LATEST IMPOUND CASE
January 8, 2007
In November of 2005, the Ninth Circuit U.S. Court of Appeal ruled that the authority to impound a car, without a warrant, was limited under the Fourth Amendment of the U.S. Constitution. In the case of Miranda v. City of Cornelius, 429 F.3d 858, the court held that one could impound a vehicle, without a warrant, pursuant to a lawful arrest or if the “community caretaker” provisions were present. The court stated that impounding a legally parked vehicle was an unreasonable seizure when there was no reasonable justification for removing it. [See our Client Alert MemoVol 21 No 1 and Vol 21 No 2 regarding this.] On December 13, 2006, the California Court of Appeal, Second Appellate District, issued a similar opinion in the case of People v. Williams, 145 Cal. App. 4 th 756, holding that seizure of a vehicle, pursuant to Vehicle Code section 22651(h)(1), may also be unconstitutional, depending on circumstances.
Vehicle Code section 22651 authorizes a peace officer to “.remove a vehicle.under any of the following circumstances: .(h)(1) When an officer arrests any person driving or in control of a vehicle for an alleged offense, and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody.” Nonetheless, the Williams court held that “.this statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure.”
In the Williams case, Williams was stopped for driving without a seatbelt and, thereafter, the officer determined that there was an outstanding warrant for the appellant. He placed him under arrest, impounded the car, searched the car and found a loaded gun and Williams was subsequently convicted of carrying a loaded firearm. Prior to trial, appellant moved to suppress the gun as a product of an illegal seizure and search of the car. The officer had impounded the car pursuant to VC 22651(h)(1) because “the driver in control of that vehicle was being arrested.”
At the time of the impound, the car was legally parked in front of the appellant’s own home, which the officer knew at the time. The car was a rental, it was not stolen and the appellant was in legal possession of it. The officer acknowledged that “the car could have been locked and left right where appellant parked it, but he did not give appellant the opportunity to do so. He immediately decided to impound the car.” The appellant’s challenge to impounding the car, and discovery of the weapon, is based on a violation of the Fourth Amendment.
The court states 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 the instant case, 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.” Additionally, in a footnote, the court pointed out that “the prosecution did not attempt to justify the warrantless search as one incident to appellant’s arrest.”
The court refers to City of Cornelius and states 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.”
Finally, said the court, “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 held 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.”
HOW THIS AFFECTS YOUR AGENCY
As we noted in our earlier Client Alert Memos, it will be necessary to justify seizing a vehicle without a warrant. If the impound cannot be shown to be based upon a lawful arrest, where the vehicle is evidence in the underlying case, or pursuant to the community caretaking policy, merely citing to a state statute which authorizes the seizure will not overcome the constitutional prohibition of taking property without a warrant.
As always, and especially when dealing with unique areas of the law, it is imperative that you confer with your own agency’s legal advisor. Should you wish to discuss this case in greater detail, please feel free to contact me at 714 – 446-1400 or at mjm@jones-mayer.com.