2020 WI 60

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP1774-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Alfonso Lorenzo Brooks,

 Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 388 Wis. 2d 622,935 N.W.2d 559

(2019 – unpublished)

OPINION FILED: June 25, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 27, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Milwaukee 

JUDGE: Jeffrey A. Wagner 

JUSTICES:

KELLY, J., delivered the majority opinion for a unanimous Court.

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

filed by Leon W. Todd, assistant state public defender. There 

was an oral argument by Leon W. Todd. 

For the plaintiff-respondent, there was a brief filed by 

Abigail C.S. Potts, assistant attorney general; with whom on the 

brief was Joshua L. Kaul, attorney general. There was an oral 

argument by Abigail C.S. Potts. 
2020 WI 60

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 18AP1774-CR

(L.C. No. 2015CF3861)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Alfonso Lorenzo Brooks,

 Defendant-Appellant-Petitioner.

FILED

JUN 25, 2020

Sheila T. Reiff

Clerk of Supreme Court

KELLY, J., delivered the majority opinion for a unanimous 

Court.

REVIEW of a decision of the Court of Appeals. Reversed and 

cause remanded. 

¶1 DANIEL KELLY, J. Alfonso Lorenzo Brooks was parked 

on the side of a road after having been stopped for speeding. 

He was alone in the vehicle, and he had been driving with a 

suspended operator's license. Although he told the Milwaukee 

Sheriff deputies who were issuing him his traffic citations that 

he could have a licensed driver retrieve the vehicle, the 

deputies told him department policy required them to take it to 

an impound lot. The deputies conducted an inventory search of 

the vehicle prior to the tow. Mr. Brooks, a convicted felon, 
No. 2018AP1774-CR 

2

could not lawfully possess the firearm the deputies found, and 

so he was arrested. We consider in this case whether the 

deputies were performing a bona fide community caretaker 

function when they seized Mr. Brooks' vehicle without a warrant. 

We conclude they were not, and so we reverse the decision of the 

court of appeals because the seizure and ensuing inventory 

search were both unconstitutional.1

I. BACKGROUND

¶2 Late one summer night in 2014, Mr. Brooks came to the 

attention of Milwaukee County Sheriff's Deputies Dean Zirzow and 

Travis Thompson because he was traveling the Lake Park freeway 

at a speed of no less than 15 miles per hour above the posted 

speed limit. The deputies pursued Mr. Brooks and, once he 

exited the freeway, pulled him over in a mixed commercial and 

residential neighborhood. While performing duties incident to 

the traffic stop, the deputies learned Mr. Brooks' driver's 

license was suspended and that he was a convicted felon. The 

deputies cited Mr. Brooks for unreasonable and imprudent speed 

and for operating a vehicle with a suspended driver's license. 

¶3 The deputies did not arrest Mr. Brooks for the traffic 

citations, but neither could he drive away at the conclusion of 

the traffic stop because he did not have a valid license and he 

was alone in the vehicle. The deputies informed Mr. Brooks 

 

1 This is a review of an unpublished court of appeals 

opinion, State v. Brooks, No. 2018AP1774-CR, unpublished slip 

op. (Wis. Ct. App. Aug. 20, 2019) (per curiam), affirming the 

Milwaukee County Circuit Court, the Honorable Jeffrey A. Wagner, 

presiding.
No. 2018AP1774-CR 

3

that, under those circumstances, department policy required them 

to tow the vehicle to an impound lot.2 Mr. Brooks asked if his 

girlfriend——to whom the car was registered and who was following 

shortly behind him——could retrieve the car from the scene of the 

traffic stop. Deputy Zirzow denied the request because 

department policy prohibits non-officials from coming to the 

scene of ongoing police action.3

¶4 During the dialogue between Mr. Brooks and Deputy 

Zirzow, Deputy Thompson commenced a warrantless inventory search 

of the vehicle's contents preparatory to the tow. After 

discovering a firearm in the trunk area, the deputies arrested 

 

2 We do not know whether that is an accurate recitation of 

the Department's policy because the State never introduced it. 

