Chalking Tires Is Not a Permissible "Administrative Search"

An interesting Sixth Circuit opinion on parking enforcement (and qualified immunity).

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The U.S. Court of Appeals for the Sixth Circuit has previously concluded that chalking tires to enforce parking regulations constitutes a "search" under the Fourth Amendment. Today, in Taylor v. City of Saginaw, it further held that tire chalking is not a valid administrative search.

Judge Griffin begins his opinion for the court:

The City of Saginaw routinely chalked car tires to enforce its parking regulations. In our prior opinion, we held that doing so is a search for Fourth Amendment purposes, and that "based on the pleadings stage of this litigation, . . . two exceptions to the warrant requirement—the 'community caretaking' exception, and the motor-vehicle exception—do not apply here." Taylor v. City of Saginaw, 922 F.3d 328, 336 (6th Cir. 2019) (Taylor I). However, we left for another day whether the search could be justified by "some other exception" to the warrant requirement. Id.

We consider one of those other exceptions today—specifically, whether suspicionless tire chalking constitutes a valid administrative search. Because we conclude that it does not, we reverse the district court's grant of summary judgment in favor of the City. But because we conclude that the alleged unconstitutionality of suspicionless tire chalking was not clearly established, the City's parking officer, defendant Tabitha Hoskins, is entitled to qualified immunity. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

He writes further:

Generally, when a search is conducted for an administrative purpose and pursuant to a regulatory scheme—such as inspecting a home for compliance with a municipal housing code—the government may justify a warrantless search by showing that it met "reasonable legislative or administrative standards." Camara, 387 U.S. at 538. This is assessed by "balancing the need to search against the invasion which the search entails." Id. at 536–37. But it is not a free-for-all for civil officers; among other requirements, "the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." Patel, 576 U.S. at 420. This prerequisite removes the City's practice from the usual administrative-search case, see id.; Liberty Coins LLC, 880 F.3d at 281–82, as there is no such opportunity (which the City does not contest).

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  1. It is good to see another loophole closed.

    1. The administrative searches and regulations sure feel like crime laws. And the resulting punishment, heavy fines, are punishment, like in the criminal law.

  2. So grafitti is a search? What does it search for?

    1. Typically used in parking enforcement: If you have an area where parking is for 1 hour max, say, and you chalk a tire, and an hour later you come by and the chalk mark is still at the same spot, you ticket them.

  3. Stupid case building on stupidity.

    Is walking around looking for a blue corvette a search of the corvette?

    1. In somebody’s garage, yes. On the street, no expectation of privacy.

    2. Looks with your eyes, but don’t touch another man’s vehicle

  4. Assuming the parking enforcement officer had probable cause, would the automobile exception perhaps be applicable? Seems to me that most officers engaged in parking enforcement could easily plead probable cause of a parking violation from just their experience and training. “I saw the same brown Ford in what I thought was the same spot, day after day, for most of the day. I had probable cause to believe they were parking beyond the hourly limit so chalked the tire to confirm my suspicions…” Of course, this would require more than a blanket practice of chalking tires but interestingly enough in some jurisdictions parking violations are an administrative fine and the exclusionary rule is not applicable to those proceedings. Could end up with an interesting Catch 22 where officers are chalking tires without probable cause, but there is no remedy for that practice.

    1. Purely my guess here, though maybe that past case gives the reason.

      The purpsoe of the automobile exception is that they are mobile and can therefore go away, but since that is what you want from a parked car that you say is illegally parked it seems strange for that to be considered a special circumstance that justifies a search, especially one that in it of itself doesn’t do anything (the marking is only useful in the future, not at the time of the search)

      1. I can think of quite a few cases where a car was pretty much immobile (like missing an engine or unable to start) and the court upheld the search under the automobile exception. Although not universal, it seems to me that the “it is a car” averment is enough to get over the fact that the exception was originally because a car was easy to move.

  5. You’d think the fact that they’re physically altering the vehicle, marking it, rather than just taking a photo of the tire showing where the printing on it was, would figure into this. Big difference between looking at somebody’s property, and marking it up.

