Part 4: Police Inventory Car Search

Are impoundment/inventory searches lawful where probable cause does not exist for the vehicle?

Yes.

Are items admissible as evidence if discovered during a lawful inventory of the contents of the vehicle?

Yes.

May containers be opened during an inventory search?

Yes.

May the trunk searched?

Yes.

In Part 4 of this ultimate car search guide we’ll cover police inventory car searches.

This is the first body of law we’ve talked about that does not rely on probable cause for a warrantless car search.

This area may also seem to be the most technical and the most contradictory. But don’t get frustrated. You’ll see in the end that it all makes perfect sense.

What Is A Police Inventory Search Of A Car?

3 Distinct Needs Are Served By A Police Inventory Search

South Dakota v. Opperman

The general rule on inventory searches came to us in 1976. It’s absolutely legal to search and inventory a car without a warrant when the car is getting towed or impounded. In South Dakota v. Opperman, 428 U.S. 364 (1976) the car was impounded because it was parked illegally. 

This car had been issued multiple parking tickets.

Eventually, the car was towed to the city lot. Standard policy required that an officer inspect and inventory the car. In the glove compartment police found marijunana. When the defendant came to the station to claim his property he was arrested. 

SCOTUS held it would be unreasonable to hold that the police, having the right to retain a car in their custody for a lengthy time, and no right, to search it. When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. 

These procedures serve three distinct needs:

(1) The protection of the owner’s property while it remains in police custody;
(2) The protection the police against claims or disputes over lost or stolen property; and
(3) The protection of the police from potential danger.

An inventory search consistent with a standard internal police procedure is reasonable and constitutional.

Inventory Search Extends To The Trunk, Bags, Containers And Even Envelopes

Colorado v. Bertine

The three distinct needs served by an inventory search easily extends to all containers in the car. SCOTUS said as much in Colorado v. Bertine, 479 U.S. 367 (1987).

This driver was arrested for DUI, and police impounded his van. An officer was inventorying the van and opened a closed backpack found directly behind the front seat of the fan. The bag had metal canisters containing cocaine, methaqualone, tablets, cocaine paraphernalia, and $700 in cash. An additional $210 was in a sealed envelope in a zipper pocket. 

The court held it was proper for the officer to open the bag, the container and the sealed envelope all without a warrant.

Here too, this inventory search served to protect an owner’s property and insured police against claims of lost, stolen, or vandalized property. 

Every Department Needs A Policy

(1) Florida v. Wells

The Florida Highway Patrol, in Florida  v. Wells, 495 U.S. 1 (1990), had no policy regarding when closed containers could be opened and searched during an inventory procedure.

The case began with a stop for speeding that turned into a DUI arrest. The car was impounded and towed. At the impound facility an inventory search turned up two marijuana roaches. In the trunk police forced opened a locked suitcase. They discovered a garbage bag containing a considerable amount of marijuana. 

In invalidating the search of the suitcase the court noted that the police department in this case had no standardized criteria documenting when the police were authorized to open closed containers discovered during and inventory. 

SCOTUS commented that a department’s tow and inventory policy had to adopt standards that do not allow so much latitude such that inventory searches are turned into a purposeful and generic excuse for a search. 

At the very least an agency’s policy must spell out when closed containers may be opened during inventory searches. The policies of opening all containers or of opening no containers are unquestionably permissible. 

Absent such a policy the instant search was not sufficiently regulated to satisfy the fourth amendment.

Having A Written Policy Is A Good Idea But It’s Not Necessary

(2) People v. Gipson

Does the state have to admit a copy of its written tow and inventory policy?

In People v. Gipson, 203 Ill.2d 298 (2003) an officer was following defendant because he had a cracked windshield. Defendant came back revoked, so the officer pulled him over. Defendant was immediately arrested.

A tow truck was called and the officer began an inventory search of the car. The officer testified that it is the State Police policy to tow the vehicle when someone is arrested for driving on a revoked license. The policy was that a tow inventory search should be conducted after a tow following an arrest. The policy is to check the passenger compartment, and trunk area for any valuables, or dangerous items. 

When the officer opened the trunk he found a yellow bag. Inside there were two smaller bags with crack cocaine. 

The state did not admit the written tow policy of the department. The court held that there is no requirement that the procedures be in writing. Although it may be easier for the state to show that it was acting in accordance with standard procedures if it can produce a written policy, the Supreme court has not required, as a matter of constitutional law, that such policies be reduced to writing. 