Included with Mr. Brooks' motion for postconviction relief, 

however, is a policy entitled "Arrest Tow," which provides: "It 

shall be the policy of this agency to tow any vehicle when the 

driver and/or owner is arrested and no responsible person is 

present, at the time of the arrest, to take control of the 

vehicle." If that is the policy to which the deputies referred, 

it would not apply in this case because Mr. Brooks was not under 

arrest when the deputies made the decision to impound the 

vehicle.

3 Mr. Brooks' girlfriend arrived on the scene before the 

vehicle was towed.
No. 2018AP1774-CR 

4

Mr. Brooks for possession of a firearm by a felon, contrary to 

Wis. Stat. § 941.29(2)(a) (2013-14).4

¶5 Mr. Brooks moved to suppress the firearm, arguing the 

warrantless seizure of the vehicle and subsequent inventory 

search violated the Fourth and Fourteenth Amendments to the 

United States Constitution, as well as Article I, Section 11 of 

the Wisconsin Constitution. Specifically, he argued that the 

"community caretaker" exception to the Fourth Amendment's 

warrant requirement did not justify seizure of the vehicle. The 

circuit court denied the motion, after which Mr. Brooks pled 

guilty and received his sentence in due course.

¶6 Mr. Brooks pursued postconviction relief, asserting 

that: (1) there had been no valid "exercise of law 

enforcement's community caretaker function because the vehicle 

was lawfully parked and not obstructing traffic[]"; and (2) Mr. 

Brooks' trial counsel was ineffective for failing to introduce 

evidence that Mr. Brooks' vehicle had been lawfully parked, and 

that the Department's written policies did not authorize the 

 

4 "A person specified in sub. (1) is guilty of a Class G 

felony if he or she possesses a firearm under any of the 

following circumstances: (a) The person possesses a firearm 

subsequent to the conviction for the felony or other crime, as 

specified in sub. (1)(a) or (b)." Wis. Stat. § 941.29(2)(a)

(2013-2014). This provision was repealed after Mr. Brooks' 

conviction, see 2015 Wis. Act 109, and the same offense now 

appears at Wis. Stat. § 941.29(1m)(a) (2017-2018) ("A person who 

possesses a firearm is guilty of a Class G felony if any of the 

following applies: (a) The person has been convicted of a 

felony in this state.").

All subsequent references to the Wisconsin Statutes are to 

the 2013-2014 version unless otherwise indicated.
No. 2018AP1774-CR 

5

decision to tow the vehicle. The circuit court denied the 

motion without a hearing, and the court of appeals affirmed. We 

granted Mr. Brooks' petition for review and now reverse.

II. STANDARD OF REVIEW

¶7 "'Whether evidence should be suppressed is a question 

of constitutional fact.'" State v. Floyd, 2017 WI 78, ¶11, 377 

Wis. 2d 394, 898 N.W.2d 560 (quoting State v. Knapp, 2005 

WI 127, ¶19, 285 Wis. 2d 86, 700 N.W.2d 899). We will review 

the circuit court's findings of historical fact under the 

clearly erroneous standard, but the circuit court's application 

of historical facts to constitutional principles is a question 

of law we review independently. State v. Turner, 136 

Wis. 2d 333, 343-44, 401 N.W.2d 827 (1987). "While we are not 

bound by the circuit court's or court of appeals' decisions on 

questions of law, we benefit from their analyses." Floyd, 377 

Wis. 2d 394, ¶11 (citing State v. Kyles, 2004 WI 15, ¶7, 269 

Wis. 2d 1, 675 N.W.2d 449).

III. ANALYSIS

¶8 In this case we decide whether the "community 

caretaker" doctrine authorizes law enforcement officers to seize 

a vehicle without a warrant when, subsequent to a traffic stop, 

they discover the driver and sole occupant of the vehicle does 

not have a valid driver's license. Our constitution does not 

prohibit all governmental seizures, of course, just the 

unreasonable ones. Wis. Const. art. I, § 11 ("The right of the 

people to be secure in their persons, houses, papers, and 

effects against unreasonable searches and seizures shall not be 
No. 2018AP1774-CR 

6

violated[.]").5 Warrantless seizures (as occurred here) are 

presumptively unreasonable, and therefore unconstitutional. 

