sheds, space remained
available for a vehicle to maneuver around it and
drive through the alley. The car, however, entirely
blocked access to one storage unit, and it impeded
access to several others. When the officer ran a check
 3a
of the car’s registration, it identified the car’s owner
as not Asboth but a different person with a City of
Madison address.1 Rather than abandoning the car
on private property, or contacting the storage
facility’s owner about it, the officers chose to impound
the car.
¶5 Both the Beaver Dam Police Department and
the Dodge County Sheriff’s Department had policies
for officers to follow when deciding whether to
impound a vehicle. The Beaver Dam policy provided:
Any officer having a vehicle in lawful custody
may impound said vehicle. The officer will have
the option not to impound said vehicle when
there is a reasonable alternative; however, the
existence of an alternative does not preclude the
officer’s authority to impound.
The Dodge County policy provided more specific
guidance:
Deputies of the Dodge County Sheriff’s
Department are authorized to arrange for towing
of motor vehicles under the following
circumstances:
When any vehicle has been left unattended
upon a street or highway and is parked illegally

1 Subsequent investigation revealed that the registered owner

sold the car to Asboth, but neither Asboth nor the former owner
notified the Department of Transportation of the transfer.
Because of this omission, the officers did not know at the time of
the arrest that Asboth actually owned the car.
 4a
in such a way as to constitute a definite hazard
or obstruction to the normal movement of traffic;
....
When the driver of a vehicle has been taken
into custody by a deputy, and the vehicle would
thereby be left unattended;
....
When removal is necessary in the interest of
public safety because of fire, flood, storm, snow
or other emergency reasons;
....
Unless otherwise indicated, the deputy always
has the discretion to leave the vehicle at the
scene and advise the owner to make proper
arrangements for removal.
¶6 Because the impound lot at the Dodge County
Sheriff’s Department was full, the officers and
deputies agreed to tow the car to the Beaver Dam
police station. Consistent with police department
procedures, officers conducted an inventory search of
the seized vehicle at the police station. The search
turned up several items that the department held for
safekeeping: a video game system, a cell phone, an
MP3 player, keys, and an orange water bottle
containing green leafy material. In the spare tire
compartment beneath a false floor in the trunk,
officers also found a pellet gun, which resembled the
handgun used in the Beaver Dam robbery.
 5a
¶7 The State charged Asboth with armed
robbery,2 and he filed a motion to suppress all
evidence obtained from the seizure and search of the
car. Asboth’s motion initially challenged the
constitutionality of the inventory search itself. After
hearing testimony from four police officers and
sheriff’s deputies involved with Asboth’s arrest and
with the seizure and search of his car, the Dodge
County Circuit Court3 denied Asboth’s motion. In its
order denying the motion, the circuit court made
findings relevant to the impoundment: “[t]he vehicle
could not be left where it was and needed to be
impounded”; “[t]he officers involved believed that the
vehicle belonged to someone other than [Asboth]”;
and “[i]t is undisputed that Beaver Dam police
conducted the inventory search according to
established procedures.”
¶8 Asboth filed a motion for reconsideration.
Relying on State v. Clark, 2003 WI App 121, 265 Wis.
2d 557, 666 N.W.2d 112, Asboth argued that the
officers unconstitutionally seized the car from the
storage facility. Following a hearing at which Asboth
supplemented the record with testimony by more
officers, the circuit court denied the motion and made
additional findings:
(1) Both the Dodge County Sheriff’s
Department and the Beaver Dam Police

2 See Wis. Stat. § 943.32(1)(b) and (2), § 939.50(3)(c), and

§ 939.62(1)(c) (2015-16).
3 The Honorable John R. Storck, presiding.
 6a
Department’s written policies favor[ed]
impoundment . . . .
(2) The vehicle was parked on another
individual’s property, not legally parked on a
public street.
(3) The vehicle was blocking access to more
than one of the business’s storage lockers and
impeding travel by other customers through the
complex.
(4) There were valuable items in the vehicle
including electronics.
(5) Defendant was arrested while in possession
of the vehicle, and was actually observed
reaching into the vehicle.
Asboth pled no contest, and the circuit court imposed
sentence of 10 years initial confinement followed by
10 years extended supervision.
¶9 In the court of appeals, Asboth challenged the
circuit court’s denial of his suppression motion, but
he limited his argument to the constitutionality of the
seizure of the car. State v. Asboth, 2016 WI App 80,
372 Wis. 2d 185, 888 N.W.2d 23, 2016 Wisc. App.
LEXIS 641 at *1 (Wis. Ct. App. Sept. 29, 2016).
Specifically, Asboth argued that the warrantless
seizure was unconstitutional because it was not
conducted pursuant to sufficiently detailed
standardized criteria or justified by a bona fide
community caretaker purpose. Id. Assuming without
deciding that Bertine requires law enforcement
officers to follow standardized criteria when seizing a
vehicle, the court of appeals concluded that the Dodge
 7a
County Sheriff’s Department’s policy applied and
authorized the seizure. 2016 Wisc. App. LEXIS 641 at
*7, *15. Turning to Asboth’s community caretaker
argument, the court of appeals first rebuffed Asboth’s
contention that an investigatory purpose negated the
bona fide community caretaker justification for the
seizure, then concluded that the public need to move
the car outweighed Asboth’s privacy interests. 2016
Wisc. App. LEXIS 641 at *16, *25. Accordingly, the
court of appeals affirmed the circuit court’s denial of
the motion to suppress. 2016 Wisc. App. LEXIS 641
at *29. Asboth petitioned this court for review, again
limiting his argument to the constitutionality of the
seizure, and we granted his petition.
II. STANDARD OF REVIEW
¶10 We review an order granting or denying a
motion to suppress evidence as a question of
constitutional fact, which requires a two-step
analysis. State v. Matalonis, 2016 WI 7, ¶28, 366 Wis.
2d 443, 875 N.W.2d 567, cert. denied, 137 S. Ct. 296,
196 L. Ed. 2d 215. “First, we review the circuit court’s
findings of historical fact under a deferential
standard, upholding them unless they are clearly
erroneous. Second, we independently apply
constitutional principles to those facts.” Id. (quoting
State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302,
786 N.W.2d 463).
III. DISCUSSION
¶11 The Fourth Amendment to the United
States Constitution provides that “[t]he right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and
 8a
seizures, shall not be violated” and that “no Warrants
shall issue, but upon probable cause.” Article I, § 11
of the Wisconsin Constitution likewise provides that
“[t]he right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated” and that
“no warrant shall issue but upon probable cause.”
Because the Fourth Amendment and Article I, § 11
provide substantively identical protections, we have
historically interpreted this section of the Wisconsin
Constitution in accordance with United States
Supreme Court interpretations of the Fourth
Amendment. State v. Dumstrey, 2016 WI 3, ¶14, 366
Wis. 2d 64, 873 N.W.2d 502 (citing State v. Arias,
2008 WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748).
¶12 “A seizure conducted without a valid
warrant is presumptively unreasonable.” State v.
Brereton, 2013 WI 17, ¶24, 345 Wis. 2d 563, 826
N.W.2d 369 (citing United States v. Ross, 456 U.S.
798, 824-25, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)).
“[B]ecause the ultimate touchstone of the Fourth
Amendment is ‘reasonableness,’ however, “the
warrant requirement is subject to certain exceptions.”
Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct.
1943, 164 L. Ed. 2d 650 (2006). This court has
recognized one such exception where a law
enforcement officer is “serving as a community
caretaker to protect persons and property.” State v.
Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346, 785
N.W.2d 592.
¶13 Specifically, law enforcement officers may
conduct a warrantless seizure without violating the
Fourth Amendment when performing community
 9a
caretaker functions—those actions “totally divorced
from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal
statute.” State v. Kramer, 2009 WI 14, ¶¶19-20, 315
Wis. 2d 414, 759 N.W.2d 598 (quoting Cady v.
Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L.
Ed. 2d 706 (1973)). When evaluating a claimed
community caretaker justification for a warrantless
search or seizure, Wisconsin courts apply a three-step
test, which asks
(1) whether a search or seizure within the
meaning of the Fourth Amendment has occurred;
(2) if so, whether the police were exercising a
bona fide community caretaker function; and (3)
if so, whether the public interest outweighs the
intrusion upon the privacy of the individual such
that the community caretaker function was
reasonably exercised . . . .
Matalonis, 366 Wis. 2d 443, 496 (quoting Pinkard,
327 Wis. 2d 346, 364).
¶14 There is no dispute that a seizure of Asboth’s
car occurred within the meaning of the Fourth
Amendment, so this case turns on the second and
third steps of Wisconsin’s community caretaker test.
Asboth contends that the seizure satisfied neither the
second nor the third steps because an overriding
investigatory purpose negated the officers’ bona fide
community caretaker justification for moving the car,
and the public interest in seizing his car did not
outweigh his privacy interest in leaving it at the
storage facility. Further, he insists that the seizure
was not reasonable because it was not governed by
standardized criteria sufficient to satisfy Bertine. We
 10a
therefore consider in turn the second and third steps
of the community caretaker test.
A. Bona Fide Community Caretaker Function
¶15 The community caretaker exception to the
warrant requirement accounts for the multifaceted
nature of police work. Kramer, 315 Wis. 2d 414, 434.
As this court has observed, “Police officers wear many
hats: criminal investigator, first aid provider, social
worker, crisis intervener, family counselor, youth
mentor and peacemaker, to name a few. . . . They are
society’s problem solvers when no other solution is
apparent or available.” Matalonis, 366 Wis. 2d 443,
464 (quoting Ortiz v. State, 24 So. 3d 596, 607 n.5
(Fla. Dist. Ct. App. 2009) (Torpy, J., concurring and
concurring specially)). Although a court assessing
whether an officer acted for a bona fide community
caretaker purpose “may consider [the] officer’s
subjective intent,” this step of the test ultimately
turns on whether the officer can “articulate[] an
objectively reasonable basis” for exercising a
community caretaker function. Pinkard, 327 Wis. 2d
346, 366 (quoting Kramer, 315 Wis. 2d 414, 436).
¶16 In South Dakota v. Opperman, 428 U.S.
364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), the
United States Supreme Court noted that
“automobiles are frequently taken into police
custody” by officers engaged in community caretaker
functions. at 368. The Court cited two non-exclusive
examples of situations where police officers often take
custody of vehicles: “[v]ehicle accidents,” after which
officers take custody of vehicles “[t]o permit the
uninterrupted flow of traffic and in some
circumstances to preserve evidence,” and vehicles
 11a
that “violate parking ordinances,” “thereby
jeopardiz[ing] both the public safety and the efficient
movement of vehicular traffic.” Id. at 368-69. In
short, “[t]he authority of police to seize and remove
from the streets vehicles impeding traffic or
threatening public safety and convenience is beyond
challenge” in the community caretaker context. Id. at
369.
¶17 Citing Opperman’s subsequent analysis of
the constitutionality of an inventory search, the
primary issue in that case, Asboth asserts that the
officers’ interest in investigating him as a potential
suspect in the bank robbery predominated over any
bona fide community caretaker function they
performed by moving the car. Furthermore, focusing
on Opperman’s examples—impoundment following an
accident and impoundment following a parking
ordinance violation—Asboth argues that the officers
here did not have an objectively reasonable basis to
tow his car from the storage facility to the police
station.
¶18 For multiple reasons, we conclude that the
officers possessed a bona fide community caretaker
justification for impounding Asboth’s car. First, if left
unattended, the car would have inconvenienced a
private property owner and customers at the storage
facility by impeding the beneficial use of the property.
Cf. United States v. Brown, 787 F.2d 929, 932-33 (4th
Cir. 1986) (concluding that officers “could reasonably
have impounded” arrestee’s vehicle “because the car
could have constituted a nuisance in the area in
which it was parked”). Asboth’s car obstructed the
alley between the storage sheds, making it difficult
 12a
for larger vehicles to pass through. The car wholly or
partially blocked several storage units, limiting
access for customers seeking to access their stored
belongings. Because the car was on a third-party’s
private property, any expense for removing the
obstruction would have fallen to a private property
owner uninvolved in the arrest. By removing the car,
the officers immediately remedied a potential
disruption created by Asboth’s arrest at the private
storage facility, thus limiting the inconvenience to
the property owner and customers.
¶19 Second, because Asboth was a suspect in a
crime who also allegedly violated the terms of his
probation, he likely faced a lengthy detention, and
the possibility of a concomitant lengthy abandonment
of the car counseled in favor of its removal from the
premises. See United States v. Coccia, 446 F.3d 233,
240 (1st Cir. 2006) (noting that “officers properly
made arrangements for the safekeeping of the
[arrestee’s] vehicle” when they anticipated that he
“would be indisposed for an indeterminate, and
potentially lengthy, period”). Impounding rather than
abandoning Asboth’s car protected the vehicle and its
contents from potential theft or vandalism in his
absence. See United States v. Kornegay, 885 F.2d 713,
716 (10th Cir. 1989) (citing potential “vandalism or
theft” as one factor supporting impoundment).
Indeed, the impoundment’s protective function
undermines Asboth’s argument that the officers could
have towed the car somewhere other than the police
station; his car likely would have faced greater risk of
vandalism or theft if abandoned in a public place
rather than on private property. Although the later-
 13a
discovered valuables were not in plain view at the
time the officers towed the vehicle for impoundment,
Asboth no doubt would have been upset to learn that
his personal property was stolen from the car—
regardless of whether officers decided to abandon it
at the storage facility or in some other public place.
¶20 Finally, the registered owner of the car at
the time of Asboth’s arrest was someone other than
Asboth. With no one else immediately present
claiming ownership or otherwise available to take
possession of the vehicle, the possibility existed that
officers would need to make arrangements to reunite
the car with its registered owner. Moreover, the
protective function of impoundment described above
carries no less force (and perhaps more) for an absent
registered owner than it would if officers knew that
Asboth owned the car.
¶21 Collectively, the functions of removing an
obstruction inconveniencing the property’s users and
protecting an arrestee’s property during his
detention, combined with uncertainty regarding the
true ownership of the vehicle, establish that the
officers had a bona fide community caretaker purpose
when impounding Asboth’s car. Because we identify
these objective justifications for the impoundment,
our cases make clear that, even if the officers had an
additional investigatory interest in conducting a
subsequent inventory search, the officers’ subjective
interests do not render the warrantless seizure of the
car unconstitutional. See Kramer, 315 Wis. 2d 414,
434 (“[T]he officer may have law enforcement
concerns, even when the officer has an objectively
reasonable basis for performing a community
 14a
caretaker function.”). Consequently, we now proceed
to the third step of the community caretaker test and
assess the reasonableness of the seizure of Asboth’s
car.
B. Reasonableness of the Seizure
1. Standard Criteria
¶22 Before we consider the public interest in the
impoundment along with Asboth’s competing privacy
interest, we first address Asboth’s argument that the
seizure of his car was unreasonable because it was
not impounded according to standard criteria. In
particular, he contends that in Bertine the United
States Supreme Court established that an
impoundment will be constitutionally valid only if
governed by “standard criteria” set forth in law
enforcement procedures. See Bertine, 479 U.S. at 375.
¶23 Asboth’s argument turns on language at the
end of the Bertine opinion. Although Bertine
generally focused on the constitutionality of an
inventory search of Bertine’s van, the Court
concluded by addressing Bertine’s argument that “the
inventory search of his van was unconstitutional
because departmental regulations gave the police
officers discretion to choose between impounding his
van and parking and locking it in a public parking
place.” 479 U.S. at 375. Rejecting Bertine’s argument,
the Supreme Court explained: “Nothing in Opperman
or [Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605,
77 L. Ed. 2d 65 (1983),] prohibits the exercise of
police discretion so long as that discretion is exercised
according to standard criteria and on the basis of
 15a
something other than suspicion of evidence of
criminal activity.” Id. (emphasis added).
¶24 A split exists among the federal courts of
appeals regarding Bertine’s impact on impoundments
by officers performing community caretaker
functions. Several circuits agree with Asboth, to
varying degrees, that law enforcement officers may
constitutionally perform a warrantless community
caretaker impoundment only if standard criteria
minimize the exercise of their discretion. See United
States v. Sanders, 796 F.3d 1241, 1248 (10th Cir.
2015) (“[I]mpoundment of a vehicle located on private
property that is neither obstructing traffic nor
creating an imminent threat to public safety is
constitutional only if justified by both a standardized
policy and a reasonable, non-pretextual community-
caretaking rationale.”); Miranda v. City of Cornelius,
429 F.3d 858, 866 (9th Cir. 2005) (“The decision to
impound must be guided by conditions which
‘circumscribe the discretion of individual officers’ in a
way that furthers the caretaking purpose.” (quoting
Bertine, 479 U.S. at 376 n.7)); United States v. Petty,
367 F.3d 1009, 1012 (8th Cir. 2004) (“Some degree of
‘standardized criteria’ or ‘established routine’ must
regulate these police actions . . . .”); United States v.
Duguay, 93 F.3d 346, 351 (7th Cir. 1996) (“Among
those criteria which must be standardized are the
circumstances in which a car may be impounded.”).4

