Can a city police officer tow a car off a private restaurant's parking lot just because the restaurant owner asks, and does the city police department have any duty to arrest people loitering on that private lot?

Plain-English summary

Plymouth's police chief asked whether city police should have a vehicle towed from a private restaurant parking lot at the owner's request and whether they had an obligation to arrest people loitering there. The Attorney General answered no to both questions, with a specific condition for each.

On towing, the opinion says police “should not have vehicles towed from private property unless the owner or occupant of the property is willing to put his request for towing in writing.” The writing should show that the requester intends to assume responsibility for damages arising from the tow. In a note, the opinion cites Huemmer v. Ocean City and Stypmann v. City & County of San Francisco for the requirement that the vehicle operator receive notice and a hearing on whether the tow was legal. It says an unjustified tow gives the operator a right to damages and return of the vehicle. The note does not describe the facts of either cited case.

On loitering, the opinion says city police have “no obligation to arrest persons loitering on private property unless the owner of the property secures a warrant.” It adds that, after proper requests to leave, the owner may seek removal by executing a trespass warrant. This is an answer about a police duty to arrest; the opinion does not decide whether an officer might have authority to arrest in some other circumstance.

Currency note

This opinion was issued in 1981. Check current North Carolina towing and trespass law before applying its advice to a present dispute.

Background and statutory framework

The towing answer addresses the risk of damages from a tow requested by a private owner or occupant. The Attorney General advises getting the request in writing and having it document the requester's willingness to take responsibility for damages. The opinion does not prescribe a form or give a broader rule for private towing without police involvement.

The opinion's note describes Huemmer and Stypmann only as decisions requiring notice and a hearing about the legality of a tow. It does not say those decisions involved restaurant lots, oral requests, or police assistance. The loitering answer likewise concerns whether police are obligated to arrest; it does not set out all elements of trespass or all grounds for arrest.

Common questions

What should police obtain before arranging a tow from a private lot at the owner's request?

The opinion says the owner or occupant should put the towing request in writing. That writing should show the requester's intention to assume responsibility for damages arising from the tow.

What did the cited towing cases establish, according to this opinion?

The opinion says the vehicle operator must be notified and given a hearing on whether the tow was legal. If it was unjustified, the operator has a right to damages and return of the vehicle.

Must police arrest people loitering on private property when an owner complains?

The opinion says police have no obligation to arrest unless the owner secures a warrant. After properly asking the people to leave, the owner may pursue a trespass warrant. The opinion does not decide whether police otherwise have arrest authority.

Source

• Landing page: https://ncdoj.gov/opinions/towing-from-lots-owned-by-private-businesses/

Citations

• Huemmer v. Ocean City, 632 F.2d 371 (4th Cir. 1980)
• Stypmann v. City & County of San Francisco, 577 F.2d 1338 (9th Cir. 1977)

Original opinion text

Requested By: Chief F. M. Woodley Plymouth Police Department

Questions: Should city police have vehicles towed from private restaurant parking lots upon request of the owner of the restaurant?

• Does the city police department have any obligation to arrest persons loitering in private restaurant parking lots?

Conclusions: No. The city police should not have vehicles towed from private property unless the owner or occupant of the property is willing to put his request for towing in writing. This writing should evidence the intentions of the owner in assuming responsibility for damages arising from the towing.

NOTE: Towing statutes have become suspect after recent cases such as Huemmer v. Ocean City, 632 F.2d 371 (4th Cir. 1980), and Stypmann v. City & Cty. of San Francisco, 577 F.2d 1338 (9th Cir. 1977). Huemmer and Stypmann held that the vehicle operator must be notified and given a hearing on the legality of the towing. If the towing was not justified, the operator has a right to damages and the return of his vehicle.

• No. The city police has no obligation to arrest persons loitering on private property unless the owner of the property secures a warrant.

NOTE: The owner of the property, after making proper requests to leave the premises, may pursue the removal of such loitering persons by executing a warrant for trespassing.

Rufus L. Edmisten
Attorney General

William W. Melvin
Deputy Attorney General