Pretextual inventory searches used as surrogates for an improper investigatory motive, are unlawful and must be stricken

Pretextual inventory searches of police-stopped automobiles — where the real police motive is to conduct an unlawful search — are inevitably going to take place in this climate where appellate court caselaw allows police to stop a motor vehicle for a moving violation, where the real reason for the stop is to pursue contraband, a violation of the DUI laws, or any other criminal activity. As a Fairfax criminal lawyer, I am happy that the Virginia Court of Appeals has reiterated: “This Court has recognized certain limitations on the ‘inventory search’ doctrine and the ‘community caretaker doctrine’ from which it emanates…. Our caselaw makes clear that police may conduct a warrantless inventory search of a vehicle ‘only if the following conditions are met: “1) the vehicle must be lawfully impounded; 2) the impoundment and subsequent search must be conducted pursuant to standard police procedures; and 3) the impoundment and subsequent search must not be a pretextual surrogate for an improper investigatory motive.”‘” Stamps v. Virginia, ___ Va. App. ___ (2025).

If Virginia police ticket me for a DWI or traffic offense, will they tow my car away, whether or not the possible towing is pretextual?

If police are not going to allow you as a stopped suspect or defendant, to drive away your car from the scene, you can ask the law enforcement officers (LEO’s) if you may call a friend or family member to drive away the car . If police have a strong pretextual interest in searching your car in the process of having it towed, your chances can be more limited of having such a driving away request granted. Moreover, if your car is unregistered or otherwise unlawful to drive, do not expect police to let you drive away in that car, before taking the investigation further.

Do the police need a warrant to search my car?

For a car search to be Constitutional under the Fourth Amendment and not an invalid pretextual police action, the police must have probable cause to do so, get the owner’s or driver’s consent, or engage in a Constitutionally permitted inventory search.  Your assertion of your right to decline consent to search you or your property must be stated clearly and resolutely. “I do not consent to this search” may be misinterpreted or disingenuously reported after removing the phrase “do not”. You should speak calmly and respectfully, lest the police tack on such allegations as disorderly conduct, or police intimidation.

What should I do if charged with a Virginia drug offense?

If you need a lawyer for your drug case — whether arising out of pretextual police activity or not —  top-rated Fairfax criminal lawyer Jonathan Katz will be delighted to defend you. Jon Katz has been successfully defending hundreds of drug defendants for many years, including taking many such cases to trial. Jon’s opposition to the conduct of the drug wars was a key motivator for him to pursue his current criminal defense career, in the first place. For your free initial in-person strictly confidential consultation with Jon Katz, call 703-383-1100, info@BeatTheProsecution.com and (text) 571-406-7268.