(3) People v. Walker

Do police officers have to let legally licensed drivers take the car?

The tow and inventory policy in this case, People v. Walker, 228 Ill.App.3d 76 (1st Dist. 1992) did not specifically require the officer to rule out the possibility of a passenger driving the car away. 

Police were monitoring a drug house when defendant drove by and failed to stop at a stop sign. Additionally, the car was seen parking, turned its lights off and was blocking traffic. Defendant got out of the car and walked away like he was leaving it there.

At this point, two officers approached the car and defendant. One of the officers saw the butt of a gun in defendant’s pocket. The police handcuffed him and took the gun. Defendant was secured in a squad car.

Police then made contact with the two other occupants in the car. They too were removed and secured in a squad car. Another officer was ordered to drive defendant’s car back to the station where it would be prepared for storage in a private facility.

Procedure required a search for valuables, a full inventory, and storage of all items for safekeeping to later be returned to the owner. The policy did not address the passenger’s driving status.

During the search police found a flowered bag containing a sawed-off shotgun shells, and gloves, under the drivers’ seat. In the trunk they found some clothes and identification and credit cards in a jacket pocket. All these items were evidence of armed robberies committed in another municipality. 

On appeal, the defense challenged the tow and inventory because the police made no effort to see if the passengers could legally drive the car away from the scene of the traffic stop.

The court held that once the officer held the bag it was obvious it had a weapon because he could feel the trigger guard, the butt and the barrel. It was therefore reasonable for the officer to open the bag.

Additionally, police had no constitutional requirement to check the driving status of the passengers.

(4) People v. Hundley – State Statute May Also Require A Tow

People v. Hundley, 156 Ill.2d 135 (1993) documents that a police policy or a statute might authorize the towing of a car. Also, the state admitted a written tow policy. 

The case began when an Illinois state trooper came across a one car accident. The car was in a ditch with a utility pole stuck under the car. Downed power lines were lying across the highway. The driver was nowhere to be found. 

A tow truck was called, and the officer got into the car with a slim-jim. This was done in part to shift the transmission into neutral to prepare it for towing. In the search, pursuant to the inventory policy the officer found a closed snap-top cigarette case with a snorting tube containing cocaine. 

The court received into evidence the state police general order which contains the policy and procedure to be followed during a warrantless inventory search of an impounded vehicle. 

Section 1304(a)(2) of the General Order of the Illinois State Police provides that:

“An examination and inventory of the contents of all vehicles/boats towed or held by authority of Division personnel shall be made by the officer who completes the Tow-In Recovery Report. This examination and inventory shall be restricted to those areas where an owner or operator would ordinarily place or store property or equipment in the vehicle/boat; and would normally include front and rear seat areas, glove compartment, map case, sun visors, and trunk and engine compartments.” 

The court noted that the officer not only followed the state police protocols, additionally, state statute authorized the towing of this car. 625 ILCS 5/4-203(d) says that 

“When an abandoned, unattended, wrecked, burned or partially dismantled vehicle is creating a traffic hazard because of its position in relation to the highway or its physical appearance is causing the impeding of traffic, its immediate removal from the highway or private property adjacent to the highway by a towing service may be authorized by a law enforcement agency having jurisdiction.” 

The search of the cigarette case was, therefore, reasonable.

What If The Police Never Fill Out The Inventory Sheet?

(5) People v. Ocon

What if an officer never actually fills out the inventory sheet, thus, undermining the argument that the search was done pursuant to a valid tow and inventory?

People v. Ocon, 221 Ill.App.3d 311 (2nd Dist. 1991) addresses this question. In this case, the assisting officer never actually filled out the required forms. The defense argued that the inventory search was obviously just a pretext to look for contraband. 

The car was stopped because it had the wrong registration plates on it. Defendant did not have a valid driver’s license, and he was arrested. On his person he had $622 in his pants pocket. One of the passengers also had no valid license. The third passenger provided a false name so the other officer could not confirm his driving status. 

Departmental procedures required that the car be towed to a police impound lot. The procedures required an inventory be taken before the care was moved. In the trunk police found 6.18 grams of cocaine. 

The court noted it is often true that an inventory search will often be accompanied with dual motives. One motive is to fulfill the tow policy of the department. Another motive will also be discovery of contraband. The whole point of having standardized police procedure for inventory searches is to eliminate an officer’s discretion to determine the scope of a search and eliminate any effect of an improper subjective motive. 

