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Departments : Point of Law

Vehicle Impounding

State statutes and local policies may not be enough to give you authority to seize an automobile.

May 01, 2007  |  by Devallis Rutledge - Also by this author

The circumstances under which a vehicle may be impounded by a law enforcement officer may be described in city or county ordinances, state statutes, and departmental policies. But even when a vehicle is authorized to be impounded under such provisions, the impoundment may still be an unreasonable seizure of property under the Fourth Amendment. If the court finds that the Constitution was violated by a vehicle impound, the existence of an authorizing statute or policy may not be enough to save you and your agency from civil liability and suppression of resulting evidence.

Criminal Investigations vs. “Community Caretaking”

Sometimes vehicles used in criminal enterprises are made forfeitable. For example, if the vehicle is used to transport drugs or other contraband or to facilitate commission of a crime, it may be subject to being declared a nuisance and forfeited to the state. Examples include Van Oster v. Kansas (running moonshine whiskey), Cooper v. California transportation of narcotics), and Bennis v. Michigan (prostitution act in the car). Other common examples could include a drive-by shooting, kidnapping, hit-and-run accident, and assault or homicide by vehicle.

But if the vehicle was not itself used as an instrumentality of a crime, when could you constitutionally seize it merely because of parking violations or because you have cited or arrested the driver?

In South Dakota v. Opperman, the U.S. Supreme Court upheld the impound and inventory of a car that remained illegally parked in a no-parking zone after multiple citations had been left on the windshield. The court said, “In the interests of public safety and as a part of what the Court has called ‘community caretaking functions,’ automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. Police will also frequently remove and impound automobiles which violate parking ordinances and thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.”

Plainly, therefore, you have the right to impound cars used in the commission of crimes, vehicles damaged in traffic collisions to the extent that they cannot safely be driven away, and cars that present traffic hazards or obstruct the normal traffic flow. In other circumstances, however, your right to impound is not so clear.

Statutes vs. the Fourth Amendment

Because the Constitution is the supreme law of the land (Article VI), states are not at liberty to empower their officers to conduct seizures of property that may be unreasonable under the Fourth Amendment. In Sibron v. New York, the Supreme Court considered the conflict between a state statute that purported to authorize certain seizures and the overriding command of the Fourth Amendment that all seizures be reasonable. Finding the seizure in that case unreasonable, the court said, “[A state] may not authorize police conduct which trenches upon Fourth Amendment rights. The question is not whether the search or seizure was authorized by state law. The question is rather whether the search or seizure was reasonable under the Fourth Amendment.”

The federal appellate courts and many state courts have drawn the same distinction, finding that vehicles impounded under state or local laws or policies were nevertheless unreasonable under the Fourth Amendment. In U.S. v. Squires, for example, New York City police impounded a car from a parking lot “for safekeeping” after arresting its occupant on a warrant. The Second Circuit Court of Appeals held that this seizure was unreasonable under the Fourth Amendment because the car could have been left lawfully parked in the parking lot, and “the officers did not have a reasonable basis for concluding that it was necessary to take the Cadillac to the police station in order to protect it.”

In U.S. v. Duguay, a drug suspect was a passenger in a car that was driven into a parking lot and parked. After he was arrested, the car was impounded and inventoried and drugs were found. The Illinois officers testified that it was their standard policy to impound all vehicles “for safekeeping” when an occupant had been arrested. The court found the impound to be an unreasonable seizure and suppressed the resulting evidence: “The decision to impound an automobile is only valid if the arrestee is otherwise unable to provide for the speedy and efficient removal of the car from public thoroughfares or parking lots.” Finding that in this instance two unarrested associates who were present could have taken custody of the car, the court found the impound to be in violation of the Fourth Amendment.

The Ninth Circuit Court of Appeals considered a civil suit arising from an Oregon officer’s impound of a car after citing the driver and passenger for traffic violations in Miranda v. City of Cornelius. Jorge Miranda, a licensed driver, was trying to teach his wife to drive. An officer saw errant driving and signaled the driver to stop. Mrs. Miranda pulled the car into the driveway of their home and stopped. Both occupants were cited and the officer impounded the car under local and state statutes authorizing an impound when a vehicle was driven by an unlicensed driver. The Mirandas brought a federal civil rights suit for violation of their Fourth Amendment rights, and the Ninth Circuit agreed that the impound was an unreasonable seizure.

Although the city argued that the impound was lawful because it was authorized by local laws, the court said, “The decision to impound pursuant to the authority of a city ordinance or state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment.” Noting that the Mirandas’ car was lawfully parked in their own driveway the court ruled the seizure unreasonable.

The court limited the circumstances under which a vehicle could lawfully be impounded: “The violation of a traffic regulation justifies impoundment of a vehicle if the driver is unable to remove the vehicle from a public location without continuing its illegal operation. But an officer cannot reasonably order an impoundment in situations where the location of the vehicle does not create any need for the police to protect the vehicle or to avoid a hazard to other drivers.”

Prudent Practice

Whenever a driver is arrested and the vehicle is not considered an instrumentality of a crime, it may be advisable to have the driver select the disposition of the vehicle by asking whether he or she wants the vehicle impounded, lawfully parked and locked (driver assumes risk of theft or vandalism), or driven away by another. Local advisors should be consulted to determine whether present departmental policies provide adequate liability protection.