4 See also People v. Torres, 116 Cal. Rptr. 3d 48, 56 (Ct. App.

2010); Patty v. State, 768 So. 2d 1126, 1127 (Fla. Dist. Ct. App.
2000); State v. Weaver, 900 P.2d 196, 199 (Idaho 1995); People v.
Ferris, 9 N.E.3d 1126, 1137 (Ill. App. Ct. 2014); Fair v. State,
627 N.E.2d 427, 433 (Ind. 1993); State v. Huisman, 544 N.W.2d
 16a
Similarly, the District of Columbia Circuit has held
that, “if a standard impoundment procedure exists, a
police officer’s failure to adhere thereto is
unreasonable and violates the Fourth Amendment.”
United States v. Proctor, 489 F.3d 1348, 1349, 376
U.S. App. D.C. 512 (D.C. Cir. 2007).
¶25 In contrast, three federal circuits do not
afford dispositive weight to the existence of
standardized criteria or to law enforcement officers’
adherence thereto, instead treating such criteria as,
at most, one factor to consider when assessing the
Fourth Amendment reasonableness of a warrantless
community caretaker impoundment.5 of the note The
Fifth Circuit flatly rejects any need to consider
standardized criteria as part of a reasonableness
analysis. See United States v. McKinnon, 681 F.3d
203, 208 (5th Cir. 2012) (“Since Opperman and
Bertine, we have focused our inquiry on the
reasonableness of the vehicle impoundment for a
community caretaking purpose without reference to
any standardized criteria.”). The Third Circuit has

433, 437 (Iowa 1996); State v. Fox, 2017 ME 52, ¶¶23-26, 157
A.3d 778; Commonwealth v. Oliveira, 47 N.E.3d 395, 398 (Mass.
2016); People v. Toohey, 475 N.W.2d 16, 22-23 (Mich. 1991);
State v. Robb, 605 N.W.2d 96, 104 (Minn. 2000); State v.
Milliorn, 794 S.W.2d 181, 186 (Mo. 1990) (en banc); People v.
O'Connell, 591 N.Y.S.2d 641, 642 (App. Div. 1992); State v.
O'Neill, 2015-Ohio-815, ¶39, 29 N.E.3d 365 (Ct. App., 3d Dist.);
McGaughey v. State, 2001 OK CR 33, ¶44, 37 P.3d 130.
5 See also People v. Shafrir, 107 Cal. Rptr. 3d 721, 721-28 (Ct.

App. 2010); Cannon v. State, 601 So. 2d 1112, 1115-16 (Ala.

Crim. App. 1992).
 17a
expressly recognized that a law enforcement officer’s
“decision to impound a vehicle contrary to
standardized procedures or even in the absence of a
standardized procedure should not be a per se
violation of the Fourth Amendment.” United States v.
Smith, 522 F.3d 305, 312 (3d Cir. 2008).
¶26 Most persuasively, the First Circuit
explained in United States v. Coccia, 446 F.3d 233
(1st Cir. 2006), its reasons for “read[ing] Bertine to
indicate that an impoundment decision made
pursuant to standardized procedures will most likely,
although not necessarily always, satisfy the Fourth
Amendment.” Id. at 238. After noting the established
principle that “impoundments of vehicles for
community caretaking purposes are consonant with
the Fourth Amendment so long as the impoundment
decision was reasonable under the circumstances,”
the court added that Fourth Amendment
“reasonableness analysis does not hinge solely on any
particular factor.” Id. at 239. Like any other factor,
standard criteria do not provide “the sine qua non of
a reasonable impound decision”:
Virtually by definition, the need for police to
function as community caretakers arises
fortuitously, when unexpected circumstances
present some transient hazard which must be
dealt with on the spot. The police cannot sensibly
be expected to have developed, in advance,
standard protocols running the entire gamut of
possible eventualities. Rather, they must be free
to follow “sound police procedure,” that is to
choose freely among the available options, so
long as the option chosen is within the universe
 18a
of reasonable choices. Where . . . the police have
solid, non-investigatory reasons for impounding
a car, there is no need for them to show that they
followed explicit criteria in deciding to impound,
as long as the decision was reasonable.
Id. (quoting United States v. Rodriguez-Morales, 929
F.2d 780, 787 (1st Cir. 1991)). The First Circuit then
proceeded to assess the reasonableness of the
challenged impoundment. Id. at 239-41.
¶27 We agree with the First, Third, and Fifth
Circuits that in cases involving warrantless
community caretaker impoundments the
fundamental question is the reasonableness of the
seizure. Accordingly, we hold that the absence of
standard criteria does not by default render a
warrantless community caretaker impoundment
unconstitutional under the Fourth Amendment
reasonableness standard. Nor does law enforcement
officers’ lack of adherence to standard criteria, if they
exist, automatically render such impoundments
unconstitutional.
¶28 The absence of a standard criteria
requirement does not, as Asboth suggests, imbue law
enforcement officers with “uncontrolled” discretion to
impound vehicles at will as a pretext for conducting
investigatory inventory searches. As the First Circuit
observed in Coccia, under the reasonableness
standard, “a police officer’s discretion to impound a
car is sufficiently cabined by the requirement that
the decision to impound be based, at least in part, on
a reasonable community caretaking concern and not
exclusively on ‘the suspicion of criminal activity.’
Coccia, 446 F.3d at 239 (quoting Bertine, 479 U.S. at
 19a
375). The second step of Wisconsin’s community
caretaker test requires law enforcement officers to
establish that the warrantless impoundment occurred
pursuant to a bona fide community caretaker
purpose. Far from leaving officers with unlimited
discretion to impound, Wisconsin’s test authorizes
law enforcement officers to conduct such warrantless
seizures only if they have “an objectively reasonable
basis for performing a community caretaker
function.” Kramer, 315 Wis. 2d 414, 434.
¶29 Finally, our conclusion that Bertine does not
mandate adoption of or adherence to standard
impoundment criteria for all circumstances should
not discourage law enforcement agencies from
developing general impoundment procedures.
“[A]doption of a standardized impoundment
procedure . . . supplies a methodology by which
reasonableness can be judged and tends to ensure
that the police will not make arbitrary decisions in
determining which vehicles to impound.” Smith, 522
F.3d at 312. Indeed, adherence to sufficiently detailed
standard criteria can enhance the reasonableness of
an impoundment by limiting the exercise of discretion
and encouraging compliant officers to identify and
pursue the least-intrusive means of performing the
community caretaker function. See United States v.
Sharpe, 470 U.S. 675, 687, 105 S. Ct. 1568, 84 L. Ed.
2d 605 (1985) (noting that courts assessing law
enforcement officers’ actions must ask “not simply
whether some other alternative was available, but
whether the police acted unreasonably in failing to
recognize or to pursue it”). As we discuss further
below, a Wisconsin court may consider the existence
 20a
of, and officers’ adherence to, standard criteria as a
relevant factor when assessing the reasonableness of
a community caretaker seizure.6
2. Reasonableness Inquiry
¶30 Under the third step of Wisconsin’s
community caretaker test, we evaluate the
reasonableness of the law enforcement officer’s
exercise of a bona fide community caretaker function
by “balancing [the] public interest or need that is
furthered by the officer’s conduct against the degree
of and nature of the restriction upon the liberty
interest of the citizen.” Kramer, 315 Wis. 2d 414, 438.
We generally consider four factors:
(1) the degree of the public interest and the
exigency of the situation; (2) the attendant
circumstances surrounding the seizure, including
time, location, the degree of overt authority and
force displayed; (3) whether an automobile is
involved; and (4) the availability, feasibility and
effectiveness of alternatives to the type of
intrusion actually accomplished.
Id., ¶41 (quoting State v. Kelsey C.R., 2001 WI 54,
¶36, 243 Wis. 2d 422, 626 N.W.2d 777).

