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Court Rules “Bad Tow, Bad Search”

Posted Wednesday, February 15, 2017 by Andrew Charles Huff

Police officers are authorized to order a vehicle towed under certain situations such as after an arrest for DUI. But what about in cases where the driver is not under arrest and being transported to the hospital after an accident?

The scope of this “towing” authority was challenged in a case before the Court of Appeals-Division II after Ms Martha Froehlich’s vehicle was towed by police and her purse subsequently searched, resulting in drugs being found. In defending the search, the State argued that the search was a lawful “inventory search” following the impoundment of Froehlich’s vehicle.

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless one of the narrow exceptions to the warrant requirement applies. One exception to the warrant requirement is a non-investigatory, good faith inventory search of an impounded vehicle. However, an inventory search of an impounded vehicle is lawful only if the officer lawfully impounded the vehicle. Law enforcement may lawfully impound a vehicle for three reasons: (1) as evidence of a crime, (2) under the community caretaking function, or (3) when the driver has committed a “traffic offense for which the legislature has expressly authorized impoundment.” But even if one of these reasons exists, an officer may impound a vehicle only if there are no reasonable alternatives.

The “community caretaking” function allows law enforcement to lawfully impound a vehicle when, for example, it impedes traffic or threatens public safety and no one else is available to move the vehicle. But the issue here involves the second requirement, whether Froehlich, her spouse, or her friends were available to move the vehicle.

The Court found that for impounding Froehlich’s car to be lawful under the community caretaking function, the officer was required to at least consider whether Froehlich, her spouse, or her friends were available to move the car from the scene. But there is no evidence the officer asked Froehlich about arranging to have someone else remove the car as an alternative to impoundment.

Therefore, the Court found that the impoundment was not lawful and the resulting search was improper because under the community caretaking exception because the State did not prove that the officer did not consider all reasonable alternatives to having the vehicle towed.

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