In a groundbreaking[i] decision, the 6th Circuit Court of Appeal has ruled that the practice of making chalk marks on the tires of parked cars for the purpose of parking enforcement is a violation of the Fourth Amendment prohibition against unreasonable searches.
In Alison Taylor v. City of Saginaw,[ii] Ms. Taylor, who had received 15 parking violations from the City of Saginaw, Michigan over the course of three years, decided to challenge those tickets. She sued the City alleging that the practice of chalking was a violation of her right to be free from unreasonable searches.
The District Court dismissed her complaint reasoning that while it was a search, it was a reasonable one. The Court of Appeals disagreed holding that since the issue, a parking violation, was merely a regulatory exercise and not a community-caretaking function, the bar is lower and this was an unreasonable search.
This raises many questions, the first of which is, how is putting a chalk mark on a tire a “search”? The Supreme Court has two tests to determine if something is a search. The most common, from Katz v. United States,[iii] says that a search happens when a government official invades an area in which “a person has a constitutionally protected reasonable expectation of privacy.” What does that mean? “First that a person exhibit an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’.” A “physical intrusion” is not necessary for a search to occur.
The other test is set out in United States v. Jones,[iv] and it is property based. When there are physical intrusions, a search occurs when the government trespasses on a constitutionally protected area, to obtain information. In Jones the government attached a GPS tracking device to the person’s car. The Court held that constituted a search.
The act of touching a car to place a chalk mark on it is a trespass. It was also done in an effort to obtain information: the length of time the car was parked in that location.
While an automobile generally has a lower expectation of privacy compared to other places like a home, it still has some, and either a warrant, or “probable cause to believe that the vehicle contains evidence of a crime”[v] is required to conduct a search.
A car simply sitting in a legal parking spot does not present probable cause to authorize a search.
There is an exception to this rule. When the government is undertaking a “community caretaker” function, it can perform a search. For this exception to apply it has to be “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute”.[vi]
The Court reasoned that the community caretaker exception did not apply since the legally parked car did not pose any threat to the community, and the sole purpose of the marking was to raise revenue. Raising revenue is a “regulatory function” and not related to public safety.
Thus the Court declared the chalk marking to be unconstitutional.
So how is a city supposed to determine if a parked car has overstayed its time in a constitutional way? They could install parking meters, they could photograph the vehicle with a time stamp, or simply carry a notebook and write down the vehicle information. They just can’t “search” the vehicle without probable cause.
The Fourth Amendment to the United States Constitution says as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Supreme Court has a looked at this amendment many times and has reached some seemingly inconsistent decisions. For example, the Supreme Court has held that drug sniffing dogs in airports are not illegal searches[vii], whereas the use of thermal imaging cameras to observe houses is an illegal search.[viii]
Another seemingly inconsistent pair of cases concern automobile checkpoints. In Michigan Department of State Police v. Sitz,[ix] the Supreme Court upheld a sobriety checkpoint where every car passing through was stopped and the officer observed the driver for obvious signs of intoxication. In City of Indianapolis v. Edmond,[x] the court struck down a narcotics checkpoint with a similar procedure, except the police also used a drug sniffing dog. We know that drug sniffing dogs are ok, so this shouldn’t be a problem. The Court stated that the reasons for the stops were different. The first was to combat the immediate threat of drunk driving, whereas the second was to intercept drug trafficking, which did not pose an immediate threat to public safety. In other words, the drunk driver might well lose control and cause an accident due to his impairment. The narcotics driver was not the same type of immediate danger.
So, Fourth Amendment decisions are difficult to predict and are incredibly rich in analysis in an often tortured manner. If the chalking case ever makes it to the Supreme Court, who knows what decision might result.
[iii] 389 U.S. 347 (1967)
[iv] 565 U.S. 400 (2012)
[v] United States v. Smith, 510 F.3d 641, 647 (6th Cir 2007)
[vi] Cady v. Dombrowski, 413 U.S. 433, 441 (1973)
[vii] United States v. Place, 462 U.S. 696 (1983)
[viii] Kyllo v. United States, 533 U.S. 27 (2001)
[ix] 496 U.S. 444 (1990)
[x] 531 U.S. 32 (2000)
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.