State v. Asboth, 2017 WI 76, ¶12, 376 Wis. 2d 644, 898 

N.W.2d 541 ("A seizure conducted without a valid warrant is 

presumptively unreasonable." (internal marks omitted)).6 

However, "because the ultimate touchstone of the Fourth 

Amendment [and Article I, Section 11 of the Wisconsin 

Constitution] is 'reasonableness,' the warrant requirement is 

subject to certain exceptions." Brigham City, Utah v. Stuart, 

547 U.S. 398, 403 (2006). One of those exceptions allows law 

enforcement officials to perform a warrantless seizure when 

acting in their "community caretaker" role. Asboth, 376 

Wis. 2d 644, ¶13.

 

5 The United States Constitution contains the same 

guarantee, and we generally interpret them coextensively. U.S. 

Const. amend. IV ("The right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated[.]"); State v. 

Floyd, 2017 WI 78, ¶19, 377 Wis. 2d 394, 898 N.W.2d 560 (citing 

State v. Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 

N.W.2d 502).

6 See, e.g., State v. Higginbotham, 162 Wis. 2d 978, 990-91, 

471 N.W.2d 24 (1991) (stating that "[s]earches conducted 

pursuant to a warrant are a more reliable safeguard against 

improper searches because the decision to search is made by a 

neutral magistrate who has the opportunity to make an informed 

and deliberate determination regarding the existence of probable 

cause, rather than by officers whose more hurried decisions may 

be influenced by the competitive nature of their work and their 

desire to discover evidence they suspect may be present at a 

given location[]" and that "[w]arrants are also preferred 

because a 'warrant assures the individual whose property is 

searched or seized of the lawful authority of the executing 

officer, his need to search, and the limits of his power to 

search.'" (citation omitted)). 
No. 2018AP1774-CR 

7

¶9 Before evaluating this exception to the warrant 

requirement, we should be clear about which seizure we are 

addressing——there were two in this case. Although they 

overlapped for a short period of time while the first was ending 

and the second was commencing, they were conceptually distinct. 

It is essential that we distinguish them because the 

constitutionally-acceptable scope and duration of each seizure 

is inextricably bound up with its justifiable purpose.

¶10 The first seizure occurred when the deputies stopped 

Mr. Brooks for speeding. See State v. Brereton, 2013 WI 17, 

¶24, 345 Wis. 2d 563, 826 N.W.2d 369 ("The stop of an automobile 

by law enforcement constitutes a seizure of the vehicle, as well 

as its occupants."). That seizure could last no longer than 

necessary to complete the purpose of the traffic stop. Floyd, 

377 Wis. 2d 394, ¶21 ("Traffic stops are meant to be brief 

interactions with law enforcement officers, and they may last no 

longer than required to address the circumstances that make them 

necessary."); see also Rodriguez v. United States, 575 U.S. 348, 

354, (2015) ("Because addressing the infraction is the purpose 

of the stop, it may 'last no longer than is necessary to 

effectuate th[at] purpose.'" (citation omitted)). The duration 

of the seizure is, therefore, necessarily co-terminus with the 

purpose of the traffic stop: "Authority for the seizure thus 

ends when tasks tied to the traffic infraction are——or 

reasonably should have been——completed." Rodriguez, 575 U.S. at 

354. The scope of the seizure is similarly delimited by its 

purpose:
No. 2018AP1774-CR 

8

"The scope of the search must be 'strictly tied to and 

justified by' the circumstances which rendered its 

initiation permissible." [Terry v. Ohio, 392 U.S. 1, 

19 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310 

(1967) (Fortas, J., concurring))]. The reasonableness 

requirement of the Fourth Amendment requires no less 

when the police action is a seizure permitted on less 

than probable cause because of legitimate law 

enforcement interests. The scope of the detention 

must be carefully tailored to its underlying 

justification.

Florida v. Royer, 460 U.S. 491, 500 (1983) (emphasis added). So 

the first seizure ended once the deputies accomplished the 

purpose of the traffic stop, to wit, safely issuing the two 

citations to Mr. Brooks. 

