Sixth Circuit says chalking tires is an unreasonable search

In Taylor v. City of Saginaw, the Sixth Circuit U.S. Court of Appeals (covering Kentucky, Michigan, Ohio, and Tennessee) has concluded that the common – indeed, ubiquitous! – practice of tracking how long a car has been parked by chalking its tires is unconstitutional:

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.

This is a great example of a court following individual precedent down a winding path to a conclusion that is actually very strange. Here’s how they got there:

  1. Start with the Constitution. The Fourth Amendment to the Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
  2. Is it a search? Yes. But really only because the Supreme Court recently decided that attaching GPS devices to cars is a search. Attaching GPS devices is a search because it is a trespass. And chalking is also a trespass because the common law says that “acting upon a chattel as intentionally to cause it to come in contact with some other object” is a trespass. So chalking is a trespass to obtain information. And that makes it a search.
  3. Is it unreasonable? We assume so. The government bears the burden of proving that the search was not unreasonable, and this is where they fell down. First, the government said people have a reduced expectation of privacy in cars. Nope, the Court says, that analysis only applies when you have a warrant or probable cause, and the government didn’t have either. Second, the government said the parking officers weren’t operating as law enforcement; they were operating as “community caretakers” and another standard applies. Nope, the Court says, the government is actually enforcing laws so that doesn’t apply either. Hearing no other arguments, the Court concludes the search was unreasonable.
  4. And now tire chalking is an unconstitutional, unreasonable search.

I’m not sure the drafters of the Fourth Amendment would agree with this analysis. Chalking a tire doesn’t seem to be either unreasonable or a search. And of course there are a number of other ways to argue this case, including with the “administrative search exception,” which the government failed to raise. It’s possible this case gets reviewed.

On the other hand, plenty of other options are available to parking enforcement officers including video, photos, parking meters, and taking notes!