6 Although in this case we discuss the standard impoundment

criteria while assessing the reasonableness of the seizure,
nothing in this opinion forecloses Wisconsin courts from
considering officers' adherence to standard criteria when
determining whether officers exercised a bona fide community
caretaker function.
 21a
¶31 Taking the third factor first, we note that
evaluation of a car’s impoundment necessarily
involves an automobile. This factor enters the
analysis because “[i]n some situations a citizen has a
lesser expectation of privacy in an automobile.” State
v. Anderson, 142 Wis. 2d 162, 169 n.4, 417 N.W.2d
411 (Ct. App. 1987) (citing New York v. Class, 475
U.S. 106, 112-13, 106 S. Ct. 960, 89 L. Ed. 2d 81
(1986)). Although many of our recent community
caretaker cases have raised questions regarding the
appropriate scope of warrantless searches of homes,
see, e.g., Matalonis, 366 Wis. 2d 443, 448; Pinkard,
327 Wis. 2d 346, 349, this case involved Asboth’s
lesser privacy interest in his car. Therefore, law
enforcement officers impounding a vehicle as
community caretakers need not demonstrate the
same extraordinary public interest necessary to
justify a warrantless community caretaker entry into
the home. See Pinkard, 327 Wis. 2d 346, 376
(observing that, as compared to an automobile, “one
has a heightened privacy interest in preventing
intrusions into one’s home”).
¶32 Turning to the public interest advanced by
the impoundment, we circle back to the effect of
Asboth’s arrest on the storage facility’s owner and
customers: The public has a significant interest in
law enforcement officers seizing from private
property a vehicle that, if left unattended, would
inconvenience the property’s owner and users by
impeding beneficial use of the property and creating a
potential hazard—particularly when the officers are
in lawful custody of the car. See Brown, 787 F.2d 929,
932-33. One of this court’s decisions approving
 22a
limited warrantless home entry by officers
performing a community caretaker function
specifically contemplates the possibility of officers
acting for the similar purpose of abating a nuisance.
See Pinkard, 327 Wis. 2d 346, 358 (quoting with
approval United States v. Rohrig, 98 F.3d 1506, 1522-
23 (6th Cir. 1996), which held that “officers’ ‘failure to
obtain a warrant [did] not render that entry unlawful’
where officers entered defendant’s home to ‘abat[e] an
ongoing nuisance by quelling loud and disruptive
noise’” (alterations in original)). Although we reserve
judgment on such a home-entry question for a future
case, we do not hesitate to recognize that, even in the
absence of the exigencies that often accompany
community caretaker actions, the law enforcement
officers here served a legitimate public interest by
impounding an unattended vehicle that incon-
venienced a private business and its customers and
created a hazard by obstructing vehicle traffic
through the storage facility.
¶33 The circumstances surrounding the im-
poundment also reflect the seizure’s reasonableness.
If abandoned by the officers, the car would have
intruded on private property owned by a third party
who had nothing to do with the arrest. And because
Asboth was already under arrest at the time of the
impoundment, officers did not make an improperly
coercive show of authority to effect the seizure. See
Kramer, 315 Wis. 2d 414, 439. To the contrary, the
seizure actually complied with the terms of both the
Beaver Dam and the Dodge County procedures
 23a
governing impoundments.7 The Beaver Dam policy
permitted officers to impound a vehicle held “in
lawful custody,” and the officers took possession of
the car after lawfully arresting Asboth. Additionally,
the policy permitted officers to decide against
impoundment if a “reasonable alternative” existed,
but there was no sensible alternative available here.
Providing more targeted guidance, the Dodge County
policy authorized deputies to tow a vehicle “[w]hen
the driver of a vehicle has been taken into custody by
a deputy, and the vehicle would thereby be left
unattended.” Again, officers lawfully arrested Asboth,
and it was reasonable under the circumstances to
infer that the person alone with the vehicle at the
storage facility was its driver. The fact that the
seizure did actually comply with the policies of the
acting law enforcement agencies indicates that this
impoundment was not an arbitrary decision but a
reasonable exercise of discretion. See Smith, 522 F.3d
at 312.
¶34 Notably, the fact that both policies actually
cabined the officers’ exercise of discretion also
indicates that the officers acted reasonably when
seizing Asboth’s car. In Clark, the court of appeals
disapproved of a policy permitting officers to tow a
vehicle if “[the] vehicle is to be towed and the
owner/driver is unable to authorize a tow.” 265 Wis.
2d 557, 563. The court of appeals recognized that this
policy was “wholly unhelpful” because it “offer[ed] no
insight into why or when a vehicle may be seized,”

7 Because we conclude that the seizure complied with both

departments' impoundment procedures, we need not decide
which procedures actually governed.
 24a
instead essentially “stat[ing] that ‘a vehicle is to be
towed for safekeeping when a vehicle is to be towed.’
Id., 568. Here, the Beaver Dam and Dodge County
policies avoided such circular reasoning by limiting
impoundment to situations where officers had
custody of, respectively, the vehicle itself or its driver.
Rather than allowing officers to impound a vehicle at
will any time the vehicle’s driver was unavailable, as
the policy in Clark authorized, both policies in this
case permitted impoundment only as a natural
consequence of law enforcement action that would
otherwise result in the vehicle’s abandonment.
¶35 Finally, the lack of realistic alternatives to
impoundment further reinforces the reasonableness
of the seizure. Asboth was alone at the storage
facility, so he did not have a companion who could
immediately take possession of the car. Admittedly,
the officers did not offer Asboth the opportunity to
make arrangements for moving his car after his
arrest, but nothing required them to do so. See
United States v. Arrocha, 713 F.3d 1159, 1164 (8th
Cir. 2013) (“Nothing in the Fourth Amendment
requires a police department to allow an arrested
person to arrange for another person to pick up his
car to avoid impoundment and inventory.” (quoting
United States v. Agofsky, 20 F.3d 866, 873 (8th Cir.
1994), which cited Bertine, 479 U.S. at 372)); see also
Rodriguez-Morales, 929 F.2d at 786. In fact, given the
uncertainty arising from the fact that Asboth was not
the car’s registered owner, taking possession of the
car to investigate its ownership may have been more
 25a
reasonable than outright returning the car to
Asboth.8
¶36 Considering all of these factors together, we
conclude that law enforcement’s removal of an
unattended car that would otherwise create a
potential hazard while also inconveniencing owners
and users of private property9 Asboth’s lesser privacy
interest in that car. Because the officers advanced
that public interest in pursuit of a bona fide
community caretaker function, we hold that the
warrantless seizure of Asboth’s car after his arrest

8 The clear absence of feasible alternatives to impounding

Asboth's car further distinguishes this case from State v. Clark,
2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, in which
the court of appeals also held that the public interest in towing
an unlocked vehicle from the Milwaukee streets did not
outweigh the intrusion into the owner's privacy. Id., ¶27. An
officer investigating shots fired in the area ordered the legally
parked but unlocked vehicle towed "to ensure that the vehicle
itself and any property inside the vehicle would not be stolen."
Id., ¶23. The court of appeals held that the community caretaker
exception did not apply because the officer could have "(1) locked
the vehicle and walked away; [or] (2) attempted to contact the
owners of the vehicle in light of his belief that the vehicle or its
contents may be stolen." Id., ¶27.
9 The array of factors demonstrating the reasonableness of the
officers' decision to impound Asboth's car defeats any argument
that this opinion delineates a per se rule "justify[ing] the seizure
of every vehicle after its driver has been arrested." Dissent, ¶76.
As with any warrantless community caretaker search or seizure,
law enforcement officers acting as bona fide community
caretakers may impound an arrested person's vehicle without a
warrant only if the facts establish a countervailing public
interest in conducting the seizure that outweighs any
infringement on the arrested person's liberty interest.
 26a
was constitutionally reasonable under the Fourth
Amendment.
IV. CONCLUSION
¶37 “The touchstone of the Fourth Amendment
is reasonableness.” State v. Tullberg, 2014 WI 134,
¶29, 359 Wis. 2d 421, 857 N.W.2d 120 (quoting
Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801,
114 L. Ed. 2d 297 (1991)). Applying Wisconsin’s test
for the community caretaker exception to the Fourth
Amendment’s warrant requirement, we conclude that
law enforcement officers acted reasonably when
seizing Asboth’s vehicle for impoundment. Although
we conclude that the officers here complied with both
relevant departmental impoundment policies, we also
hold that Bertine does not mandate such adherence
to satisfy the Fourth Amendment’s reasonableness
standard. Accordingly, we affirm the decision of the
court of appeals.
By the Court.—The decision of the court of
appeals is affirmed.
 27a

¶38 ANN WALSH BRADLEY, J. (dissenting).

The majority bucks the nationwide trend when it
determines that the Fourth Amendment to the
United States Constitution does not require that
police follow standardized procedures during a
community caretaker impoundment. Adopting the
minority rule followed by three federal circuits, it
reasons that standardized procedures are
unnecessary because police discretion is sufficiently
limited by the requirement that impoundments be
based on a reasonable community caretaker concern.
¶39 Compounding its misdirection, the majority
further errs by expanding an already bloated
community caretaker exception to the Fourth
Amendment’s warrant requirement. It appears that
yet again this court’s “expansive conception of
community caretaking transforms [it] from a narrow
exception into a powerful investigatory tool.” State v.
Matalonis, 2016 WI 7, ¶106, 366 Wis. 2d 443, 875
N.W.2d 567 (Prosser, J., dissenting).
¶40 Contrary to the majority, I would follow the
national trend as illustrated by the well-reasoned
approach of the Tenth Circuit in U.S. v. Sanders, 796
F.3d 1241 (2015). It determined that “impoundment
of a vehicle located on private property that is neither
obstructing traffic nor creating an imminent threat to
public safety is constitutional only if justified by both
a standardized policy and a reasonable, non-
pretextual community-caretaking rationale.”
Sanders, 796 F.3d at 1248.
¶41 Applying the Sanders test, I conclude that
the warrantless impoundment of Asboth’s vehicle
 28a
violated his Fourth Amendment rights. His vehicle
neither obstructed traffic nor created an imminent
threat to public safety. Additionally, the standardized
policies here fail to place any meaningful limits on
police discretion and the asserted rationale for the
community caretaker impoundment is unreasonable.
¶42 Accordingly, I respectfully dissent.
I
¶43 The Fourth Amendment to the United
States Constitution provides that “[t]he right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause. . . .” Community
caretaker impoundments are an exception to the
Fourth Amendment’s warrant requirement. State v.
Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346, 785
N.W.2d 592. Given the importance of the privacy
interests involved, this exception should be narrowly
construed. See Arizona v. Gant, 556 U.S. 332, 345
(2009) (instructing that a motorist’s privacy interest
in his vehicle is “important and deserving of
constitutional protection.”).
¶44 In Gant, the United States Supreme Court
expanded motorists’ privacy rights when it narrowed
its prior decision in New York v. Belton, 453 U.S. 454
(1981). Belton had previously been read so broadly as
to authorize a vehicle search incident to every arrest
of any occupant of a vehicle. See Gant, 556 U.S. at
343.
¶45 The Gant court explained that “[c]onstruing
Belton broadly to allow vehicle searches incident to
 29a
any arrest would serve no purpose except to provide a
police entitlement, and it is anathema to the Fourth
Amendment to permit a warrantless search on that
basis.” Id. at 347. Accordingly, Gant limited searches
incident to arrest to two circumstances: either when
the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of
the search or when it is reasonable to believe that
evidence relevant to the crime of arrest might be
found in the vehicle. Id. at 343.
¶46 In order to address the same concerns in the
context of vehicle impoundments, the national trend
has been to adopt a two-part test that resembles
Gant’s narrowing of Belton. This test, like the test
adopted in Gant, prioritizes motorists’ privacy rights
over deference to police discretion. It limits police
discretion regarding impoundments by requiring both
a standardized policy governing impoundment and a
“reasonable, non-pretextual community-caretaking
rationale.” Sanders, 796 F.3d at 1248.
¶47 The question of whether a community
caretaker impoundment of a vehicle must be
governed by a standardized policy is an issue of first
impression in Wisconsin. However, the United States
Supreme Court has instructed that the exercise of
police discretion must be “exercised according to
standard criteria and on the basis of something other
than suspicion of evidence of criminal activity.”
Colorado v. Bertine, 479 U.S. 367, 375 (1987).
¶48 A majority of federal and state appellate
courts that have addressed this issue have concluded
that a warrantless community caretaker
impoundment is constitutional only if there exists
 30a
standardized criteria limiting police discretion. See,
e.g., United States v. Sanders, 796 F.3d 1241, 1248
(10th Cir. 2015); United States v. Proctor, 489 F.3d
1348, 1353–54, 376 U.S. App. D.C. 512 (D.C. Cir.
2007); Miranda v. City of Cornelius, 429 F.3d 858,
866 (9th Cir. 2005); United State v. Petty, 367 F.3d
1009, 1012 (8th Cir. 2004); United States v. Duguay,
93 F.3d 346, 351 (7th Cir. 1996); Patty v. State, 768
So. 2d 1126, 1127 (Fla. Dist. Ct. App. 2000); State v.
Weaver, 900 P.2d 196, 199 (Idaho 1995); People v.
Ferris, 9 N.E.3d 1126, 1137 (Ill. Ct. App. 2014); Fair
v. State, 627 N.E.2d 427, 433 (Ind. 1993); State v.
Huisman, 544 N.W.2d 433, 437 (Iowa 1996); Com. v.
Oliveira, 47 N.E.3d 395, 398 (Mass. 2016); State v.
Robb, 605 N.W.2d 96, 104 (Minn. 2000); State v.
Milliorn, 794 S.W.2d 181, 186 (Mo. 1990); State v.
Filkin, 494 N.W.2d 544, 549 (Neb. 1993); People v.
O’Connell, 188 A.D.2d 902, 903 (N.Y. App. Div. 1992);
State v. O’Neill, 29 N.E.3d 365, 374 (Ohio Ct. App.
2015); McGaughey v. State, 37 P.3d 130, 142–43
(Okla. Crim. App. 2001).
¶49 Yet, the majority follows the minority view
of three federal circuits, determining that in cases
involving warrantless community caretaker
impoundments that standardized policies are not
necessary. United States v. McKinnon, 681 F.3d 203,
208 (5th Cir. 2012); United States v. Smith, 522 F.3d
305, 312 (3d Cir. 2008); United States v. Coccia, 446
F.3d 233, 238 (1st Cir. 2006). It reasons that
standardized procedures are unnecessary because
police discretion is sufficiently limited by the
requirement that impoundments be based on a
reasonable community caretaker concern.
 31a
¶50 According to the majority, “the fundamental
question is the reasonableness of the seizure.”
Majority op., ¶27. It contends that the absence of
standard criteria does not “imbue law enforcement
officers with ‘uncontrolled’ discretion to impound
vehicles at will as a pretext for conducting
investigatory searches.” Majority op., ¶28. However,
as set forth in more detail below, that is exactly what
happened here.
¶51 The Tenth Circuit’s decision in Sanders is
illustrative of the national trend. In Sanders, for
“reasons not articulated in any policy, [police]
impounded a vehicle lawfully parked in a private lot
after arresting its driver as she exited a store.” Id. at
1242. The police made “no meaningful attempt to
allow the driver, her companion, or the owner of the
parking lot to make alternative arrangements.” Id.
¶52 Sanders acknowledged that “[t]he authority
of police to seize and remove from the streets vehicles
impeding traffic or threatening public safety and
convenience is beyond challenge.” Id. at 1244 (quoting
South Dakota v. Opperman, 428 U.S. 364, 368–69
(1976)). It further explained that Opperman and
Bertine establish “two different, but not inconsistent,
rules regarding when impoundments are
constitutional.” Id. at 1245. Opperman establishes
that warrantless impoundments required by the
community caretaking functions of protecting public
safety and promoting the efficient movement of traffic
are constitutional. Id. Bertine establishes that
warrantless impoundments are unconstitutional if
justified by either a “pretext for a criminal
 32a
investigation or not exercised according to
standardized criteria” that limits police discretion. Id.
¶53 After surveying United States Supreme
Court and federal circuit precedent, Sanders
concluded that “impoundment of a vehicle located on
private property that is neither obstructing traffic nor
creating an imminent threat to public safety is
constitutional only if justified by both a standardized
policy and a reasonable, non-pretextual community-
caretaking rationale.” Id. at 1248.
¶54 Deviating from the nationwide trend, the
majority limits motorists’ privacy rights. Contrary to
the majority, I would follow the national trend
protecting motorists’ privacy rights under the Fourth
Amendment and require both a standardized policy
that limits police discretion and a reasonable
community caretaker rationale.
A
¶55 Applying the test set forth above, I turn to
the question of whether the policies in this case
sufficiently limited officer discretion to impound
vehicles from private lots.1
¶56 The Beaver Dam Police Department policy
provides no limitations. In essence, it states that any
officer having a vehicle in lawful custody may
impound that vehicle:

1 The parties disagree regarding which policy governed the

impoundment, but as set forth below, this issue is not
dispositive to my analysis because neither policy sufficiently
limits police discretion.
 33a
Any officer having a vehicle in lawful custody
may impound said vehicle. The officer will
have the option not to impound said vehicle
when there is a reasonable alternative;
however, the existence of an alternative does
not preclude the officer’s authority to impound.
¶57 Likewise, the Dodge County Sheriff’s
Department policy governing impoundment provides
that deputies are authorized to tow when “the driver
. . . has been taken into custody by a deputy, and the
vehicle would thereby be left unattended.”
Additionally, it states that unless otherwise
indicated, “the deputy always has the discretion to
leave the vehicle at the scene and advise the owner to
make proper arrangements for removal.”2

2 The sheriff's department policy states in relevant part:

Deputies of the Dodge County Sheriff's Department are
authorized to arrange for towing of motor vehicles under the
following circumstances:
When any vehicle has been left unattended upon a street or
highway and is parked illegally in such a way as to constitute a
definite hazard or obstruction to the normal movement of traffic;
...
When the driver of a vehicle has been taken into custody by a
deputy, and the vehicle would thereby be left unattended;
...
When removal is necessary in the interest of public safety
because of fire, flood, storm, snow or other emergency reasons;
...
Unless otherwise indicated, the deputy always has the
discretion to leave the vehicle at the scene and advise the owner
to make proper arrangement for removal.
 34a
¶58 Having determined that standardized
policies are not constitutionally required, the
majority nevertheless considers the policies in the
context of whether the seizure was reasonable.
¶59 According to the majority, both policies
cabined the officers’ discretion because they limit
impoundment “to situations where officers had
custody of, respectively, the vehicle itself or its
driver.” Majority op., ¶34. After concluding that the
standardized policies in this case are sufficient, the
majority determines that “[t]he fact that the seizure
did actually comply with the policies of the acting law
enforcement agencies indicates that this
impoundment was not an arbitrary decision but a
reasonable exercise of discretion.” Majority op., ¶33.
¶60 The majority errs because neither policy
limits police discretion. First, it is unclear how the
Beaver Dam policy, which allows impoundments
whenever officers have custody of a vehicle, provides
any limitation at all. How can the police impound a
vehicle without having custody of it? The policy’s
directive is circular.
¶61 Second, the majority errs because the Dodge
County policy limits police discretion only when a
driver is not in custody. The Fourth Amendment’s
protections against warrantless seizures of property
continue to apply after a driver has been arrested.
Indeed, the question of whether standardized
procedures are required has arisen in such seminal
cases as Bertine only after the defendant has been
arrested. See, e.g., Bertine, 479 U.S. at 368–369.
 35a
¶62 The majority misses the point because the
question in this case is whether the policies limit
police discretion in determining whether to impound
a vehicle after a defendant has been arrested. Both
policies give the police unfettered discretion to
impound a vehicle when a driver such as Asboth has
been arrested.
¶63 The purpose of standardized criteria is to
establish why or when a vehicle may be taken into
custody, but here neither policy offers any guidance
on this question. In State v. Clark, the court of
appeals addressed the Milwaukee Police Department
towing policy, explaining that when a policy offers no
insight into why or when a vehicle may be seized, it is
“wholly unhelpful.” 2003 WI App 121, ¶15, 666
N.W.2d 112.
¶64 Neither policy limits officer discretion “in
deciding whether to impound a vehicle, leave it at the
scene, or allow the arrestee to have it privately
towed.” Sanders, 796 F.3d at 1250. In contrast, the
policy in Bertine “related to the feasibility and
appropriateness of parking and locking a vehicle
rather than impounding it.” Bertine, 479 U.S. at 378.
No such detail governs officer discretion here.
¶65 Accordingly, the policies in this case, as in
Sanders, “insufficiently limited officer discretion to
impound vehicles from private lots.” Sanders, 796
F.3d at 1250.
B
¶66 Having determined that the impoundment
was not done in accordance with constitutionally
sufficient standardized policies, I could end my
 36a
analysis here because a community caretaker
impoundment is unconstitutional without stan-
dardized procedures that limit police discretion. The
majority, however, concludes that the police
reasonably effected a community caretaker
impoundment of Asboth’s car. Majority op., ¶1.
Accordingly, I turn now to the question of whether
the police conduct in this case was a valid exercise of
the community caretaker authority.
¶67 The majority concludes that there are a
number of “objective justifications for the
impoundment” that establish the police had a bona
fide community caretaker purpose. Majority op., ¶21.
Initially, it contends that if left unattended, Asboth’s
car would have “inconvenienced a private property
owner and customers at the storage facility by
impeding the beneficial use of the property.” Majority
op., ¶18. Yet, the hearing testimony demonstrates
that it was possible to “drive around” Asboth’s
vehicle, contradicting this rationale. Beneficial use of
the property was not impeded because Asboth’s
vehicle was not blocking traffic through the storage
facility.
¶68 Because of the lack of evidence that the
vehicle was obstructing traffic at the storage facility,
the majority offers a number of additional
rationalizations. First, it advances that “any expense
for removing the obstruction would have fallen to a
private property owner uninvolved in the arrest.”
Majority op., ¶18. Next, it asserts that the police
protected the vehicle and its contents from theft and
that “Asboth no doubt would have been upset to learn
that his personal property was stolen from the car.”
 37a
Majority op., ¶19. Finally, it contends that because
the registered owner of the vehicle was someone
other than Asboth, police were faced with the
possibility of needing to make arrangements to
return the vehicle to its registered owner. Majority
op., ¶20.
¶69 The hearing testimony demonstrates that
each of these proffered rationales is purely
speculative. None of the officers contacted the storage
facility to see whether the owner wanted the car
removed nor did they contact the registered owner of
the vehicle. Additionally, none of the officers recalls
speaking with Asboth about whether he could
arrange to have someone move the vehicle.
¶70 After dispensing with the majority’s
speculative justifications for its conclusion that this
was a bona fide community caretaker function, I turn
now to examine the reasonableness of the
warrantless impoundment. A reasonableness analysis
calls for consideration of both “the degree of public
interest and the exigency of the situation.” State v.
Pinkard, 2010 WI 81, ¶41, 327 Wis. 2d 346, 785
N.W.2d 592 (quoting In re Kelsey C.R., 2001 WI 54,
¶36, 243 Wis. 2d 422, 626 N.W.2d 777).
¶71 In its analysis of reasonableness, the
majority repeats the same justifications offered as
support for its conclusion that the impoundment was
a bona fide community caretaker function.
Essentially, it contends that the public has a
significant interest in impounding a vehicle that
would “inconvenience the property’s owner and users
by impeding beneficial use of the property and
creating a potential hazard.” Majority op., ¶32.
 38a
¶72 Even if the majority could sufficiently
explain how Asboth’s vehicle posed a potential hazard
to public safety, it errs in stating that it need not
consider the exigency of the situation. Id.
Acknowledging that this was not an emergent
situation, the majority simply omits this
consideration from its analysis. Id. Instead, it
considers only the public interest, which does not
justify the seizure because Asboth’s vehicle was
parked on private property and there was testimony
that there was room to drive around it.
¶73 Finally, I turn to the majority’s argument
that “the lack of realistic alternatives to
impoundment further reinforces the reasonableness
of the seizure.” Majority op., ¶35. As set forth above,
however, no alternatives to impoundment were
considered so there is no evidence as to whether there
were realistic alternatives to impoundment. Again,
this is pure speculation on the part of the majority.
¶74 Considering the facts of this case, it appears
that the impoundment may have been a pretext for
an investigatory police motive. See, e.g., Sanders, 796
F.3d at 1245 (explaining that Bertine establishes that
impoundment is unconstitutional where police
discretion is “exercised as a pretext for criminal
investigation.”).
¶75 Just before the vehicle was impounded,
Asboth was arrested on a probation warrant. The car
was towed to a city police impound lot, where it was
subsequently searched. During the search, police
removed and held all items of apparent value,
including a pellet gun that was found in the vehicle.
The officers conducting the search testified that they
 39a
considered it to be an inventory search, and
conducted it according to their inventory search
procedures. However, one officer conducting the
search filled out a form indicating that it was done to
obtain “evidence,” rather than the other possible
purposes listed on the form, including “abandoned,”
“parked in traffic” or “safekeeping.”
¶76 Contrary to the majority, I conclude that the
lack of a compelling public safety need to move
Asboth’s car suggests that the police were motivated
by the investigation of the armed robbery in which he
was a suspect. Not only are the rationales offered by
the majority hypothetical, but they could be applied
to virtually any vehicle, parked anywhere, at any
time. In Clark, this court rejected a policy that “might
lead to the police towing every unlocked vehicle on
the street.” 265 Wis. 2d 557, ¶16. Likewise, the
majority’s conclusion may justify the seizure of every
vehicle after its driver has been arrested.
¶77 Thus, I conclude that the impoundment of
Asboth’s vehicle was unconstitutional. His vehicle
was parked on private property, was not obstructing
traffic and posed no imminent threat to public safety.
Under such circumstances, in order to survive
constitutional scrutiny, the impoundment must be
justified by both a standardized policy that limits
police discretion and a reasonable, non-pretextual
community-caretaking rationale. Here there was
neither.
II
¶78 Ultimately, I comment on what I and other
members of this court have repeatedly warned: a
 40a
broad application of the community caretaker
doctrine “raises the specter that the exception will be
misused as a pretext to engage in unconstitutional
searches that are executed with the purpose of
acquiring evidence of a crime.” Pinkard, 327 Wis. 2d
346, ¶75.
¶79 I have previously voiced the concern that
“today’s close call will become tomorrow’s norm.” Id.,
¶66. Over the years, that is exactly what has
happened. In case after case, this exception to the
Fourth Amendment’s warrant requirement has
expanded well beyond the limits of a bona fide
community caretaker function that is “totally
divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a
criminal statute.” State v. Kramer, 2009 WI 14, ¶23,
315 Wis. 2d 414, 759 N.W.2d 598 (internal quotes and
citations omitted).
¶80 With today’s decision, community caretaking
has again become an end in itself, justifying
warrantless impoundments so long as the police can
articulate “a hypothetical community need.”
Matalonis, 366 Wis. 2d 443, ¶106 (Prosser, J., dis-
senting). The majority embraces the State’s
hypothetical. It reasons that the police served a
legitimate public interest by impounding a vehicle
that inconvenienced a private business and its
customers and created a hazard by obstructing
vehicle traffic through the storage facility. Majority
op., ¶32.
¶81 Not only has the majority opinion lowered
the floor by deviating from the national trend
requiring standardized criteria, it also has opened a
 41a
trap door so that the community caretaker exception
may become bottomless. If the community caretaker
impoundment of Asboth’s vehicle parked on private
property can be justified due to inconvenience, would
any warrantless seizure be unreasonable in this
context? When an exception to the Fourth
Amendment becomes the rule, the privacy rights of
motorists do not receive the constitutional protections
they deserve.
¶82 Accordingly, I respectfully dissent.
¶83 I am authorized to state that Justice
SHIRLEY S. ABRAHAMSON joins this dissent.
 42a
APPENDIX B
COURT OF APPEALS
DECISION
DATED AND FILED
September 29, 2016
Diane M. Fremgen
Clerk of Court of Appeals

Appeal No. 2015AP2052-CR

Cir. Ct. No. 2012CF384
STATE OF WISCONSIN
IN THE COURT OF APPEALS
DISTRICT IV

State of Wisconsin,
Plaintiff-Responded,
v.
Kenneth M. Asboth, Jr.,
Defendant-Appellant.