¶11 The second seizure occurred when the deputies decided 

that Mr. Brooks' lack of a valid driver's license required them 

to impound the vehicle. Deputy Zirzow was still in the process 

of issuing the citations to Mr. Brooks (thereby winding down the 

first seizure) when Deputy Thompson began inventorying the 

vehicle in preparation for the tow (which commenced the second 

seizure). This is the seizure the State says was justified by 

the community caretaker doctrine, and which we now address.

A. The Community Caretaker Exception

¶12 When the State claims law enforcement's community 

caretaker role justifies a seizure, as it does here, we evaluate 

the following three criteria:

(1) whether a search or seizure within the meaning of 

the Fourth Amendment has occurred; (2) if so, whether 

the police were exercising a bona fide community 

caretaker function; and (3) if so, whether the public 

interest outweighs the intrusion upon the privacy of 

the individual such that the community caretaker 

function was reasonably exercised[.]
No. 2018AP1774-CR 

9

Asboth, 376 Wis. 2d 644, ¶13 (citation omitted).7 Because there 

is a presumption against warrantless seizures, the State bears 

the burden of proving the community caretaker doctrine justified 

seizure of the vehicle Mr. Brooks was driving. State v. PayanoRoman, 2006 WI 47, ¶30, 290 Wis. 2d 380, 714 N.W.2d 548 ("The 

government bears the burden of proving that a warrantless search 

falls within one of the narrowly drawn exceptions.").

¶13 Our focus in this case is on the second element——

whether the police were performing a bona fide community 

caretaker function.8 "The community caretaker exception to the 

warrant requirement[,]" we have said, "accounts for the 

multifaceted nature of police work[]"——"'first aid provider, 

social worker, crisis intervener, family counselor, youth mentor 

and peacemaker, to name a few.'" Asboth, 376 Wis. 2d 644, ¶15 

 

7 The third element, although not implicated in this case, 

involves "balancing a public interest or need that is furthered 

by the officer's conduct against the degree of and nature of the 

restriction upon the liberty interest of the citizen." State v. 

Kramer, 2009 WI 14, ¶40, 315 Wis. 2d 414, 759 N.W.2d 598. This 

"balancing" includes:

(1) the degree of the public interest and the exigency 

of the situation; (2) the attendant circumstances 

surrounding the seizure, including time, location, the 

degree of overt authority and force displayed; (3) 

whether an automobile is involved; and (4) the 

availability, feasibility and effectiveness of 

alternatives to the type of intrusion actually 

accomplished.

Id., ¶¶40-41.

8 The parties agree that the deputies "seized" the vehicle 

within the meaning of the Fourth Amendment.
No. 2018AP1774-CR 

10

(citation omitted). The police are often "'society's problem 

solvers when no other solution is apparent or available.'" Id.

(citation omitted). When functioning as a "community 

caretaker," a seizure is permissible to "protect persons and 

property"9 so long as it is "totally divorced from the detection, 

investigation, or acquisition of evidence relating to the 

violation of a criminal statute."10

¶14 The nature and use of motor vehicles frequently call 

upon police to act in this capacity. "To permit the 

uninterrupted flow of traffic and in some circumstances to 

preserve evidence, disabled or damaged vehicles will often be 

removed from the highways or streets at the behest of police 

engaged solely in caretaking and traffic-control activities." 

South Dakota v. Opperman, 428 U.S. 364, 368 (1976). The same 

rationale might require towing illegally parked vehicles: 

"Police will also frequently remove and impound automobiles 

which violate parking ordinances and which thereby jeopardize 

both the public safety and the efficient movement of vehicular 

traffic." Id. at 368-69. This interaction between individual 

vehicles and the general public means that "[t]he authority of 

police to seize and remove from the streets vehicles impeding 

traffic or threatening public safety and convenience is beyond 

challenge." Id. at 369.

 

9 State v. Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346, 785 

N.W.2d 592.