The officer’s conduct in inventorying the contents of the trunk must be tested against an objectively reasonable standard.

When The Illinois “No Insurance” Statute Requires A Car To Be Towed

IF A DRIVER HAS NO PROOF OF INSURANCE THE CURRENT TRAFFIC LAW REQUIRES THAT THE CAR BE TOWED. IN THESE CASES IT DOESN’T MATTER IF A PASSENGER CAN DRIVE THE CAR AWAY OR IF THE CAR IS LEGALLY PARKED.

(6) People v. Nash

No proof of insurance meant the car was getting towed even though there may have been another driver at the scene. See People v. Nash, 409 Ill.App.3d 342 (2nd Dist. 2011).

Defendant was stopped for not wearing a seatbelt. The car pulled over and parked in front of a house in a residential area. It was not blocking traffic or a driveway. The driver was arrested for DWLS, and the teenage passenger and a child were allowed to walk away from the scene and sent on their way.

The police made no effort to see if the teenager was legally licensed to see if she could have driven the car away. The driver, however, did not have proper proof of insurance in the car even though later it was shown the car actually did have insurance. 

The car was inventoried and prepared for towing. Under the driver’s seat police found a half of a bright yellow ecstasy tablet inside a small blue plastic bag. 

The officer testified there was an oral policy that called for impounding and towing if the driver had a suspended license and could not produce proof of insurance. Further The policy is that an officer is to conduct an inventory search if the vehicle is impounded. The entire car is searched for any items of value, and the items are noted on the tow report.

Three criteria must be met for a valid warrantless inventory search of a vehicle:

(1) the original impoundment of the vehicle must be lawful;
(2) the purpose of the inventory search must be to protect the owner’s property, to protect the police from claims of lost, stolen, or vandalized property, and to guard the police from danger; and
(3) the inventory search must be conducted in good faith pursuant to reasonable standardized police procedures and not as a pretext for an investigatory search.

It is true that impoundment may be in furtherance of public safety or community care taking functions, such as removing disabled or damaged vehicles. However, leaving a car unattended alone is not a sufficient reason for impoundment unless the vehicle is parked illegally. 

Even though this car was legally parked, the police here were clearly required to impound the vehicle and perform an inventory search. This is true when

(1) a driver lacks a valid license,
(2) there is no proof of insurance, and
(3) no other driver is available to take the vehicle.

This policy is consistent with the Illinois Vehicle Code and relevant case law regarding impoundments.

Specifically, the Illinois code says that no person shall operate a motor vehicle designed to be used on a public highway unless the vehicle is covered by a liability insurance policy. See 625 ILCS 5/7-601(a), 3-707(a), and every operator of such a motor vehicle shall carry within the vehicle evidence of insurance. 

“The evidence of insurance shall be displayed upon request made by any law enforcement officer wearing a uniform or displaying a badge or other sign of authority.” 625 ILCS 5/7-602. Furthermore, “any person who fails to comply with a request by a law enforcement officer for display of evidence of insurance, as required under Section 7-602 of this Code, shall be deemed to be operating an uninsured motor vehicle.”

625 ILCS 5/3-707(b). 

Because defendant failed to comply with a request for evidence of liability insurance, she was deemed to be operating an uninsured motor vehicle at the time of the stop. At this point, 625 ILCS 5/303(e) provides that a person who is driving with a suspended or revoked license and

“who is also in violation of Section 7-601 of the Code relating to mandatory insurance requirements, in addition to other penalties imposed under this Section, shall have his or her motor vehicle immediately impounded by the arresting law enforcement officer.”

626 ILCS 5/6-3-3(e). 

It didn’t matter that her car later was shown to be insured. At the scene she failed to comply with the statute and failed to provide proof of insurance. In this case, defendant’s car, without proof of liability insurance, was tantamount to a disabled vehicle because section 6-303(e) prohibited it from being operated until proof of insurance was shown. 

Thus, the impoundment, as mandated by section 6-303(e), furthered police community-caretaking functions and was reasonable under the fourth amendment. 

Although, the department policy may have required the officer to find a less restrictive alternative like inquiring about the teenage passenger’s driving status.

Officer Not Penalized For Picking Absolute Worst Place To Stop The Car

CAR PULLED OVER ON THE SHOULDER OF I-55. NOT THE BEST PLACE IN THE WORLD TO STOP A CAR, BUT WHAT ARE YOU GOING TO DO?

