San Francisco warrantless tows of vehicles with unpaid parking tickets violates the Fourth Amendment and due process

Coalition on Homelessness v. City and County of San Francisco (Cal. Ct. App., July 21, 2023, No. A164180) 2023 WL 4673776

Summary: Nonprofit organization brought action against city, municipal transportation agency, and police department challenging agency’s policy of towing safely and lawfully parked vehicles without a warrant based solely on the accrual of unpaid parking tickets, moving for writ of mandate and declaratory and injunctive relief. The Superior Court, San Francisco County, denied the organization’s motion. The organization appealed .

Holdings: The Court of Appeal held that: The community caretaking exception to warrant requirement was inapplicable to municipal transportation agency’s towing policy, and municipal transportation agency’s towing policy was not permissible under forfeiture rationale.

Facts: The  Coalition on Homelessness (appellant) filed the present action against uthe City and County of San Francisco, the San Francisco Municipal Transportation Agency (SFMTA), and the San Francisco Police Department (collectively, respondents) to challenge the SFMTA’s policy of towing safely and lawfully parked vehicles without a warrant based solely on the accrual of unpaid parking tickets. Appellant argued that the warrantless tows are unreasonable seizures within the meaning of article I, section 13 of the California Constitution and the Fourth Amendment to the United States Constitution (Fourth Amendment).  The trial court denied appellant’s motion for a writ of mandate and declaratory and injunctive relief. The Court of Appeal reversed.

Issue on appeal:  Whether the challenged warrantless tows are permissible under the vehicular community caretaking exception to the Fourth Amendment’s warrant requirement. The Court found that  respondents have not shown that legally parked cars with unpaid parking tickets that present no threat to “public safety and the efficient movement of vehicular traffic” (S. Dakota v. Opperman (1976) 428 U.S. 364, 369  (Opperman)) may be towed under that exception. Respondents’ argument that their interest in deterring parking violations and nonpayment of parking fines justifies warrantless tows under the vehicular community caretaking exception was rejected.  Such deterrence does not justify warrantless tows of lawfully registered and lawfully parked vehicles. The Court also  rejected  the argument that the tows at issue may be justified by analogy to warrantless property seizures in the forfeiture context.

Traffic regulations and authorized tows

The State of California “has preempted the field of motor vehicle traffic regulation,” “[a] city has no authority over vehicular traffic control except as expressly provided by the Legislature.” (Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 1177–1178.)

Pursuant to Vehicle Code section 22651,3 the Legislature has authorized vehicle tows in a range of different circumstances. Section 22651, subdivision (i)(1), at issue here, permits tows for unpaid parking citations. It  permits a peace or parking enforcement officer to tow a vehicle if it “is found upon a highway or public land … and it is known that the vehicle has been issued five or more notices of parking violations to which the owner or person in control of the vehicle has not responded within 21 calendar days” of issuance. (§ 22651, subd. (i)(1).) The statute mandates that parking citations warn that multiple citations may result in impoundment: “A notice of parking violation issued for an unlawfully parked vehicle shall be accompanied by a warning that repeated violations may result in the impounding of the vehicle.” (§ 22651, subd. (i)(3).)4

Once a vehicle has been towed, local authorities may keep it in storage until its owner provides “[s]atisfactory evidence that all parking penalties due for the vehicle … have been cleared.” (§ 22651, subd. (i)(1)(C).) Alternately, “In lieu of furnishing satisfactory evidence that the full amount of parking penalties or bail has been deposited, that person may demand to be taken without unnecessary delay before … a hearing examiner, for parking offenses, within the county where the offenses charged are alleged to have been committed and who has jurisdiction of the offenses and is nearest or most accessible with reference to the place where the vehicle is impounded.” (§ 22651, subd. (i)(3).) During such a hearing, “the storing agency shall have the burden of establishing the authority for, and the validity of, the removal.” (§ 22650, subd. (c).) Under section 22851.1, subdivision (a), “[i]f the vehicle is impounded pursuant to subdivision (i) of Section 22651 and not released as provided in that subdivision, the vehicle may be sold … to satisfy” liens for towing and storage and for the outstanding parking violations.

Constitutionality of the SFMTA’s policy of towing vehicles pursuant to section 22651, subdivision (i)(1) without first obtaining a warrant

Appellant challenges the constitutionality of the SFMTA’s policy of towing vehicles pursuant to section 22651, subdivision (i)(1) without first obtaining a warrant. In December 2018, appellant filed a petition for writ of mandate and complaint for declaratory and injunctive relief, claiming that the warrantless tows violated article I, section 13 of the California Constitution the Fourth Amendment. Appellant also alleged the tows violated the owners’ constitutional due process rights.

Respondents’ answer admitted that the SFMTA “does not obtain warrants when it tows vehicles” pursuant to section 22651, subdivision (i)(1) and that, under the SFMTA’s policies, “vehicles subject to tow under [that section] may be towed without regard to whether they are legally or safely parked at the time of the tow and without regard to whether the vehicle is involved in any crime.”

During the COVID-19 pandemic, the SFMTA ceased ordering tows for unpaid parking citations. In June 2021, the SFMTA resumed ordering such tows pursuant to an altered policy. Pursuant to the amended policy, the SFMTA no longer orders tows of vehicles where the amounts owed are $2,500 or less,and “when a parking enforcement officer … can identify that [a] car is being used as shelter, the officer will not place a boot on the car, and also will not direct that the car be towed for unpaid and delinquent parking citations, regardless of the amount of money that is owed on those citations (unless the car is parked in a tow-away zone, in a place that creates a hazard, or in similar circumstances).”

Fourth Amendment Standards

34The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and further provides that “no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment’s prohibition against unreasonable searches and seizures applies to respondents through the Fourteenth Amendment.  “The Fourth Amendment protects against unreasonable interferences in property interests regardless of whether there is an invasion of privacy.” (Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, 862 (Miranda)

The impoundment of an automobile is a seizure within the meaning of the Fourth Amendment. A seizure conducted without a warrant is per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.

The vehicular community caretaking exception is inapplicable

Respondents argue  on appeal is that the tows are reasonable under the vehicular “community caretaking” exception to the Fourth Amendment’s warrant requirement. The exception is inapplicable: it is undisputed that the tows do not involve cars that, due to their location, are presenting any threat to public health or convenience at the time of the tow. The challenged tows do not involve cars that are illegally parked, create a hazard to other drivers or an obstacle to the flow of traffic, or are a target for vandalism or theft. In arguing that the challenged tows are within the scope of the vehicular community caretaking exception, respondents emphasize that parking  laws promote the safe and efficient flow of traffic through the City, and thus protect the health and safety of City residents.

Respondents Have Not Shown the Challenged Tows May Be Upheld Under a Forfeiture Rationale

The vehicular community caretaking exception is the only exception specifically argued by respondents in their brief on appeal.

In their supplemental brief, respondents argue that, even though the cars towed are not subject to forfeiture, it is enough that their towing regime is equivalent to a forfeiture regime. That argument disregards that the foundation for the forfeiture exception is the government’s superior property interest, which is absent in the present case.


The trial court’s judgment was reversed, and the matter  remanded for further proceedings consistent with this decision.

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