Chalking Tires and the Fourth Amendment

A markedly interesting case from the Sixth Circuit.

|The Volokh Conspiracy |

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.

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80 responses to “Chalking Tires and the Fourth Amendment

  1. The problem here is trying to shoehorn this into 4th amendment search doctrine. As you note, the car is publicly visible, and the same information could be obtained with a simple photograph.

    The proper basis for this is that the police are engaging in vandalism. Petty vandalism, to be sure, because the chalk washes off, the same as soaping somebody’s windshield would. But it’s still vandalism, essentially police graffiti.

    People spend good money to see to it that their tires are clean. There are special cleaners for this, settings in car washes, and so forth. And here comes officer so and so, and he deliberately defaces the tire.

    Why is this not an issue of vandalism?

    1. To be clear, I do understand why the plaintiff would want this treated as a 4th amendment violation; So that the result of the ‘search’ would be suppressed.

    2. “The proper basis for this …”

      What do you mean by “this”?
      The plaintiff was suing under §1983 for deprivation of her federally protected rights. Alleging vandalism wouldn’t help with that, but unreasonable search would.

      1. Hence my second comment. The plaintiff obviously did have a motive for shoehorning “chalking” into a search analysis, because establishing that it’s vandalism wouldn’t get her off the hook.

        That motive doesn’t make chalking into a search, though.

        By, “this”, I mean finding chalking to be an improper police activity. It is, really: The police are going up to private property and altering it without the owners’ permission. That this is more convenient than taking a photograph doesn’t mean that it’s alright for them to do that sort of thing.

        1. ” I mean finding chalking to be an improper police activity. It is, really: The police are going up to private property and altering it without the owners’ permission.”

          I think your complaint would also fall on a laches defense. Cops have been chalking tires for decades. If you’re still parking on public roadways, knowing that cops chalk tires to enforce parking laws, AND you find such to be an unbearable infringement on your precious property, the time to sue was when it started. (Unless you’re 18 and driving your first car…)

          1. Personally, I don’t object, because I’m not one of those obsessives who cares if their tires are dirty. Nor am I in the habit of piling up traffic tickets, and in need of an excuse to get out of one. Now, if they soaped my window to the same end, I’d be pissed.

            But there are plenty of long standing practices that are, IMO, constitutionally dubious, because the courts just didn’t give a damn about the violation. If something really violates the Constitution, or constitutes a criminal act on the part of police, why should that they’ve been doing it for years be a consideration? “We’ve been doing wrong for a long time, so we get to keep doing it!”?

            The heck with that.

            1. ” If something really violates the Constitution, or constitutes a criminal act on the part of police, why should that they’ve been doing it for years be a consideration?”

              The fact that they’ve been doing it to YOU is different from the fact that they’ve been doing it to other people. The point is, if they’ve been doing it to you, and you didn’t do anything about it, that looks a lot like consent. Obtaining (meaningful) consent is inherently reasonable, and the Constitution only proscribes unreasonable searches.

        2. Re: “get her off the hook”
          She isn’t on the hook, in the sense you seem to mean here. She isn’t trying to get some evidence suppressed, she’s suing, probably expecting that a favorable decision will make the cops stop giving her tickets. A vandalism conviction would likely accomplish her goal too, if she could swing it.

          Re: “motive doesn’t make chalking into a search”
          No, according to the 6th Circuit what makes chalking into a search is that it is a trespass with the intent of collecting information.

          Re: “finding chalking to be an improper police activity”
          Michigan might be one of the better states to try your way, they have statute that specifically addresses intentionally marking a motor vehicle belonging to someone else. But … she would have to convince a state attorney to prosecute, and they in turn would need to believe they could convince the court that chalking a tire rises to the level of a crime like the other activities listed – cutting, mashing, destroying, and damaging. In that context, “marking” most likely means permanently marking. The §1983 claim though she can press herself, since it is a civil action.

          1. “A vandalism conviction would likely accomplish her goal too, if she could swing it.”