10 Kramer, 315 Wis. 2d 414, ¶¶19-20 (quoting Cady v. 

Dombrowski, 413 U.S. 433, 441 (1973)).
No. 2018AP1774-CR 

11

¶15 We considered the application of this doctrine in the 

motor vehicle context in Asboth, 376 Wis. 2d 644, upon which the 

State relies heavily in this case. Mr. Asboth, wanted for armed 

robbery, drove to a private storage facility and parked his car 

in an alley between two storage sheds. Id., ¶¶2-3. The car 

"entirely blocked access to one storage unit, and it impeded 

access to several others." Id., ¶4. Police found him there, 

placed him under arrest, and towed his car to an impound lot. 

Id. We concluded the police had justifiably seized the car in 

their community caretaker role for three reasons. First, we 

explained that leaving Mr. Asboth's vehicle unattended on 

private property "would have inconvenienced a private property 

owner and customers at the storage facility by impeding the 

beneficial use of the property." Id., ¶18. Removing the 

vehicle, we said, "remedied a potential disruption created by 

Asboth's arrest at the private storage facility, thus limiting 

the inconvenience to the property owner and customers." Id. 

Second, we said that "because Asboth was a suspect in a crime 

who also allegedly violated the terms of his probation, he 

likely faced a lengthy detention," and the possibility that the 

vehicle would remain abandoned for that amount of time 

"counseled in favor of its removal from the premises." Id., 

¶19. Finally, we said that because Mr. Asboth was not the 

registered owner of the vehicle and no one else was present to 

take possession, "the possibility existed that officers would 

need to make arrangements to reunite the car with its registered 

owner." Id., ¶20. Taken as a whole, we concluded that these 
No. 2018AP1774-CR 

12

reasons "establish[ed] that the officers had a bona fide 

community caretaker purpose when impounding Asboth's car." Id., 

¶21.

B. Application Of The Community Caretaker Exception

¶16 Determining whether law enforcement officials are 

acting in their community caretaker role is an objective 

analysis. That is, we look to whether "the officer has 

articulated an objectively reasonable basis under the totality 

of the circumstances for the community caretaker function[.]" 

State v. Kramer, 2009 WI 14, ¶36, 315 Wis. 2d 414, 759 

N.W.2d 598. Here, the State's argument closely follows our 

analytical structure in Asboth. It says the seizure "was 

supported by the danger of theft or vandalism to a vehicle left 

unattended for an unanticipated amount of time." It also notes 

that Mr. Brooks "was not the registered owner of the car, so the 

officers had a duty to the registered owner to protect the 

vehicle." In addition, it says "[t]he car was parked far from 

the curb, potentially impeding traffic along the side of the 

street," and "[i]t was far enough away from Brooks' residence 

that it could be difficult for a member of his household to 

retrieve it expeditiously if any issues with the car arose." 

Finally, the State says the seizure had nothing to do with any 

investigatory purpose inasmuch as the deputies testified they 

were simply carrying out a department policy that required them 

to tow the vehicle under the circumstances then present.

¶17 This case bears some superficial similarities to 

Asboth. In both cases the drivers were alone, they were not the 
No. 2018AP1774-CR 

13

registered owners of the seized vehicles, and the initial reason 

for their interaction with law enforcement bore no connection to 

the need to seize the vehicle. But there is a fundamental 

distinction between the cases that overshadows those 

similarities and deprives them of any instructive value. To 

wit, law enforcement officers in Asboth arrested the driver 

before they seized the vehicle he was driving, whereas here the 

deputies did not arrest Mr. Brooks until after the seizure. 

That difference sidelines two of the three justifications 

addressed in Asboth, and the factual record does not support the 

third. We will address each of them in turn.

¶18 First, the sequence of seizure and arrest in this case 

negates the State's concern that leaving the vehicle unattended 

for an indeterminate amount of time would subject it to the risk 

of theft or vandalism. There is, in fact, nothing to suggest 

the vehicle would have been unattended at all, much less 

indefinitely. At the time the deputies decided to impound the 

vehicle, Mr. Brooks was not under arrest, which means he could 

have simply waited in the car until a licensed driver came to 

pick it up.11 And even if he had walked the two miles home to 

summon assistance, nothing in the record suggests that such a 

brief absence would measurably increase the risk of theft or 

 

11 As it turned out, Mr. Brooks' girlfriend arrived on the 

scene before the vehicle was towed (but after Mr. Brooks had 

been arrested).
No. 2018AP1774-CR 

14

vandalism.12 This is markedly different from the circumstances 

obtaining in Asboth, in which the driver's pre-seizure arrest 

guaranteed the vehicle would be indefinitely unattended.

