Chalking Tires and the Fourth Amendment

A markedly interesting case from the Sixth Circuit.

In a new case, Taylor v. City of Saginaw, the Sixth Circuit has ruled that the common practice of parking enforcement officers "chalking" a tire to see if the car has been moved violates the Fourth Amendment.  I'm not sure the decision is correct.  But it's plausible on current law, and it raises some really interesting conceptual issues.  [SEE UPDATE BELOW ON THE AMENDED OPINION]

Here's an overview of the new case and some thoughts on whether it's right.

First, the facts.  Alison Taylor gets a lot of parking tickets, and she decided to make a federal case out of it.  Specifically, she sued the city of Saginaw in federal court.  She alleged that her constitutional rights were violated by practice of "chalking" her tire to figure out if she had overstayed the time she was permitted to park her car.

I don't know of any other cases in which "chalking" was alleged to violate the Fourth Amendment.  But the Sixth Circuit ruled that it did, in a decision authored by Judge Donald joined by Judge Kethledge and Judge Keith.  And the court's reasoning seems broadly applicable to all of our cars, not just Alison Taylor's.

Here's the court's thinking.  First, the court reasons that the chalking is a search of the car because it is a trespass on to the car to obtain information under United States v. Jones.  It's a trespass under Jones, the court says, because it satisfies the common law trespass test:

In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area. Though Jones does not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is "an act which brings [about] intended physical contact with a chattel in the possession of another." Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, "[a]n actor may . . . commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object." Id. Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor's vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so, even though "no damage [is done] at all." Jones, 565 U.S. at 405 (quoting Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765)).

Next, it is an act conducted to obtain information, as Jones requires:

[O]nce we determine the government has trespassed upon a constitutionally protected area, we must then determine whether the trespass was "conjoined with . . . an attempt to find something or to obtain information." Id. at 408 n.5. Here, it was. Neither party disputes that the City uses the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time. That information is then used by the City to issue citations. As the district court aptly noted, "[d]espite the low-tech nature of the investigative technique . . . , the chalk marks clearly provided information to Hoskins." This practice amounts to an attempt to obtain information under Jones.

Having concluded that the chalking was a search, the court then concludes that it was unreasonable and therefore unconstitutional.   The basic idea here is that no exceptions to the warrant requirement apply, so by default the warrantless search is unlawful.  First, the automobile exception does not apply:

The automobile exception permits officers to search a vehicle without a warrant if they have "probable cause to believe that the vehicle contains evidence of a crime." United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007) (citation omitted). No such probable cause existed here. Thus, the automobile exception is inapplicable.

Next, the search was not reasonable under the community caretaker exception:

The City fails to carry its burden of establishing that the community caretaker exception applies in this instance. First, on these facts, the City fails to demonstrate how this search bears a relation to public safety. The City does not show that the location or length of time that Taylor's vehicle was parked created the type of "hazard" or traffic impediment amounting to a public safety concern. Nor does the City demonstrate that delaying a search would result in "injury or ongoing harm to the community." Washington, 573 F.3d at 289. To the contrary, at the time of the search, Taylor's vehicle was lawfully parked in a proper parking location, imposing no safety risk whatsoever. Because the purpose of chalking is to raise revenue, and not to mitigate public hazard, the City was not acting in its "role as [a] community caretake[.]" Id. at 287.

And finally, the search was not justifiable based on a general interest in having an orderly parking system:

While the City is entitled to maintain efficient, orderly parking, the manner in which it chooses to do so is  not without constitutional limitation. As the Supreme Court explains, "the [Fourth] Amendment does not place an unduly oppressive weight on [the government] but merely . . . an orderly procedure. . . ." Jeffers, 342 U.S. at 51 (citation omitted).

The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

Here are a few thoughts on the case:

(1) From a practical perspective, this is a really important decision.  It concludes that a routine practice that wasn't thought to be illegal (if it was thought of at all) is actually unconstitutional. I'm not sure if the decision is correct.  And as I'll explain below, there are several plausible but debatable moves in the opinion.  But this decision is now binding in the Sixth Circuit and may also be followed elsewhere:  Traffic enforcement officers around the country should be paying attention to this.

(2)  Is the decision right?  As I said above, I'm not sure.  United States v. Jones introduced the idea of the trespass or physical intrusion test for searches in 2012.  As I've written before, Jones could mean a lot of different things. It's just not yet clear what the standard is or how it should apply.  Given that, I think the result in Taylor is plausible but that it's also subject to several plausible objections.

(3) Start with the question of trespass.  First, the court takes from Jones the idea that the test is "common law trespass."  Maybe that's the test.  But maybe it's not.  The Court in Florida v. Jardines notably did not describe the Jones test as a trespass test. Instead, Jardines described the test as "physical intrusion."  That's potentially pretty different.  And assuming the test is common law trespass, figuring out what kind of trespass test that meant is actually pretty tricky.  Maybe it's the Restatement test, but maybe it's something different.

(4) I'm also not sure of the court's  conclusion that the chalking was "to obtain information," needed to satisfy the search test from Jones.  That's certainly a possible result.  But it also strikes me as a somewhat awkward fit.

