(dissenting). Since I am unable to ascertain that the impoundment here was anything other than a pretext for conducting a criminal investigation, and because there was no necessity to impound the defendant’s legally parked automobile, I would affirm the decision of the Court of Appeals.
i
The majority concludes that an impoundment is *292reasonable if the policé follow an established set of procedures and those procedures are not used as a pretext for a criminal investigation. In reaching its conclusion, the majority relies primarily on cases analyzing inventory searches and states that the policy concerns associated with impoundment are similar to those associated with inventory searches.
A review of the policy concerns stated by the majority suggests that they have little relationship to the issue of reasonable impoundment. The three policy concerns identified are:
(1) protection of the owner’s property while in police custody,
(2) protection of police against claims of lost or stolen property, and
(3) protection of the police from potential physical danger. [Ante, p 284.]
With regard to the first and second concerns, I would adhere to my Brother Levin’s dissenting opinion in People v Krezen, 427 Mich 681, 707; 397 NW2d 803 (1986).
While the courts are open to the filing of both valid and invalid claims, it would be disproportionate to hold that the law authorizes the police to impound personal property they have no duty to safeguard simply to protect against unfounded claims that they should have safeguarded the property. It would be chimerical to suggest that the City of Grand Rapids or the police officers would have been held liable in damages for loss or damage to Krezen’s automobile or purse if they had not volunteered to take steps to protect such property.
*293Regarding the third concern, the defendant’s car posed no more threat than any other legally parked automobile on the street. Certainly, the police would not be justified impounding any other legally parked automobile on the basis of the unsupported assertion that it posed some type of physical danger. Absent any other compelling reasons justifying impoundment, I would limit im-poundment to "community caretaking situations.”1
n
In this case, the officer impounded the vehicle pursuant to Ann Arbor Ordinance 10:139(l)(i) which provided:
A police officer, may immediately remove and impound a vehicle in any of the following situations. . . . The driver of a vehicle is taken into custody by the Police Department and such vehicle would thereby be left unattended.
This ordinance requires that two conditions be met before the officer has the authority to impound the vehicle. First, the driver must be placed under *294arrest. Second, the vehicle must be left unattended.2
The facts established that the car was legally parked and no danger to traffic. The driver was being arrested for a misdemeanor in which his detention would not be lengthy. The driver had made arrangements for the passenger to contact the defendant’s wife to take custody of his vehicle. Although the officer testified that he feared the car could be vandalized, and that he was concerned about the possibility of having to defend against a lawsuit, he allowed Mr. Albert to walk home through this supposedly bad neighborhood without any fear that injury to Mr. Albert could also result in a potential lawsuit. Finally, even though the officer testified that the passenger was unsteady on his feet, slurred his speech, and had a hard time understanding that he would not be given custody of the defendant’s vehicle, the significance of this testimony is diminished by the passenger’s uncon-tradicted testimony that the officer had made the decision to impound the vehicle before the officer even had an opportunity to observe him.3
*295in
It is clear from these facts that this vehicle would not have been unattended and impoundment was not only unnecessary, but also contrary to ordinance. Therefore, I would affirm the Court of Appeals conclusion that the seizure was unreasonable.
Levin, J., concurred with Cavanagh, C.J.South Dakota v Opperman, 428 US 364, 368-369; 96 S Ct 3092; 49 L Ed 2d 1000 (1976). In Opperman, the Court stated:
In the interests of public safety and as part of what the Court has called "community caretaking functions,” . . . automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. [Emphasis added.]
The majority concedes that "[t]he term 'unattended’ is not specifically defined within the impoundment policy and is susceptible of different interpretations.” Ante, p 289. Attempting to narrow the understanding of the term "unattended,” the majority cites United States v Griffin, 729 F2d 475, 480 (CA 7, 1984), and People v Castle, 126 Mich App 203; 337 NW2d 48 (1983). These cases are distinguishable. In both Griffin and Castle, the passenger was denied custody for not possessing a valid operator’s license. In other words, neither could legally drive the car. A determination that the passenger does not have a driver’s license does not require discretion on the part of the officer, unlike the determination that the passenger is intoxicated. However, assuming the passenger could not safely or legally drive the automobile, he certainly could "attend” it pursuant to the defendant’s request.
The passenger testified as follows:
Q. All right, what happened then?
A. Then, the officer came up to the window, the one that was talking to Ray, and he asked me for my license and he asked *295me and — at that time, he told me, once I gave him the license, you are going to have to leave. And I said, I don’t understand what you—
Q. Okay, at that point, are you still sitting in the car?
A. Yes, I was. When I gave him the license, I was.
Q. All right, did you inquire as to why you would have to leave?
A. Yes I did. I asked him, I said, what about the car. And he said, we are impounding the car. And I said, what am I supposed to do and he said, there are two options. We can either call a cab for you or you can walk out of here, and that’s when I was out of the car, when he informed me of my options. I said, well, what about taking the car. And he said, no, he said you either take a cab or you walk out of here. That’s when I went back to the police car to talk to Ray.