WI: Community caretaking function can support impoundment and inventory despite lack of standardized procedures

Defendant matched the description of a man wanted for robbery and a probation violation. He was found on the property of a storage unit company. After his arrest, his vehicle was parked between two rows of buildings, blocking one unit and impeding access to two others. The police seized the vehicle under the community caretaking function rather than just leave it because there was no telling when he’d be back for it. The vehicle was inventoried, and a BB gun matching the possible weapon in the bank robbery was found. The impoundment and inventory were valid despite a lack of standardized criteria for this situation, distinguishing Bertine. The community caretaking function can support an inventory. State v. Asboth, 2017 WI 76, 2017 Wisc. LEXIS 394 (July 6, 2017):

[*P24] 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 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).

4. See also People v. Torres, 188 Cal. App. 4th 775, 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, 127 Idaho 288, 900 P.2d 196, 199 (Idaho 1995); People v. Ferris, 2014 IL App (4th) 130657, 381 Ill. Dec. 7, 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 433, 437 (Iowa 1996); State v. Fox, 2017 ME 52, ¶¶23-26, 157 A.3d 778; Commonwealth v. Oliveira, 474 Mass. 10, 47 N.E.3d 395, 398 (Mass. 2016); People v. Toohey, 438 Mich. 265, 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, 188 A.D.2d 902, 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.

[*P25] 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. 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 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).