Community Caretaking and Impounding Vehicles

RC Phillips, DDA (Ret.)
Updated on November, 2021

Driving on a Suspended or Revoked License (or Never Had a License), per V.C. § 14601.1 (or V.C. § 12500), and the Community Caretaking Doctrine:  In the previous California Legal Update (Vol. 24, #11, Oct. 28, 2019), my brief of a Fourth District Court of Appeal (San Diego) decision, People v. Lee (Oct. 3, 2019) 40 Cal.App.5th 853, brought forth a number of (sometimes) irate (“don’t kill the messenger”) responses concerning the impounding of vehicles.  As I noted in my brief, Lee specifically held that despite the existence of authorizing statutes (e.g., V.C. § 14602.6(a)(1)), it is a Fourth Amendment violation to impound a vehicle and conduct a subsequent warrantless inventory search unless such an impoundment is also allowable under the so-called “Community Caretaking Doctrine.”  In Lee, the defendant was caught driving while his license was suspended.  Among the arguments the People made in Lee in attempting to justify the warrantless impoundment and inventory search of defendant’s vehicle was that § 14602.6(a)(1) authorizes such a procedure.  The Appellate Court ruled to the contrary.  Per People v. Lee, to be lawful, the impoundment of a vehicle must be both authorized by statute (such as V.C. § 14602.6(a)(1)) and in compliance with the Community Caretaking Doctrine.  (pp. 867-869.)  (Lee also stands for the proposition that an inventory search of an impounded motor vehicle, when done for the purpose of finding evidence of ordinary criminal wrongdoing as opposed to merely protecting the owner’s personal possessions, is illegal.  See also United States v. Johnson (9th Cir. 2018) 889 F.3rd 1120, 1125.  But that is not the issue here.)  Generally, the Community Caretaking Doctrine has been held to apply (allowing for the impoundment of a vehicle) only when the vehicle, if left at the scene, is parked illegally, blocks traffic or passage, or stands at risk of theft or vandalism.  A number of you told me that you use V.C. § 14602.6(a)(1) (or other impound statutes; e.g., V.C. § 22651; see below) to justify the impoundment and inventory of vehicles on a regular basis without concern about the applicability of the Community Caretaking theory, and that no one ever complains.  Well, that may be.  But if so, it’s likely that in those instances Community Caretaking never became an in-court issue because (1) The D.A. rejected the case and never told you, (2) no illegal contraband was found during the inventory search so no criminal case was filed as a result, (3) defense counsel was unaware of these rules and failed to litigate them, and/or (4) you were just lucky that no one wanted to expend the time and effort (not to mention the money) to sue you.  But, in response to your “cards and letters,” I researched the issue further and here’s what I found:  Lee’s ruling—i.e., that the Community Caretaking requirement, being based upon Fourth Amendment principles, takes precedence over V.C. § 14602.6(a)(1)’s statutory authorization for impounding a vehicle—is consistent with prior case law, both state (see People v. Torres (2010) 188 Cal.App.4th 775, 786-792.) and federal (see Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3rd 858, 862-866; and United States  v. Cervantes (9th Cir. 2012) 703 F.3rd 1135, 1140-1143.).  I could not find any authority authorizing an exception to the rule as announced in Lee for someone driving on a suspended or revoked license, or who never had a license.  Similarly, prior case law (again, state and federal) requires compliance with the Community Caretaking Doctrine when the impoundment of a vehicle is statutorily authorized pursuant to V.C. § 22651(h)(i); i.e., where the driver is subjected to a custodial arrest.  (People v. Williams (2006) 145 Cal.App.4th 756, 761–763; and United States v. Caseres (9th Cir. 2008) 533 F.3rd 1064, 1074-1075.)  It is noted also that there are a whole host of other statutory grounds for impounding vehicles, such as (but not limited to) those listed in V.C. § 22651(a) through (w), interwoven into some of which are various Community Caretaking factors.  Most of section 22651’s authorizations for impounding vehicles, however, do not yet have any case law telling us whether or not the Community Caretaking Doctrine even applies.  Absent such case law, we have to assume it to be the general rule that the Community Caretaking Doctrine does in fact apply to any statutorily authorized impoundment absent a specific appellate court decision to the contrary.  (However, see Clement v. City of Glendale (9th Cir. 2008) 518 F.3rd 1090, where the Ninth Circuit criticized the impoundment of a vehicle per subdivision (o)(1)(A) of section 22651—when it was found in an off-street parking facility with expired registration—but as a Fourteenth Amendment “due process” violation for failing to provide the car’s owner with a pre-impoundment court hearing.  The Clement case never even mentions the Community Caretaking Doctrine.)  It is also a reoccurring issue whether the Community Caretaking Doctrine applies when the officer’s reason for impounding a vehicle is to prevent an unlicensed driver from continuing his unlicensed driving.  (See People v. Torres, supra, at p. 792; United States v. Caseres, supra, at p. 1075; and Miranda v. City of Cornelius, supra, at pp. 865-866.)  None of these cases, however, definitively decide the issue, although they do tend to lean toward not allowing the impounding of a vehicle in such a circumstance.  Don’t forget, however, that whether or not there is probable cause and exigent circumstances justifying a warrantless vehicle search (i.e., under the so-called “automobile exception” to the warrant requirement) is a whole separate issue (see People v. Lee, supra, at pp. 861-867) and not reliant upon either the Community Caretaking Doctrine or the inventory search rules.  But as for the impoundment of a vehicle under authority of V.C. §§ 14602.6(a)(1) (unlicensed drivers) and/or 22651(h)(i) (arrested drivers), and a subsequent inventory search of that vehicle, my research tells me it is a hard-and-fast rule that these violations do not give a police officer the right to impound the driver’s vehicle and conduct an inventory search absent compliance with the Community Caretaking Doctrine.  Period.  End of issue.