(7) People v. Braasch

People v. Braasch, 122 Ill.App.3d 747 (2nd Dist. 1984) features a defendant on I-55 when he was stopped by a trooper for failure to use a turn signal when changing lanes. The officer had also noticed the car weaving from lane to land and other erratic driving. This turned into a DUI investigation. The driver was eventually arrested for DUI and DWLR. 

The car came to rest on the shoulder of I-55 exactly where the officer first initiated the encounter. Illinois statute, 625 ILCS 5/11-1303(a)(1)(j), made it illegal for the car to remain parked there because that location was considered a controlled-access highway. 

The trooper testified that it is the policy of the Illinois State Police to arrange to have all vehicles towed if the subject is arrested and to conduct an inventory search of all vehicles. The testimony concerning the policy was rather thin but the officer testified that the search was done only for inventory purposes. 

In the trunk the officer found a brown paper bag. The bag contained a clear plastic bag which contained a green, leafy substance that appeared to be cannabis. 

The court held that the fact that the officer directed the car to stop on the shoulder of I-55 cannot be construed as coming within the exception to section 11-1303(a) which allows parking “in compliance with…the direction of a police officer.” 

Additionally, 625 ILCS 5/11-1302(c) authorizes any police officer to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when the person driving is arrested for an alleged offense for which the officer is required by law to take the person arrested before a magistrate without unnecessary delay. Under these circumstances, the impoundment pursuant to departmental policy was proper and reasonable.

THESE ARE EXAMPLES OF “THINGS NOT TO DO”. HOWEVER, WE CAN STILL LEARN A LOT ABOUT PROPER PROCEDURE AND LEARN WHEN A COURT IS LIKELY TO DISAPPROVE OF SEARCHES THAT MAY RESULT.

(1) People v. Davis – Police Have To Ask For Proof Of Insurance

Police towed this car, but it just looked like a pretext to search the car because police never asked for proof of insurance. See People v. Davis, 2019 IL App (1st) 181492.

Police came into contact with defendant un an unrelated traffic matter. They noticed he was revoked. About an hour later the same officers saw defendant drive by. They approached defendant who by that time was out of the car to inform him he was under arrest. 

An officer drove defendant’s car to the police station. At the station an inventory search was performed. Police recovered a firearm from under the driver’s seat. To determine if the inventory search was proper the court looked at the vehicle code “no insurance” provisions. 

The Illinois Vehicle Code says:

“Any person in violation of this Section who is also in violation of Section 7-601 of this Code relating to mandatory insurance requirements…shall have his or her motor vehicle immediately impounded by the arresting law enforcement officer.”

625 ILCS 5/6-303(e)

In turn 625 ILCS 5/ 7-601(a) says:

“No person shall operate…a motor vehicle designed to be used on a public highway unless the motor vehicle is covered by a liability insurance policy.” Further, 625 ILCS 5/7-602, provides some guidance: “Every operator of a motor vehicle subject to Section 7-601 of this Code shall carry within the vehicle evidence of insurance,” which “shall be displayed upon request made by any law enforcement officer…Any person who fails or refuses to comply with such a request is in violation of Section 3-707 of this Code.” 

The plain language, in accordance with common sense, sets up an expectation that an officer will ask for proof of insurance and the driver will provide it.

Here, the police never specifically asked defendant if he had proof of insurance. Therefore, the officer could not rely on the “no insurance” provisions to justify this search.  

This inventory looked more like a pretext to search the car and it was found to be unconstitutional.

(2) People v. Clark

The tow policy was not that clear in this case, and it was not obvious that the officer was following the policy. People v. Clark, 394 Ill.App.3d 344 (1st Dist 2009).

Defendant was curbed for failing to make a complete stop at a stop sign. Defendant was alone in the car and did not have any identification on him. Defendant was transported to the police station so the officer could confirm his driving identity and driving status. 

A custodial inventory search of defendant’s car was done in preparation to have it towed. Police discovered a bag which contained 21 individually wrapped rocks of crack cocaine in the rear ashtray. 

The officer explained it was the standard police practice and procedure for a driver to be taken to the police station to verify identity and post bond when a photo identification is not produced. 

The officer testified that he didn’t think he could just leave the car parked on the street, and that’s why he had it towed. However, the record demonstrated absolutely nothing about where or how the car was parked. Nothing indicates that the car was illegally parked, impeding traffic or threatening public safety in any way. 