            But it wouldn’t. She’d get nominal damages for the trespass. That $1 can be offset from the parking violation fine. To be effective, lots and lots of people would have to sue when they weren’t guilty of parking overtime, so that the cost of the city counsel’s time in court defending the city wouldn’t be covered by the revenue from parking violations. She’s not going to be able to do that by herself.

            1. I assume if chalking tires were found to be a crime the city would stop doing it.

              1. You’d have to first assume the city would prosecute itself for the crime. There’s no fix in criminal court, only civil.

    3. “Why is this not an issue of vandalism?”

      Because intent to cause damage is usually a statutory requirement of vandalism.

      For example, consider Oregon’s statute on the matter:
      “ORS 164.345 Criminal mischief in the third degree”
      “A person commits the crime of criminal mischief in the third degree if, with intent to cause substantial inconvenience to the owner or to another person, and having no right to do so nor reasonable ground to believe that the person has such right, the person tampers or interferes with property of another.”

      The Vandals are reviled because they destroyed things, like the arms of the Venus de Milo. It they’d had a habit of putting chalk on things, “vandalism” would have a different name.

      1. Notice it says, “tampers or interferes with the property of another”, not ” damages the property of another”? Amusing that you’d quote language that doesn’t even agree with you.

        I think it would only be vandalism under that statute if the traffic cop did it to a spiffy show car, where appearance was an important consideration. Tires get dirty all the time.

        But, under the right circumstances, it could be vandalism.

        1. “Amusing that you’d quote language that doesn’t even agree with you.”

          Or it would be, if I’d done that. Do you not know that “tamper” means “to alter with the intent to cause damage”? (And you skipped over the whole “intent” clause, obviously an oversight on your end.)

          “I think it would only be vandalism under that statute if the traffic cop did it to a spiffy show car”

          No, it wouldn’t, Oregon is in the ninth circuit, so cops there have reason to believe they have a right to chalk tires for parking enforcement reasons.

    4. Seems like vandalism would be jurisdiction-dependent. My own outlaws marking others’ property but I imagine there are others where it requires damage.

    5. re: “the same information could be obtained with a simple photograph”

      I’m not sure that’s true. The chalk mark is (usually) applied at the exact bottom of the tire (or some equally consistent location). The test is not merely that the car is still in the parking spot with a mark but that the mark is still in the same location. It’s completely legal to park, get marked, drive away and later park in the same spot. You haven’t violated the overtime rules in that scenario. The tiremarks technique works because the likelihood that you drove off, came back and reparked with the mark in the exact same spot are so low as to be negligible.

      A photo, on the other hand, will not be nearly so precise at refuting the argument that the driver pulled away and then re-parked at the same spot. Slight variations in where the photographer stands and what angle the camera is held at will overwhelm any small differences in the driver’s parking consistency.

      1. ” It’s completely legal to park, get marked, drive away and later park in the same spot.”

        That assumption is likely to get you a parking ticket.

  2. IANAL and have nothing legal to add. I like Brett’s idea that this is petty vandalism. It has always annoyed me that cops chalk tires. I’m certain that if I were to chalk cop car’s tires with the justification that I wanted to make sure they were actually using their expensive patrol cars, I would be held to account one way or another; they would not take kindly to it, laugh it off as a good joke, or just ignore me.

    It also occurred to me that the chalking itself does not provide information and thus cannot be a search; it is coming back an hour later to check which is the search, and that has always seemed problematic because it doesn’t prove the car hasn’t been moved. Who’s to say that simple random coincidence didn’t line up an old mark when I moved one block away while shopping?

    I believe there is some kind of exception for car searches on the principle that cars can move, unlike houses (does the car exception apply to RVs which take an hour to move due to awnings, stabilizers, skirts, etc?) Here it tickles me to think that the whole point is the opposite: to see if the car has not moved. Will that need a new exception?

  3. If chalking is considered a common law trespass, does that mean that people can be arrested for trespassing if they leave flyers underneath my window wiper blade in a parking lot?

    1. Arrested? Probably not. But sued in the civil court, for trespass to chattel tort? Absolutely (though the jury might not be amused).

