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Big Wheel Keep On Turning

While I can’t say I’ve seen everything, there are days when I feel like I’m getting close.  Although this blog has most often looked at North Carolina or Fourth Circuit cases, we sometimes cast a wider net.  Let’s consider a recent published opinion from the Sixth Circuit, Taylor v City of Saginaw, et al.

Plaintiff Taylor apparently was fed up with a particular officer working for defendant City of Saginaw’s police department.  That officer, also a defendant, had cited plaintiff numerous times for parking violations.  The officer followed a procedure we’re all familiar with, chalking the tires of parked cars.  When the time limit for parking expired, the officer returned, checked the chalk marks, and issued a citation to cars that had not moved.

After receiving about fifteen citations, plaintiff sued both the city and the officer in a 42 U.S.C. 1983 action, alleging that the chalking was an illegal search under the Fourth Amendment.  The district court granted the defendants’ motion to dismiss, finding the search reasonable.  The Sixth Circuit reversed and sent the case back to the trial court.

First, the circuit court found that the procedure constituted a search.  Citing United States v. Jones, 565 U.S. 400 (2012), the court noted that a search occurs when the government trespasses on a constitutionally protected area to obtain information.  Here, chalking plaintiff’s tires was a physical intrusion undertaken to obtain information.

Since the defendants had not obtained a warrant before the chalking, the burden fell on defendants to establish that the warrantless search was reasonable.  Defendant city first argued that the search was reasonable because of the lessened expectation of privacy associated with automobiles.  The court rejected this contention, pointing out that the automobile exception would apply only if there were pre-existing probable cause.  When the chalk is initially applied to a legally parked car, there is neither probable cause nor “individualized suspicion of wrongdoing” to support a belief that any parking violation will ensue.

The city also argued the community caretaker exception, which applies where police are providing a function that is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433 (1973).  The court observed that this exception is implicated only when public safety is at risk, then noted that illegal parking is not a hazard to the community.  Because the defendants failed to establish an exception to the warrant requirement, the search was invalid.

We’re probably talking about a city ordinance here, not a state criminal statute.  Wouldn’t you like to be a fly on the wall the first time an officer goes to a United States Magistrate Judge to seek a search warrant to chalk tires?  The Magistrate would require the officer to produce some form of probable cause.  Do you think that a sworn affidavit that chalking tires could lead to evidence of violations would be successful?  Maybe it would for this plaintiff, who appears to have established a record as a parking scofflaw, but outside of this unusual circumstance, the officer could only testify that cars were parked where violations were possible (and perhaps common).

Under this opinion, the exterior of a car appears to be a constitutionally protected area.  Maybe so.  While it seems that half the vehicles we see are festooned with decals, bumper stickers, and vanity plates, most owners would agree that others are not free to add their own accoutrements or commentary to the vehicle.  But if an officer leans on a parked closed car and leaves a handprint while looking to see if an infant has been left in a car seat, has a search requiring a warrant occurred?  Though the Cady court addressing the community caretaker exception speaks of “reasonable suspicion,” leaving an unattended child in a car is a criminal offense, while ensuring such a child’s safety is community caretaking.  Which motive prevails?

Other questions spring to mind.  The opinion says, without citing authority, that “the purpose of chalking is to raise revenue.”  While revenue is undoubtedly a purpose, I expect that cities also want to ensure that drivers don’t hog places and prevent others from using the space in their turn.

On the other hand, what’s the big deal?  All the officers have to do in the future is chalk the pavement beside, but not touching, the tires.  The same information as to whether the vehicle has moved becomes available.  So maybe this case was just a chance for the circuit court to have a little sport.  (“Crucial distinctions…deflate the City’s argument.”)

Still, the circuit court’s expansive view of a search could ignite both the criminal law and constitutional law bars.  Major cases grow from modest seeds.  What are the chances that defendants will petition for certiorari?  What are the chances SCOTUS would allow the petition?  Make your predictions here.

–Bob Edmunds

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3 Responses to "Big Wheel Keep On Turning"

  • Mark Finkelstein
    April 25, 2019 - 4:25 pm Reply

    I can remember bringing a case like this to my Judge’s attention back in my days clerking for the North Carolina Court of Appeals. Unusual federal decisions, even from the SCOTUS, were not well received unless and until recognized by the North Carolina Supreme Court. I know that was a bit of a novel take on the Supremacy Clause. My judge was a bit of a novel judge. I miss him.

  • Jason
    April 25, 2019 - 4:26 pm Reply

    If you chalk the street and not the car, how will you know that it is the same car parked when you want to issue the ticket? The original driver could leave and a new driver could return and take the same place.

    The better solution is to rely on electronic scanners to track license plates. While probably more expensive, it would be harder to game the system.

  • Robert Edmunds
    April 26, 2019 - 12:17 pm Reply

    1. Lots of chatter about this opinion. http://www.abajournal.com/news/article/chalking-tires-constitutes-unreasonable-search-appeals-court-rules?utm_source=salesforce_64844&utm_medium=email&utm_campaign=weekly_email
    My Fox colleague and fellow blogger Troy Shelton has pointed out to me that the Sixth Circuit issued a revised opinion that includes a new concluding paragraph. The revision states that the holding that chalking is a search under the Fourth Amendment does not mean that chalking necessarily violates that amendment. Instead, the court is holding that neither the community-caretaking exception nor the motor vehicle exception applies here. “When the record in this case moves beyond the pleading stage, the City is, of course, free to argue anew that one of both of these exceptions do apply, or that some other exception to the warrant requirement might apply.”
    2. Jason, you are correct that my suggestion of marking the pavement is hardly foolproof, but it sounds like you are better at parking than I. But I agree there are better solutions than my proposal. Another blogger suggested photographing the cars. No physical contact plus date stamps. Thanks for commenting! Bob

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