Simply stated, the record does not support the bases proffered by the state to establish the validity of impoundment. Although the officer testified to standard police procedure requiring him to take defendant into custody for verification of his identity, he failed to testify that this procedure required him to tow the vehicle.

This so-called inventory search was declared unreasonable.

Police Tow Policy Can Allow Them To Open All Closed Containers

(3) People v. Lear

People v. Lear, 217 Ill.App.3d 712 (5th Dist. 1991) shows us that police could lose cases if their policy is not clear about what to do with closed containers found inside a car during an inventory search. 

Defendant was stopped for speeding and arrested for driving on a suspended license. The car was towed off the highway and impounded in a local garage where the car was searched and inventoried. 

In the trunk police found a bundle of money where the lining had been pulled away from the trunk wall. Additionally, two loaded handguns were found in a drawstring bag hanging from the trunk bar. 

The one thread common to all valid warrantless inventory searches is that the search was predicated on a standard police procedure. In this case, however, the State failed to prove that it was the standard policy to make an inventory of the contents of a closed container discovered during a routine inventory. The State must show such a policy before an inventory search into containers found in an impounded vehicle will be upheld. 

Here no such policy was proven, and the court did not presume that one existed especially since other pieces of luggage in defendant’s trunk were not searched. This search was improper.

This Guy Is Allowed To Drive Himself To The Station

(4) People v. Velleff

Next we have a case where police discover evidence of a robbery in a car, but the whole thing was fishy and the court excluded all the evidence. We are looking at People v. Velleff, 94 Ill.App3d 820 (2nd Dist. 1981). 

Defendant was driving with a cracked windshield and only one license plate when he was stopped. Defendant had no license on him and $1,000 in bills on his person. The officer searched his person and the record is not clear exactly why he did that. Defendant was “arrested” for no DL, but the officer had him follow the officer back to the station.

When defendant got to the station he locked his car in the street and went in to be booked. There was a passenger who accompanied him. 

An officer went back to the car and observed an open box with coins and wrappers inside the front of the car as well as a police monitoring device. In the trunk there was an orange plastic bag which had a handgun wrapped in a towel. By this point additional outstanding warrants for traffic offenses against defendant had been discovered. 

The officer told defendant they needed to tow and inventory the car and got the keys from him. But it was not really clear why they had to tow the car. All the cash including the coins were returned to defendant. The gun was confiscated because it was reported stolen. 

The court held that it was difficult to find a reason justifying the search and inventory of the car. Defendant was not in custody when police were searching the car, and he was never actually suspected of robbery. The court found the police failed to exhaust a less intrusive alternative before conducting the inventory search.

The court ultimately concluded that the police had conducted an improper and illegal inventory search. The search served more of an investigatory motive resulting in an unreasonable search and seizure. This was especially true in light of the fact that the adult companion was with defendant the whole time and he was properly licensed to drive.

Another Car Stops Exactly Where The Officer Pulled Him Over

COMPARE THIS CASE TO PEOPLE V. BRAASCH – THAT WAS AN OLDER CASE WHERE THE COURT SAID THE OFFICER HAD NO OBLIGATION TO MOVE THE CAR.

(5) People v. Ferris

This officer could have easily had the driver move the car over to the right just a bit and legally left it there. That didn’t happen and the court suppressed all the evidence. People v. Ferris, 2014 IL App (4th) 130657 (April).  

Defendant was a passenger in a car driven by a friend. The car owner was also in the car, but she had a suspended license and was not driving. The car was stopped for speeding but the driver was arrested for having a suspended license. 

The officer told defendant he was not allowed to drive the car because he thought he was under the influence of something. The officer asked for consent to search and was denied more than once. Eventually, he told them he was going to perform an inventory search and have the car towed. 

The contraband in question was found in a purse. It was the driver’s purse and the officer found it on the front passenger floorboard, during the inventory search the officer removed the purse and put it in his squad car. The owner asked for the purse several times but was denied possession of it. 

Inside the purse they found 40 pseudoephedrine pills, 9 oxycodone pills, 10 coffee filters powdered with a white substance that field tested positive for methamphetamine, 4 baggies of of white powder that likewise tested for methamphetamine, 2 capsules containing wheite powder that field tested positive for pseudoephedrine, a small mirror, a razor blade, and an electric scale. 

