# Commonwealth v. Henley > Superior Court of Pennsylvania · September 29, 2006 · 2006 Pa. Super. 276 URL: https://www.frixlaw.com/law-library/cases/9706385 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Emuel C. HENLEY, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** September 29, 2006 - **Citations:** 2006 Pa. Super. 276; 909 A.2d 352; 2006 Pa. Super. LEXIS 3054; 2006 WL 2788950 - **Precedential status:** Published - **Opinion:** Concurring in part by Klein - **Judges:** Elliott, Joyce, Musmanno, Melvin, Todd, Klein, Bowes, Gantman, Panella - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706385 ## How later opinions describe it (automated extraction) - noting “appellant’s vehicle was stopped in the middle of the roadway such that it constituted a traffic hazard; that the particular street on which appellant’s vehicle was stopped did not permit parking on either side; and that there was a great amount of snow on the road, pre… - rejecting argument that police only have authority to tow vehicles under Section 6309.2, because “the statute was not intended to trump the traditional community care-taking functions of the police” - holding that section 6309.2 coexists with "the traditional community care-taking functions of the police.” - holding that an expired registration is a violation of the Motor Vehicle Code - explaining common purposes for inventory searches, including officer safety and protecting the owner’s property ## Opinion text CONCURRING AND DISSENTING OPINION BY KLEIN, J.: ¶ 1 I agree that Henley’s judgment of sentence should be affirmed, and agree that because the vehicle was stopped in a no-parking area where there were also mounds of snow, it was necessary to tow the car. Therefore, the public safety exception applies and it was appropriate to inventory the car before towing it. ¶ 2 However, I do not believe the outcome is dependent in any way on a Thur man 11 analysis. I believe it is improper to overturn a panel decision in dicta when that analysis is not at all necessary to the decision. There was no claim in Thurman that the car was stopped in an impermissible place and it was necessary to tow the car and therefore conduct an inventory search. Therefore I dissent to that portion of the majority opinion. . ¶ 3 Thurman does not stand for the proposition that local governments no longer have the ability to tow a vehicle pursuant to their “community care-taking function.” Rather, Thurman dealt with a specific issue of whether a local police department may, on its own authority, adopt a regulation requiring .the police to tow any vehicle that is not properly registered and/or insured. Thurman held that a local police department cannot institute such a policy because the legislature has specifically provided for the manner in which such towing is to take place, see 75 Pa.C.S. § 6309.2. Thurman was not a wholesale attack on the common law ability for the police to exercise their community care-taking responsibilities regarding traffic control. Rather, Thurman prevents the police from improperly towing a non-registered vehicle parked appropriately, solely because it is unregistered and/or uninsured, without a) first obtaining authority from the proper local governmental unit; and b) observing and honoring certain fundamental due process rights. ¶ 4 I fully agree with the majority that section 6309.2 was not intended to trump *367 the traditional care-taking functions of the police. However, prior to the amendment, the police did not have the ability to tow any vehicle simply by virtue of it being unregistered and/or uninsured, if the vehicle did not pose any other traffic or safety related problem. But the fact is that towing a vehicle not creating a safety hazard solely because it is unregistered and/or uninsured was not covered by any other statute. The care taking functions are not implicated solely by virtue of the car being unregistered. 12 ¶ 5 Section 6309.2 provided that a car, even parked legally, can be towed if proper procedures are followed. To have the right to tow a car not creating a safety problem, the legislature required any municipality (other than Philadelphia where adoption of the section was automatic) to simply formally adopt the state statute. Under the state statute, there will be certain due process safeguards before a municipality can tow a car not creating a safety hazard and there will be uniformity in its application. It makes no sense to believe that a local police department can, independently, adopt its own policy that does not observe the due process principles embodied in the section. That would mean that the police department would be restricted in towing cars not creating a public safety problem if they adopted the act. The legislature is presumed not to intend an absurd result, and that would be absurd. ¶ 6 If a local government believes it is in the best interests of the community to tow unregistered and uninsured vehicles solely because those vehicles are unregistered and uninsured, then the municipality should adopt section 6309.2 and provide the due process protections the legislature requires. ¶ 7 Thurman, however, is not implicated in the situation presented in the current case. The factual situation present here fully supports the exercise of the traditional care-taking functions, as well as the statutory authority to tow the vehicle under 75 Pa.C.S. § 3352. ¶ 8 Here, Henley was pulled over, in part, because the registration sticker on his vehicle was expired. 13 Henley was pulled over in a no-parking zone and in an area where snow prevented the vehicle from being safely parked outside the flow of traffic. 14 Both being in a no parking zone and the fact that the car could not be pulled to the curb, safely out of the way of other traffic, are legitimate reasons to tow a vehicle under 75 Pa.C.S. § 3352(b), (c)(4). Thus, Henley’s vehicle was not towed solely because it was unregistered and uninsured. It was towed because it was in a no parking zone and because it impeded the flow of traffic. Because the car was legitimately towed, the subsequent search of the vehicle was similarly proper. ¶ 9 Therefore, while I agree with the result, I believe that Thurman is not implicated and should remain good law. I *368 think it well may remain good law because most of the majority’s analysis is dicta. . Commonwealth v. Thurman, 872 A.2d 838 (Pa.Super.2005), appeal denied, 585 Pa. 688 , 887 A.2d 1241 (2005). .As an example, the police see a car pull out of a private driveway in a typical suburban setting. The car’s registration sticker is out of date. The police immediately stop the car and the car is pulled over, out of traffic's way and directly in front of the vehicle owner’s house. Without Thurman and the requirement that the police follow procedures of section 6309.2, the police, under the majority’s view, could simply tow the vehicle under the “care-taking” rubric, even if the owner had proof of registration and insurance mere feet away inside the house. . Henley was also wanted for questioning regarding a murder. . In spite of Henley’s allegation, there is no indication, and importantly no finding, that the police pulled Henley over in this particular spot simply as a pretext to tow. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706385. Public record. Not legal advice.