Here's the context.  In Jones, the officer installed the GPS device on a suspect's car and then obtained GPS info from it as the car was tracked for 28 days.  The majority ruled this a search in part on the ground that installing the GPS was done to obtain information—specifically, the stream of data from the GPS that would provide the location of the car to which it was attached.  Here's the most relevant discussion of the intent test from Footnote 5 of Jones:

Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information.

Related to this, and similarly irrelevant, is the concurrence's point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search.  Of course not. A trespass on "houses" or "effects," or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.

The Sixth Circuit in Taylor sees that element satisfied by the chalking.  And it is no doubt true that the officer chalked the car with the ultimate goal of finding out a fact—whether the car had moved.  That may be right under Jones.

On the other hand, it seems like a somewhat unusual application of the intent test.  I would think the Fourth Amendment idea of a "search" of a person's "effects" ordinarily implies intent to obtain information from the effect searched.  Normally, searching a box means getting information from inside the box.  Searching a home means getting information from inside the home.

In Taylor, however, the officer's plan is to place his chalk on the car and then come back later and see if the chalk moved—thus giving the officer a clue about whether the car moved.  That's information about the car, but it seems removed from a search of the car itself.  After all, the car is just out in public.  It is sitting on a public street for anyone to see.  And the officer is just looking at the chalk the officer placed.  Is it really a search of the car at Time A to see at Time B if the chalk moved between Time A and Time B?

Maybe yes.  Maybe the problem is that Jones itself was an awkward fit.  The obtaining of information in Jones was also just ultimately about the car and where it had been in public, as well. And the Supreme Court apparently found that sufficient.  But it's at least a question worth raising: Are there limits on what kind of information the government needs to want to obtain, and from what, and when, to satisfy the Jones test?

(5)  Assuming the chalking is a search, the next question is whether it is constitutionally reasonable.  I agree with the Court's analysis of the automobile exception and the community care-taking exception.  But I suspect some courts might disagree with the Sixth Circuit's reasonableness analysis on the ground that chalking is a de minimis search as part of a regulatory scheme.  It's just putting a temporary mark on a tire, it causes no damage, and it doesn't reveal anything.  Some courts have articulated doctrines that allow low-level searches as reasonable based on a balancing of interests without particularized suspicion.   I can imagine that as a possible path for other courts.  We'll see.

(6) I have to wonder how much this issue matters in a world of smart phones.  Everyone is now carrying around a camera.  Instead of chalking the tire, the parking folks can just take a picture of the car.  They can figure out if the car moved by comparing the pictures at Time A and Time B to see if the car is in the same place.  It may be more complicated or expensive than chalking, but it avoids the Fourth Amendment concern by just observing what is in public without any physical attachment to property.

(7) Finally, it's not at all clear what if any remedies may be applicable.  Chalking is common and hasn't been thought to be illegal.  Given that, qualified immunity should attach and civil suits against the officers won't work.  And it's not clear that there is any exclusionary rule available in an enforcement action to pay the parking ticket, as that is a civil proceeding and the exclusionary rule may not apply under United States v. Janis.

[UPDATE #1: Some readers suggest in that I should offer a more complete survey of remedies that are available in (7) above. In that case, I should note that civil suits should be available against municipalities that have a chalking policy, and injunctive relief may be available. For an overview of Fourth Amendment remedies, see this paper at pages 239-45.]

[UPDATE #2: Thinking about the case some more, let me add a new point (8).  There's a way to read the Sixth Circuit's decision a lot more narrowly than I have above, and many others have elsewhere.  Here's how. The ruling in Taylor was based on a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6).  This means that when Taylor sued, the defendants (the city and officer) responded that the case should be tossed out at the outset because the complaint itself didn't establish a plausible case.  The court in Taylor is just ruling on that, and it isn't actually offering a full ruling yet on the constitutionality of the search.  Ordinarily, the government has the burden of showing that a warrantless search was reasonable.  But the government hasn't had the opportunity to make that showing yet, as we're just going on the complaint.

This means, if I'm understanding the civil procedure aspects of this case correctly—I'm a crim pro prof, not a civ pro prof—the rulings that the court offers on reasonableness are particularly tentative.  Now that the case goes back down to the district court on remand, the civil defendants can make different arguments about why the searches were reasonable and can offer new evidence to support their reasonableness arguments (both old and new, if applicable).  The Sixth Circuit's opinion notes this very briefly near the end:

Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

I had missed this in part because the court offers a pretty thorough discussion of several fact-specific exceptions to the warrant requirement.  It's a little bit unusual to see that given the procedural posture.  But I think the procedural posture of the case may end up being important, as it means that the court could issue a new ruling reaching a different result when the case is more fully litigated.]

UPDATE #3:  The Sixth Circuit has issued an amended opinion clarifying the narrow scope of its holding.  Here's the new conclusion:

Taking the allegations in Taylor's complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court's decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement—the "community caretaking" exception and the motor-vehicle exception—do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.