Code Attorney

If I want to spark a lively discussion in one of my classes, all I have to do is mention the topic of towing vehicles off of private property.  This is one of those issues that has yet to be resolved by the United States Supreme Court.  The issue is: does the Fourth Amendment require a search warrant to seize an abandoned vehicle on private property even though the property owner has been given a due process hearing?  There is a difference in opinion by the courts on what the answer is.  Based on the caselaw I have read, I take the conservative view and tell my clients, when in doubt, get a search warrant.

For example, Conner v. City of Santa Ana, 897 F.2d 1487(1990) found that the:

Warrant requirement of the Fourth Amendment applies to entries onto private land to abate known nuisances even if property owner is afforded certain “process” in connection with nuisance prior to entry.

In Illinois Redwood v. Lierman, 772 N.E.2d 803, 331 Ill.App.3d 1073, 265 Ill.Dec. 432,(Ill.App. 4 Dist. Jun 07, 2002) the court decided that

Business owners alleging  a violation of their civil rights by local governmental officials in that police had been authorized to seize, without warrant, one of their business vehicles from one of their private residential properties sufficiently pleaded a violation of the Fourth Amendment to stave off the officials’ dismissal motion; while the village in which the seizure occurred argued that the business owners had been given numerous hearings before the decision to seize the vehicle was made, the issue was not whether the business owners had been deprived of due process, but whether the village and its officers had illegally entered the residential property in order to seize the vehicle.

In Bezayiff v. City of St. Louis, 963 S.W.2d 225, 233+ (Mo.App. E.D. Nov 04, 1997) a city ordinance which permitted a warrantless entry by city officials onto private property to remove inoperable vehicles violated the Fourth Amendment, despite the contention that the process provided for in the ordinance was an adequate substitute for warrant.

On the other hand some courts have declined to follow this type of reasoning, for example Santana v. City of Tulsa, 359 F.3d 1241 (10th Cir.(Okla.) Feb 25, 2004) which involved the seizure of computer parts from the backyard of the owner as part of a nuisance abatement.  However, I should note that most of these cases do not involve the removal of vehicles.  Rather they involve the demolition of buildings or the removal of rubbish and garbage.
I think it’s very important for code enforcement officers to have a good legal opinion from your local jurisdiction’s attorney before towing vehicles off of private property without a warrant.  Don’t assume that your attorney has researched this area, ask him or her to check it out for you.  Who knows how long it will be before the United States Supreme Court resolves this dilemma.  Remember, the last really important case in building code enforcement, Camara v. San Francisco was decided in 1967.