APPEAL from a judgment of the circuit court

for Dodge County: JOHN R. STORCK, Judge.
Affirmed.
Before Lundsten, Sherman, and Blanchard, JJ.
 43a
¶1 BLANCHARD, J. Kenneth Asboth appeals
a judgment of conviction for armed robbery,
challenging the circuit court’s denial of his motion to
suppress evidence. Police lawfully took Asboth into
custody at a private storage unit facility, then had a
car associated with Asboth towed to a police facility,
where police conducted an inventory search of the
car. The inventory search revealed evidence that
Asboth seeks to suppress, but no aspect of the
inventory search itself is at issue in this appeal.
Instead, Asboth argues exclusively that police
violated the Fourth Amendment in initially seizing
the car. The seizure was unconstitutional, Asboth
contends, for two reasons: it was not conducted
pursuant to a law enforcement vehicle seizure policy
with standardized, sufficiently detailed criteria, and
it was not justified as an exception to the Fourth
Amendment warrant requirement under the bona
fide community caretaker doctrine. We disagree and
accordingly affirm.
BACKGROUND
¶2 Following evidentiary hearings, the circuit
court made findings of fact that include the following,
none of which are disputed by either party on appeal.
¶3 A Dodge County Sheriff’s Department
deputy lawfully arrested Asboth on a probation
warrant while he was by himself at a private facility
that maintains storage units. At the time of his
arrest, Asboth was a suspect in a recent armed
robbery in Beaver Dam.
¶4 Shortly before the arrest, police observed
Asboth reaching into a car parked at the storage
 44a
facility. The officers involved in the arrest learned
that the car was registered to a person with a
Madison address. At the time of the arrest, the car
blocked access to multiple storage units and impeded
potential vehicle travel through at least one area of
the facility.
¶5 The storage facility was located within the
jurisdiction of the Dodge County Sheriff’s
Department and outside the jurisdiction of the
Beaver Dam Police Department. The sheriff’s deputy
who arrested Asboth made a mutual aid request to
city police for assistance in connection with Asboth’s
arrest, apparently because the deputy thought that
he needed immediate backup not available from his
own department. Because the sheriff’s department
lacked storage space to hold the car, the car was
towed to a city police impound lot, as opposed to a
sheriff’s department facility. The car was held at the
police department lot and subsequently searched.1

1 Briefly explaining our use of terminology, it appears that there

is a lack of uniformity in what various legal authorities mean in
referring to the “impoundment” of a vehicle. For this reason, we
generally do not use the term “impoundment,” but instead use
the following Fourth Amendment terms:
 “seizure,” to refer to police initially taking temporary
possession of a vehicle and having the vehicle moved to a
place used to temporarily hold seized vehicles, and
 “search,” or “inventory search,” to refer to a police search
of a seized car after it has been moved to temporary
police storage.
We quote authorities using the term “impoundment” when we
believe that its meaning is sufficiently clear for current
purposes.
 45a
During the course of the inventory search, police
removed and held for safekeeping all items of
apparent value, whether or not the items appeared to
be related to the armed robbery.2
¶6 Asboth moved to suppress evidence
obtained in the search, alleging, as pertinent to this
appeal, that the initial seizure of the car violated the
Fourth Amendment. The circuit court denied
Asboth’s motion to suppress and his subsequent
motion for reconsideration. As pertinent to this
appeal, the court concluded that the State carried its
burden of showing that the warrantless seizure of the
car did not violate the Fourth Amendment. We
supply additional facts as necessary to discussion
below.
DISCUSSION
¶7 This court reviews the denial of a motion to
suppress under a two-part standard of review. State
v. Popp, 2014 WI App 100, ¶13, 357 Wis. 2d 696, 855
N.W.2d 471. We uphold a circuit court’s findings of
fact unless they are clearly erroneous, but determine
whether those facts warrant suppression under a de
novo review. Id.
¶8 As noted above, Asboth exclusively
challenges the seizure of the car as a Fourth

2 It is not important to any argument raised on appeal to know

what particular items were recovered in the inventory search.
However, for context we note that police found a gun that they
suspected had been used in the recent Beaver Dam armed
robbery in which Asboth was a suspect. This is the evidence that
Asboth seeks to have suppressed.
 46a
Amendment violation. On this ground, Asboth argues
that evidence obtained during the inventory search
must be suppressed. More specifically, Asboth argues
that seizure of the car was unreasonable under the
Fourth Amendment for two reasons: (1) it was not
conducted pursuant to a law enforcement policy
setting forth standardized, sufficiently detailed
guidelines limiting officer discretion in seizing
vehicles; and (2) even if conducted pursuant to a
standardized, sufficiently detailed policy, the seizure
was not justified as an exception to the Fourth
Amendment warrant requirement under the bona
fide community caretaker doctrine.3
¶9 Before discussing Asboth’s arguments in
turn, we summarize basic legal principles in this
area. Police do not violate the Fourth Amendment if
they seize a vehicle pursuant to the community
caretaker doctrine, that is, if the seizure is consistent
with the role of police as “caretakers” of the streets.
See South Dakota v. Opperman, 428 U.S. 364, 370
(1976); State v. Clark, 2003 WI App 121, ¶20, 265
Wis. 2d 557, 666 N.W.2d 112. More specifically,
Opperman describes common situations in which
police may reasonably seize vehicles in the role of

3 The State does not suggest on appeal that, at the time police
seized the car, police had: obtained a warrant authorizing
seizure of the car; obtained consent from anyone with apparent
authority to allow the car to be moved; possessed facts
supporting probable cause justifying seizure of the car; or
observed contraband or a dangerous weapon in “plain view” in
the car at the time of the arrest. Also, the State does not argue
that Asboth lacks standing to make a Fourth Amendment claim
regarding seizure of the car.
 47a
community caretakers, consistent with the commands
of the Fourth Amendment:
In the interests of public safety and as part
of what the Court has called “community
caretaking functions,” automobiles are
frequently taken into police custody. Vehicle
accidents present one such occasion. To permit
the uninterrupted flow of traffic and in some
circumstances to preserve evidence, disabled or
damaged vehicles will often be removed from
the highways or streets at the behest of police
engaged solely in caretaking and traffic-control
activities. Police will also frequently remove
and impound automobiles which violate
parking ordinances and which thereby
jeopardize both the public safety and the
efficient movement of vehicular traffic. The
authority of police to seize and remove from the
streets vehicles impeding traffic or threatening
public safety and convenience is beyond
challenge.
Opperman, 428 U.S. at 368-69 (emphasis added)
(footnote and quoted source omitted). This approach
derives in part from the traditional “distinction
between automobiles and homes or offices in relation
to the Fourth Amendment.” Id. at 367. While
automobiles are protected by the Fourth Amendment,
“warrantless examinations of automobiles have been
upheld in circumstances in which a search of a home
or office would not.” Id. (citing authority that includes
the seminal community caretaking case, Cady v.
Dombrowski, 413 U.S. 433, 442 (1973), which
discusses the “ambulatory character” of vehicles).
 48a
¶10 These concepts were later refined in
Colorado v. Bertine, 479 U.S. 367, 375-76 (1987). In
Bertine, the Court concluded that seizure and an
inventory search of Bertine’s van, after he was
arrested and taken into custody, qualified as
community caretaking activity because police
followed “standardized procedures” and because there
was no showing that police “acted in bad faith” or “for
the sole purpose of investigation.” Bertine, 479 U.S. at
367, 372.
¶11 While on the subject of Bertine, we now
briefly introduce a topic that we will discuss more
fully below, namely, a potential complication
regarding application of the community caretaker
doctrine in the context of vehicle seizures. There is no
dispute under U.S. Supreme Court and Wisconsin
appellate court precedent that police act
unreasonably in seizing a vehicle without a
recognized Fourth Amendment justification, such as
community caretaking activity. However, the federal
circuit courts of appeal are in conflict as to whether
Bertine establishes a specific requirement that police
must follow a standardized policy in seizing a vehicle
when acting as community caretakers, and as
discussed below Wisconsin appellate precedent does
not appear to impose such a requirement. That is,
Bertine can be read, but is not universally read, to
describe a requirement that police exercise their
discretion “in light of standardized criteria” set forth
in a police policy. Bertine, 479 U.S. at 375-76.4 We

4 Asboth’s arguments in this regard are tied to the following

language from Colorado v. Bertine, 479 U.S. 367, 375-76 (1987),
in particular the phrases we now emphasize:
 49a
need not resolve whether Bertine imposes a
standardized criteria requirement. Rather, as
explained further below, we will assume without
deciding that there is a requirement that police must
follow standardized criteria. Acting on this
assumption, we first address whether the car was
seized pursuant to a standardized policy and later
turn to other aspects of the community caretaker
doctrine.
1. Vehicle Seizure Pursuant to a Police Policy
¶12 Operating from the position that police
had to follow a standardized policy in seizing the car
here, Asboth makes arguments related to the specific
policies of the sheriff’s department (the “county’s
policy”) and the police department (the “city’s policy”)
related to vehicle seizures. Asboth argues that the

Bertine ... argues that the inventory search of

his van was unconstitutional because departmental
regulations gave the police officers discretion to choose
between impounding his van and parking and locking it
[and leaving it] in a public parking place.... [W]e reject
[this argument]. Nothing in Opperman or [Illinois v.
Lafayette, 462 U.S. 640 (1983)] prohibits the exercise of
police discretion so long as that discretion is exercised
according to standard criteria and on the basis of
something other than suspicion [that the vehicle
contains] evidence of criminal activity. Here, the
discretion afforded the ... police was exercised in light of
standardized criteria, related to the feasibility and
appropriateness of parking and locking a vehicle rather
than impounding it. There was no showing that the
police chose to impound Bertine’s van in order to
investigate suspected criminal activity.
(Emphasis added.)
 50a
specific law enforcement policy that was applied in
seizing the car was the city’s policy, not the county’s
policy. He further argues that, whichever policy
applied here, neither the county’s policy nor the city’s
policy contained standardized criteria that provided
sufficient guidance to justify seizure under the
community caretaker doctrine. Some additional
factual background regarding the policies themselves
is necessary before we return to these specific
arguments and pertinent legal standards.
¶13 The county’s policy authorized deputies to
seize vehicles in various scenarios. As pertinent here,
this included the following scenario: (1) the driver of
a vehicle is taken into police custody; and (2) as a
result, that vehicle would be left unattended. The
city’s policy articulated a different standard on this
topic. However, for reasons we now explain, the
content of the city’s policy does not matter to any
issue raised on appeal, because we conclude that the
seizure was conducted pursuant to the county’s
policy.
¶14 In support of his argument that law
enforcement followed the city’s policy, rather than the
county’s policy, Asboth points to the undisputed facts
that the car was towed to the city police department
and that city officers conducted the inventory search.
Based on these facts, Asboth asserts that “it was the
[city’s] police [who] took the car.” However, Asboth
does not challenge factual findings of the circuit
court, summarized above, regarding the seizure,
which we conclude are more pertinent. To repeat, the
court found that a sheriff’s deputy arrested Asboth,
that the storage facility where Asboth was arrested
 51a
was outside of the jurisdiction of the city police
department, and that, after making the mutual aid
request, the sheriff’s department asked the police
department to temporarily house the car only because
the sheriff’s department lacked storage space for the
car. Under these circumstances, we conclude that this
was a seizure generated, and primarily directed, by
the sheriff’s department and therefore the county’s
policy is the applicable policy.
¶15 Asboth argues that, even if the seizure was
conducted pursuant to the county’s policy, that policy
was insufficient to justify seizure under the
community caretaker doctrine. As referenced above,
Asboth’s argument is based on a passage from
Bertine, quoted above, which could be read to require
that a police seizure under the community caretaker
doctrine must be conducted pursuant to
“standardized criteria.” Bertine, 479 U.S. at 376.
¶16 This brings us back to the potential
complication, referenced above, regarding the
meaning of Bertine and standardized criteria. As the
State points out, federal courts of appeals are divided
as to whether Bertine requires that seizure of a
vehicle must be conducted in accordance with a
standardized policy, regardless of other facts that
might justify a seizure under the community
caretaker doctrine.5 In addition, the State points to

