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  • The Community Caretaker Exception: U.S. Supreme Court Won't Hear Challenge

    The U.S. Supreme Court has declined to hear a Wisconsin-based case on the community caretaker exception to the warrant requirement, for the third time in eight years.

    Joe Forward

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    April 4, 2018 – Last year, the Wisconsin Supreme Court ruled (5-2) that the community caretaker exception applied to allow police, without a warrant, to impound and search Kenneth Asboth Jr.’s vehicle after he was arrested for suspected armed robbery.

    Asboth sought to challenge this application of the community caretaker exception to the warrant requirement of the Fourth Amendment, which protects against unreasonable searches and seizures. But the U.S. Supreme Court recently denied Asboth’s petition for a writ of certiorari, leaving the Wisconsin Supreme Court’s decision intact.

    Asboth represents the third time in eight years that the U.S. Supreme Court has declined to hear a Wisconsin-based petition on the community caretaker exception, a Fourth Amendment seedling that sprouted its Wisconsin roots almost 50 years ago.

    In the Beginning

    The U.S. Supreme Court first announced the community caretaker exception in Cady v. Dombrowski, 413 U.S. 433 (1973), which involved a defendant, Chester Dombrowski, who drove his car off the road near West Bend, Wisconsin.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    Police arrested Dombrowski, a Chicago police officer, for drunk driving and had his car towed to a private garage that was seven miles from the police station. The next day, an officer searched the trunk, without a warrant, looking for Dombrowski’s service revolver.

    Instead, the officer found bloodied items, which led to an investigation and subsequent murder conviction against Dombrowski. A divided Wisconsin Supreme Court upheld the conviction on the ground that the search of Dombrowski’s trunk was not a “search.”

    That is, it was a reasonable inspection to secure the service revolver that might be inside and not a search to uncover evidence of a crime.

    Ultimately, the case landed at the U.S. Supreme Court on a habeas corpus petition. The U.S. Court of Appeals for the Seventh Circuit had overturned Dombrowski’s conviction.

    The Seventh Circuit Court of Appeals concluded that a potential service revolver in a locked trunk on private property presented no danger and thus the concern of “public safety” was not enough to outweigh Dombrowki’s expectation of privacy in the locked trunk of his car.

    But the U.S. Supreme Court noted that state and local police frequently encounter civilians after auto accidents “and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

    With that, the community caretaker exception was born. The Cady Court distinguished between vehicles and “houses and similar structures” but concluded that the officer did not violate the Fourth Amendment in searching the trunk of Dombrowski’s car.

    “Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not ‘unreasonable,’” wrote Justice William Rehnquist.

    Four justices dissented. “[T]he fact that the professed purpose of the contested search was to protect the public safety rather than to gain incriminating evidence does not of itself eliminate the necessity for compliance with the warrant requirement,” wrote U.S. Supreme Court Justice William Brennan Jr. for the dissenting bloc.

    The U.S. Supreme Court addressed the community caretaker function twice more, in 1976 and 1987. In South Dakota v. Opperman, 428 U.S. 364 (1976), a 5-3 majority said the police’s community caretaker function of impounding (seizing) cars extends to inventorying the contents of the vehicle which, in this case, contained marijuana.

    And in Colorado v. Bertine, 479 U.S. 367 (1987), a majority upheld the search of a vehicle that was impounded after the driver was arrested for drunk driving. Police inventoried the van, which contained a closed backpack with drugs and cash inside.

    But two justices concurred and three justices dissented. The concurrence said the “inventory exception” for impounded cars, if applying to closed containers inside the vehicle, should only be conducted pursuant to standardized police procedure.

    The dissenters said the search was unconstitutional because vehicle impoundments, which allow for vehicles searches as an exception under the community caretaker function, were completely discretionary in this case. The arresting officer decided.

    “Standardized procedures are necessary to ensure that this narrow exception is not improperly used to justify, after the fact, a warrantless investigative foray,” Justice Thurgood Marshall wrote, joined by Justice Brennan, who dissented in Cady.

    Wisconsin Cases Since Bertine

    In In re Kelsey C.R., 243 Wis.2d 422 (Wis. 2001), the Wisconsin Supreme Court ruled that police did not violate the Fourth Amendment when they approached and questioned a juvenile sitting alone in a high crime neighborhood at night.

    They told her to “stay put” but she fled. When the officers caught and searched her, they found a loaded handgun. The court ruled that the officers were performing a bona fide community caretaker function because they thought the juvenile was a runaway.

    “[T]here were not any alternatives to asking Kelsey to stay where she was to answer some questions, that would have been either feasible or effective in dispelling the officers' concern that Kelsey was a runaway,” wrote Justice N. Patrick Crooks.

    “We, therefore, conclude that, if this initial exchange was a seizure, then it was reasonable under the police communitycaretaker function.”