  4. I think this is a ruling readily overruled by the legislature. The just need to add a line to the statute that parking on the street, or on any public land, implies consent to chalking. Poof. No more 4th amendment issue.

    1. I’d certainly agree with that. Might not resolve it in the case of parking in front of your house, but in most applications that would cover it.

      1. If by “in front of your house” you meant in your driveway (on your own property, in other words) then cops have no reason to chalk the tires*. If you meant “in the public roadway which happens to be nearest to your house”, then it’s public roadway and the cops would be chalking for the same reason they might chalk your tires anywhere else.

        *Well, detectives might care if your car moves, if you’re suspected of crimes and they’re trying to track you down. I’m assuming we’re talking just about the parking enforcement cops.

    2. What is the constitutional limit to “implied consent”? Does paying property tax give implied consent for local jurisdictions to conduct searches of property for the purpose of verifying appraisals? Even Birchfield v North Dakota limits implied consent doctrine to merely “reasonable” and less-invasive searches without a warrant in the context of social “privileges”. How many activities in a free society should be considered a “privilege” and subject to less stringent constitutionality tests? It’s hard to say that there’s an objective standard under which an “implied consent” doctrine can be used to circumvent constitutional privileges because the only standard courts have considered is the degree of necessity the state can claim versus the degree of intrusiveness. This doctrine fundamentally amounts to “we really want to do this, so we should be allowed to”.

      1. ” Does paying property tax give implied consent for local jurisdictions to conduct searches of property for the purpose of verifying appraisals?”

        Do they want to make payment of property tax optional? I don’t think they want to pursue that particular avenue. (Hint: You can’t imply consent from something you require people to do.)

      2. I am not sure implied consent exists as a Fourth Amendment doctrine. Express consent does. And that can include some forms of acquiescence.

        But the most common invocation of implied consent- DUI tests- is actually handled as a reasonable search. You don’t implicitly consent to searches just by driving. It is just that some searches are reasonable.

        1. DUI checkpoints?

          1. Special needs.

            DMV’s love the language of implied consent because it makes it sound like they can force you to accept anything as a condition of driving. But the major driving cases don’t adopt an implied consent rubric- they just find the searches reasonable.

        2. “I am not sure implied consent exists as a Fourth Amendment doctrine.”

          Consent is consent, and consent is per se not unreasonable.

          Consider the way, say, fish and game wardens are allowed to inspect hunters’ gear. Or the way TSA are allowed to search bags at the airport. Being out hunting provides implied consent for hunting gear inspection, and standing in line and trying to enter the secure part of the airport implies permissiion for a search at the airport. You don’t have to tell the guy “it’s OK if you pat me down and x-ray my shoes” or “I hereby waive my fourth amendment rights with regard to the contents of my carry-on”… you’ve given consent by your action, even without expressly saying so.
          When I was on active duty, they told me that being on base constituting a voluntary waiver of some fourth amendment rights, including specifically that the MPs could stop me at any time and execute a search. You could avoid this by staying off-base, but… you’d get the Article 15 for being AWOL, at a minimum. Your choice.

          1. Consent is consent,

            Maybe. But implied consent is not consent.

    3. >parking on the street, or on any public land, implies consent

      Couldn’t you make the argument that driving/parking on any street implies consent to the GPS tracker?

      More generally, the whole public/private distinction is sort-of going by the way side. For example, the modern ‘mosaic’ theory is all about information collected from/in public spaces.

      1. “Couldn’t you make the argument that driving/parking on any street implies consent to the GPS tracker?”

        You’d have to put it in statute. Why limit it to cars, though? Mobile phones use the public’s RF spectrum. You could write a statute that using a mobile phone implies consent for GPS tracking of that device.

    4. It’s also readily solved with technology these days with an app that scans license plate numbers and lets you know if it’s still there two hours later.

      1. Cars with cell-phone integration, including navigation systems, means that pretty soon they can leave out the license-plate reader and just ask the car directly (or consult their own database of everywhere the car was within the last 24 hours.

  5. Regarding the community caretaker exception “Nor does the City demonstrate that delaying a search would result in “injury or ongoing harm to the community.”