5 Compare, e.g., United States v. Petty, 367 F.3d 1009, 1012 (8th

Cir. 2004) (vehicle “impoundments” must be regulated by

“[s]ome degree of ‘standardized criteria’ or ‘established routine’”)
(quoted source omitted), with United States v. McKinnon, 681
F.3d 203, 208 (5th Cir. 2012) (“[W]e have focused our inquiry on
the reasonableness of the vehicle impoundment for a community
 52a
the fact that this court, in an opinion that postdates
Bertine, expressly elected to analyze whether a
seizure qualified as community caretaking even after
concluding that police in that case had not followed a
department policy with standardized criteria. See
Clark, 265 Wis. 2d 557, ¶¶18-20 (having determined
that a pertinent police policy was not followed, the
court nevertheless proceeded to determine whether
seizure of vehicle satisfied the community caretaker
doctrine; “we must only determine, absent any police
department policies, whether the seizure satisfied the
reasonableness standard of the Fourth Amendment
....”).
¶17 We conclude that we do not need to resolve
here any conflict that there might be between Bertine
and Clark on the issue of whether a vehicle seizure
can satisfy the community caretaker doctrine when
police do not follow a department policy with
standardized criteria. This is because we conclude
that, even applying the requirement that a
standardized policy must be followed, the seizure
here met that requirement. The county’s policy was a
written document that reflected standards governing
seizure, and law enforcement followed those
standards in seizing the car here.
¶18 Asboth argues that reliance on the
county’s policy would not have been reasonable,
because the policy was not “sufficiently
standardized,” as Asboth submits is required by

caretaking purpose without reference to any standardized

criteria.”).
 53a
Bertine, in that it provided “no ‘conditions
circumscrib[ing] the discretion of individual officers.’”
In particular, Asboth notes that, under the county’s
policy, deputies were permitted to tow a vehicle when
the driver had been arrested and as a result the
vehicle would be left unattended at least for a time,
while at the same time the policy separately provided
that “unless otherwise indicated” deputies “always
[had] discretion to leave the vehicle at the scene and
advise the owner to make proper arrangements for
removal.” However, as quoted above, Bertine suggests
that a policy may give police broad discretion,
explaining that “[n]othing ... prohibits the exercise of
police discretion,” as long as it is exercised according
to some set of standardized criteria and is not
exercised solely for an investigative purpose. Bertine,
479 U.S. at 375. Put differently, Asboth fails to
persuade us that the county’s policy was so vague or
loose that it could not be considered a standardized
policy under Bertine. See also, United States v.
Cartwright, 630 F.3d 610, 614-15 (7th Cir. 2010)
(holding that a “towing and impoundment policy”
permitting the seizure of vehicles “‘operated by a non-
licensed or suspended driver’ or ‘by [a] person under
custodial arrest for any charge’” is “sufficiently
standardized”) (quoted source omitted).
¶19 In fact, if anything, the policy viewed with
favor by the Court in Bertine appears to have
provided fewer restrictions on police seizures of
vehicles than the county’s policy here. The county’s
policy, like that under review in Bertine, provided
that seizure of a vehicle would be appropriate not
merely when the driver has been taken into custody,
 54a
but the county’s policy provided the additional
restriction that such a seizure is appropriate only
when the vehicle would also be left unattended as a
result of the arrest. See Bertine, 479 U.S. at 368 n.1.
¶20 In sum, based on the undisputed facts,
assuming without deciding that it is necessary to
evaluate whether the seizure was conducted
pursuant to a policy with standardized criteria, we
conclude that the county’s policy applies and that the
seizure of the car here was authorized under that
policy.
2. Community Caretaker Generally
¶21 Asboth correctly observes, consistent with
our summary of the legal standards above, that even
if police seize a vehicle pursuant to a policy with
standardized criteria, the State is obligated to show
that the seizure was reasonable under the community
caretaker doctrine. See Opperman, 428 U.S. at 368-
69; Clark, 265 Wis. 2d 557, ¶14 (“compliance with an
internal police department policy does not, in and of
itself, guarantee the reasonableness of a search or
seizure”; “the constitutionality of each search or
seizure will, generally, depend upon its own
individual facts.”)
¶22 We use a three-step test to determine
whether police conduct, including seizure of a vehicle,
was a valid exercise of the community caretaker
authority: (1) whether “‘a seizure within the meaning
of the Fourth Amendment has occurred; (2) if so,
whether the police conduct was bona fide community
caretaker activity; and (3) if so, whether the public
need and interest outweigh the intrusion upon the
 55a
privacy of the individual.’” Clark, 265 Wis. 2d 557,
¶21 (quoting State v. Anderson, 142 Wis. 2d 162, 169,
417 N.W.2d 411 (Ct. App. 1987)).
¶23 Regarding the first step, the parties agree
that police seized the car here within the meaning of
the Fourth Amendment when they moved it from the
storage facility to the police facility. See Anderson,
142 Wis. 2d at 169.
Bona fide community caretaker activity
¶24 Turning to the second step, Asboth makes
no serious argument that seizure of the car pursuant
to the county’s policy was not bona fide community
caretaker activity—if one removes from the equation
a police motive to search the car for evidence.
Asboth’s single argument is that the seizure was not
community caretaker activity because police had a
subjective investigatory motive to search the car,
namely, the suspicion that a search of the car might
reveal evidence that Asboth had committed an armed
robbery. We reject this argument because it rests on
an incorrect proposition of law.
¶25 Asboth acknowledges that our supreme
court has held that “when under the totality of the
circumstances an objectively reasonable basis for the
community caretaker function is shown, that
determination is not negated by the officer’s
subjective law enforcement concerns.” See State v.
Kramer, 2009 WI 14, ¶30, 315 Wis. 2d 414, 759
N.W.2d 598 (emphasis added). However, Asboth
asserts that “the analysis is different in the case of
impoundment,” under U.S. Supreme Court precedent.
We disagree.
 56a
¶26 First, we note that Asboth does little to
attempt to develop an argument in this regard,
merely citing two opinions without explanation, and
we could reject this argument on that basis.
¶27 Second, the two Supreme Court cases that
Asboth cites as purported support for his argument
do not support it. See Opperman, 428 U.S. 364;
Whren v. United States, 517 U.S. 806 (1996). To the
contrary, as we now briefly explain, United States
Supreme Court precedent matches the “not negated
by” formulation of the Wisconsin Supreme Court in
Kramer.
¶28 Asboth’s argument is apparently based on
the statement in Opperman that “there is no
suggestion whatever” that in following a “standard
procedure, essentially like that followed throughout
the country,” police in that case conducted an
inventory search of a seized vehicle as “a pretext,” in
order to “conceal[] an investigatory police motive.”
Opperman, 428 U.S. at 376. Asboth suggests that this
“no suggestion whatever” language from Opperman,
and similar language in Whren, means that seizures
such as the one here are invalid when police have any
investigatory motive.
¶29 However, the Court in Bertine removed
any potential ambiguity on this point, upholding a
vehicle seizure and inventory search because “as in
Opperman ..., there was no showing that the police,
who were following standardized procedures, acted in
bad faith or for the sole purpose of investigation.”
Bertine, 479 U.S. at 372 (emphasis added); see id. at
375 (“Nothing in Opperman or [Illinois v. Lafayette,
462 U.S. 640 (1983)] prohibits the exercise of police
 57a
discretion so long as that discretion is exercised ... on
the basis of something other than suspicion [that the
vehicle contains] evidence of criminal activity.”);
Whren, 517 U.S. at 811 (“in Colorado v. Bertine, ... in
approving an inventory search, we apparently
thought it significant that there had been ‘no showing
that the police, who were following standardized
procedures, acted in bad faith or for the sole purpose
of investigation.’”) (quoted source omitted). Thus, an
otherwise valid seizure of a vehicle under the
justification of the community caretaker doctrine is
not rendered invalid by the fact that police appear to
have an investigatory motive—even a strong
investigatory motive—in seizing the vehicle.
¶30 As for the facts here, Asboth gives us no
reason to upset the implicit factual finding of the
circuit court that the police did not seize the car, in
the terms used in Bertine, “‘for the sole purpose of
investigation.’”6 Asboth notes that the inventory form
prepared by the officers who conducted the search
“indicates that the car was impounded as ‘evidence.’”
However, in testimony apparently credited by the
circuit court, the officer who completed the form
testified that he indicated on the form that recovered
items were “evidence” because an officer who assisted

6 Asboth points out that the circuit court did not explicitly find
that in seizing the car, as opposed to conducting the inventory
search, police did not act for the sole purpose of investigation.
However, it appears that the court strongly implied a finding to
this effect in the course of addressing Asboth’s exclusive
challenge to the seizure, and Asboth gives us no reason to
conclude otherwise.
 58a
with the inventory search told the first officer that
the gun they found in the car was probably used in
the armed robbery. The officers’ recognition that an
item found during the inventory search appeared to
have evidentiary value does not mean that the car
was initially seized in bad faith or for the sole
purpose of investigation.
¶31 On this basis, we reject the only argument
Asboth makes that the seizure here does not satisfy
the second step of the test under the community
caretaker doctrine.
Public need and interest weighed against
privacy intrusion
¶32 In the third step of the test, as applied in
Wisconsin, balancing the public need and interest in
seizure against the intrusion on individual privacy,
we weigh four factors:
(1) the degree of the public interest and the
exigency of the situation; (2) the attendant
circumstances surrounding the seizure,
including time, location, the degree of overt
authority[,] and force displayed; (3) whether an
automobile is involved; and (4) the availability,
feasibility[,] and effectiveness of alternatives to
the type of intrusion actually accomplished.
Clark, 265 Wis. 2d 557, ¶21 (citing Anderson, 142
Wis. 2d at 169-70 (footnotes omitted)). The third
factor obviously favors the State. Asboth argues that
the first and fourth factors weigh in his favor,
without advancing any argument regarding the
second factor.
 59a
¶33 The State argues that the public need and
interest in removing the car from the storage facility,
where it was blocking storage units and potentially
impeding vehicle movement, outweighs any intrusion
on Asboth’s privacy interest in the car. Asboth does
not challenge the factual findings of the circuit court
on these points.
¶34 Asboth concedes that there may have been
“some ‘public need and interest’” in moving the car to
permit access to storage units. However, Asboth
makes two related arguments about what the police
needed to do in order to effectuate a reasonable
seizure. First, Asboth argues that the police need to
remove the car from the facility was not driven by
any degree of exigency, and, second, he argues that
even if police did need to move the car, there was no
legitimate need to tow it to a police facility.
¶35 Addressing the degree of exigency, it
appears to us that Asboth may confuse the exigency
factor under the balancing test with the need for
police to be presented with an emergency. Our
supreme court has explained that the “community
caretaker exception does not require the
circumstances to rise to the level of an emergency to
qualify as an exception to the Fourth Amendment’s
warrant requirement.” State v. Pinkard, 2010 WI 81,
¶26 n.8, 327 Wis. 2d 346, 785 N.W.2d 592 (citation
omitted). In any case, we conclude that there was an
appreciable degree of exigency here, in the sense of
necessity.
¶36 Turning to the topic of potential
alternatives to the seizure as conducted by the police
here, Asboth relies on the explanation in Clark that,
 60a
in balancing the public interest in a seizure against
the privacy of an individual in community caretaker
analysis, “we must compare the availability and
effectiveness of alternatives with the type of intrusion
actually accomplished.” See Clark, 265 Wis. 2d 557,
¶25; see also Kramer, 315 Wis. 2d 414, ¶45 (rejecting
alternatives to seizure suggested by Kramer, and
concluding “that the manner in which [the law
enforcement officer] performed his community
caretaker function was more reasonable than any
suggested by Kramer.”).7 As we now explain, we
conclude that the police conduct here passes muster
under Clark and Kramer, consistent with State v.
Callaway, 106 Wis. 2d 503, 317 N.W.2d 428 (1982).
¶37 We begin the potential alternatives topic
with a clarification regarding potentially pertinent
facts. The record does not reflect evidence that
Asboth volunteered to law enforcement officers at the

