Wheat Ridge police acted constitutionally when they discovered drugs and a weapon while searching a vehicle that was about to be towed, the federal appeals court based in Denver decided on Tuesday.

However, civil rights lawyers and even one of the appellate judges himself raised the specter of overly intrusive tactics that may now fit under an exception to the Fourth Amendment.

A three-judge panel for the U.S. Court of Appeals for the 10th Circuit upheld a lower court’s decision to admit evidence seized during an inventory of Aaron Michael Kendall’s vehicle while police were preparing the car to be towed. Although Kendall argued officers were looking for criminal activity instead of merely handling a traffic violation, the government countered that impoundment and search of the vehicle were necessary for safety reasons.

The 10th Circuit’s panel agreed, in part, with both sides: it was unreasonable for police to check for valuables in a “non-traditional storage area,” but it was lawful to look for a firearm in a hidden compartment after seeing evidence that a weapon was likely in the car.

Felipe Bohnet-Gomez, a civil rights lawyer with Rathod Mohamedbhai who reviewed the decision, said the panel’s ruling walks back a previous directive that officers should not go beyond their responsibility to protect a car and its contents.

“The court’s decision today expands — unfortunately, in my view — police authority to conduct searches without probable cause, and therefore further erodes Fourth Amendment protections,” he said.

A Wheat Ridge police officer attempted to pull over the Honda that Kendall was driving on Jan. 31, 2017, because it had only one working tail light. But instead of stopping, Kendall slowed to 10 mph and continued to drive, at the same time moving objects around on the passenger seat.

While pursuing the car, officers learned the license plate on the Honda was registered to a different vehicle, indicating the Honda may be stolen.

Eventually, Kendall stopped and police put him in the back of a patrol car. They learned he had no driver’s license or insurance. They called Kendall’s wife, who he said had the insurance, as well as being the registered owner of the vehicle, but neither answered. The officers received authorization to tow the Honda.

Pursuant to department policy, one officer began to take inventory of the vehicle and found a counterfeit $20 bill and a handgun holster inside. Police then arrested Kendall on suspicion of felony forgery. Further search of the Honda turned up bags of heroin and methamphetamine and a stolen firearm.

Just after the search was finished, the Honda’s registered owner called police back and confirmed she was selling it to Kendall and it was not stolen. She declined to stop the tow or retrieve the vehicle.

Kendall pleaded guilty to two federal firearm and drug offenses and received 95 months in prison. However, he also asked the trial court judge to suppress the evidence found during the search of the Honda.

The Fourth Amendment generally prohibits searches and seizures without a warrant, but one exception is if the police are performing a “community-caretaking function.” Providing aid is separate from criminal investigation and may take the form of responding to disabled vehicles or accidents.

In instances where the vehicle is not a hazard, law enforcement can legally impound it if they have a legitimate community-caretaking reason and there is a policy guiding the impoundment. Wheat Ridge had a standard impoundment policy, aimed at safeguarding the contents of vehicles. The government argued impoundment was allowed under the policy, because Kendall was uninsured, could not legally drive the vehicle and police could not reach the registered owner.

But what about the search that turned up the evidence of criminal activity? In Kendall’s case, an officer found the drugs upon searching the Honda’s center console and noticing a bag sticking out beneath a false bottom. He located the gun after seeing a panel below the glove compartment that was hanging down slightly and appeared to have been tampered with. After tugging at the panel, the officer saw the handgun.

U.S. District Court Judge William J. Martínez determined the Wheat Ridge officer had acted lawfully in both cases. The department’s policy authorized searches in places where valuables could be kept, and the center console fit that description. Because the gun holster was visible, police suspected there was a firearm in the vicinity. Safety reasons permitted the officer to look behind the glove compartment panel for the weapon, Martínez decided in declining to suppress the evidence.

Kendall appealed to the 10th Circuit, arguing there was no need to impound the car. If the officer taking inventory of the Honda felt that the partially detached panel was suspicious, he could have applied for a search warrant.

“The officers impounded the car under the community-caretaking function. And that was for community safety,” Elizabeth Ford Milani of the U.S. Attorney’s Office told the panel at oral arguments. “The purposes [of the inventory] were to protect police from false claims, protect the police and the tow truck driver from anything dangerous in the car, and to protect defendant’s property.”

But Senior Judge David M. Ebel was concerned about how far police could go with their inventory search.

“Will it allow you to open cavities under dashboards? I can see the false panel in the center console,” he explained, “but I am more concerned about whether a pure inventory search would allow you to try to open up under the glove compartment.”

If officers were trying to protect against every possible accusation that property had gone missing in an impounded vehicle, Ebel continued, “then an inventory search would lead you to dismantle the entire car because we know drug people are pretty proficient about where they hide drugs.”

The parties looked to a 1992 decision from the 10th Circuit, United States v. Lugo, in which a Wyoming patrol officer pulled back a door panel during a post-accident inventory and discovered narcotics. The officer already had removed a gun from the vehicle because the driver had told him exactly where it was. The 10th Circuit deemed the search unconstitutional because the officer had no suspicion that there were additional weapons, and investigating behind a door panel did not further the inventory of the vehicle’s contents.

Ebel, in the panel’s Sept. 28 opinion, concluded that the Lugo decision did apply to the search of the hidden glove compartment space because “we see no meaningful distinction between the loose door panel there and the loose interior panel beneath the glove box in this case.”

However, even though the “non-traditional storage area” created by the partially-detached panel was not a reasonable place to look for valuables, officers had already observed the gun holster and Kendall’s frantic movements prior to pulling over. Proactively removing the weapon would prevent it from falling into the wrong hands, should the unattended car be vandalized.

Under those circumstances, “officers were subjectively motivated to locate and secure the firearm pursuant to their community-caretaking function,” Ebel concluded.

Aya Gruber, the Ira C. Rothgerber professor of Constitutional Law and Criminal Justice at the University of Colorado Law School, said the panel’s decision means that if police “have grounds to believe there is a firearm that a vandal could get at and put the public safety at risk, they are allowed to search for that gun.”

But she was also concerned about the rollback of Fourth Amendment protections that could stem from the ruling. For a vandal to actually target an impounded car in the way the court envisioned, Gruber added, is “quite a leap.”

The case is United States v. Kendall.