¶19 Second, the sequence of events in this case means the 

deputies owed no particular duty to the vehicle's registered 

owner. In Asboth we acknowledged that arresting the driver gave 

rise to the possibility "that officers would need to make 

arrangements to reunite the car with its registered owner." 

Asboth, 376 Wis. 2d 644, ¶20. But the burden fell to the 

officers only because they had arrested Mr. Asboth, which would 

presumably make it difficult for him to make such arrangements 

himself. Here, Mr. Brooks was not under arrest and so he was 

free to attend to whatever arrangements were necessary to move 

the car. And nothing about the situation suggested he might not 

be in lawful possession of the vehicle. So, unlike Asboth, the 

deputies in this case had no apparent duty to "reunite the car 

with its registered owner."

¶20 The seizure/arrest sequence in this case, therefore, 

makes two of the three Asboth justifications for a vehicle 

seizure entirely inoperable. And the record simply does not 

support the third. The State tried to tie this case to 

Opperman's concern for ensuring "the efficient movement of 

vehicular traffic,"13 and Asboth's14 concern that the vehicle's 

 

12 Every vehicle parked in public is theoretically at risk 

of theft or vandalism. But that does not mean impounding any 

such vehicle is a bona fide act of community caretaking. The 

risk must be real, not theoretical.

13 South Dakota v. Opperman, 428 U.S. 364, 369 (1976).
No. 2018AP1774-CR 

15

placement not impede or inconvenience other members of the 

public as they go about their business. To this end, it argued 

that Mr. Brooks' vehicle was "potentially impeding traffic along 

the side of the street." Mr. Brooks, however, has maintained 

ever since the suppression hearing that the car appeared to be 

lawfully parked along the side of the road. The State faults 

Mr. Brooks for not proving that assertion, pointing to the lack 

of any findings of fact in that regard. But this gap in the 

record is a problem for the State, not Mr. Brooks. As mentioned 

above, warrantless seizures are presumptively unconstitutional, 

which puts the burden on the State to prove their 

reasonableness. Payano-Roman, 290 Wis. 2d 380, ¶30. If the 

deputies had to act in their community caretaker role to prevent 

the vehicle from impeding traffic flow, it was the State's duty 

to prove such a necessity. But the record shows it made no 

attempt to do so. Even now, the State's most definitive 

argument on the subject is that the vehicle "potentially" 

impeded traffic. Without a supporting factual record, this is, 

at best, speculative. And we will not base our analysis on 

speculation. See, e.g., State v. Carter, 2010 WI 77, ¶63 n.48, 

327 Wis. 2d 1, 785 N.W.2d 516 ("This court does not resolve 

cases on the basis of speculation, confabulation, or 'theories' 

about what may or may not have occurred. We resolve this case 

 

14 State v. Asboth, 2017 WI 76, ¶18, 376 Wis. 2d 644, 898 

N.W.2d 541.
No. 2018AP1774-CR 

16

on the basis of the record before us and the circuit court's 

findings of fact based on that record.").15

¶21 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 

 

15 The State did not dispute Mr. Brooks' assertion in the 

circuit court that his vehicle appeared to be parked legally on 

the side of the road. Here, however, the State says the 

deputy's squad-car video shows that "several vehicles that drive 

by have to enter the other lane to avoid the officers' and 

Brooks' car." To the extent the State means for us to accept 

this as a refutation of Mr. Brooks' assertion that he was parked 

legally, it is too little and too late. It is commonplace for 

drivers, out of concern for officer safety, to give a wide berth 

to law enforcement officials when they have someone pulled over 

on the side of the road. They may not have entered the other 

lane had a squad car not been present. 