7 As the State correctly observes, Bertine states that the Fourth

Amendment does not require that police consider whether less
intrusive alternatives existed at the time of a seizure otherwise
justified under the community caretaker doctrine. Rather, the
Court explained, the Fourth Amendment inquiry hinges on
whether the activity of the police was reasonable under the
circumstances: “The reasonableness of any particular
governmental activity does not necessarily or invariably turn on
the existence of alternative ‘less intrusive’ means.” Bertine, 479
U.S. at 373-74 (quoting Illinois v. Lafayette, 462 U.S. 640, 647
(1983)). Nonetheless, following State v. Kramer, 2009 WI 14,
¶30, 315 Wis. 2d 414, 759 N.W.2d 598, and State v. Clark, 2003
WI App 121, ¶25, 265 Wis. 2d 557, 666 N.W.2d 112, we address
Asboth’s contention that there existed more reasonable
alternatives than the one chosen by law enforcement.
 61a
time of his arrest that he could, or wanted to try to,
make alternative arrangements with a responsible
third party for safekeeping of the car that would
obviate the need for seizure, nor evidence that officers
asked Asboth about the possibility of any potential
alternative arrangements.
¶38 With that clarification, we now summarize
Clark. Like Bertine and the instant case, Clark
involved a Fourth Amendment challenge to the
seizure of a vehicle that the defendant had driven.
Clark, 265 Wis. 2d 557, ¶1. However, in Clark, police
discovered the vehicle at issue undamaged and
legally parked on the street, although it was
unlocked. Id., ¶4. Instead of simply locking the
vehicle and leaving it where it was, police had the
vehicle towed to a police impound lot for safekeeping.
Id. The police department had two separate policies
addressing vehicle seizures that could have been
applied. Id., ¶12. On appeal, the court examined each
of the police policies and concluded that, even
assuming the reasonableness of the policies, police
failed to comply with either one in having the vehicle
towed. Id., ¶¶15-17. Despite our conclusion in Clark
that police conducted the seizure without following
either of the potentially applicable policies, we
proceeded to analyze whether the seizure was
reasonable in accordance with the community
caretaker doctrine, ultimately concluding that the
seizure was unreasonable because it did not satisfy
the community caretaker doctrine. Id., ¶¶ 18-20, 27.
To repeat, then, in Clark the police seized the car at
issue after finding it legally parked on a public street,
whereas in this case, the car associated with Asboth
 62a
blocked several storage units and movement of
vehicles on the property of a private third party. See
id., ¶7.
¶39 Granted, the car associated with Asboth
may or may not have been parked illegally, given the
practical realities of allowing customers to have
routine access to units at the storage facility. Asboth
emphasizes testimony that there were not any “no
parking” signs at the storage facility. Whatever the
significance might be of a lack of such signage, it
would have been objectively reasonable for law
enforcement to see the car as likely creating problems
for managers of the storage facility and visitors to the
facility if left unattended for any length of time.
¶40 Moreover, Asboth fails to establish that
the seizure decision here was not “more reasonable”
than any alternative he now suggests. See Kramer,
315 Wis. 2d 414, ¶45. To state the obvious, Asboth’s
arrest prevented Asboth himself from moving the car
from a location in which it appeared to interfere with
private property rights and to represent a risk of loss
or damage, and prevented him from doing so for an
indeterminate length of time. See generally id., ¶¶4,
43, 45 (seizure was more reasonable than suggested
alternatives where driver had pulled over and parked
on the side of the road on the crest of a hill, a
potentially dangerous location).
¶41 It does not help Asboth that, as noted
above, police knew that the car was not registered to
Asboth, but instead to a person with a Madison
 63a
address.8 We take judicial notice of the fact that the
Madison area is a somewhat long drive from the
Beaver Dam area. Asboth does not dispute that there
was no other responsible person at the scene of his
arrest and that the registered owner was likely a
somewhat long drive away. Based on these facts,
Asboth’s suggested alternative that the officers could
have asked Asboth to see if some reasonable third
party could pick up the car does not carry much
weight, because it would have been reasonable for
police at the pertinent time to anticipate that officers
would have been waiting for some indeterminate
period for the owner or another responsible party to
arrive, assuming that police could track down the
owner or another responsible party in a timely
fashion. Cf. Clark, 265 Wis. 2d 557, ¶¶4, 26
(suggesting that when a vehicle is registered to
someone with an address in close proximity to the
vehicle’s location it may be reasonable to attempt to
contact vehicle owner seeking consent to tow).
¶42 We are also not persuaded by Asboth’s
suggestion that police were obligated under these
circumstances to move the car either to another spot
at the storage facility or to a spot on a nearby street.
Regarding the first suggestion, the circuit court made

8Asboth points out that, roughly two months after the seizure of
the car, police learned that title to the car apparently had not
been appropriately transferred to Asboth by the time of his
arrest, but that Asboth had actually owned the car at the time of
his arrest. However, Asboth fails to explain why this later-
discovered information should matter to the analysis of
potential alternatives to seizure that officers on the scene of the
arrest had, and we see no reason why it should matter.
 64a
the reasonable observation that “when the police
arrest a person who has driven a vehicle onto private
property other than their own, leaving that vehicle
behind and making its removal the property owner’s
problem is unreasonable.” Asboth fails to explain why
police were required to move the car to a different
location within the storage facility complex—a
private facility owned by someone other than Asboth
and thus over which Asboth could exercise no
control—requiring the facility’s owner to track down
the vehicle’s owner or arrange for the car to be
moved.
¶43 As for the proposition that police were
obligated under these circumstances to move the car
to a street parking spot, the record is silent as to
whether there were available, long-term, legal
parking spots nearby. Moreover, even if we assume
the existence of a legal parking spot on a street near
the storage facility, our supreme court has suggested
that it is ordinarily objectively reasonable for police
to consider it “necessary and reasonable” to move to a
police facility any vehicle that would otherwise be left
unattended on a public street for an indeterminate
amount of time, in order to avoid vandalism, theft, or
damage to the vehicle. See Callaway, 106 Wis. 2d
503, 513-14 (concluding that the seizure and
subsequent inventory search of a vehicle was
reasonable under the Fourth Amendment when
driver was taken into police custody following his
arrest on an outstanding warrant and his vehicle left
unattended) (if police had left car “unattended on the
street, there is more than a possibility that it could
have been vandalized or struck by another vehicle in
 65a
which case it is not unlikely that the owner would
claim that the police department was negligent in
some manner.... [W]e have concluded the impounding
of the vehicle was necessary and reasonable because
of the need to protect the vehicle from damage, theft
or vandalism ....”).
¶44 In sum, we conclude that the State has
met its burden of showing that the decision to seize
the car was reasonable under the circumstances here
and that Asboth fails to convince us that any of the
alternatives that he suggests would have been
available and also more reasonable than the decision
made here. Given the circumstances of the seizure
and inventory search, and the factual findings of the
circuit court as described above, we conclude that the
seizure was valid under the community caretaker
doctrine.
CONCLUSION
¶45 For the foregoing reasons, we conclude
that the circuit court properly denied Asboth’s motion
to suppress evidence.
By the Court.—Judgment affirmed.

