Towing your car is kind of like seizing it, right?
by: Rjohnson • January 2, 2011 • no comments
Every now and then I notice a common fact problem or an obvious legal question which, for no apparent reason, is not answered under Oregon appellate law. Criminal defense attorneys tend to be pretty creative about the legal issues we'll raise, because there's no other way to win a lot of our cases. So, here's an unanswered question: Why do the police get to tow your car when they stop you for, say, DWS? Towing your car is clearly a seizure under the Fourth Amendment and Article I, section 9 of the Oregon Constitution. Is there an historical exception to the search-warrant requirement for petty traffic offenses, like riding an improperly-modified horse?
I'm pretty sure that the answer is no, there is no such exception. It's certainly possible, as a matter of fact, that a car might be filled with drugs and ready for the crime-scene techs, or be stopped in a way that blocked traffic or caused some other legitimate threat to the public weal. I'd still file the motion to suppress, but I'd be a lot less optimistic. But if the defendant pulls over to a lawful parking place when the bright red-and-blue lights appear in the rear-view mirror, what is the justification for towing the car?
The lack of an exception to the search-warrant requirement doesn't always stop the police from towing the car. The last time I looked, Portland ordinances permitted towing a car if the driver was cited for one of a list of traffic offenses, including DUII, driving without a license or insurance, or if the towing officer has probable cause that the car was used in a prostitution offense. Some tow policies expressly permit a police officer to exercise discretion in deciding whether to tow. And, the tow typically includes an inventory.
In my view, the tow is a seizure and it is only justified if it falls under an exception to the warrant requirement. In determining whether an inventory of a seized car is permissible, Oregon law requires that the policy relating to the inventory be enacted by a politically-accountable body, entail no discretion for the inventorying officer, and not permit a search for evidence. State v. Atkinson, 298 Or 1, 688 P2d 832 (1984). A tow should, at a minimum, be subject to similar requirements, and Atkinson so suggests in dicta, 298 Or at 6. See also State v. Corey, 123 Or App 207 859 P2d 560 (1993) (DeMuniz, J, dissenting, so noting). I don't know that even a politically-accountable body has plenary authority to permit the seizures of cars, especially because the inventory of an already-seized car is less intrusive than the seizure of the car in the first place. Would you rather have the police look through your car now, or take it away? I don't have anything more private than spoiling chocolate milk in the backseat. But, even assuming that Atkinson-like towing policies would pass Constitutional muster, the towing policies I have looked at don't qualify.
The permissibility of tows has been discussed in passing in a few more cases, most notably Corey and State v. Gaunce, 114 Or App 190, 834 P2d 512 (1992). But Gaunce held only that a police officer could have a car towed to prevent a traffic hazard. Corey permitted towing a borrowed car stopped in a high-crime area to prevent the owner's property from being stolen. That's factually dubious, but it also makes for a pretty narrow holding. State v. Weeks, 29 Or App 351, 563 P2d 760 (1977) holds that, where the car does not belong to the defendant and the defendant cannot establish that he has a right to it, it can be towed until ownership is established. The burden-shifting and standing analysis in Weeks is dated, but even if it is correct it is still a narrow holding.
When the police stopped your client in his or her own car, and the car is lawfully parked or a passenger can drive it away, the tow is an illegal seizure. Even if the facts aren't that good, it's worth getting the inventory policy and testing it under Atkinson. Until the appellate courts give us clear guidance on this issue, it should be raised any time evidence is found in a towed car. The motion might also be worth filing if the tow might support an argument that other evidence, such as an Intoxilyzer test in a DUII prosecution, was exploitive of the decision to tow.
Rankin Johnsin IV is a criminal defense attorney in Portland. His website is www.briefwright.com