    Two dissenting justices – Justice Shirley Abrahamson and Justice Ann Walsh Bradley – said police properly performed the community caretaker function in detaining and questioning her, but violated her Fourth Amendment rights in patting her down because “there was no reasonable suspicion that [the juvenile] was armed and dangerous.”

    A handful of cases addressed the community caretaker function after Kelsey, but parties began litigating the exception extensively in the last decade, starting with State v. Kramer, 215 Wis.2d 414 (Wis. 2009), a drunk driving case that was appealed.

    The defendant stopped on the side of the road to make a phone call and activated the car’s hazard lights. A deputy sheriff stopped to check on the situation, and obtained reasonable suspicion to believe the driver, Todd Kramer, was intoxicated.

    “[The deputy’s] contact with Kramer was a bona fide communitycaretaker function that was totally divorced from his law enforcement function,” wrote then-Justice Patience Roggensack (now chief justice) for the unanimous Wisconsin Supreme Court.

    Dividing Lines

    In Kramer, it was clear that the deputy could stop to check on the wellbeing of a driver who appeared to be having car troubles. But a year later, in State v. Pinkard, 327 Wis. 2d 346 (Wis. 2010), the court was divided on the community caretaker exception.

    A police officer in Milwaukee had received an anonymous tip about drug activity at a specific residence, the home of Juiquin Pinkard. Officers were dispatched to “check the welfare of the occupants,” and entered the residence without a warrant.

    They announced themselves but nobody responded and they had to physically shake Pinkard to wake him up before arresting him for drug and firearm offenses.

    A 4-3 majority applied the community caretaker exception, noting that “[a]ssisting members of the public in the context of automobiles is only one of many circumstances in which police officers may exercise their community caretaker function.”

    That is, a majority extended the community caretaker function as applicable to home searches where police are checking the welfare of occupants, as opposed to vehicles.

    Three justices dissented: Justices A.W. Bradley and Abrahamson, and Justice David Prosser (now retired). They said the search was not “totally divorced” from the investigation into drug activity and the evidence could not be used to convict him.

    “The majority acknowledges that this case presents a close call,” Justice A.W. Bradley wrote. “Nevertheless, it transforms a warrantless home search executed by five armed members of a drug unit acting on a tip about drugs into a community caretaker function. I fear today’s close call will become tomorrow’s norm.”

    In 2011, the U.S. Supreme Court declined to hear Pinkard. In a 2013 article addressing the Pinkard case, then-law student Gregory Helding (now an associate at Michael Best & Friedrich LLP), noted that Wisconsin was among several federal circuits and state courts to expand the community caretaker exception to warrantless home searches.1

    Helding argued that the U.S. Supreme Court should “roll back the expansion” of the exception, but the nation’s high court does not seem interested in doing so.

    As noted, the Court declined to hear Pinkard. Five years later, the Court declined to hear another home search case, State v. Matalonis, 366 Wis.2d 443 (Wis. 2016).

    Kenosha police were dispatched on a medical call and observed blood outside the defendant’s residence. They entered without a warrant and searched the home, including a locked room that contained the defendant’s marijuana grow operation.

    A majority upheld the search, and the evidence obtained, based on the community caretaker exception. The same three dissenters in Pinkard dissented again.

    “This expansive conception of community caretaking transforms community caretaking from a narrow exception into a powerful investigatory tool,” Justice Prosser wrote.

    “No longer limited to the purpose of allowing the State to rely upon evidence obtained by law enforcement officers incidental to their provision of valuable services to the public, community caretaking becomes an end in itself,” Justice Prosser explained.

    Then Comes Asboth

    In Asboth, the defendant cited Colorado v. Bertine to argue that police exercised too much discretion in deciding whether to impound his vehicle, which was located at a private storage facility, and did not follow “standard criteria” that Bertine requires.

    After impoundment, police inventoried the car and found a pellet gun under a false floor in the trunk. The pellet gun resembled the handgun used in a bank robbery.

    The 5-2 majority said the community caretaker function applied because the car was blocking access to storage spaces and impounding it would protect it from vandalism or potential theft. The majority also held that the absence of a standard criteria “does not by default render a warrantless community caretaker impoundment unconstitutional.”

    The dissenters, Justices Abrahamson and A.W. Bradley, said 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.”

    Conclusion

    Perhaps the U.S. Supreme Court is waiting for the right case to weigh in on the expanded use of the community caretaker exception in Fourth Amendment cases.

    Or, perhaps the U.S. Supreme Court does not view expansion as a constitutional threat. Either way, the community caretaker exception has fully blossomed in Wisconsin.

    Endnotes

    1 Gregory T. Helding, Stop Hammering Fourth Amendment Rights: Reshaping the Community Caretaking Exception with the Physical Intrusion Standard, 97 Marq. L. Rev. 123, 127 (2013).