In the trunk, in the far back, in the drivers’ side corner, behind a lot of clothing, there was a book bag with methamphetamine-manufacturing materials and 479 grams of methamphetamine. This was the evidence that was admitted against the defendant who was the front seat passenger. 

The court held that once the driver was arrested the business of the traffic stop was complete. At that point, the seizure of the car should have ended unless the towing of the car was required. However, a careful review of the statutes failed to provide a basis for the tow. 

The fact that the car would be left unattended is not a sufficient reason for impoundment unless the car was illegally parked. The car actually was obstructing traffic where it stopped for the officer. But the car easily could have been driven a few feet over so that it was completely on the shoulder and legally parked. See 625 ILCS 5/4-203(c) (car could have been left on the roadway for at least 24 hours). 

The possibility of an arrest resulting from a routine traffic stop is sufficiently high that police should routinely pull a vehicle over to into a legal parking space. At the very least officers engaged in traffic stops should make sure a car that stops does not obstruct traffic. 

It was the officer’s obligation to have the driver pull the car all the way over onto the shoulder at the initiation of the traffic stop, and because he failed to do so, the state cannot reasonably rely on illegal parking as a justification for the tow. The police officer could not take advantage of that failure to enter the defendant’s car on the pretext of an exigent circumstance. 

In sum, the record appears to contain no evidence of a standard police procedure authorizing a police tow in these circumstances, as opposed to just moving the vehicle out of the lane of traffic. Because the police tow was an exercise of unguided discretion, it unreasonably prolonged seizure of the car after the initial traffic stop.

What If A Car Has Nothing To Do With The Arrest?

(6) People v. Valdez

See People v. Valdez, 81 Ill.App.3d 25 (2nd Dist. 1980). Defendant was at a restaurant when he was arrested for possession of cannabis.

His car was in the restaurant parking lot and had nothing to do with the arrest. The car was legally parked, and was not obstructing other cars or traffic. Defendant wanted the car left there, and he would make arrangements to have it moved. 

Police decided to tow it. The inventory search revealed a brown bag on the floor under the front seat. The bag contained more cannabis. The glove box had a set of metal knuckles. 

The court held that the police had no authority to take custody of the car. The restaurant did not direct or request they remove the car. This search was conducted in bad faith for the purpose of securing evidence and not for the purpose of securing and inventorying the contents of the car. The search was an unreasonable search and seizure in violation of the fourth amendment.

Can Police Write A Policy That Allows A Tow After Every Arrest?

(7) People v. Spencer

Sometimes a car will be in a completely legal lot. Then what? Consider People v. Spencer, 408 Ill.App.3d 1 (1st Dist. 2011). Defendant was arrested on a separate unrelated charge of pandering. Defendant’s car was in a high school parking lot. For all intents and purposes this was treated as a private lot.

The car was not obstructing anything or anyone and definitely was not posing a danger. 

Defendant had $8,000 cash on him when he was arrested. During the search of the car in preparation to have it towed officers discovered a metal lock box in the trunk which was opened with a key from defendant’s key chain. The lock box contained several bundles of $100 bills and a clear plastic bag of cocaine. 

Also, if the vehicle is not part of a crime scene or a stolen vehicle then the car is to be turned over to that person, and not be towed. 

A case could be made that the towing of the car in this case was consistent with the tow policy. However, the existence of a police regulation cannot be used as a predicate to determine the lawfulness or reasonableness of an inventory search. To hold otherwise would grant the police an unlimited ability to evade the requirements of the fourth amendment by promulgating regulations that authorize the use of inventory searches following every arrest. 

Thus, the officer’s impoundment of defendant’s vehicle is not rendered lawful merely by the fact that he was following procedure. Here, the state did not present any evidence showing that defendant was prohibited from parking in the lot. 

The department’s tow policy may have granted broad discretion for a search practically after every arrest. That may have been the problem because the court found that the state did not meet the threshold requirement of a legal inventory search. Unbridled police discretion to tow is exactly what the constitution forbids.

Police Can Allow A Passenger To Drive The Car Away Rather Than Tow It

(8) People v. Young

A department’s policy does not necessarily require that officers allow a licensed passenger to remove the car.

This came up in People v. Young, 363 Ill.App.3d 268 (3rd Dist. 2006).  

A few air fresheners were hanging from the rearview mirror in the car defendant was a passenger in. The car was pulled over and the driver arrested for suspended license. The officer called for a tow truck to remove the car from the scene. 