Impounding Vehicles, the Community Caretaking Doctrine, and Probable Cause Marijuana Vehicle Searches:  In an initially unpublished decision (Blakes v. Superior Court (Nov. 24, 2021) 72 Cal.App.5th 904, California’s Third District Court of Appeal discussed two legal theories for searching vehicles.  First, the Court ruled, once again, that unless the elements of the “Community Caretaking Doctrine” are met, you cannot impound a person’s vehicle and expect a pre-impound inventory search of that vehicle to be upheld.  In Blakes, gang detectives observed defendant driving a vehicle with illegally tinted windows.  Upon initiating a traffic stop, defendant lawfully parked his car in a parking space in a public parking lot.  Defendant was found to be unlicensed (his driver’s license having been suspended) so the officers decided to impound his car and do an inventory search of the car.  However, “(t)here was no evidence petitioner’s car blocked traffic or was at risk of theft or vandalism.”  Therefore, despite the officers’ agency having a policy allowing officers, at their discretion, to impound vehicles driven by unlicensed drivers, this particular vehicle, under these particular circumstances, did not meet the “community caretaking” requirements. I get individual officers arguing with me about this on a regular basis, telling me that a vehicle in these circumstances may be impounded and searched.  This case merely reiterates the now long-standing rule that “no, you may not,” absent the vehicle being “parked illegally, blocking traffic or passage, or at risk of theft or vandalism,” as required by the community caretaking doctrine. (See People v. Lee (2019) 40 Cal.App.5th 853, 867-869.) To be lawful, the impoundment of a vehicle must be both authorized by statute and in compliance with the Community Caretaking Doctrine.  In Blakes, there is also a serious probable cause argument that defendant’s vehicle was subject to search based upon the odor of marijuana emanating from his car.  However, the Court held that without any evidence to the effect that defendant was driving while under the influence of marijuana, that he was smoking it while driving, or that he was in violation of any other marijuana-related restrictions, the search of the car could not be justified under a probable cause theory.  The simple odor of marijuana alone being insufficient (See People v. Fews (2018) 27 Cal.App.5th 553, and People v. Johnson (2020) 50 Cal.App.5th 620.), there was no evidence of any such violations in this case.  What this case really came down to is that the officers, as gang detectives, strongly believed that defendant—given some very telling furtive actions during the traffic stop and his known criminal history—was up to no good.  As it turned out, he was, being found to be in the illegal possession of a firearm, an unspecified amount of marijuana, and a bunch of different identification cards, driver’s licenses, and credit cards.  But as we know, the end does not justify the means by which such illegal activity is discovered.  The Appellate Court, therefore, overruling the trial court, rejected both an inventory search theory and a probable cause search theory, ruling that the evidence should have been suppressed.  

