CLIENT ALERT MEMORANDUM
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer, Esq.
SEIZING VEHICLES AT DUI CHECKPOINTS
The question of whether law enforcement officers can seize vehicles driven by unlicensed drivers appears to continue to perplex law enforcement and others. The most recent issue has been raised by the California Office of Traffic Safety and focuses on whether cars can, constitutionally, be towed from DUI checkpoints merely because the driver is unlicensed? The answer is: It depends.
Miranda v. City of Cornelius
In January, 2006 the Ninth Circuit U. S. Court of Appeals ruled, in the case of Miranda v. City of Cornelius, 429 F.3d 858, that impounding vehicles, when the only charge is driving without a license, was unconstitutional if there is no justification under the exceptions requiring a warrant. The Court stated that “a seizure conducted without a warrant is per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well delineated exceptions.” One of those exceptions is the “community caretaker” function.
The Court states that, “(i)n their ‘community caretaker’ function, police officers may impound vehicles that ‘jeopardize public safety and the efficient movement of vehicular traffic’.” Although detaining a vehicle following a traffic stop is justified, “…the impoundment of a legally parked vehicle is not necessary to enforce traffic regulations and requires some additional justification, as is typically demonstrated by the community caretaking purpose.”
Additionally, just because impounding the vehicle is done pursuant to the authority of a local or state law, “…does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment….”
In the Cornelius case, a car was seized, pursuant to Oregon law, after the driver was cited for driving without a license. However, the Court held that “a driver’s arrest, or citation for a non-criminal traffic violation, as was in this case, is not relevant except insofar as it affects the driver’s ability to remove the vehicle from a location at which it jeopardizes the public safety or is at a risk of loss. But no such public safety concern is implicated by the facts of this case involving a vehicle parked in the driveway of an owner who has a valid license.”
People v. Williams
Approximately one year later, the California Court of Appeal agreed with the Cornelius decision and, in some respects, expanded upon it. On December 13, 2006, the California Court of Appeal, Second Appellate District, issued an opinion in the case of People v. Williams, 145 Cal. App. 4th 756, holding that seizure of a vehicle, pursuant to Vehicle Code section 22651(h)(1), may also be unconstitutional, depending on the circumstances.
The court stated that “a warrantless search is presumed to be illegal [and] the prosecution always has the burden of justifying the search by proving the search fell within a recognized exception to the warrant requirement.”
In Williams, the officer “relied upon Vehicle Code section 22651, subdivision (h)(1) as authority for impounding appellant’s car. While the statute authorizes law enforcement officers to ‘remove’ a vehicle when they make a custodial arrest of a person ‘driving or in control’ of the vehicle, this statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure.”
Williams had been arrested, on an outstanding warrant for a parole violation, after legally parking his car outside his home. After seizing the vehicle, pursuant to 22651(h)(1), the police discovered a loaded handgun under the front seat. Since he was a felon, on parole, he was prosecuted for the possession of a weapon, but the defense motion to suppress the gun was granted.
The court held that “the prosecution simply did not establish that impounding appellant’s car served any community caretaking function. It therefore failed to establish the constitutional reasonableness of the seizure and subsequent inventory search.”
The court referred to City of Cornelius and stated that the authority of police officers to impound vehicles also exists pursuant to their “community caretaking functions,” when vehicles “jeopardize public safety and the efficient movement of vehicular traffic.” Officers have a duty to prevent vehicles “from creating a hazard to other drivers or being a target for vandalism or theft.” If impounding a vehicle is justified, then “a warrantless inventory search of the vehicle is constitutionally reasonable.”
The Williams court stated, further, that relying on Vehicle Code section 22651 will not justify seizure of all cars. “…(T)he action taken must nonetheless be reasonable in light of the justification for the impound and inventory exception to the search warrant requirements. Reasonableness is the touchstone of the Fourth Amendment.”
Seizing Vehicles at DUI Checkpoints
So — can law enforcement seize a vehicle at a DUI checkpoint if the driver is unlicensed? The answer is “yes” if there is justification under the law. Examples of such justification would be if the vehicle is creating an actual or potential traffic hazard (e.g. parked in the middle of the road); or is illegally parked (e.g. in a red zone or blocking a fire hydrant, or a driveway); or if it is parked on private property and there is no consent from the property owner to leave the vehicle there for any extended period of time; or if it is in a high crime area which poses a high likelihood of theft or vandalism.
How This Affects Your Agency
Both of the Cornelius and Williams cases have been cited to in many subsequent appellate court decisions, in both the State and Federal Courts of Appeal and they have been, overwhelmingly, followed. There have been no decisions, which we have found, which disagreed with these rulings. As such, it appears that the court decisions remain constant and permit law enforcement to seize vehicles, even at DUI checkpoints, if the drivers are unlicensed, there is no licensed driver in the vehicle, and any of the concerns set forth under the “community caretaker” function are present.
One other reason set forth by law enforcement for seizing vehicles driven by unlicensed drivers, is to prevent or deter them from driving the vehicle after the officer leaves the scene. However, that issue was addressed in the Cornelius case and found to be lacking merit.
“While the Supreme Court has accepted a deterrence rationale for civil forfeitures of vehicles that were used for criminal activity, . . . the deterrence rationale is incompatible with the principles of the community caretaking doctrine.
Unlike in civil forfeitures, where the seizure of property penalizes someone who has been convicted of a crime, the purpose of the community caretaking function is to remove vehicles that are presently impeding traffic or creating a hazard. The need to deter a driver’s unlawful conduct is by itself insufficient to justify a tow under the “caretaker” rationale.”
There appears to be no basis for the claim that seizing such vehicles, under those circumstances, violates anyone’s due process rights or civil liberties. As both the federal and state courts have held, a warrantless seizure of private property is presumed illegal, but it is a rebuttable presumption. The burden is, unquestionably, on the peace officer to articulate and justify seizing property when no warrant has been secured. As long as that can be done, the seizure is lawful – if no such exception to the warrant requirement is present, the vehicle cannot be seized.
As always, it is imperative that agencies secure the advice and guidance of their legal advisor when proceeding with something which involves interpretation of the law. If you wish to discuss this matter in greater detail, please do not hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.
Before relying on any of this material, confer with your agency’s legal counsel for advice and guidance.
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