IN: Inventory here was valid despite fact car was first impounded but then not towed after all

The inventory search of this car in anticipation of impoundment was overall reasonable, despite the fact that the car ultimately was not impounded. It might prove pretext, but it didn’t here. [This is fact heavy, and interesting reading.] Stokes v. State, 2026 Ind. App. LEXIS 66 (Feb. 25, 2026) (2-1):

P19 As stated above, the State conceded at oral argument that the vehicle at issue was not impounded. At this point, we pause to clarify that the police’s failure to fully effectuate a vehicle impoundment (take custody of the vehicle and complete a tow) is not fatal to the State’s claim that impoundment was reasonable. Rather, the impoundment inquiry centers on the reasonableness of the officer’s decision to impound. Indeed, in Wilford, the Supreme Court’s impoundment analysis focused on the reasonableness of the “decision to impound[.]” Id. This is consistent with Fair’s rationale that the failure to complete impoundment was a factor suggestive of a pretextual search rather than a fatal flaw in the impoundment inquiry. See Fair, 627 N.E.2d at 436.

P20 The dissent wants to make a bright line rule that for a lawful impoundment the police must take custody of a vehicle and complete a tow (by removing the vehicle to an impound lot). We respectfully disagree with the dissent’s position that proper impoundment under the Fourth Amendment mandates completion of the tow. First, we note that the dissent did not address with our analysis—rooted in Fair and Wilford—that a lawful decision to impound is sufficient to satisfy the State’s burden to prove a reasonable impoundment, and that the failure to effectuate a tow functions as one factor that may indicate pretext rather than a hard line under the Fourth Amendment.

P21 Second, we disagree with the assertion that our position has never been reflected in Indiana case law. We’ve made clear we believe our Supreme Court has provided direction in this area, and indeed, this Court has recognized the same. In Widduck v. State, an officer conducted a traffic stop on a vehicle without a license plate containing a driver who had no registration. 861 N.E.2d 1267, 1269 (Ind. Ct. App. 2007). The officer made the decision to tow the car and then searched it and found drug paraphernalia. Id. However, after assessing the scene and the driver’s cooperation—reasons that are far more ripe for abuse than policy-mandated release to the owner—the officer let the driver drive his car from the scene. Id. When the driver appealed his conviction for possession of paraphernalia, a panel of this Court considered the case a “close call,” but reasoned that the officer’s decision not to effectuate a tow did not render the search unreasonable under the Fourth Amendment because it was not pretextual. Id. at 1270-71; see also Barber v. State, No. 22A-CR-258, at *3 n.1 (Ind. Ct. App. Aug. 31, 2022) (mem.) (noting appellant’s argument that the inventory search was invalid because the vehicle was not towed and reasoning that Fair instructs that such evidence raises questions about pretext rather than meaning the search was necessarily invalid).

. . .

P26 That said, even when an officer’s decision to impound is lawful—pursuant to statutory authorization or circumstances warranting discretionary impoundment—courts must still consider whether that decision and the resulting inventory search were a mere pretext to forage for incriminating evidence, a motivation anathema to the rationale behind the inventory search exception to the warrant requirement. In other words, police may not use a lawful impoundment as a pretext to search. And when the transaction reveals itself as pretextual, which the court may come to conclude when analyzing law enforcement’s inventorying procedures and compliance therewith, the entire transaction is rendered constitutionally unreasonable. Indeed, Fair noted that “the ultimate character of [a] search is often most clearly revealed when both the necessitousness of the impoundment and the scrupulousness of the inventorying are viewed together.” 627 N.E.2d at 431, 436 (outlining “several indicia of pretext[,]” including facts related to the impoundment). With that in mind, we turn to whether the State carried its burden to show the inventory search at issue was reasonable.