SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

On the issue of whether the officer has a duty to make sure the
unlicensed driver doesn’t continue to illegally drive the car, the
Court noted that “the need to deter a driver’s unlawful conduct is
by itself insufficient to justify a tow under the ‘caretaker’
rationale.” However, the rule is otherwise (thus allowing for a
tow) where it can be proved that “the driver is unable to remove
the vehicle from a public location without continuing its illegal
operation.” (Ibid.)
But, where the defendant has been physically arrested and taken to
jail, impounding the car to prevent him from continuing the
offense is unlawful. (United States v. Caseres (9 th Cir. 2008) 533
F.3d 1064, 2074-1075; see also People v. Torres (2010) 188
Cal.App.4 th 775, 792, indicating that believing defendant may
repeat his offense of driving without a valid license is never
grounds for impounding his car.)
California is now in accord with the rule as set down in Miranda
v. City of Cornelius. (People v. Williams (2006) 145 Cal.App.4 th
756; impounding the car, per V.C. § 22651(h)(1), subsequent to the
driver’s arrest on an outstanding warrant.)
Towing and impounding a vehicle merely because it is illegally
parked, without prior notice to the vehicle’s owner and a preseizure
hearing, absent an exigency requiring immediate action
(such as in an emergency, where notice would defeat the entire
point of the seizure, or where the interests at stake are small
relative to the burden that giving notice would impose; e.g., the car
is parked in the path of traffic, blocking a driveway, obstructing a
fire lane, or appears to be abandoned, or where there is no current
registration stickers and there’s no guarantee the owner won’t
move or hide the vehicle instead of paying the fine for illegal
parking), is a Fourteenth Amendment due process violation
despite statutes allowing for the towing, and may generate some
civil liability for the police. (Clement v. City of Glendale (9 th Cir.
2008) 518 F.3 rd 1090; an unregistered vehicle with a “planned nonoperation
(PNO) certificate” filed, parked in a publicly accessible
parking lot in violation of V.C. § 22651(o).)
But, at least one federal trial court has upheld the
impounding of a vehicle, per V.C. § 22651(o)(1), which
had an out-of-date registration of over six months. (United
States v. McCartney (E.D. Cal. 2008) 550 F.Supp.2d 1215,
1225.)
© 2012 Robert C. Phillips. All rights reserved
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