WI: Impoundment of car because def was merely ticketed for not having a valid license was unreasonable

Defendant was stopped for speeding, and he was found without a license. The police didn’t arrest him, just ticketed him. Impounding his car and inventorying it was unreasonable under the circumstances, and this was not a reasonable exercise of the community caretaking function. Defendant’s car was on the side of the road, and he was two miles from home. He could call for assistance or walk home. The fact the department policy was to impound didn’t make it reasonable. State v. Brooks, 2020 WI 60, 2020 Wisc. LEXIS 139 (June 25, 2020):

[*P21] Finally, the State says the deputies “reasonably exercised their community caretaker function in towing the car and inventorying it, because they did so according to reasonable standard criteria articulated by the Milwaukee County Sheriff’s Department[.]” Although this part of the State’s argument is not entirely clear, it appears to suggest that compliance with the Department’s standardized policy means, ipso facto, that the deputies were acting as community caretakers. But compliance with an internal policy has nothing to do with whether they were acting in that role when they impounded the car. A standardized policy may provide some evidence that the police performed their community caretaker role reasonably, but it cannot establish the predicate—that they were acting as community caretakers. As we observed in State v. Guy, 172 Wis. 2d 86, 100, 492 N.W.2d 311 (1992), law enforcement policies cannot substitute for a case-by-case application of constitutional requirements to the facts at hand. Even if we were to accept that there is a Departmental policy that explicitly requires impoundment under these circumstances, the policy’s existence is not evidence that the deputies were acting as community caretakers.

[*P22] So neither Opperman, nor Asboth, nor the alleged Departmental policy tells us that the deputies were acting as community caretakers when they impounded Mr. Brooks’ vehicle. On the other hand, State v. Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, provides a closer analogy and more helpfully illuminates the limitations of the community caretaker doctrine in the vehicular context. There, police responded to a report of shots fired and, upon arrival at the scene, discovered a spent shell casing several feet from an unlocked and unoccupied vehicle. Id., ¶¶2-4. The police had reason to believe Mr. Clark had been driving the car earlier that day, but found that it was registered to someone else. Id., ¶4. Although the vehicle was neither damaged nor illegally parked, the police impounded it for safekeeping simply because it was unlocked and unattended. Id. The court of appeals rejected the State’s argument that Opperman justified impounding the vehicle under those circumstances as an exercise of the community caretaker function. Clark, 265 Wis. 2d 557, ¶22. It observed that the situation presented none of the “typical public safety concerns” identified in Opperman. Clark, 265 Wis. 2d 557, ¶22. Specifically, it said the vehicle was not “(1) involved in an accident; (2) interrupting the flow of traffic; (3) disabled or damaged; (4) violating parking ordinances; or (5) in any way jeopardizing the public safety or the efficient movement of vehicular traffic.” Id. To the contrary, the vehicle was “legally parked and undamaged[]” and therefore “posed no apparent public safety concern.” Id. This case does not even rise to Clark’s level of concern. Mr. Brooks was not under arrest when the deputies chose to impound his vehicle, so he could have stayed with his car after issuance of the traffic citations. If an unlocked, unattended car cannot justify a community caretaker seizure, an attended vehicle certainly cannot. This case presents even less of a caretaking need than Clark.

[*P23] We conclude the deputies were not acting as community caretakers when they decided to impound Mr. Brooks’ vehicle. To justify a seizure pursuant to this doctrine, the State must demonstrate the circumstances at hand called upon the police to perform one of their non-investigatory functions, such as protecting persons or property, providing first aid, intervening in a crisis, serving as a peacemaker, or otherwise acting as “‘society’s problem solvers when no other solution is apparent or available.'” Asboth, 376 Wis. 2d 644, ¶15 (citation omitted). But here there was no property or person in need of protection, no crisis, and no problem that did not have an apparent and available solution. There was just a man in a car on the side of a road making arrangements for someone to take him home. Consequently, the State has not “articulated an objectively reasonable basis under the totality of the circumstances for the community caretaker function[.]” Kramer, 315 Wis. 2d 414, ¶36.

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