The “Community Caretaking Doctrine:”

History:  The “community caretaking” doctrine was first mentioned by the U.S. Supreme Court in Cady v. Dombrowski (1973) 413 U.S. 433 [93 S.Ct. 2523; 37 L.Ed.2nd 706]. “Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”  (at p. 441; upholding the warrantless search of an impounded vehicle for an unsecured firearm.)

The United States Supreme Court has specifically held that attempts to expand the community caretaking theory to justify a warrantless entry and/or search of a residence were not constitutional.  The Court clearly and unequivocally rejected the argument that, “Cady’s acknowledgment of these ‘caretaking’ duties creates a standalone doctrine that justifies warrantless searches and seizures in the home.”  (Caniglia v. Strom (May 17, 2021) __ U.S. __ [__ S.Ct. __; __ L.Ed.2nd __; 2021 U.S. LEXIS 2682].)  (See “Welfare Checks; the ‘Community Caretaking Function,’ ‘Exigencies,’ and the ‘Emergency Aid Doctrine,’ under “Searches of Residences and Other Buildings” (Chapter 11), below.)

Rule: 

“The decision to impound the vehicle must be justified by a community caretaking function ‘other than suspicion of evidence of criminal activity’ [citation] because inventory searches are ‘conducted in the absence of probable cause’ [citation].”  (People v. Lee (2019) 40 Cal.App.5th 853, 867-869; quoting People v. Torres (2010) 188 Cal.App.4th 775, 787; see also Rodriguez v. City of San Jose (9th Cir. 2019) 930 F.3rd 1123, 1138.)

See also Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3rd 858, 862-866; United States  v. Cervantes (9th Cir. 2012) 703 F.3rd 1135, 1140-1143; United States v. Caseres (9th Cir. 2008) 533 F.3rd 1064, 1074-1075. 

An officer impounding a vehicle and conducting an inventory search must have “solid, non-investigatory reasons for impounding a car” and the decision to impound a car may not be a “mere subterfuge” to conduct a criminal investigation.  (United States v. Del-Rosario-Acosta (1st Cir. 2020) 968 F.3rd 123; seizure of drugs and a firearm from defendant’s impounded vehicle was held to be in violation of the “community caretaking” doctrine, and illegal.)

 Case Law:

Under the “Community Caretaking Doctrine,” police may, without a warrant, impound and search a vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose.  (People v. Quick (2016) 5 Cal.App.5th 1006, 1010; citing People v. Williams (2006) 145 Cal.App.4th 756, 761-762.)

“‘The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.’ (South Dakota v. Opperman (1976) 428 U.S. 364, 369 [49 L. Ed.2nd 1000, 96 S. Ct. 3092].) A vehicle impound search will be upheld if it is reasonable under all the circumstances. (People v. Shafrir (2010) 183 Cal.App.4th 1238, 1247 . . .)”  (People v. Quick, supra.)

