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Tow your rights: non-consent tows after arrest

 Posted on September 30,2019 in Pretrial

This post is the second entry in our “Know Your Legal Rights” series of blog posts related to police vehicle stops, detentions, and arrests. These posts are case studies based on real-life situations faced by defendants in the State of Texas, and are provided as general-interest information.They are not intended to be, and are not, legal advice. Every case is unique. So if you get pulled over and arrested, please seek the advice of legal counsel.

Today’s question – why do police officers love to call tow trucks, and what you can do to protect your rights when they do.

Law enforcement often use non-consent vehicle tows as a way to conduct full searches without probable cause or a warrant.

Here is a fact scenario we’ve encountered before: a client sees a police car close in behind him. After a minute of tracking the client’s car, the officer turns on his vehicle’s lights. The client is only three blocks from his home. Also, he’s in a residential neighborhood with narrow shoulder-less roads and steep bar ditches that run along both sides. So he has no obvious place to stop.

So the client continues on towards his house, passing a few streets along the way. He neither accelerates or slows down. About two minutes later, he arrives at his home and pulls into the driveway.

The officer pulls up behind him, leaps out of his car, and then throws the client on the ground as the client steps out of his vehicle. The officer puts the client in handcuffs, claiming that the client evaded arrest. With the client detained in his own driveway, the officer runs his license and sees that the client has active warrants for old traffic tickets.

The officer then places the client under arrest. He also calls a tow truck and begins an extremely thorough search of the vehicle. After a few minutes, the officer finds a second-degree felony amount of methamphetamine. The officer claims in his report that he searched the client’s vehicle pursuant to a “tow inventory.”

Question: was the search legal?

The Law:

The Fourth Amendment protects against unreasonable searches. For a vehicle impoundment by law enforcement to be legal, it must be reasonable under the Fourth Amendment. Benavides v. State, 600 S.W.2d 809, 811 (Tex. Crim. App. 1980 [panel op.]). The State must prove that the impoundment was reasonable. Benavides, 600 S.W.2d at 810. A search pursuant to a tow inventory is legal if the tow itself was reasonable.

What makes a tow “reasonable” under the Fourth Amendment? Well, it depends on the facts. Here are some examples of reasonable tows: (1) if you’re in an accident; (2) if you abandon the vehicle; (3) if you’re under arrest the vehicle you were driving is connected to the offense you allegedly just committed; (4) if your vehicle presents a hazard to on-coming traffic; (5) if you’re towed under circumstances authorized by a local municipal or county two policy. See generally the Benavides case. This isn’t a definitive list, but you get the idea.

2 Important things:

  1. a tow MUST comply with the local law enforcement’s written polices. If the officer doesn’t follow the rules, the tow is invalid
  2. the police can only tow a vehicle after arresting the driver IF there are no other reasonable alternatives to safe guard the vehicle

My Argument:

I argued that the tow inventory search was unreasonable and violated the Fourth Amendment. Why? Because the client was arrested in his front yard for starters. There was a reasonable alternative to towing the vehicle, namely, leaving it in the damn driveway with his wife. Additionally, the client’s arrest had nothing to do with the vehicle (the old traffic tickets). My client had not attempted to evade arrest, and even if he was evading, there was no compelling reason to tow the vehicle once he was in custody (this was my weakest argument. . . do you know why?).


Case dismissed! I convinced the prosecutor that the tow was invalid. Luckily my client was not charged with evading, so the State lacked credibility if they tried to argue that the tow was justified by fact that client used the car in the course of committing an offense.

Practical lesson

Be mindful when you get pulled over to find a place that does not block traffic or cause a dangerous situation. Try to have someone that can come pick up your car (in a reasonable amount of time). Remember that the officer only gets to inventory your car if he can come up with a reasonable basis for having it towed in the first place. Just because you get arrested doesn’t mean your car has to be towed.

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