Appeals Court: Chalking Tires For Parking Enforcement Violates The Fourth Amendment

from the extra-4th-with-bonus-pun-topping dept

A rather surprising conclusion has been reached by the Sixth Circuit Court of Appeals: a common parking enforcement tool of the trade may be unconstitutional.

Not everyone who’s been ticketed multiple times for parking violations has made a federal case of it. Alison Taylor did, though, arguing that Saginaw, Michigan’s practice of “chalking” tires was a violation of her Fourth Amendment rights. Taylor had been ticketed fifteen times when she decided to sue. The court sides with her, finding that marking tires to determine whether a vehicle has been parked too long constitutes not just a search, but an unreasonable one, under the Fourth Amendment.

The Appeals Court opinion [PDF] leads off with an almost unforgivable pun:

Parking enforcement officers return to the car after the posted time for parking has passed, and if the chalk marks are still there—a sign that the vehicle has not moved—the officer issues a citation. Alison Taylor, a frequent recipient of parking tickets, sued the City and its parking enforcement officer Tabitha Hoskins, alleging that chalking violated her Fourth Amendment right to be free from unreasonable search. The City moved to dismiss the action. The district court granted the City’s motion, finding that, while chalking may have constituted a search under the Fourth Amendment, the search was reasonable. Because we chalk this practice up to a regulatory exercise, rather than a community-caretaking function, we REVERSE.

The route the court takes to reach this conclusion is circuitous and somewhat amusing, especially if one imagines Saginaw city reps watching with increasing dismay as their “easy win” assumptions are dismantled paragraph by paragraph.

The Appeals Court references the Supreme Court’s Jones decision to arrive at its determination that chalking tires = search. In that decision, the Supreme Court punted on the issue of tracking devices as searches, opting instead to find the warrantless placement of the device on someone’s car as an intrusion in and of itself, a “trespass” onto someone’s private property — in this case, a car.

In recent years, however, the Supreme Court revisited the seldom used “property-based” approach to the Fourth Amendment search inquiry in United States v. Jones, 565 U.S. 400 (2012). Under Jones, when governmental invasions are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information. Id. at 404–405.

The car may be parked on a public street when chalking occurs, but the placement of chalk on the private property of a citizen is a “trespass” with the intent of gathering information (how long the car has been parked in a certain spot).

[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.

That’s not the end of the analysis. Warrantless searches are permitted if the search is reasonable. The city claimed the chalking/search was reasonable because of a reduced expectation of privacy when parked on a public street. Alternatively, it argued the search was reasonable under the community caretaking exception.

The reduced expectation of privacy exception argument fails because a car legally parked on a public street — absent any other indicators of criminal activity — cannot generate the probable cause needed to justify a warrantless chalking. At the point the tire is marked, no law has been broken, nor is there any justifiable suspicion the driver intends to violate the law by parking for longer than is allowed.

As for the community caretaking function, the Appeals Court finds this argument just as weak. The caretaking function is not supposed to be investigatory or carried out with the intent of collecting evidence. Marking a tire gives the government information it can use later to issue parking tickets. This does nothing to make the community safer.

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 caretaker[.]”

The finding is narrow, but it’s enough to steer the city of Saginaw to other methods of parking enforcement — which unfortunately could see an increase in the use of automated license plate readers or surveillance cameras to accomplish the same ends.

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.

This doesn’t mean the government won’t ultimately secure a win for tire chalking. What it does mean is the case heads back down a level for more exploration of the issue. This is a ruling on an appealed motion to dismiss by the city. All this means for Alison Taylor is her case isn’t dead yet. But if this holds up, a lot of cities using similar enforcement methods are going to have to try a different approach. Unfortunately for those in the Sixth Circuit’s jurisdiction, this may mean more reliance on ALPRs and other tech that has its own unanswered privacy-related questions.

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Comments on “Appeals Court: Chalking Tires For Parking Enforcement Violates The Fourth Amendment”

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btr1701 (profile) says:

Re: Damager

Yep. I had this done to me once right after I’d paid a significant sum to have my car detailed, including the black and shiny tire treatment, then this parking goon comes along and puts a big ol’ chalk mark down the side of my front tire. Yay for the 6th Circuit.

In this hi-tech age, there’s no need to physically touch the vehicle. It would be simple enough to use smartphone cameras to accomplish the same goal, also without the need to use ALPRs.

Anonymous Coward says:

Re: Seriously

A "warrentless chalking"?!?!?
This ruling is just asinine.
The car owner is entering into a transaction by using a scarce public good – street space – in exchange for a bit of chalk on their tires. There’s no criminality implied or expected!

By this logic, one might argue that issuing tickets to ride the bus is a "warrantless search."
After all, why does simply riding a bus constitute probable cause?

And how is automated license plate reading not a "search" by this definition?

Unbelievable that’s it has even come to litigation, but seems like a relatively simple terms of service on the parking meter would nip this in the bud. Just insane that it’s even required though

Valkor says:

Re: Re: Seriously

"Terms of Service" on a meter is a terrible idea. Fortunately, this isn’t about metered time limits, it’s about posted time limits.

I like thinking of the parking as a scarce public good. Tire chalk is more like the city checking you into your spot in a cost-effective manner.

Seriously, this is why people hate lawyers. "Unreasonable"? Not to normal people. "Search"? Are you serious? This is why we can’t have nice things.

Anonymous Coward says:

Re: Re: Re: Seriously

Tire chalk is more like the city checking you into your spot in a cost-effective manner.