    1. “…”the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” …”

      I don’t get this. What sort of review is the court contemplating here? I can’t think of anything existentially possible. Well, maybe having a city administrative officer standing by every single parking spot in the city, and saying to each person, as they park their car, “Hey, we might be chalking this car, to ensure no violation of parking time limits. Just letting you know, so that you can move your care now, if you don’t want us to do this.” But, other than impractical and dumb things like this; what possible remedy is the court thinking about…other than a de facto banning of this practice.

      What will the real-world effect be? My guess is that cities will give digital cameras to each enforcement person, will say, “You have to take digital photos (with time stamps) of each car, to help prove a later parking-time violation. This will mean far fewer illegally-parked cars will be caught. SO…the amount of the fine will have to be, say, tripled.”

      I guess I’m not seeing the actual benefit to anyone from that possible future approach.

      Or will courts say that taking photos of all parked cars is *also* a search and all drivers who park still must be given a precompliance review???

      1. It’s well established that one has no reasonable expectation of privacy in property one puts in a public place. Anyone can photograph anything visible from a public street. Celebrities have tried many times and lost.

        1. ReaderY,
          Yes, you are making my argument for me. Once we drive out into public, we are putting our car into the public sphere, and have only certain privacy expectations. Tyres are visible to the public, so chalking them does not (to me) seem to implicate any privacy concern. Carrying illegal goods in one’s front seat is putting th **em in a place where anyone passing by can see them. Hence, little or no privacy expectation. Something stored on the floor behind driver’s seat? A much higher expectation of privacy. Something put into the boot? A full expectation of privacy.

          But if we’re allowed to take photographs of a car (as I and others noted much earlier in this thread, and as you noted in your recent post), then I’m not seeing the policy argument against allowing chalking one’s tyres.

          1. th **em = “them”

            [The dangers of hitting “Reply” too quickly, after a kitten has jumped up onto one’s keyboard.]

          2. If you’re out in public, I’m allowed to take a picture of you. Fights between celebrities and paparazzi have clearly established that.

            Do I, therefore, have the right to walk up and comb your hair before I take your picture? Most people would consider that creepy at least and potentially chargeable as assault. There’s a big difference between looking and touching – even small touching.

            By the same token, the police may take a picture of your car but may not deface it.

      2. The point is that the administrative search exception is designed for things like food safety inspections of restaurants. It just doesn’t work for this parking scenario. That doesn’t necessarily mean that the court is entirely banning the practice of chalking tires – just that the police can’t use the administrative search exception to justify it. Of course, the court concluded that several other offered justifications don’t work either so if the prosecutors can’t come up with something in the next round, it may become a de facto ban.

      3. The actual benefit is that people will not have their property trespassed-upon in order to enforce the law.

    2. was thinking the same thing. they all have phones, hence they all have cameras…

    3. “physically altering”

      Its chalk. It washes off.

      1. Yeah, so would water based paint.

        Personally, I wouldn’t mind a bit, but I’m not the sort of obsessive who washes their tires exactly because they want them looking nice in public. The fact remains that there’s a difference of kind between recording something about private property, and altering its appearance by marking it.

      2. I don’t understand your response. No one is talking about irreversible physical alterations. And your physical solution to physical alteration just highlights that there’s a physical intrusion.

        1. What is intruded upon?

          Unless U.S. v. Jones (2012) overturned U.S. v. Knotts (1983), this seems like much less of an intrusion than what the Supreme Court allowed in Knotts. Unlike Jones, effectively only one bit of information is obtained, and the “installation” is much less intrusive than in Jones.

  6. Why would anyone use chalk when you can just take a timestamped photo? Anyone can photograph a car parked in a public place.

    1. The chalk rules out the defense that you’d driven off and come back, by establishing that your tires are still in the same orientation.

      1. So photograph the valve stem, wheel logo, or tire text orientation.

        1. I agree. The chalk is a convenience, nothing more.

    2. Well, the chalk mark suggests that the car has not been driven, or driven far. Then that becomes another ‘experience and training’ gift to the cops to say that they can tell when a chalk mark has or has not moved, and that it is from their stick of chalk and not the neighborhood prankster.

    3. In addition to what Brett said…
      If you have chalked all 13 cars on a city block and you come back 2 hours later (assuming it’s a 1-hour limit on the block), it is literally a matter of seconds to determine if anyone has violated the law…you just drive by and look for chalk marks on the left rear tyre at (let’s say) a 3:00 orientation on that tyre. Simple.