In the trunk there was a suitcase which had a tightly wrapped and taped package. Defendant acknowledged the items were his and admitted that the package contained marijuana. He too was arrested. 

At that point, a third passenger informed the officer that he had a valid driver’s license. The officer then cancelled the tow. The officer testified that it is State Police policy to tow a vehicle when there is no valid driver. The policy did not specifically require that an officer investigate whether there is a valid driver before ordering a tow and conducting an inventory search. 

The court said that logically, in order to determine if there is a licensed driver, an officer must ask the occupants. It is unreasonable to assume passengers will automatically and affirmatively volunteer that they are licensed drivers. If officers do not query other occupants of the vehicle, the policy would have little meaning. 

Since there was another licensed driver, this inventory search was not allowed under the police tow policy. The search was invalid and unreasonable.

(9) People v. Usini

This officer had credibility problems and could not fall back and rely on an inventory search. I’m talking about People v. Usini, 245 Ill.App3d 480 (2nd Dist. 1993). 

Defendant was stopped for having a nonfunctional taillight.The defendant testified that after he was stopped he got out of the car and made contact with the officer. He had his wallet on his person and handed the officer his license. The officer testified that defendant did get out, but they both walked back to his car to retrieve his wallet which was in the center console. 

The officer said he noticed a glass pipe in the console. He saw it when defendant went back in the car to get his wallet. 

The officer arrested defendant and the car was searched. Inside the car the officer found a piece of cardboard and a tube in the backseat. Plus, there was a pharmaceutically folded piece of paper in the trunk. All these items had LSD in them.

For whatever reason, the court did not believe the officer and believed the defendant’s version of events. The prosecution argued that even if the court believed the officer was in the car illegally the search was still proper as an inventory search. 

The court concluded that the state did not meet its burden of proving the reasonableness of the inventory search. If the defendant was arrested outside the car then the officer had no legal basis to be inside the car where he saw the glass pipe. It looked like the decision to tow the car was made before the officer had a right to be in the car.  

The car was completely off the road, and the car was not obstructing traffic. The state did not prove it was reasonable to inventory a car which it did not take into its custody, was not in danger, and was not obstructing traffic.

The search and the tow was unreasonable and the officer would have never found the LSD paper in the trunk.

(10) People v. Paarlberg

This arrest for reckless driving was improper so the resulting inventory search was also improper. See People v. Paarlberg, 243 Ill.App.3d 731 (3rd Dist.1993).

Defendant passed an officer in a 55 mile per hour zone. The officer stopped the car. The officer immediately asked the driver to step out of the car to perform sobriety tests. As the tests were being conducted another officer arrived and searched the car. 

In the glove compartment he found a bottle of Parepectolin. The officer arrested the defendant for reckless driving. This was based on seeing him three times attempt to pass him but had to return to his own lane of traffic each time. 

When he did pass the squad car he came within feet of the vehicle. The officer said that before defendant completed the passing maneuver his car contacted the gravel shoulder. 

Defendant passed the field sobriety tests. The officer acknowledged that the decision to arrest defendant for reckless driving had already been made and the backup officer began the car search before the sobriety tests were done. 

It was the procedure of his department to take reckless driving suspects into custody, and the suspect’s car to be inventoried and towed. 

The appellate court saw things differently. The court held that there was no probable cause to arrest the defendant for reckless driving. The subsequent impoundment of the defendant’s car and the search were improper. 

First, defendant did not commit multiple traffic offenses.
Second, the defendant did not ignore the conditions or circumstances in the vicinity, as another vehicle approached in the opposite lane, the defendant abandoned his passing maneuver and returned his car to its proper lane. This is respecting traffic not ignoring it.
Third, the defendant was not intoxicated or otherwise impaired. 

In the absence of probable cause of reckless driving, the impoundment of the defendant’s car, as well as the search of the car and defendant, were improper.

Bottom Line: Police Have To Know Their Tow Policy

This late in the game most departments have a functional and working tow policy. What patrol officers need to know are the details of that policy. In regards to an inventory search, things can south on you real fast.

Police officers have to know and honor their tow policy.

• What does it say about legally parked cars?
• What does it say about licensed passengers?
• What does it say about opening purses, bags and containers found in the car?
• Can an officer move the car to a safe, legal area?

An officer who can’t answer these questions is likely going to perform unlawful and unauthorized inventory searches.