California courts have approved the use of the Community Caretaking theory to justify the impoundment of a vehicle when a vehicle is parked illegally, blocks traffic or passage, or stands at risk of theft or vandalism.  Also relevant to the caretaking inquiry is whether someone other than the defendant could remove the car to a safe location.  (People v. Lee (2019) 40 Cal.App.5th 853. 867-869; People v. Torres (2010) 188 Cal.App.4th 775, 790; People v. Williams (2006) 145 Cal.App.4th 756, 762–763.)

The Ninth Circuit Court of Appeal has ruled that impounding a vehicle can be justified under the “Community Caretaker Doctrine” whenever such vehicle may impede traffic, threaten public safety, or be subject to vandalism.   (United States v. Jensen (9th Cir. 2005) 425 F.3rd 698, 706; United States v. Torres (9th Cir. 2016) 828 F.3rd 1113, 1118.)

In Torres (at pp. 1118-1123), in a prosecution for being a felon in unlawful possession of a firearm, an officer’s decision to impound defendant’s vehicle after arresting him for driving while under the influence of alcohol, and when the car was parked near a red zone in a parking structure of an apartment complex in which defendant did not live, was permissible under the Fourth Amendment because it was consistent with his police department’s policy and served legitimate community caretaking purposes; i.e., to promote other vehicles’ convenient ingress and egress to the parking area and to safeguard the car from vandalism or theft.  The inventory search of defendant’s vehicle was also proper under the Fourth Amendment because, in fulfilling his duty to search all containers pursuant to department policy, the officer acted within the parameters of that policy when he unlatched the air filter compartment where he found a firearm. 

However, the Ninth Circuit has also held that a statute allowing for the pre-court-hearing impounding of a vehicle may be in violation of the Fourth Amendment absent a legitimate need to prevent it from again being driven illegally, from creating a hazard to others drivers, or being a target for vandalism.  (Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3rd 858; driver driving without a license.)

The mere fact that its driver is cited or even physically arrested does not necessarily implicate the “community caretaking doctrine.”  (Ibid.)

On the issue of whether the officer has a duty to make sure the unlicensed driver doesn’t continue to illegally drive the car, the Court noted that “the need to deter a driver’s unlawful conduct is by itself insufficient to justify a tow under the ‘caretaker’ rationale.”  However, the rule is otherwise (thus allowing for a tow) where it can be proved that “the driver is unable to remove the vehicle from a public location without continuing its illegal operation.”  (Id. at pp. 865-866.)

Where the defendant has been physically arrested and taken to jail, impounding the car to prevent him from continuing the offense is unlawful.  (United States v. Caseres (9th Cir. 2008) 533 F.3rd 1064, 2074-1075; see also People v. Torres (2010) 188 Cal.App.4th 775, 792, indicating that believing defendant may repeat his offense of driving without a valid license is never grounds for impounding his car.)

California is now in accord with the rule as set down in Miranda v. City of Cornelius.  (People v. Williams (2006) 145 Cal.App.4th 756; impounding the car, per V.C. § 22651(h)(1), subsequent to the driver’s arrest on an outstanding warrant.)

See also Quezada v. City of Los Angeles (2014) 222 Cal.App.4th 993, 1008:  “As part of their ‘“community caretaking functions,” ’ police officers may constitutionally impound vehicles that ‘jeopardize . . .  public safety and the efficient movement of vehicular traffic.’ [Citation.] Whether ‘impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers’ duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft.' [Citation.]”  (quoting Williams, at p. 761.)

Towing and impounding a vehicle merely because it is illegally parked, without prior notice to the vehicle’s owner and a pre-seizure hearing, absent an exigency requiring immediate action (such as in an emergency, where notice would defeat the entire point of the seizure, or where the interests at stake are small relative to the burden that giving notice would impose; e.g., the car is parked in the path of traffic, blocking a driveway, obstructing a fire lane, or appears to be abandoned, or where there is no current registration stickers and there’s no guarantee the owner won’t move or hide the vehicle instead of paying the fine for illegal parking), is a Fourteenth Amendment due process violation despite statutes allowing for the towing, and may generate some civil liability for the police.  (Clement v. City of Glendale (9th Cir. 2008) 518 F.3rd 1090; an unregistered vehicle with a “planned non-operation (PNO) certificate” filed, parked in a publicly accessible parking lot in violation of V.C. § 22651(o).) 