But even if we accepted the State's interpretation of the 

video footage, this would simply create a factual dispute as to 

whether the car was parked legally. In such circumstances, we 

review the circuit court's findings of fact to determine whether 

they are clearly erroneous. See, e.g., State v. Walli, 2011 

WI App 86, ¶17, 334 Wis. 2d 402, 799 N.W.2d 898 ("when evidence 

in the record consists of disputed testimony and a video 

recording, we will apply the clearly erroneous standard of 

review when we are reviewing the trial court's findings of fact 

based on that recording."). Here, however, there are no factual 

findings to review, so we could not accept the State's position 

without finding facts in the first instance. This we do not do. 

See, e.g., Phelps v. Physicians Ins. Co. of Wisconsin, Inc., 

2005 WI 85, ¶4 n.4, 282 Wis. 2d 69, 698 N.W.2d 643 (remanding to 

the circuit court to determine a factual issue because this 

court "cannot find facts[.]"); State v. Owens, 148 Wis. 2d 922, 

930, 436 N.W.2d 869 (1989) ("Sorting out the conflicts and 

determining what actually occurred is uniquely the province of 

the trial court, not the function of the appellate court.").
No. 2018AP1774-CR 

17

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 caseby-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.

¶22 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. 
No. 2018AP1774-CR 

18

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.16 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 

 

16 Clark could have ended its analysis with these 

observations because they demonstrate the circumstances did not 

present an actual need for the police to act in their community 

caretaker role. The Clark court, however, proceeded to the 

third step of the analysis and concluded that, because there 

were available alternatives to impounding the vehicle, the 

seizure was unreasonable. State v. Clark, 2003 WI App 121, 

¶¶25-26, 265 Wis. 2d 557, 666 N.W.2d 112.
No. 2018AP1774-CR 

19

cannot. This case presents even less of a caretaking need than 

Clark.

¶23 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, ¶36.17

C. The Search

¶24 When law enforcement officers have a constitutionallylegitimate reason for impounding a vehicle, they may inventory 

its contents without a warrant and without violating the 

 

17 Our conclusion that the deputies were not acting as bona 

fide community caretakers when they seized Mr. Brooks' vehicle

means we need not progress to the third element of the doctrine, 

which considers whether law enforcement officers' performed that 

role reasonably.
No. 2018AP1774-CR 

20

constitution. The purpose of such a search is "the protection 

of the owner's property while it remains in police custody; the 

protection of the police against claims or disputes over lost or 

stolen property; and the protection of the police from potential 

danger." Opperman, 428 U.S. at 369 (internal citations 

omitted). "It is also settled that a police inventory search is 

among the few exceptions to the warrant requirement of the 

fourth amendment." State v. Callaway, 106 Wis. 2d 503, 510, 317 

N.W.2d 428 (1982).

¶25 But the permissibility of such inventory searches 

depends entirely on the constitutionality of the seizures that 

precede them. See, e.g., Clark, 265 Wis. 2d 557, ¶11 ("An 

analysis of an inventory search involves a two-step process: 

(1) analysis of the reasonableness of the seizure of the car in 

the first instance; and (2) analysis of the reasonableness of 

the inventory search."). Because the seizure in this case 

violated the Fourth Amendment and Article I, Section 11 of the 

Wisconsin Constitution, so did the ensuing inventory search.

IV. CONCLUSION

¶26 The community caretaker doctrine recognizes and makes 

allowance for the multifaceted nature of police work, but it has 

its limits. Because we conclude the deputies in this case were 

not acting as bona fide community caretakers when they seized 

Mr. Brooks' vehicle, we hold that the court of appeals erred in 
No. 2018AP1774-CR 

21

affirming the circuit court's denial of Mr. Brooks' suppression 

motion and we therefore reverse.18

By the Court.—The decision of the court of appeals is 

reversed and the cause is remanded to the circuit court for 

further proceedings consistent with this opinion.

 

18 As an alternative basis for reversing the court of 

appeals, Mr. Brooks argues his trial counsel was ineffective 

for: (1) failing to introduce the Department's written 

policies, which Mr. Brooks asserts did not authorize the tow and 

inventory search under these circumstances because they referred 

only to tows subsequent to arrest; and (2) failing to introduce 

evidence he was lawfully parked. Because we conclude the 

community caretaker exception does not apply and suppression of 

the firearm is therefore required, it is unnecessary to address 

this alternative argument.
No. 2018AP1774-CR 

1