On Point: E. Administrative searches

State v. Carter Nelson, 2024AP617-CR, 11/6/24, District II (one judge decision; not eligible for publication); case activity

The Court of Appeals reversed the circuit court’s order granting Carter Nelson’s motion to suppress cocaine seized from his vehicle without a warrant and without probable cause.  The Court held that the evidence would have inevitably been discovered in a standard inventory search when Nelson’s vehicle was towed.

State v. Blong Simba Vang, 2021 WI App 28; case activity (including briefs)

The search of Vang’s car, which was parked on school property, was reasonable under  the less stringent standard for searches of students established in New Jersey v. T.L.O., 469 U.S. 324 (1985), even though Vang wasn’t a student at the school.

State v. Alfonso Lorenzo Brooks, 2018AP1774, review of a per curiam decision granted 12/10/2019; reversed 6/25/20; case activity (including briefs)

Issue presented:

Whether the community caretaker exception permits law enforcement to inventory and tow a vehicle after discovering that the driver does  not have a valid license, when the vehicle is lawfully parked and not obstructing traffic?

Last term, ASPD Andy Hinkel argued an important community caretaker issue that has divided state and federal courts to the Wisconsin Supreme Court. See State v. Asboth, 2015AP2051-CR. The State prevailed but perhaps only temporarily. Today the defense gained traction when SCOTUSblog featured Asboth’s petition for writ of certiorari as its Petition of the Day. Note that Asboth now has four sets of lawyers, including the SPD. Good luck, Team Asboth!!! Here is the question presented:

State v. Kenneth M. Asboth, Jr., 2017 WI 76, 7/6/2017, affirming an unpublished court of appeals decision; case activity (including briefs)

This case presented an issue that has divided federal and state appellate courts: does Colorado v. Bertine, 479 U.S. 367 (1987), permit “community caretaker”-type vehicle impoundments only when the police act accord to “standard criteria”? The majority in this case joins the “no” camp; the dissent says the majority has “buck[ed] the nationwide trend” and expanded the community caretaker doctrine into a “pretext to engage in unconstitutional searches” for evidence of crime.

State v. Richard L. Keller, 2017 WI App 19; case activity (including briefs)

Richard Keller’s probation rules required, among other things, that he neither possess a computer nor commit any crime. When his agent found computers at his house, she took them to Madison and had a Department of Criminal Investigations analyst examine them. Child porn was found and Keller moved for suppression, which the trial court granted. The court of appeals now reverses.

Review of an unpublished court of appeals decision; affirmed 2017 WI 76, case activity (including briefs)

Issues (from petition for review):

Law enforcement officers arrested Kenneth Asboth at a private storage facility. The car he had been driving was parked in the lane between rows of storage units, in front Mr. Asboth’s leased unit. The officers seized the car, towed it to a police station, and searched it.

1.  Must a community-caretaker impoundment of a vehicle be governed by “standard criteria” limiting the discretion of law enforcement officers and, if so, was the impoundment here made in accord with such criteria?
2. Was the impoundment here a valid community caretaker action where the vehicle was parked at a private storage facility? Relatedly, does the Constitution require the state to show that a community caretaker impoundment and search is not a pretext concealing criminal investigatory motives?

State v. Kenneth M. Asboth, Jr., 2015AP2052-CR, 9/29/16, District 4 (not recommended for publication); petition for review granted 1/9/17; affirmed 2017 WI 76; case activity (including briefs)

Police suspected Kenneth Asboth in a bank robbery. They received a tip that he would be at a storage facility, and converged there, where they arrested him. They also decided to seize the car he had been driving, which was parked in the lane between storage sheds. Once the car was at the police station, officers searched it, finding evidence linking Asboth to the robbery. The trial court denied suppression, holding that the car was validly impounded, and that an inventory search was thus permitted. 

City of Los Angeles v. Patel, USSC No. 13-1175, 2015 WL 2473445 (June 22, 2015), affirming 738 F.3d 1058 (9th Cir. 2013) (en banc); Scotusblog page (including links to briefs and commentary)

A majority of the Supreme Court holds that a Los Angeles ordinance compelling hotel operators to make their guest registries available to police for inspection on demand is facially unconstitutional because it penalizes the hoteliers for declining to turn over their records without affording them any opportunity to obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. Along the way, the Court clarifies that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored” (slip op. at 4), clarifying language from Sibron v. New York, 392 U.S. 40 (1968), that some courts have read as barring facial challenges to statutes under the Fourth Amendment.

The 4th Amendment has been described by Conservative HQ as “one of the most important arrows in the quiver against bullying big government.” Because the government doesn’t just search and seize paper–it also goes after your cell phones, your Facebook account, your email (even when stored on Google’s server), your tweets, your DNA (by definition, your family’s DNA) etc.–we want a sturdy Fourth Amendment, right? Justice Scalia thinks so. He’s been called the 4th Amendment’s “