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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)