    Would this only apply to actual injury or the perceived ‘injury’ (using the term loosely) of other members of the public potentially having to search longer for parking?

    This also seems to me a situation where the solution could turn out worse than what was actually happening. The city could clamp down in some really annoying ways and it might have been better to just move your car.

    1. “The city could clamp down in some really annoying ways and it might have been better to just move your car.”

      They could make parking on the street a violation. This makes the act of observing your car probable cause.

      The current trend is to have “smart meters” for on-street parking. A computer keeps track of where you are parked, and when you pay for parking. Both are printed on a little slip of paper which must be displayed while you are parked on the street.
      It also, of course, provides a database of who paid for parking, and where and when. No Constitutional violations there!

  6. I’m more concerned about the consequenses if chalking is deemed illegal. Parking enforcement won’t go away, but find other means within the law of operating. That would likely involve means of recording in more detail the comings and goings of individuals, a far more involved and intrusive method that could be used for far more than mere parking enforcement.
    Chalking is largely an innocuous act that is only good for seeing if someone has moved their car.
    As to the vandalism argument, I can only roll my eyes. It’s CHALK, which washes off in the rain. Tires get far more damage to them from the road itself.
    Parking laws that exist for no other reason than generating revenue randomly are bad. But this legal action, if it does away with chalking, would likely make a bad situation worse.

    1. >Parking enforcement won’t go away, but find other means within the law of operating.

      Modern meters have integrated cameras. Chalking is already on the way out.

      1. This is what I was just going to say. Yesterday, our local paper ran a story about how the city was going to new parking meters. In it, it noted that the police were phasing out chalking and moving to cameras that tracked license plates. So we’re getting rid of the less invasive method for the more invasive one, but police avoid the search aspect.

      2. Sad to hear.

        My small home city (so small that most would be shocked that it’s called a city), Rockland ME, doesn’t have meters of any kind, just a single officer on foot with a chalk stick. The expense of adding and maintaining meters of any type wouldn’t work here, so though chalking may be on the way out for larger cities, this is still relevant for smaller ones.

    2. These were my thoughts exactly. This is a horrible, selfish, pedantic case at best. In exchange for lack of chalking now we want to give a completely reasonable and justified purpose to police randomly taking pictures of all cars on the street? This is the epitome of cutting off your nose to spite your face.

      Thanks, petitioner.

  7. 1. What exactly is the “administrative search” exception, and does it apply?
    2. If there’s no relief to be granted, is that “failure to state a claim on which relief can be granted”?
    3. Couldn’t the court have cleared their docket of this in short order as being de minimis?

    1. Admin searches have a reduced probable cause requirement. Camara v. Municipal Court, 387 U.S. 523 (1967). I suppose the city could apply for a blanket warrant on an annual basis by demonstrating that they are trying to enforce a reasonable regulatory scheme and the need to search exceeds the invasion caused.

      2 & 3 presume that there are no consequences to this case. I think she is probably asking the court to enjoin further 4A violations in the future, which is neither reliefless nor de minimis.

      1. Re: #2 — I would imagine the plaintiff is also asking for a refund on the ticket she received, which, although likely a small amount, is enough to make it a “live” case and give her standing to sue.

  8. I agree with Shawn’s comment. If this ruling remains in place, it will force parking enforcement officials to upgrade to plate readers. Thus the plaintiff will no longer be able to tell when her car has been “observed” and will have to move it more frequently than before. It will also mean that moving her car 5 feet will no longer be sufficient.

    1. I plate reader would not necessarily prove a card hadn’t moved, say driven around the lock and parked in the same space.

      1. Moving around the block and then parking in the same space is not sufficient to avoid a ticket for overtime parking. Nor is leaving the spot you were in to pull forward one spot and then park again. The parking statutes usually contain some provision that parking in the same block, with or without parking anywhere else in between, is a violation. (Obviously, this depends on the city that writes the parking codes, and can vary substantially.

