When Chalking Amounts to a Search

May 3, 2019

For those who have ever received a parking ticket for violating the traditional 2-hour parking time limit, the Sixth Circuit Court of Appeals may have offered a momentary reprieve. Before the Court was the issue of whether the use of chalk by law enforcement to mark tires for tracking how long a vehicle was parked at a given spot was considered a search within the Fourth Amendment that would require a warrant or fall within a warrantless exception.

The case came about when the Appellant found her car’s tire had chalk marks and she sued the City of Saginaw (“City”) and the parking enforcement officer alleging that chalking violated her Fourth Amendment right from an unreasonable search. The City has a practice of chalking tires of vehicles an in effort to track how long a car has been parked in a particular location. The City moved to dismiss which the district court granted.

The district court ruled even if the chalking could be considered a search, such a search would be reasonable. The court agreed with Appellant finding that the act of placing chalk on the Appellant’s tire constituted a search. However, its analysis diverges from Appellant’s as the court stated there is a lesser expectation of privacy with regards to automobiles and that the search was subject to the automobile and community caretaker exception to the warrant requirement. The Appellant appealed the ruling to the Sixth Circuit Court of Appeals.

On appeal, the Sixth Circuit found chalking tires on a vehicle constitutes a search. The court referred to the Supreme Court’s analysis in Katz and Jones to determine whether a search occurred. In Katz vs. United States, the Supreme Court found that “a search occurs when a government official invades an area in which a ‘person has a constitutionally protected reasonable expectation of privacy.’” Under this requirement, the Supreme Court requires that there be an actual expectation of privacy where such expectation is recognized by society as reasonable. Important to note is that a physical intrusion is not necessary for a search under the Katz framework. The Katz analysis has become the more predominate test in the country and is referred to as the reasonable expectation of privacy analysis.

Interestingly, the 6th Circuit also referenced the seldom used property-based test articulated in United States vs. Jones. Under the Jones framework the Supreme Court required a physical intrusion for a search to have occurred where a government agent trespasses upon a constitutionally protected area to obtain information. For the case at hand, the Sixth Circuit departed from the more commonly used reasonable expectation of privacy analysis and applied the property-based test outlined in Jones.

Under the Jones framework, the Sixth Circuit found that chalking is a search. Under the first prong of Jones, the Court uses the trespass definition from the Restatement (Second) of Torts which states “an act which brings about intended physical contact with a chattel in a possession of another.” The Court finds that because the City is making an intentional physical contact with the Appellant’s vehicle, the act of chalking satisfies the trespass requirement. As for the second prong of Jones, the Court states because chalking is used for the purposes of identifying vehicles that have been parked in the same location for a particular period of time, leading to citations, chalking is a means for providing information to the government and satisfies the second prong as well.

After finding that chalking constitutes a search, the Court next turned to the issue of whether the search was reasonable. The general rule for searches without warrant is that “searches conducted outside of the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment.” However, there are limited exceptions to the Fourth Amendment warrantless search requirement.

The district court found the search to be reasonable under the automobile exception. But, the Sixth Court of Appeals dismisses the application of the automobile exception. The Court states that an officer would need to have probable cause to believe the vehicle contained evidence of a crime for the exception to apply and there was no such probable cause in the present case. The Court sees the City as applying a search on vehicles that are parked legally “without probable cause or even so much as ‘individualized suspicion of wrongdoing.’

In addition to the automobile exception, the City also argued the community caretaker exception. The community caretaker exception applies “when government actors are performing community caretaker functions rather than traditional law-enforcement functions” which are necessary to protect the public safety. The Court goes on to outline the use of the exception as one that must be “totally divorced from detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” The Sixth Circuit finds that the community caretaker exception does not apply as the City failed to show how chalking bears a relation to public safety. In addition, the Court finds the City failed to indicate how the Appellant’s vehicle being parked created a hazard or traffic impediment that would result in a public safety concern. Moreover, the City failed to demonstrate how delaying the search would result in injury or ongoing harm to the community. Ultimately, the Court reasons that because the purpose of chalking is to raise revenue, and not to mitigate a public hazard, the community caretaker function does not apply.

By holding that chalking does constitute a valid search, and no exception applies, the Court reversed the district court’s decision. The City will probably utilize other means of tracking vehicles if it does not appeal this decision or if the Sixth Circuit’s decision is upheld should the City appeal. But the more significant aspect of this case is the Court’s use of the property-based framework instead of the reasonable expectation of privacy to analyze the search. Such a decision only furthers a blurry line between Katz and Jones that the Supreme Court may ultimately have to clear up.

You can read the entire decision here: Taylor v. City of Saginaw, No. 17-2126, 2019 WL 1757953 (6th Cir. Apr. 25, 2019).

Image Source: REUTERS/John Gress

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