Last week the Chief of Police and the Public Safety Director of the city of Mobile both told local media outlets that the reason why they chose not to continue the suspension of 5 towing companies from the rotation list was that they were concerned about the survivability of those companies and limiting the choices of Mobile police towing rotation list for vehicle accidents.
The actions of their own police department on Tuesday, September 17th makes those towing companies wonder if those statements were true and those concerns were genuine. Mobile Police arrested the owners of SOS towing on 8 different counts of various degrees of insurance fraud. In addition to the arrest, they also seized four of the company’s tow trucks under a criminal seizure warrant. These arrests are the first to come out of a summer-long investigation by the Mobile Police Department into five separate towing companies they alleged had invoicing improprieties and possible fraud as result of billing practices that the towing company says stem from a 2015 letter from the police department they say allows for them to charge the amounts they are charging.
The first issue the police are going to run into with these arrests is the charges themselves. Even with the fact that they overcharged customers outside of what the ordinance allows, the prosecution will have to prove intent to be able to get a conviction on fraud. If the defense attorney can successfully show a jury that the charges that the police allege are overcharges are within the structure of the 2015 letter, the prosecution will not be able to prove intent. On top of that, the total amount of alleged overcharges amounts to less than $1,000. The intent to ‘defraud’ anyone is going to be hard to prove in the first place.
The detective with the Mobile Police Department that attested to the seizure warrant affidavit, willfully neglected to point out to the judge that there is a less punitive measure that can be taken to prevent the commission of future crimes then seizing almost $400,000 worth of towing equipment, equipment that is needed for the defendants, and employees of the defendant’s company to earn a living.
In the seizure warrant affidavit, the detective stated that one of the reasons the trucks needed to be seized was to prevent them from being used in the commission of future crimes. However, reading through the affidavit by the detective, this case is going to come down to two issues that are going to be litigated in court. The first issue, was there a criminal intent to defraud insurance companies? The other one, what is the definition of a consensual tow and a non-consensual tow? Federal law has defined those classifications, it’s just a matter of what will a jury decide. However, what is absolutely clear is if SOS towing was removed from the police towing rotation list, they could not perform non-consensual tows by either the police definition or the definition in federal law because the only tows they would ever be able to provide are ones that would be classified as private towing. Theretofore, the price is whatever the towing company and the customer agree to. No fraud can be committed in those cases. So, seizure of the trucks of SOS towing is not necessary to prevent the commission of future crimes and the owners and employees of SOS towing can continue to make a living during the criminal proceedings.
Furthermore, in the seizure warrant affidavit, the police indicate that the District Attorney, after the trucks are in the possession of the police, will be filing Civil Asset Forfeiture proceedings against SOS Towing and the defendants to get a court order to force the forfeiture of the property. If the defendants choose to fight this forfeiture, it could become problematic for the District Attorney’s office and the mobile police. In February of this year, the United States Supreme Court ruled in Timbs v. Indiana that forfeiture of property whose value far exceeds the value of the crime alleged is an illegal excessive fine according to the terms of the Constitution. The total value of the crime’s alleged in the seizure warrant affidavit total to be less than $1,000, The total value of the four trucks seized by the seizure warrant total to almost $400,000. Even the most pro-law enforcement judge at any level, the local level, the state level, or the federal level will agree that those percentages are excessive and do not meet the terms of the litmus test laid out by the U.S. Supreme Court.
Finally, in the seizure warrant affidavit, the detective indicates that the investigation is not over into SOS towing and that more charges may be forthcoming. With the bond of trust between the towing companies and the police administration having severely and possibly permanently severed, the towing companies and the defendants in this case could perceive that as a threat by the police that if they don’t get their way with these charges they could come back and try again later. To protect the due process rights of these defendants, and ensure that the police cannot use the judicial system to harass and intimidate this towing company or any other towing company in the future, the judge overseeing this matter would be well advised to delay any further proceedings in this criminal matter until the prosecution and the police indicate they have completed their investigation and no more charges are forthcoming.
There has been a serious breakdown of trust between the local towing community and the Mobile Police. Many in the towing community believe that this investigation that led to that breakdown was politically motivated to help financially benefit one or two big towing companies in the city. It may be time for the Mobile City Council to step in and do an independent investigation into the Mobile Police Department, and their practices surrounding this investigation, like they did earlier this year with the Public Works Department, which they have the authority to do under the Zoghby Act. If somebody with only a pre-law specialization at the bachelor’s degree level can poke that many holes into a search warrant affidavit, think about what a trained, experienced, practicing defense attorney will be able to do.