Vol. 22 No. 18- Vehicles Can Be Towed If…

October 12, 2007

There appears to be significant misunderstanding about the authority of law enforcement to tow/impound vehicles after citing the operator for driving without a license.  Although there have been changes in the law, as a result of several recent case decisions, vehicles can still be towed and impounded if certain circumstances exist.  It is necessary, however, for officers to articulate the presence of those circumstances when taking possession of a vehicle, without a warrant.

There is no question that officers may continue to impound vehicles driven by unlicensed drivers whenever the “community caretaker” doctrine applies, such as when it is necessary to protect the vehicle (eg. removing it from a high crime area), other vehicles or the community (eg. eliminating a potential traffic hazard).  Additionally, those driving on suspended or revoked licenses; those driving vehicles which will be evidence in criminal investigations; and those driving unregistered vehicles, for example, are all subject to having the vehicles impounded.

Miranda v. City of Cornelius

In November, 2005, the United States Court of Appeals for the Ninth Circuit decided the case ofMiranda v. City of Cornelius; Acme Towing, Inc., 429 F. 3d 858, wherein it held that “the impoundment of an automobile is a seizure within the meaning of the Fourth Amendment.  A seizure results if there is some meaningful interference with an individual’s possessory interests in that property.”   The Court also ruled 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.  The burden is on the Government to persuade the district court that a seizure comes under one of a few specifically established exceptions to the warrant requirement.”

In the Cornelius case, a car was impounded, pursuant to Oregon law, after the driver was cited for driving without a license.  The car was parked on the driver’s own driveway when it was towed.  The violation was a traffic infraction – not a crime – and the City acknowledged, therefore, that “the only exception applicable to this impoundment would be the ‘community caretaker’ doctrine..”

The Court noted that “the police’s authority to . seize property when acting in its role as ‘community caretaker’ has a different source than its authority to . seize property to investigate criminal activity.”

When carrying out the ‘community caretaker’ function, “police officers may impound vehicles that jeopardize public safety and the efficient movement of vehicular traffic.  Whether an impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers’ duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft.”

People v. Williams

Approximately one year after the Cornelius decision, in December of 2006, the California Court of Appeal, Second District, decided the case of People v. Williams, 145 Cal App 4 th 756, wherein it held that impounding a vehicle pursuant to California Vehicle Code section 22651 (h)(1) could also be unconstitutional, depending on circumstances.   Just as the federal court said in theCornelius case, about the seizure of private property, the California Court of Appeal ruled inWilliams that, “a warrantless search is presumed to be illegal.  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 “impounded appellant’s car under Vehicle Code section 22651(h)(1) because the driver in control of that vehicle was being arrested.”  Williams was arrested on an outstanding warrant and, after the arrest, the car was impounded and an inventory search was conducted.  The search produced a loaded gun which resulted in a subsequent conviction.  The conviction was overturned based on the conclusion that the search of the vehicle, after it was impounded, was unconstitutional.

The court noted that the car was legally parked, it was not creating any traffic hazard and, although the statute authorized the removal of the vehicle, “this statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure.”

The court discussed the fact that “no community caretaking function was served by impounding appellant’s car.  The car was legally parked at the curb….. The possibility that the vehicle would be stolen, broken into, or vandalized was no greater than if (the officer) had not stopped and arrested appellant…  In this regard, it is significant that other cars were parked on the street and that it was a residential area.”  The court stated 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.”


As stated above, there appears to be a belief among some law enforcement officers that these cases prohibit the towing of vehicles under, virtually, any set of circumstances.that is not correct.  Vehicles can be impounded without a warrant as long as there is justification which meets constitutional muster.

For example, a vehicle can be impounded when it is pursuant to a lawful arrest, and the vehicle is evidence in the underlying crime alleged.  In those cases where there is no arrest, the vehicle can be impounded if the elements of the community caretaking function are present.  As theWilliams court stated, “as part of their ‘community caretaking functions, police officers may constitutionally impound vehicles that ‘jeopardize.public safety and the efficient movement of vehicular traffic.”

The Ninth Circuit noted, in Cornelius, that officers are obviously authorized to “seize” a vehicle following a traffic stop in order to carry out the enforcement of traffic regulations.  “However, theimpoundment 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.” (Emphasis added.)

Therefore, impounding a vehicle is permitted as long as justification exists under any of these legal theories.  We would recommend that agencies adopt policies which set forth circumstances when the impounding of a vehicle is justified.  In many cases the judgment of the officer will be crucial – as it is in almost all matters where an officer takes affirmative action.  What the officer needs to do is document why he or she believes impounding the vehicle is necessary and that it, therefore, meets a community caretaker function in that particular case.

As always, it is important to secure advice and guidance from your agency’s legal counsel.  If you wish to discuss this matter is greater detail, please feel free to contact me at (714) 446 – 1400 or by e-mail at mjm@jones-mayer.com.