The decision to impound a vehicle following an arrest when made pursuant to standardized departmental criteria is more likely to satisfy the Fourth Amendment than one not made pursuant to such criteria.  However, it is not legally necessary that that be the case.  The reasonableness of impounding a vehicle based upon the circumstances is the test under the Fourth Amendment.  (People v. Shafrir (2010) 183 Cal.App.4th 1238; defendant’s newer Mercedes lawfully impounded following his arrest for DUI because, in the officers’ opinions, the car would not be safe if left at the site of the arrest.)

Impounding a vehicle for the purpose of allowing the officer to do an inventory search of the vehicle in the hopes of finding narcotics-related evidence, when none of the “community caretaking function” elements apply, is illegal.  While stopping the vehicle may be for an ulterior purpose, so long as there is also an objectively reasonable basis for doing so (e.g., seeing a traffic violation), the officer’s subjective motivations are in issue when evaluating the legality of impounding the vehicle and conducting an inventory search.  (People v. Torres (2010) 188 Cal.App.4th 775, 785-793; impoundment and inventory search held to be illegal when the officer admitted that his purpose was to look for narcotics-related evidence.  See also People v. Lee (2019) 40 Cal.App.5th 853. 867-869.)

Doing an inventory search of a vehicle under the theory that it is to be impounded, absent any evidence that any of the “community caretaking” factors apply (i.e.; it is abandoned, impeding traffic, or threatening public safety or convenience), is unlawful, particularly in light of the fact that the defendant told the officer that he had a friend who could come out and retrieve his vehicle.  (United States v. Maddox (9th Cir. 2010) 614 F.3rd 1046, 1049-1050.)

The seizure and subsequent inventory search of defendant’s car was held not to be justified by the community caretaking exception to the Fourth Amendment’s warrant requirement. Under the community caretaking exception, police officers may impound vehicles that jeopardize public safety and the efficient movement of traffic.  Neither officer provided testimony that defendant’s car was parked illegally, posed a safety hazard, or was vulnerable to vandalism or theft.  Although defendant’s car was not located close to his home when the officers impounded it, there was no evidence that it would have been vulnerable to vandalism or theft if it were left in its residential location or that it posed a safety hazard. Also, the court concluded that seizure and inventory search of defendant’s car was a pretext for an investigatory search for evidence of narcotics trafficking.   (United States v. Cervantes (9th Cir. 2012) 703 F.3rd 1135, 1140-1143.)

The Fourth Amendment did not require suppression of evidence from an inventory search of defendant’s vehicle because the trial court found that the vehicle was blocking a driveway and parked far enough out in the roadway to create a traffic hazard and that the inventory search was pursuant to established police policy.  (People v. Quick (2016) 5 Cal.App.5th 1006, 1010-1011.)

Impounding defendant’s vehicle after his arrest for driving while under the influence, when the vehicle was illegally parked blocking a handicap spot and with no one else present who could take charge of the vehicle, was lawful under the community caretaking theory.  The discovery and seizure of an unlawful firearm (defendant being a convicted felon) was lawful despite the inventory search being completed, when the officer observed the firearm between the front seats as he was putting the keys to the vehicle in the ignition in order to facilitate its towing.  (United States v. Davis (1st Cir. NH 2018) 909 F.3rd 9.)

“(T)he fact that an inventory search is authorized (by statute) is not determinative of the search’s constitutionality. Indeed, ‘[i]nventory search jurisprudence presumes some objectively reasonable basis supports the impounding.’ (Citation.) Thus, ‘statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure.’ (Citation)”  (People v. Lee (2019) 40 Cal.App.5th 853. 867-869; quoting People v. Torres (2010) 188 Cal.App.4th 775, at p. 791, and People v. Williams (2006) 145 Cal.App.4th 756, at p. 762-763.)

