“Chalking tires constitutes unreasonable search, 6th Circuit rules”

“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.

Update, from Orin Kerr: “The Sixth Circuit has issued an amended opinion in the chalking case clarifying the limited scope of its holding.” Quoting the amended opinion: “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.”

19 Comments

  • Ok, so now they will just put parking meters in. Easy solution to the problem.

    • Typically I find laws with a name attached to be pointless, and intrusive laws that have little need to exist. But in this case perhaps, the city could call the new parking meter ordinance the Alison Taylor parking meter law. So that her fellow citizens can recognize her for her contribution to their downtown area.

  • De minimis non curat lex.

  • I usually agree about the 4th, but chalking tires seems reasonable to me.

  • Whatever the technical merits of this decision, it might backfire on civil libertarians by making 4A concerns look petty. “Oh, the cops violated the Fourth Amendment, did they? They can violate it by putting a little chalk mark on a tire! Who cares?”

  • Supreme Court: Any trespass makes a search unreasonable.
    6th Circuit: Chalking tires falls under the definition of trespass. Therefore it is unreasonable.

    As far as I know, there is no de minimus test for trespass. And the Supreme Court has set a bright-line rule.

    I like this, because it sets the boundaries and everyone knows what to expect. Bright lines benefit everyone.

    In any case, with cell-phones able to take pictures and apps to take down license plates, chalking tires is anachronistic and unnecessary.

    • “As far as I know, there is no de minimis test for trespass. And the Supreme Court has set a bright-line rule.”

      Perhaps not, but the Supreme Court was reviewing the placement of a GPS tracker, which obviously is an intrusion, so the de minimis issue didn’t come up. My sense is that this case is not an exception to the general backdrop of the law that it doesn’t deal in trifles. Remember, it is a Constitution we are expounding.

      Bright lines often benefit everyone, but in the every day work-a-day world, they do not always do so. Let’s take a f’rinstance–say DCFS has a policy of inspecting every home if it takes physical custody of children when a parent is arrested–bright line test, and it makes sense, right? Well, yeah, but not if the parent’s arrest was caused by mistaken identity–in which case, it would be an appalling intrusion.

      And aren’t zero tolerance policies “bright line rules?”

      • SPO, I’m confused what “trifles” have to do with anything. They’re generally small penalties, but parking fines are monetary penalties imposed by governments. What’s less trifling for the law to care about than penalization by government?

        • De minimis non curat lex is often translated as the law does not deal in trifles. The point is that chalk on a tire is such a small thing that, legally speaking, it shouldn’t move the needle. Cf. The Rape of the Lock, Alexander Pope.

    • Perhaps, but it also demonstrates how the Fourth Amendment is anachronistic. Which is a greater privacy violation: chalking tires or creating a large government database fed by automatic license plate readers, potentially retained indefinitely, of everyone’s license plates and location, which can be used to see if a car has been parked for too long? Certainly the latter; that information can amount to a record of people’s movements all throughout the city. Which one is illegal? The former.

  • Chalking tires may be “anachronistic and unnecessary” but it sure seems less intrusive than having the parking officers keeping track of license plates via electronic means as they now do in our town.

    Not to mention you can’t avoid a ticket simply by driving your car a quarter rotation to cover up the chalk mark.

  • In my younger days I’ve been known to have followed the Meter Maids at a distance and erase the chalk marks. There was a store in my town that would give me a roll of nickels (1970-71) and a stack of printed cards. I was to go through the parking lot and when I found an expired meter or one about to expire, put a nickel in the meter and a card under the wiper. I got paid for that. Usually 50 cents, but, that was a lot to a 7 year old at that time.

  • I don’t want anyone writing on my car with chalk or any other substance.

  • Shouldn’t a civil libertarian prefer a temporary chalk mark on a tire to a permanent electronic record, such as those generated by a GPS tracker, digital photograph, or parking meter app history?

  • Possible easy fix? Ordinance that parking in a timed space constitutes consent to chalking, with sufficient postings in the parking areas informing of same.

    Also, if chalking is a trespass, isn’t putting a ticket on the windshield?

    • “Ordinance that parking in a timed space constitutes consent to chalking”

      I very much dislike that sort of law. Where does that lead? An ordinance that parking constitutes consent to search your car? An ordinance that walking on the sidewalk constitutes consent to search your phone? You shouldn’t have to give up rights to use basic public services like roads.

      “if chalking is a trespass, isn’t putting a ticket on the windshield?”

      Yes, but at the point you’re putting on a ticket, you at least have probable cause that they’ve violated the law in some way. When you put chalk on, you’re doing it to someone who is legally parked, and you have no particular reason to assume they’ll violate the law.

    • Interesting but I don’t think an ordinance can constitute notice and consent that gets you around the 4th Amendment issues that some see here.

  • Note important update incorporated into text above: the court has issued an amended opinion clarifying the limited scope of its holding. In particular, while it finds that the city has at this early stage of the litigation failed to establish the applicability to its chalking practice of either the “community caretaking” exception or the motor-vehicle exception to the warrant requirement, it remains free to develop its case for those exceptions (or others) as the litigation proceeds.

    • IMHO, the clarification makes the court look extremely silly. What factual record really needs to be developed here? A chalk mark on a tire is a chalk mark on a tire. I get that this is at the pleadings stage, but seriously?

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