        1. I used to keep a rag in my car specifically to wipe chalk marks off my tire.

        2. Actually, yes it is. If, that is, you were away long enough to “reset the clock” on the parking requirement. How long that is depends (as do the other things you list) on the city that wrote the code. But in general, going someplace for lunch is plenty of time to trigger the reset.

          1. It wasn’t in the city I lived in for most of my life. If a meter had a 2 hour limit, they meant 2 hours out of every 24.

            The point of parking meters is to keep people from bringing their car to work, and then leaving that car on the street all day. They want parking available for people who are coming, doing one or two things, and then leaving again, since lots of them can use the same parking spot throughout the day. This encourages people to come downtown to do business, which the city (and its various resident businesses) like.

  9. Under the circuit’s logical analysis, how is the requirement to attach a license plate to the car not also an unreasonable search?

    1. If you agree to a search it is legal. You agree to having the plate on your car as a condition of registration.

      1. “If you agree to a search it is legal. You agree to having the plate on your car as a condition of registration.”

        You’ve just kicked the can down the road, since registration is imposed. But sure, let’s kick that for being unconstitutional, too, under the logical analysis of this circuit.

  10. Prof. Kerr wonders about remedies and the exclusionary rule. One possibility is if the chalking leads to a ticket that leads to the car being towed/impounded, and an inventory search at the impound lot reveals contraband, that could be an issue of fruit of the poisonous tree and lead to suppression of the evidence.

  11. This woman should be tarred and feathered. If she wins the response to this will be meter maid software that just takes pictures of cars as the drive up and down the street, with automated routes to re-drive the street 2:01 after the previous passby, with AI routines to identify the most lucrative streets and times.

    Then if they identify any vehicles with drivers with warrants then the notify the police to stake out the car.

    1. With self-driving cars on the horizon, though, the problem is likely to be mooted. You just tell your car not to park anywhere for more than the legal limit, and then it drives itself to a new spot.

      1. I wonder which will hit the mass market first? Flying Cars or Self-Driving Cars? With both, the principle obstacle is not technology, but government regulators.

        1. You can buy a flying car today. It costs roughly 1.5 Ivy league educations, but it IS available to people with that much money sitting around.
          Those kinds of people have been getting by by hiring other people to drive their cars (and worry about finding a place to park them) for about as long as there have been self-propelled horseless carriages.

  12. Although the last paragraph of the OP correctly notes that qualified immunity will protect the officer from liability, that defense is unavailable to the city per Owen v. City of Independence. It should not be difficult to prove that the use of chalking is municipal policy, custom or usage sufficient to establish municipal liability under Monell, and therefore the almost certain result on remand will be injunctive relief against the city and a substantial fee award, assuming the circuit does not rehear the case en banc or the city does not obtain review in SCOTUS.

  13. […] Orin Kerr has a for more in-depth analysis of the ruling, and what it means for parking enforcement across the country (it’s controlling in the 6th Circuit, and other jurisdictions may side with it as well), but to bring this issue home to North Dakota, this […]

  14. I find this decision somewhat suspicion. To say that the automobile exception doesn’t apply, one has to read the automobile exception quite narrowly; to say this is a search for information, you have to interpret search for information quite broadly. In general, it would seem existing law has to be rather shaped to get this outcome to fit.

    It would seem a better approach to ask if people have an expectation of privacy in their tires. I suspect they don’t. I also suspect that it wouldn’t be actionable as common-law trespass.

    1. “I also suspect that it wouldn’t be actionable as common-law trespass.”

      I think it would be, though the award would be for nominal damages… $1, petition for fees denied.

    2. Huh? The automobile exception is an exception to the warrant requirement. It doesn’t allow cars to be searched whenever police feel like it; it only allows cars to be searched if there’s probable cause. When they put the chalk on the car, there’s no probable cause of anything.

  15. […] The Volokh Conspiracy‘s Orin Kerr has observed, the allegations in this case are pretty uncommon. But it’s likely that the court’s […]

  16. That said, I suspect the effect of this ruling will simply be to expedite the replacement of older technology like chalking with newer and more intrusive technology (intrusive in practice, if not at common law), such as automated video surveillance.