      Now, with a camera, I think you have to bring up all your photos, and figure out a system of quickly searching. I’m sure software could be developed for this. Maybe search by license plate and that will quickly locate any photo that day with the same plate. But even that will take much much much more time. Almost enough to make parking enforcement impractical (again, unless you raise the fines a huge amount).

      1. This is why we used to go by with our own chalk and mark up all the tires as well. Sauce for the goose I say

        1. Agreed. There are always assholes who will go out and do minor mischief (at least, “minor” in their minds). Usually teenagers. In my day, teen boys would go around and swipe the parking tickets that had been properly given. Result: The city had given the ticket, but the driver had no idea. The driver (obviously) never paid, and then got a surprise months later, when she/he got a ticket in the mail, with a huge surcharge for the late fees–for the parking ticket that came as a complete surprise to this driver. [Kids then were assholes as well.]

  7. As a prosecutor I am compelled to say that this may be the absolute dumbest application/interpretation of the 4th Amendment I’ve ever read.

    1. IamtheBruce,

      Forget being a prosecutor, as a citizen, what authority does the government have to touch personal property without even the remote (forget reasonable) suspicion that a law has been broken? especially when there are multiple other less intrusive measures that could be taken to achieve the same result.

      Keep in mind we are talking about conducting law enforcement operations (even if it is civil law enforcement) on people that are in all respects following the law in how and where they park their car.

      Having said that, chalking tires is a labor intensive process that puts parking enforcement personnel at risk for no good reason.

      Installing a tag reader along with a camera with pattern matching software on a parking enforcement vehicle would be safer, more efficient, and for the government make it easier to prove a violation occurred.

  8. So now the parking enforcement officers will have to put their chalk marks on the pavement in order to determine if a vehicle has moved. It’s a good thing these officers have qualified immunity for putting chalk on people’s tires. I imagine the civil damage awards for something like that could be overwhelming.

    1. Seriously? Suppose I put chalk on your tire; what would be your damages? It’s going to wash off just as soon as there’s a rainstorm.

      1. I suppose damages would be de minimus, unless maybe you did it at an auto show. But there’s a difference between saying an act had trivial damages, and saying that you were legally entitled to do it.

  9. But they can take a picture of your license plate along with the time and/or use a plate reader. Guess I am not seeing the functional difference.

    1. Say the local rule is a one-hour parking limit and your pictures shows that my car was there at 1:00 and at 3:00. That evidence doesn’t rebut the defense that “sure I was parked at those two times but only for 10 min each time – I left and came back – it’s pure coincidence that I got the same parking spot.”

      For pictures alone to justify the prosecution, you’d need pretty continuous video.

      1. That evidence doesn’t rebut the defense that “sure I was parked at those two times but only for 10 min each time – I left and came back – it’s pure coincidence that I got the same parking spot.”

        It’s a parking ticket, not a criminal case. They don’t need to prove your violation beyond a reasonable doubt.

        1. While you are correct that parking tickets are civil cases where the legal standard is (usually) ‘preponderance of evidence’ rather than ‘beyond reasonable doubt’, there are many, many decisions demonstrating that the “I moved my car” defense is more than sufficient to defeat a parking ticket. That’s one of the reasons why traffic cops came up with the chalking technique in the first place.

      2. Photographing the wheel would show both its orientation relative to the ground and surrounding objects and the orientation of the valve stem, markings on the tire, and so on. That’s plenty of evidence for a meeting the preponderance standard.

        1. That level of detail in the photo would indeed be sufficient – but that’s considerably more detail than was proposed in dwb68’s original comment above (which was limited to a picture of the license plate).

          By the way, it’s worth noting that if you actually rolled out such an enforcement mechanism, you would be creating a financial incentive for ‘unmarked’ tires – that is, tires without any visible words or logos on the side facing the street and perhaps with the valve stem mounted on the other side or hidden by a hubcap, etc. Granted, that incentive would only be practical in high enforcement areas – but stranger things happen all the time.

  10. Great.

    Now the City will have no alternative but to install parking meters. Maybe those new electronic ones where you have to input your license place number. Happy now?

  11. A good example of why we have qualified immunity. Does anybody think that the poor schmuck meter maid should be personally liable? She would have had no idea about the constitutional issue, and would have likely lost her job had she refused to chalk tires.