Not recommended for publication in the

official reports.
 66a
APPENDIX C
STATE OF WISCONSIN
CIRCUIT COURT – BRANCH II
DODGE COUNTY
_______________
STATE OF WISCONSIN, Plaintiff
v.
KENNETH M. ASBOTH, JR., Defendant
Case No. 12 CF 384
_______________
Filed in the Circuit Court
Mar. 24, 2014
Dodge County, WI
Lynn M. Hron, Clerk of Courts
_______________
MEMORANDUM DECISION AND ORDER
Defendant was arrested on November 10, 2012,
by members of the Dodge County Sheriff’s
Department on an outstanding DOC warrant. He was
also suspected of involvement in a recent armed
robbery in Beaver Dam.
At the time of his arrest, Defendant was
located at a storage facility outside of the Beaver
Dam city limits. The deputy conducting the arrest
contacted the Beaver Dam Police Department to
retrieve Defendant’s vehicle from the scene. The
vehicle was transported to the Beaver Dam impound
 67a
lot, where it was subsequently searched per law
enforcement procedures.
In a June 2013 Memorandum Decision &
Order, the Court denied Defendant’s suppression
motion regarding the inventory search of his vehicle,
finding that:
(1) The arresting deputy was alone and made a
reasonable mutual aid request.
(2) The officers involved believed that the
vehicle belonged to someone other than the
Defendant.
(3) It is undisputed that Beaver Dam police
conducted the inventory search according to
established procedures.
(4) The firearm was found in plain view during
the inventory search.
(5) The inventory search continued after the
firearm was found.
(6) Several items of property unrelated to the
robbery were taken from the vehicle and held
for safekeeping.
In short, the Court found the search was not
performed “for the sole purpose of investigation”
under Colorado v. Bertine, 479 U.S. 367, 371–72, 107
S. Ct. 738; 93 L. Ed. 2d 739 (1987).
Defendant has now filed a motion for
reconsideration, arguing that the initial seizure of
his vehicle was improper. Defendant cites State v.
Clark, 2003 WI App 121, 256 Wis.2d 557, 666 N.W.2d
112, which held that police seizure of the defendant’s
 68a
vehicle was improper where it was legally parked on
a public street.
After reviewing Defendant’s submissions and
the State’s response, the Court concludes that Clark
is distinguishable from the facts of this case, to wit:
(1) Both the Dodge County Sheriff’s
Department and the Beaver Dam Police
Department’s written policies favor
impoundment in this scenario. (The Court
agrees with the State’s analysis of those
policies.)
(2) The vehicle was parked on another
individual’s property, not legally parked on a
public street.
(3) The vehicle was blocking access to more
than one of the business’s storage lockers and
impeding travel by other customers through
the complex.
(4) There were valuable items in the vehicle
including electronics.
(5) Defendant was arrested while in
possession of the vehicle, and was actually
observed reaching into the vehicle.
In light of these facts, the Court agrees with the State
that, “when the police arrest a person who has driven
a vehicle onto private property other than their own,
leaving that vehicle behind and making its removal
the property owner’s problem is unreasonable.” The
Court finds that removal under these circumstances
is a valid community caretaker function.
 69a
THEREFORE, the motion for reconsideration is
hereby DENIED.
Dated this 24th day of March, 2014.
BY THE COURT:
/s/
Hon. John R. Storck
Circuit Court Judge, Branch II
Dodge County, Wisconsin
 70a
APPENDIX D
STATE OF WISCONSIN
CIRCUIT COURT – BRANCH II
DODGE COUNTY
_______________
STATE OF WISCONSIN, Plaintiff
v.
KENNETH M. ASBOTH, JR., Defendant
Case No. 12 CF 384
_______________
Filed in the Circuit Court
June 26, 2013
Dodge County, WI
Lynn M. Hron, Clerk of Courts
_______________
MEMORANDUM DECISION AND ORDER
Defendant was arrested on November 10, 2012,
by members of the Dodge County Sheriff’s
Department on an outstanding DOC warrant. He was
also suspected of involvement in a recent armed
robbery in Beaver Dam.
At the time of his arrest, Defendant was
located at a storage facility outside of the Beaver
Dam city limits. The deputy conducting the arrest
contacted the Beaver Dam Police Department to
retrieve Defendant’s vehicle from the scene. The
vehicle was transported to the Beaver Dam impound
 71a
lot, where it was subsequently searched per law
enforcement procedures.
Defendant has filed a motion to suppress the
fruits of that search. He contends that the
involvement of the Beaver Dam Police Department
invalidates this as a constitutional inventory search.
This matter was heard by the Court on May 30, 2013,
and briefs were subsequently submitted by both
sides.
Inventory searches of impounded vehicles are
deemed reasonable under the Fourth Amendment,
and require neither probable cause nor a warrant.
See Colorado v. Bertine, 479 U.S. 367, 371–72, 107 S.
Ct. 738; 93 L. Ed. 2d 739 (1987). Such searches “serve
to protect an owner’s property while it is in the
custody of the police, to insure against claims of lost,
stolen, or vandalized property, and to guard the
police from danger.” Id. at 372. The Bertine court
noted that cases upholding such searches have been
free from showings that police acted in bad faith or
“for the sole purpose of investigation.” Id. Defendant
argues that the Beaver Dam Police Department’s
involvement in investigating the armed robbery
suggests that the primary purpose of the search was
actually investigation of his possible role therein.
Although investigation of Defendant’s role in
the armed robbery was clearly one component of this
inventory search, review of the record has convinced
the Court that this inventory search was not
conducted “for the sole purpose of investigation.” The
Court makes that finding for several reasons,
including:
 72a
(1) The vehicle could not be left where it was
and needed to be impounded.
(2) The arresting deputy was alone and made a
reasonable mutual aid request.
(3) The officers involved believed that the
vehicle belonged to someone other than the
Defendant.
(4) It is undisputed that Beaver Dam police
conducted the inventory search according to
established procedures.
(5) The firearm was found in plain view during
the inventory search.
(6) The inventory search continued after the
firearm was found.
(7) Several items of property unrelated to the
robbery were taken from the vehicle and held
for safekeeping.
THEREFORE, the motion to suppress is hereby
DENIED.
Dated this 26th day of June, 2013.
BY THE COURT:
/s/
Hon John R. Storck
Circuit Court Judge, Branch II
Dodge County, Wisconsin
 73a
APPENDIX E
City of Beaver Dam Policy
Searches, Seizures; Motor Vehicle Inventories
4-3-1 Searches and Seizures
4-3-2 Seizure of Motor Vehicles
4-3-3 Strip Searches
4-3-4 Search of Physically Disabled
Persons
4-3-5 Officer Action Requirements
*****
Sec. 4-3-2 Seizure of Motor Vehicles
(a) Classes of Vehicles Coming into Policy
Custody.
(1) Seizures for forfeiture.
(2) Seizures as evidence.
(3) Prisoner’s property.
(4) Traffic impoundments.
(5) Abandonments.
(6) Other non-criminal impoundments.
POLICY:
(a) lmpoundment Generally. Any officer having a
vehicle in lawful custody may impound said vehicle.
The officer will have the option not to impound said
vehicle when there is a reasonable alternative;
however, the existence of an alternative does not
preclude the officer’s authority to impound.
 74a
(b) Seizures for Forfeiture – Vehicle Used
Illegally: When Permitted.
(1) When an officer has probable cause to believe that
a vehicle has been used to transport a substantial
amount of intoxicating liquors illegally.
(2) When an officer has probable cause to believe that
a vehicle has been used to transport for sale or
receipt controlled substances in violation of the
Uniform Controlled Substances Act.
(3) When an officer has probable cause to believe that
the vehicle has been used in the unlawful
manufacture or commercial transfer of gambling
devices.
(4) When an officer has probable cause to believe that
the vehicle has been used in the commission of a
felony or to violate a Federal law which provides for
forfeiture following violation, as in the case of
illegally transporting weapons, narcotics, or
contraband liquor, the vehicle shall be seized
regardless of the amount of contraband involved or
the prior record of the owner or occupant and the
officer shall then contact the supervisor for further
instructions.
NOTE: No seizure for forfeiture shall be made
without the approval of the Officer in Charge.
(c) Seizures as Evidence.
(1) Whenever an officer has probable cause to believe
that a vehicle has been stolen, used in a crime or is
otherwise connected with a crime, the officer may
take the vehicle into custody and classify it as
“seizure as evidence.”
 75a
(2) A vehicle involved in a minor traffic offense shall
not be seized as evidence merely because it was used
to commit the traffic offense.
(3) A vehicle seized as evidence shall be completely
inventoried accordingly, as soon as it is practicable
after its arrival at the police facility. Vehicles seized
as evidence shall not be released to any person until
the appropriate official has signed a release.
(d) Miscellaneous Inventory Concerns.
(1) An officer may conduct an inventory of a vehicle
on the side of the road as long as the vehicle is taken
into police custody.
(2) Whenever an officer is authorized to inventory a
motor vehicle, the officer may examine the passenger
compartment, the glove box, and the trunk, whether
or not locked.
(3) If an unlocked vehicle is impounded, the
impounding officer shall remove items of value which
are likely to be tampered with or stolen. All such
containers shall be sealed to insure the security of
their contents. All such property shall be inventoried
and placed in evidence. The officer shall prepare a
written record of the contents of the vehicle.
(4) Any officer conducting an inventory search shall
search all items and containers, locked or unlocked,
in the vehicle. This serves to prevent careless
handling or theft of items of personal property and
safekeeping of dangerous instrumentalities, such as
razor blades, drugs, or explosives that might be
concealed within innocent-looking articles.
 76a
(5) Any officer conducting an inventory search shall
complete a written inventory list of all the property
recovered in the vehicle.
(6) Upon completion of the inventory, if possible, all
windows will be rolled up and secured. The trunk and
doors shall be locked.
(7) An inventory search of a vehicle should be
conducted as soon as practical.
(8) An inventory search should be conducted by the
Officer assigned to investigate the initial complaint
whenever possible. However, it is permissible to have
the inventory search conducted by an assisting
Officer, an evidence technician, a property custodian,
or other personnel qualified to handle hazardous
materials when the circumstances justify it.
PROCEDURES:
(a) Entering the Vehicle. Entry should be made to
all areas of the vehicle, whether locked or unlocked;
however, entry should not be made to an area if it
means causing damage to the vehicle to gain access.
In that event, entry should be made at the time the
vehicle is released with a key provided by the person
claiming the vehicle.
(b) Inventory. Any contraband or evidence found
during the course of an inventory search of a vehicle
will be removed from the vehicle and placed on
property inventory, in accordance with regular
inventory procedures.
(c) Disposition of Vehicles. When an Officer makes
a decision to tow a vehicle, the following guidelines
apply to its ultimate disposition:
 77a
(1) Secure (Short-Term). Exceptional cases may
require temporary, indoor storage (police garage) for
processing.
(2) Long-Term. Vehicles may be hauled to the City
Garage Yard for off-site storage until final
disposition. It shall be the practice of this
Department to return vehicles to owners as soon as
possible. The long-term storage of vehicles is
discouraged, with the Department objective being to
return the vehicle to its owner, or to dispose of it in
accordance with City ordinances and State Statutes.
(d) Stolen Vehicles.
(1) Vehicles wanted by this agency will be processed
for any type of evidence and searched.
(2) Vehicles that are recovered and determined to be
stolen or otherwise wanted for investigation by other
agencies should be secured and the agency notified.
(3) This Department will make arrangements to tow
these vehicles to the Police Department Garage for
safekeeping at the request of the reporting agency.
(4) An inventory search will be made on stolen
vehicles reported by other agencies when the outside
agency indicates it will not process the vehicle for
evidence. This procedure will be followed to protect
the Department and employees from alleged claims of
missing or damaged property.
*****
 78a
APPENDIX F
DODGE COUNTY SHERIFF’S DEPARTMENT
*****
WRECKER REQUESTS /
TOWING OF VEHICLES
I. PURPOSE
To ensure provision of necessary towing services in
accident or similar situations within Dodge County;
To establish responsibility for determination of
proper action, including determination of an
appropriate wrecker service, in special situations;
To set forth procedures for towing of motor vehicles
when justified, under specified circumstances.
II. POLICY
Deputies of the Dodge County Sheriff’s Department
are authorized to arrange for towing of motor vehicles
under the following circumstances:
When any vehicle has been left unattended upon a
street or highway and is parked illegally in such a
way as to constitute a definite hazard or obstruction
to the normal movement of traffic;
When a vehicle is found being driven upon the street
or highway and it is not in proper condition to be
driven;
When a vehicle has been left unattended upon a
street or highway continuously for more than 48
hours and may be presumed to be abandoned;
 79a
When the driver of a vehicle has been taken into
custody by a deputy, and the vehicle would thereby
be left unattended;
When the driver of a vehicle has been issued a
citation by a deputy and the driver is then not
allowed to drive the vehicle;
When removal is necessary in the interest of public
safety because of fire, flood, storm, snow or other
emergency reasons;
When a vehicle is found parked in a properly-marked
“no parking” zone designated by a governmental
authority;
When a driver’s condition is, in deputy’s opinion, such
that it renders him/her incapable of safely operating
the vehicle (examples: physically incapable, mentally
impaired, very confused, apparently impaired by
alcohol, drugs, medication or a combination thereof,
etc.)
Unless otherwise indicated, the deputy always has
the discretion to leave the vehicle at the scene and
advise the owner to make proper arrangements for
removal.
III. PROCEDURES
A. REQUESTING PRIVATE TOWING SERVICES
1. When it is apparently necessary to request towing
services for a citizen whose vehicle has been involved
in an accident or other incident, deputy on the scene
will:
 80a
a. Ask dispatcher to call the towing service requested
by the vehicle driver, owner or occupants, as long as
the request is reasonable.
b. If the driver, owner or occupants do not have a
preference as to a towing service, dispatcher will
contact an appropriate towing service from a list of
such services.
2. Dispatcher will maintain proper documentation on
such calls.
3. The sheriff’s department is not responsible for
paying towing service costs.
B. TOWING AND IMPOUNDMENT OF VEHICLES
IN SPECIFIED SITUATIONS
1. Vehicles involved in apparent crimes and vehicles
involved in fatal or serious injury accidents, in which
charges are made or are likely to be requested, will be
towed to a designated impound area when
appropriate.
2. If a vehicle is thought to be abandoned or stolen,
deputy will query a records check (TIME System
records check) and check to determine the status of
the operator and vehicle.
a. Deputy will determine if the vehicle is to be held
for evidentiary purposes.
b. If the vehicle is stolen, deputy will have vehicle
towed to an impoundment area or to another location
designated by the law enforcement agency from
whose jurisdiction the vehicle was stolen.
c. If the vehicle is not being held for evidentiary
purposes, deputy will attempt to contact the owner. If
 81a
owner can be reached, ask about plans for removal of
the vehicle. If such plans are not forthcoming or
owner cannot be reached, deputy may arrange for
towing of vehicle by an authorized towing service.
3. A deputy will make out an evidence form for each
vehicle impounded.
4. A deputy will conduct an inventory search,
including any closed containers, of every vehicle
impounded and complete a Vehicle lmpoundment and
Inventory Record form document #DOSO104(2/00)
documenting such search. Property for safekeeping
will be stored in inventory containers.
5. Impounded vehicles that are considered evidence
can only be released upon the direction of the Dodge
County District Attorney’s Office, the patrol captain
or an officer following evidentiary guidelines.
C. TOWING OF MOTOR VEHICLES FOR TRAFFIC
OR PARKING OR HAZARD REASONS
1. If a motor vehicle meets any other criteria listed in
the above policy statement for towing, deputy may
have such vehicle towed away.
2. If deputy deems a vehicle a traffic hazard, he or
she will photograph such vehicle before having it
towed.
3. In situations where a citation is issued for
OMVWI, No Valid Driver’s License, or Revo-
cation/Suspension of License, deputy may, with the
permission of the driver, allow a responsible, licensed
passenger to drive the vehicle elsewhere. In such
case, deputy will initially determine whether the
other driver is licensed and not impaired.
 82a
4. Vehicles previously tagged by the Dodge County
Sheriff’s Department allowing the owner forty eight
(48) hours to remove the vehicle may be towed in
accordance with Procedure A of this policy upon
expiration of the 48 hour limit or when other
conditions deem such towing necessary (e.g., weather,
road, other conditions).
NOTE: Responding deputies will advise drivers that
the sheriff’s department does not pay towing costs.
D. VEHICLES ON PRIVATE PROPERTY
1. If a vehicle is on private property (i.e. abandoned,
trespassing or suspicious), deputies will investigate
the situation.
2. If property owner requests removal of such vehicle,
deputy will advise the property owner that it is
his/her responsibility to have the vehicle removed
and to pay for towing expenses.
E. EXERCISE OF JUDGMENT
The above procedural steps do not preclude sheriff’s
department staff members from exercising good
judgment in any emergency situations.
*****
 83a
APPENDIX G
Eighth Circuit Cases Addressing Community
Caretaking Vehicle Seizures, 2012–2017
1. United States v. Morris, No. CR16-4096-LTS,
2017 U.S. Dist. LEXIS 129317 (N.D. Iowa Aug.
15, 2017).
2. United States v. Simpson, No. 16-00201-01-CR-
W-BP, 2017 U.S. Dist. LEXIS 70246 (W.D. Mo.
May 9, 2017).
3. United States v. Everett, No. 4:16-CR-00110-1-
BCW, 2017 U.S. Dist. LEXIS 45229 (W.D. Mo.
Mar. 28, 2017).
4. United States v. Moody, No. 16-00115-01-CR-W-
HFS, 2017 U.S. Dist. LEXIS 81633 (W.D. Mo.
Mar. 20, 2017).
5. Rohde v. City of Blaine, No. 14-4546 (JRT/TNL),
2017 U.S. Dist. LEXIS 7129 (D. Minn. Jan. 18,
2017).
6. United States v. McDaniel, No. 15-00240-01-CR-
W-GAF, 2017 U.S. Dist. LEXIS 17807 (W.D. Mo.
Jan. 10, 2017).
7. United States v. Green, No. 15-00249-01-CR-W-
DGK, 2017 U.S. Dist. LEXIS 33022 (W.D. Mo.
Jan. 4, 2017).
8. United States v. Maple, No. 15-00127-01-CR-W-
GAF, 2016 U.S. Dist. LEXIS 181403 (W.D. Mo.
Dec. 14, 2016).
9. United States v. Gilmore, No. S1-4:15 CR 509
SNLJ / DDN, 2016 U.S. Dist. LEXIS 156240
(E.D. Mo. Oct. 21, 2016).
 84a
10. United States v. Perez-Trevino, No. CR15-2037,
2016 U.S. Dist. LEXIS 49621 (N.D. Iowa Apr.
12, 2016).
11. United States v. Davis, No. 4:14-CR-00348-01-
BCW, 2015 U.S. Dist. LEXIS 74097 (W.D. Mo.
June 9, 2015).
12. United States v. Stinnett, No. 13-00393-01-CR-
W-DGK, 2015 U.S. Dist. LEXIS 52210 (W.D. Mo.
Jan. 29, 2015).
13. United States v. Hickman-Smith, No. 8:14CR367,
2015 U.S. Dist. LEXIS 22885 (D. Neb. Jan. 15,
2015).
14. United States v. Shackleford, No. 14-00097-01-
CR-W-GAF, 2014 U.S. Dist. LEXIS 176173
(W.D. Mo. Dec. 5, 2014).
15. Butler v. City of Richfield, No. 14-281 ADM/SER,
2014 U.S. Dist. LEXIS 114315 (D. Minn. Aug.
18, 2014).
16. United States v. Long, No. 13-00405-01-CR-W-
GAF, 2014 U.S. Dist. LEXIS 75588 (W.D. Mo.
May 15, 2014).
17. United States v. Sanchez, No. 14-13 ADM/JJK,
2014 U.S. Dist. LEXIS 53365 (D. Minn. Apr. 17,
2014).
18. Williams v. Walski, No. 12-2954 (SRN/JSM),
2014 U.S. Dist. LEXIS 130405 (D. Minn. Apr. 14,
2014).
19. United States v. Himes, No. CR13-3034-MWB,
2013 U.S. Dist. LEXIS 181970 (N.D. Iowa Dec.
30, 2013).
 85a
20. United States v. Contreras, No. 4:12CR3125,
2013 U.S. Dist. LEXIS 64431 (D. Neb. Apr. 8,
2013).
21. United States v. Evans, No. 12-00280-01-CR-W-
DW, 2012 U.S. Dist. LEXIS 184254 (W.D. Mo.
Dec. 17, 2012).
22. United States v. Cervantes-Perez, No. 12CR133
(DSD/TNL), 2012 U.S. Dist. LEXIS 113028 (D.
Minn. July 21, 2012).
23. United States v. Harris, No. 11-00118-01-CR-W-
DGK, 2012 U.S. Dist. LEXIS 95265 (W.D. Mo.
June 18, 2012).
24. Philpott v. Weaver, No. 10-2061, 2012 U.S. Dist.
LEXIS 38081 (W.D. Ark. Feb. 14, 2012).
25. United States v. Chivers, No. 10-00224-01-CR-
W-DW, 2012 U.S. Dist. LEXIS 30123 (W.D. Mo.
Feb. 10, 2012).
26. United States v. Scott, No. 10-00162-06-CR-W-
FJG, 2012 U.S. Dist. LEXIS 14053 (W.D. Mo.
Jan. 6, 2012).