For both suppression of evidence and civil liability reasons, it may be wise for departments to review their impound policies for constitutional compliance. Impounds can usually be made in the following circumstances:

• Probable cause that the vehicle is an instrumentality of a crime

• Vehicle is unlawfully parked, with no one to move it

• Vehicle is a traffic hazard, with no one to move it

• Driver was arrested or evacuated and the vehicle must be moved from a bad area for safekeeping

Comments (17)

Displaying 1 - 17 of 17

Jordan66 @ 6/15/2007 1:34 AM

The only time our agency impounds a vehilce and can do a search is when the driver is cited or arrested for Driving While Suspeneded or arrested for DUII. We search the vehicle for valubles and if we come across drugs it is best to forward to our DA's office. Sometimes they will not prosecute.

Yasha @ 7/10/2013 5:08 PM

can the policw take my vehicle if i exercise my right to travel

Curious @ 8/30/2014 10:01 AM

The cop flipped on his lights 2 houses down from mine, n it being a small side street, I pulled into my driveway. I was arrested for DUI and my husband for resisting arrest, and they impounded our car from our drive. My son said the tow driver backed my car outta the drive and drive it onto the truck. Is the impound a violation, and is it legal for the driver to drive our car out of the drive?

brenda @ 2/27/2015 1:48 PM


tyler @ 3/16/2015 7:35 PM

police took my car from my driveway and impounded it while i was out of town this weekend , they didnt leave any notice or citation or any paperwork, is this legal? i checked records, my car is being held in the traffic division of police bureau.

Brian Young @ 12/21/2015 9:58 PM

My truck was seized and impounded today because a person reported to the police that my truck backed into them. It is a work truck and has dents all over. The investigating officer has no physical evidence that any accident occured only a statement from someone who had damage to their car and could have gotten my licence plate number while I was at the store or God knows where else. The officer says he will not release my truck to me until I tell him what he wants to know but since I didn't hot anyone I can't. What do I do?

Mike @ 12/29/2015 1:56 PM

There are a number of towns in Illinois that tow vehicles as a matter of practice no matter if it would be more reasonable to leave them legally parked where the stop occurred or other drivers present. Reason being is they have hijacked a state statute that allows them to collect "reasonable fees" incurred for a "proper tow" when an arrest is made for certain violations. They use it to say that they can tow the vehicle simply because the violation was committed and collect the fee as a punitive measure. I'm not saying this as a victim of this practice but as an officer who believes the practice is wrong.

Mike @ 12/29/2015 2:02 PM

In Illinois there is a state statute that allows agencies to recover "costs" associated with "proper tows" when in conjunction with arrests for specified offenses. Towns have hijacked this and tow every car involved in any of these listed offenses whether reasonable or not. They then charge a fee, usually $500.00 to retrieve the car. They use the statute as a revenue source rather than what it was intended for. I am not saying this as a victim of this practice but as an officer that believes it is wrong.

Amanda @ 1/11/2016 9:20 AM

My question was My cousin let a friend of his borrow his vehicle. Because his friends car was broken down. Then my cousin was called saying his vehicle was impounded and his friend was in jail with drug charges

ed @ 1/15/2016 7:23 AM

hello, the appellate court in illinois has ruled that it is unconstitutional for the police to tow vehicles from private property after arrests unless the owner of the property requests it.
this is ABSOLUTE, so your lawyer can cite the law and you can sue and recover the damages from the police department.

ed @ 1/15/2016 7:24 AM

@brenda etc, i responded to you question about the tow from your driveway.

Bnatural @ 6/28/2016 7:43 AM

Two vehicles involved in colision 2 deaths one vehicle - no citations issued only impounded vehicle of deceased parties the large truck which does business all over country was allowed to be towed back to companies garage where they had full charge over trucks video, black box etc.. all of which were wiped clean and said "malfunctioned".

Dee @ 9/11/2016 10:01 PM

I don't understand how someone's vehicle is seized cause of suspicion, that the vehicle was used in the commission of a crime. No one has been found guilty of a crime. So I think if the police want the vehicle as part of proving ones guilt, then they should pay for the towing & impound fees.

osbert mucunguzi @ 10/20/2016 2:41 AM

a friend has given me a deal to buy his car cheaply but am worried about its records with police traffic, how best can i get some information about it may be if at one time made a hit and run accident?

Jim @ 12/30/2016 9:30 AM

What about the threat to impound a properly licensed and registered vehicle? I was pulled over and cited in New York for not having 2 plates on my truck. I am from Missouri and they only issue 1 plate for the weight class I have it licensed at. I was told by the officer that if I did not move my plate to the rear of my vehicle that he was going to impound. My state requires the plate to be on the front of the truck. Apparently in New York I am guilty of an offense that my State says is completely fine. Point is the officer told me that If I did not move the plate that he would impound my truck. Would'nt that threat be considered a violation of my Civil Rights to move freely about the country in a properly licensed and registered vehicle? By the way I fought the citation and the case was dismissed because I proved the officer was an idiot.

trina @ 1/22/2017 6:16 AM

i live in wisconsin i was driving not even one mile over the county line in illinois and was pulled over the state trooper walked up to my vehical and said we have been looking for this car he also asked if the car was mine i had a valid drivers licence in wi with wi plates and full coverage insurance on the vehicle he ran my name and said i was revoked in illinois since 2007-2008 i never new i was revoke to drive on ill roads i paid all my fines in the state in 07-08 they seized my car now im fighting to get it back can and if i do i have to pay towing and storage i asked the officer if i could call someone to pick it up and they said no they also searched my vehical without my permision ?

smokey @ 2/8/2017 12:51 PM

police impounded my truck by saying it may have been involved in a crime (credit card being stolen and used ) i haven't heard any thing else and been no convictions made . They have had it over 2months now WHAT CAN I DO ..

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