The community caretaking theory, however, was held not to apply to an officer’s unconsented to opening up of the back lid to defendant’s pickup truck shell, even though the officer was only attempting to retrieve defendant’s girlfriend’s personal items from the truck after a verbal dispute between defendant and the girlfriend.  The Court held that the community-caretaking exception did not apply because the government did not establish that “state law or sound police procedure” warranted opening the camper shell nor had it demonstrated how opening the camper was “justified by concern for the safety of the general public.” The court noted that the government failed to explain how allowing the girlfriend to open the camper herself to retrieve her belongings would have posed any danger to the officers. Specifically, the government identified “no specific and articulable facts” demonstrating that the deputy needed to stand behind the tail gate, lift the camper’s latch, or look into the bed of the truck, nor was opening the camper “necessary to protect” the girlfriend, defendant, the officers, or others.  (United States v. Neugin (10th Cir. 2020) 958 F.3rd 924.)

The pre-impound inventory search of a vehicle was upheld where defendant was cited at the scene, the car was uninsured so it couldn’t be driven from the scene, and the actual owner of the car was contacted but showed no interest in coming to the scene to claim the car.  Recovery of methamphetamine from a false compartment at the bottom of the center console was upheld as a part of the inventory search in that it was in an area where people would normally store valuables.  Also, a firearm was found under a false bottom of the glove compartment.  The Court found that this was not an area where people would store items, so searching this area could not be upheld as a part of the inventory search.  However, the recovery of the firearm was instead upheld as an exercise of the officers’ community-caretaking function, which is separate from an inventory search. Under the community-caretaking function, officers may search a vehicle that is being impounded if they have a reasonable belief that it might contain a firearm. Here, the court concluded that the officer had a reasonable belief that defendant’s vehicle contained a firearm.  Supplying that “reasonable belief” here was the fact that the officer had found an empty, concealed-carry handgun holster on the front passenger seat. Second, during the initial slow-speed pursuit, Kendall drove eight blocks at ten miles per hour before pulling over, during which time he appeared to be “moving objects around on the passenger seat.” These facts gave rise to reasonable belief that there was a firearm somewhere in the vehicle near the front seat. In addition, pursuant to the department’s standard inventory policy, the officers were required to inventory any guns in an impounded vehicle and remove them for safekeeping. As a result, the court held that it was reasonable for the officer to search for a hidden firearm in the front-passenger-seat area.   (United States v. Kendall (10th Cir. CO 2021) 14 F.4th 1116.)

California’s Third District Court of Appeal discussed two legal theories for searching vehicles in Blakes v. Superior Court (Nov. 24, 2021) 72 Cal.App.5th 904.  First, the Court ruled, once again, that unless the elements of the “Community Caretaking Doctrine” are met, you cannot impound a person’s vehicle and expect a pre-impound inventory search of that vehicle to be upheld.  In Blakes, gang detectives observed defendant driving a vehicle with illegally tinted windows.  Upon initiating a traffic stop, defendant lawfully parked his car in a parking space in a public parking lot.  Defendant was found to be unlicensed (his driver’s license having been suspended) so the officers decided to impound his car and do an inventory search of the car.  However, “(t)here was no evidence petitioner’s car blocked traffic or was at risk of theft or vandalism.”  Therefore, despite the officers’ agency having a policy allowing officers, at their discretion, to impound vehicles driven by unlicensed drivers, this particular vehicle, under these particular circumstances, did not meet the “community caretaking” requirements in that the vehicle was “parked illegally, was not blocking traffic or passage, or at risk of theft or vandalism,” as required by the community caretaking doctrine. To be lawful, the impoundment of a vehicle must be both authorized by statute and in compliance with the Community Caretaking Doctrine.