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CAN THE POLICE HAVE MY CAR TOWED AND IMPOUNDED IF I AM ARRESTED?

Getting arrested is often a traumatic event.  It usually comes unexpectedly, interrupting whatever plans you may have had.  It involves a temporary loss of liberty, and being physically restrained.  Typically, the arresting officer will be relatively curt with the arrestee.  And all the while, the arrestee knows that in the days, weeks and months to come, there will be court hearings and meetings with a lawyer.  The arrest details may make the local newspaper, and there may be a temporary driver’s license suspension.  The license suspension may make it hard to get to and from work.  And there will be fees.

Add to all this the not-infrequent scenario where the police have the arrested individual’s car towed and impounded.  Now there may be additional fees for towing and storage, on top of everything else.  Furthermore, if the police impound a vehicle, they will perform what is known as a motor vehicle inventory search, according to their written inventory policy.

A motor vehicle inventory search is typically warrantless, and so is subject to certain constitutional dictates.  In the usual case, the police arrest the driver, and then search the vehicle before having it towed.  The theory is that the police are not doing an investigative search, for evidence, but rather are simply guarding themselves against subsequent allegations that they stole something out of the vehicle, and are also making sure that there is nothing inside the vehicle that could harm them, e.g., a bomb, or perhaps moving the vehicle from a dangerous position or location.

Courts sometimes suppress evidence found during a warrantless search of a vehicle on the grounds that it was not merely done to inventory contents, but was in fact done for evidence-gathering purposes.  This is referred to as a pretextual inventory search.  But a search is also invalid if written inventory search policies were not followed.

On March 28, 2016, the Supreme Judicial Court of Massachusetts decided the case of Commonwealth v. Oliviera, in which the issue presented was “whether it was reasonable for the police to impound a vehicle lawfully parked in a department store lot and conduct an inventory search of the vehicle after the authorized driver of the vehicle was arrested for shoplifting.”

The facts were these, namely: the defendants were apprehended by store security on suspicion of shoplifting, and held until the police arrived.  Upon questioning in the loss prevention office, one of the defendants said that he drove his car, which was registered to his girlfriend, to the store.  The defendant also gave the police permission to use his key, open the car, and search a bag that was inside the car.  The police located the vehicle legally parked in a parking space, and retrieved the bag.  Presumably, they also re-locked the car door before returning to the loss prevention office.  The defendant produced a receipt for the merchandise in the bag, and both defendants were then arrested for the other items that they were suspected of stealing (some cologne and sports attire).  When the police advised the defendants that the car would be inventoried and towed, one of them became visible upset, and told the police that his girlfriend, who was the registered owner of the vehicle, could come pick up the car.  The police nevertheless performed an inventory search of the car and found a firearm in the glove compartment.

Only after the gun was found (the exact chain of events wasn’t perfectly clear, but the Court found the facts as I am describing them), did the police consult the store manager about the car remaining in the parking lot.  They told the manager that the car might remain overnight, even though the defendant had asked to have his girlfriend come and get it.  The manager requested that the car be towed – apparently because there was firearm inside it.

In the trial court, the judge allowed a motion to suppress the firearm, on the basis that the seizure of the vehicle was not reasonable, that the defendant’s request to allow his girlfriend to pick up the car was reasonable, and that there was no reason to suspect that leaving the car where it was posed any danger.  The prosecutor appealed the suppression order.

On review, the SJC did not have an issue with the manner of the inventory search, but confined their discussion to the reasonableness of the seizure (decision to impound) of the vehicle.  “Under both the United States and Massachusetts Constitutions, an inventory search is lawful only if, first, the seizure (or impoundment) of the vehicle was reasonable . . . and, second, the search of the vehicle that follows its seizure was conducted in accord with standard police written procedures.”

The Court then listed the four legitimate reasons that support a law enforcement decision to seize a vehicle after arresting its driver, viz.:

  1. to protect the vehicle and its contents from theft or vandalism;
  2. to protect the public from dangerous items that might be in the vehicle;
  3. to protect public safety where the vehicle, as parked, creates a dangerous condition; or
  4. where the vehicle is parked on private property without the permission of the property owner as a result of a police stop, to spare the owner the burden of having to cause the vehicle to be towed.

The Court then set forth the rest of the test: if the vehicle was seized for one of the four legitimate reasons listed above, then the courts must look to whether the seizure was reasonably necessary based on the totality of the evidence.   Considerations in the totality of evidence decision include:

  • whether the vehicle reasonably could have been left in the place it was parked and therefore need not have been seized;
  • whether the driver chose where to park the vehicle or whether the police stopped a moving vehicle and caused it to be parked at a location the driver otherwise would not have chosen;
  • whether the vehicle was parked lawfully on the street, in the owner’s driveway, or in a parking lot open to the public without limitation;
  • whether there is there potential police liability for failure to impound the vehicle; and
  • where the vehicle reasonably cannot be left in the place it was parked, whether the owner of the vehicle or a person clearly authorized by the owner to drive the vehicle was present and lawfully (sober, licensed to drive, vehicle registered and insured) able to drive the vehicle away.

In upholding the trial court’s suppression order, the SJC noted that the police did not question that the defendant’s girlfriend was able to lawfully drive the vehicle away if contacted.  The Court also noted that the defendant (prior to the seizure and search) had only been charged with shoplifting, and so would probably be released in a matter of a few hours, and could then retrieve the vehicle himself.  The defendant also had a right to a phone call at the police station, and could have called his girlfriend to pick up the vehicle.  Finally, the Court noted that there was no apparent danger attendant to leaving the vehicle where it was overnight, and that the manager’s request to tow the vehicle was improperly tainted by his knowledge of the firearm (for whatever reason, there was no evidence in the record that the parking lot was private property).

If you want to hear what it sounds like when the Supreme Judicial Court helps protect your fundamental constitutional right to be free from unreasonable searches and seizures conducted without a search warrant, it sounds something like this:

“We conclude that where the driver had offered the police an alternative to impoundment that was lawful and practical under the circumstances, it was unreasonable and thus unconstitutional to impound the vehicle and conduct an inventory search.  We therefore affirm the motion judge’s allowance of the defendants’ motions to suppress the fruits of the inventory search.”


Attorney Kevin D. Quinlan

Uxbridge, Massachusetts

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