A time-stamped photo would be a more reliable check-in mechanism. If there’s nothing preventing some stranger from putting chalk on your tires, what’s to prevent me from walking around chalking tires as well?

JoeCool (profile) says:

Re: Re: Seriously

The car owner is entering into a transaction by using a scarce public good – street space – in exchange for a bit of chalk on their tires. There’s no criminality implied or expected!

It’s vandalism, pure and simple. Sure, it’s just "a bit of chalk on the tire", but it’s basically the same as scratching marks in the fender above a tire.

Anonymous Coward says:

Re: Bad to Worse

Ah, but a license plate picture alone can’t prove that you didn’t get in your car before the time limit expired, drive it around the block, and then park it in the same place again. They’d have to take two photos of the car in some way that proves the car hasn’t moved.

Cross-article reference – maybe I should go patent "a method for photographically confirming automobile movement over a discrete time interval"

btr1701 (profile) says:

Re: Re: Bad to Worse

They’d have to take two photos of the car in some way that proves the car hasn’t moved.

I’ve never understood how the chalk proves that the car hasn’t moved, either. If I drive around the block with a chalk mark on the side of my tire, it’ll still be there when I arrive back in the parking spot, so how does the meter maid know I didn’t move the car just because there’s chalk on my tire?

spamvictim (profile) says:

Re: Re: Re: Bad to Worse

The chalk mark runs down the side of the tire onto the pavement. It would take some pretty fancy driving to move the car and put it back with the tire and pavement mark still aligned.
To whoever said that the chalk can damage the tire, get real. Chalk is very soft; if it can damage your tire, I hope you never have to drive through a mud puddle.

Anonymous Coward says:

Re: Re: Re:2 Bad to Worse

"The chalk mark runs down the side of the tire onto the pavement. It would take some pretty fancy driving to move the car and put it back with the tire and pavement mark still aligned."

Actually, the outcome would be random. Sometimes the marks would align, sometimes they wouldn’t. There’d be some fraction of a percentage of false positives, depending on how close in distance qualifies as being "aligned".

Is the next step for motorists to carry cameras, shoot pictures of their own tyres when returning to the motorcar, then use those photos as "evidence" that the mark is not aligned, it’s a millimetre off?

Anonymous Coward says:

The case definitely seems pretty facetious on the surface, but I can understand where the court is coming from with it. It’s one of those "can’t give an inch because they’ll take a mile" situations. Even if the actual situation is, essentially, completely harmless, it breaks the same rules as the more serious situations.

Most of the legal concepts and precedents are pretty clearly stated across many other cases, and are easy to see on their own and how they compare to this situation.

  • Even in a public place, your car is your private property. If someone comes along and sits on your bumper, they’ve got no right to stay there, because the car is not part of the public space. Nobody has the right to come along and spray-paint graffiti onto your car, even with water-soluble paint, nor do they have the right to attach a bumper sticker to it.

  • Touching something to gain information about it, even without entering or modifying it, still counts as a search. Just ask the TSA next time they pat you down at the airport.

  • As with all constitutional rights, the Fourth Amendment is not absolute. When two rights come into conflict, the one that results in less total harm wins out over the other. Often referenced by the phrase, "your right to wave your fists around ends where my face begins". This is why metal detectors at government buildings are legal. Your right to not be blown up in a courtroom bombing outweighs someone else’s right to not walk through a metal detector.

  • But this isn’t a free pass to violate one right in favor of another: it has to be the least invasive option that is reasonably available. A metal detector will stop a bomb threat at least as effectively as a strip search will; it is far less invasive, and less time consuming; it is more narrowly crafted to the pressing interest of preventing people from getting blown up; and installing a metal detector is not an unreasonable burden compared to hiring strippers. (Wait… that’s not what they’re called…)

  • Together, those two make up the "pressing state interest" defense. If the government is doing the least invasive option it has available to fulfill its duty of safeguarding citizens and their constitutional rights, then your right not to be searched (or to speak your mind, or to carry a gun) has to take a backseat. But if there is a less invasive option available, or their actions do not further a pressing interest, your rights have been violated without due cause.

  • Towing a car that has been sitting for too long is a pressing state interest: the public right of way mustn’t be blocked. But marking a car does not directly further that state interest; marking a car does not clear the right of way. It provides information about that car to a government official in the future, who may then use that information to decide to tow the car and clear up the right of way.

  • There are less invasive ways to obtain that same information. To say that cheap digital cameras (especially such as in a cellphone) already see widespread use, is a massive understatement. You don’t even have to use any fancy software; take a picture of the car parked at X, then check the last photo or two of X next time you come around. This does not touch the vehicle nor bypass any privacy measures, and therefore is not trespassing on their property to perform a search of it.
Anonymous Coward says:


I’d argue it is not a violation, because:

  • putting the citation under the wiper is not done to gather information about the car or its driver, thus it is not a search;
  • there is no other reasonably available, significantly-less-intrusive way of promptly letting the driver know he has been cited for violating a regulation. Delivering it to his house via mail takes days or weeks, and nobody’s going to just stand there and wait for whenever the guy comes back and hand it to him.
kog999 says:

Re: Re: Re:

in addition by the time the office has decided to write you a citation they have at minimum probably cause to believe you have violated a law. that probably cause being whatever made them decide to give you a citation.

in contrast to the initial placement of the chulk at which time they have no reason to believe you have violated any law and in fact if anything they have evidence that you have not violated any time restrictions (that evidence being the lack of existing chulk on your time).

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