IL: Mere arrest doesn’t justify towing and inventory

Defendant was a passenger in a car stopped by the police. The driver was being arrested, and he gave the keys over to the defendant. The defendant had stuff in the trunk. The giving of the keys created standing. Mere arrest is not a valid reason to tow a vehicle without more. People v. Ferris, 2014 IL App (4th) 130657, 2014 Ill. App. LEXIS 254 (April 21, 2014):

[*P53] In sum, defendant was more than a mere passenger; he was more than someone who occupied a passenger’s seat. Under the totality of the circumstances, he had a legitimate expectation of privacy as to Deweese’s car, an expectation that society would accept as reasonable. Therefore, he has standing to object to an unreasonably prolonged seizure of the car. See Rosenberg, 213 Ill. 2d at 77; Kidd, 178 Ill. 2d at 136; Johnson, 114 Ill. 2d at 191; Davis, 93 Ill. App. 3d at 226. If the towing of the car was an unreasonable prolongation of its seizure, defendant was not required to remove his book bag from the trunk before the car was towed away, contrary to the dissent’s argument, because he was entitled to expect that the car would not be towed in the first place.
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[*P59] The “MCSO—Vehicle Tow Record” has a box for “Arrest” in the section entitled “Reason for Towing.” But towing the vehicle in every case in which the driver is arrested would be unreasonable. Duguay, 93 F.3d at 353 (“[I]mpoundment based solely on an arrestee’s status as a driver, owner, or passenger is irrational and inconsistent with ‘caretaking’ functions. Under either Detective Waldrup or Detective Adams’ policies, towing is required any time the arrestee is carted off to jail, regardless of whether another person could have removed the car and readily eliminated any traffic congestion, parking violation, or road hazard.”).

[*P60] The Supreme Court has stated: “The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” Opperman, 428 U.S. at 369. Granted, the Lincoln, with the squad car behind it, was obstructing traffic on Illinois Route 32 during the traffic stop. The Lincoln was three-quarters of the way over the fog line, in the eastbound lane. That just happened to be where Biddle came to a halt when Smith pulled her over. Smith was unable to give any reason for failing to have her pull completely over onto the shoulder and out of the way of traffic. As one can see by watching the DVD of the traffic stop, the shoulder of the highway was of ample width, and the car easily could have been driven a few feet over so that it was completely on the shoulder. Smith admitted as much in his testimony. As far as we know, it was not illegal to leave a vehicle parked on the shoulder of Illinois Route 32, provided that the vehicle was removed within 24 hours. See 625 ILCS 5/4-203(c) (West 2012). There would have been no danger of defendant’s driving the Lincoln in his impaired state, or of Deweese’s driving it in her unlicensed state, because Smith had them both taken to the sheriff’s office to await the arrival of an alternative driver.

[*P61] If the justification of the police tow was removing an obstruction to traffic, that justification seems inconsistent with common sense, considering that Smith could have had Biddle pull all the way over in the first place or, if he failed to do that, the car easily could have been driven or pushed the rest of the way onto the shoulder. In People v. Buffo, 202 Ill. App. 3d 240, 242, 559 N.E.2d 908, 147 Ill. Dec. 568 (1990), the appellate court stated:

“[W]e believe that the possibility of an arrest resulting from a routine traffic stop is sufficiently high that the police should pull a vehicle over to a legal parking space or, at least, to a point in the road at which the vehicle will not obstruct traffic. Having failed to do so, [the police officer] could not take advantage of that failure to enter [the] defendant’s car on the pretext of an exigent circumstance.”

Thus, by the logic of Buffo, it was Smith’s obligation to have Biddle 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 community-caretaking function, i.e., the police tow. See id. A community-caretaking function has to be reasonable under the circumstances, not pretextual.