  17. The opinion is wrong that the purpose of chalking is to generate revenue; the purpose is to facilitate commerce. Parking meters generate revenue. Chalking is used where there are no meters, but there is an ordinance imposing time limits on parking. Such ordinances are designed to ensure that parking spaces are available in retail shopping areas, rather than having such parking spaces occupied early in the morning by local workers (or occupied for days by local residents), which would cause shoppers to avoid urban shopping districts and go to suburban malls instead. So the court is doing its own small bit to destroy center cities and promote suburban sprawl, in the guise of upholding the Constitution.

    1. ” Parking meters generate revenue. Chalking is used where there are no meters”

      Chalking is also used where there are meters. The idea is to detect people who park overtime, even if they fed the meter.

      The point of metered parking is only partly to raise revenue. The real point is to open parking spots to short-term visitors, so they don’t decide to go get what they want in the suburbs

  18. […] The Volokh Conspiracy‘s Orin Kerr has observed, the allegations in this case are pretty uncommon. But it’s likely that the court’s […]

  19. Just because an argument can be made does not mean it must be made, nor that it is valid if it makes absolutely no freaking sense.

    Would it pass muster with the Fourth Amendment if the police put a small breakable plastic object in front of and behind the tires in order to demonstrate later that the car must not have been moved? Or is that part of the pavement in the penumbra of the owner’s vehicle?

    1. What about chalking the road just in front of or behind a tire so that the mark gets wiped out when the car moves.

  20. […] The Volokh Conspiracy‘s Orin Kerr has observed, the allegations in this case are pretty uncommon. But it’s likely that the court’s […]

  21. […] Federal Appeals Court 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 – Reason […]

  22. Volokh makes BoingBoing, Congrats.:

    https://boingboing.net/2019/04/23/tire-chalking-by-parking-enfor.html

    I’m puzzled by the suggestion that the attenuation between chalking the tire and getting the information means that the chalking wasn’t a search. GPS devices don’t provide instant information, either.

  23. […] “Parking enforcement officers in Saginaw, Michigan, who use chalk to mark the tires of cars to track how long they have been parked are violating the constitution, a federal appeals court ruled Monday.” [Amanda Robert, ABA Journal] In particular, the court found that chalking was a trespass and a search meant to obtain information that was not reasonable under a probable-cause or community-caretaker standard, nor under an exception allowing orderly regulation of road traffic, since in the court’s view it was aimed primarily at obtaining revenue rather than mitigating public hazard. Orin Kerr has more analysis at Volokh Conspiracy. […]

  24. I’m not sure I see the fundamental distinction between chalking a car’s tires to see if it has been moved and attaching a GPS to the car to see where it moves. In both cases the police are using a non-invasive method to track the vehicle, the sole purpose of which is to obtain evidence of illegal behavior.

    Taylor should rise and fall with Jones, and I think Jones was wrongly decided.

    Further, having been to Saginaw, I’m not convinced the parking situation there is dire enough to warrant parking enforcement.

  25. What I don’t understand is that the Restatement definition of trespass to personal property defies everything I’ve ever learned or read about the tort. While merely setting a foot on real property is a trespass to real property, merely touching something that doesn’t belong to you isn’t a trespass to personal property – there has to be either damage to the property or deprivation of the property.

    Is this one of the many instances where the Restatement is pretending to be stating what the law is but actually is laying out what its authors would *like* the law to be? But I’m not sure why anybody would want the rule to be “putting your finger on somebody’s pencil is an actionable tort”

  26. […] Chalking Tires and the Fourth Amendment: A markedly interesting case from the Sixth Circuit. – Orin Kerr, The Volokh Conspiracy […]

  27. […] Since it was issued last week, though, this decision has come under some scrutiny with many wondering how marking a tire on a car parked in a public place (as opposed to private property as happened in the Jones case) is a Fourth Amendment violation. Orin Kerr, who writes frequently about the Fourth Amendment at The Volokh Conspiracy is among those who is skeptical of the ruling: […]

  28. […] law scholar Orin Kerr points out that traffic infractions are typically civil infractions, so it’s not clear the […]

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