    1. Or the city could have paid the $12 damages (the cost of a car wash) to the defendants. Seems like a non-issue either way.

    2. That doesn’t concern me even a little bit.

      . . . governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.

      Joanna C. Schwartz, “Police Indemnification,” NYU Law Review (June 2014)

      1. So there are people who believe that the meter maid should be held personally liable. And yes, if they got rid of qualified immunity, there would have to be increased reimbursement, government representation, and insurance, because nobody would work there otherwise. Maybe this could be funded by printing money for infrastructure grants.

  12. The Sixth Circuit’s ruling is entirely based on the premise that the “logical extension” of Jones determines that a few microns of chalk dust applied to the surface of a car tire while it is parked on a public street is the SAME as covertly installing and using a GPS receiver to track that car’s movement for days or weeks on end. That reasoning is just outright absurd.

    Several thoughts to consider.

    Some jurisdictions require parking stickers to be physically affixed to a car in order to park on the streets or in certain parking lots. That is a LOT more intrusive than a temporary chalk mark on a tire, but REQUIRED by the local government to park in those areas.

    Some jurisdictions require drivers to purchase a ticket at a machine nearby, and display that ticket INSIDE the car while they are parked in the designated area. This moves the intrusion from the outside of the car to the inside of the car. Even MORE intrusive.

    If the government can require the driver to consent to those two examples of intrusions to use public parking, why couldn’t the government require the driver to consent to chalk marking tires while they are parked on the public streets in certain designated enforcement areas?

    Since the government can require the use of stickers or displaying tickets (actions required by the driver), could the government require the driver to mark their own tire upon arrival at the parking spot? (This may be ineffective for parking enforcement, but it connects the dots of my prior points.)

    One point that some are missing is that this is not a “probable cause, suspicion of a crime” issue. This is a “broad methodology for enforcing the parking regulations” issue. World of difference. Sort of like DUI checkpoints. They check everyone, no probable cause needed.

    As noted, there are “no-touch” ways to enforce individual cars parked at individual spaces for certain periods of time, but the inefficiency of that process could prevent the enforcement of parking regulations generally. Autochalk systems are quite expensive, smaller jurisdictions would not likely be able to afford them.

    Given the faulty premise (GPS tracking = tire chalking) I think this decision will eventually be overturned.

    1. The government can require a driver to consent to the two scenarios you describe above because those conditions are clearly disclosed before the driver consents. Chalk-marking, on the other hand, is not disclosed before the decision to park there nor is consent ever explicitly solicited.

      Note that if the government had used the ‘sticker as a condition of parking permit’ approach, that probably would have qualified for the administrative search exception on the same reasoning that the administrative search exception works for health inspections of a restaurant.

      Chalk-marking may eventually be upheld as a legitimate tactic but I do not think that this decision (which only says that you can’t justify that particular tactic using the administrative search exception) will be easily overturned.

      1. I think you skimmed my admittedly wordy reply.

        “why couldn’t the government require the driver to consent to chalk marking tires while they are parked on the public streets in certain designated enforcement areas?”

        By “designated,” I meant signed, as in, if they installed signs saying “parking here implies consent to the use of tire marking to enforce time regulations,” why wouldn’t that work?

        1. The fault may have been mine for implying rather than explicitly stating my assumptions. I believe that mere posting would likely fail to meet the required standards of disclosure and consent. The administrative search exception is more commonly used in situations with explicit licensing, loads of prior notice, etc. Again, think of a restaurant applying for all the necessary licenses and food safety certifications. That is qualitatively different from an easy-to-overlook sign posted who-knows-where that you can’t even hope to read until after you’ve made your decision to park. To make the signage as overt as a health inspection regime would be … impractical.

          1. My street requires residential stickers. They have signs up on the street, maybe 2 or 3 per block, stating that permits are required to park there. It’s a one-time expense that allows them to implement that enforcement scheme without further cost.

  13. What a load of… hairsplitting. Perhaps the officer should place a fragile object, like a popped pocorn kernel, on the ground a millimeter away from the tire. If it has not moved or been crushed 3,601 seconds later a ticket may be written. Mommy, brother is almost touching me!

  14. This is insane.

    Is it a search to look on the dashboard for a valid parking ticket?

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