By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in Texas. The driver gets arrested on a traffic stop and asks that the passenger drive the car away. Can you tow it anyway and inventory it? And does the answer change if the driver does not own the car?
Can you tow a car when a passenger is able and willing to drive it?
Hello everyone, it’s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you another roadside chat. This question is, can we tow a car even if there’s a passenger on scene who’s able and willing to drive it away?
So this officer is from Texas and he says, if an officer arrests a driver during a traffic stop and he states he wants the passenger to drive the vehicle, can the officer still opt to tow the vehicle anyway? And he says maybe as a reason, do an inventory. Wink wink. You know what I mean.
The second part of the question is, if the answer is no, we can’t tow it, what if the driver is not the owner of the car? Can officers articulate that the owner may not be okay with a third party driving his vehicle and so forth?
So the first answer is, generally speaking, you cannot force the tow without some community caretaking rationale. In other words, why are we doing this? Why are we towing his car?
When does an inventory become a pretext search?
And the other thing is, if there is evidence that this tow is actually a pretext, meaning the cops are doing it because they want to get into that car, if it wasn’t for their ulterior motive they’d probably let the passenger take the car, who cares, right? That is unlawful in not only Texas but every state. You can’t manipulate, you cannot contaminate the inventory exception to try to find evidence. You have to be on the up and up with these inventories.
So the question would be this. If the cop said, no passenger, despite the fact that you have a license, you’re not drunk, you’re willing and able to take that car, and the driver is the RO, he’s the registered owner, he wants the passenger to take the car, and you’re like, nope, I’m still going to take your car, I’m still going to tow it, I would ask you why.
What is a good reason to tow anyway?
And if you said something like this, Anthony, the law requires it. Okay. The guy was involved in a speed contest, his car may be forfeited or whatever, or in some states the car would be seized for like 30 days.
Anthony, the passenger also drank alcohol. Okay, you know, even if he’s not over the limit, we don’t take that risk. He’s also under the influence a little bit.
Anthony, the car is a stick shift and the passenger said he could take the car but he’s never driven a stick shift before.
I guess, I don’t know. The point is, if you had a reason, we should be okay. But if you’re like, I’m doing it because my policy says I can do it, and there’s also evidence that you want to kind of see what’s in the car, that is a pretext. That’s unauthorized.
What if the driver does not own the car?
Now, what if the car does not belong to the driver? Absolutely right, that’s a good reason to tow a vehicle. That’s safekeeping.
Many agencies that I work with do not allow a third party to give the car to another third party unless they actually had explicit permission from the owner. That just makes sense. If I give my car to my friend and he’s driving it and he gets pulled over and arrested for something, let’s say he has a warrant, you know, he’s speeding, has a warrant, I don’t necessarily want my car to be given to some rando that I don’t even know. Maybe his friend that we’ve never met before. Unless you called me and I’m like, yeah okay, I know that guy, or I’m cool with him driving my car.
The point is that is a legit community caretaking rationale.
Can a drunk driver give his car to a sober friend?
At the end of the day, my friends, look, be legit on these inventories. Stop using inventories as a ruse to find criminal evidence, unless you have probable cause or a reason to believe offense related evidence is inside that car against the driver. That’s Arizona versus Gant. So either PC or reason to believe offense related evidence is inside that car.
So what I’m trying to tell you is, if the driver is intoxicated and he got arrested for being drunk but the passenger is sober, drunk people can give access, they can give their car to their friend. They have the capacity to put a needle in their arm for blood draws, but they can’t give their friend their car? If they have the capacity to give their friend their car, but you also have reason to believe that offense related evidence is going to be in that car, you can search it before the car is driven away.
Now, I’m sure this will spark a bunch of other follow up questions, but you can ask.
What can a pretext tow actually cost you?
But at the end of the day, pretext tows do have to end. There is a case out of North Dakota where police officers conducted a pretext tow. They wanted to find maybe some drug evidence in the car. Well, they didn’t find drug evidence, but what they did find is a dead female in the trunk that this guy raped and killed. And because the court found that this inventory was a ruse, was a pretext, they suppressed the evidence.
You heard me correct. This guy got away with murder because of a pretext tow. So yeah, it’s an extreme case, and maybe you won’t be that unlucky cop where that happens to you. But maybe you are, and then you have to live with yourself for the rest of your life, because you did a pretext tow.
And law enforcement kind of needs to call an end to it. Let’s be legit on our tows and do the right thing.
The short version
- Generally speaking, you cannot force the tow without some community caretaking rationale. Why are we towing his car?
- If the tow is a pretext to get into the car, that is unlawful in not only Texas but every state.
- You cannot contaminate the inventory exception to try to find evidence.
- If you had a reason, we should be okay. Forfeiture, the passenger had been drinking, the passenger cannot drive a stick shift.
- My policy says I can do it, plus evidence you wanted to see what was in the car, is a pretext.
- If the car does not belong to the driver, that’s a good reason to tow. That’s safekeeping.
- Drunk people have the capacity to give their friend their car.
- If you have PC or reason to believe offense related evidence is inside, you can search it before the car is driven away. That’s Arizona versus Gant.
- Pretext tows do have to end. A North Dakota case suppressed a body in a trunk.
I hope this question has helped. At least it’s going to give you a good discussion. If you have any other questions about this or anything else I teach, let me know in the comments below.
Until next time, my friends, please hit like, subscribe, share with your friends. Stay safe.
Related from Blue to Gold
- Towing a Fleeing Suspect’s Car From a Driveway
- Towing a Rental Car
- Can You Tow a Suspect’s Vehicle From Inside the Garage?
This article is an edited transcript of Roadside Chat Ep #653. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
