Legal Alerts Apr 30, 2019

“Chalking” Vehicles is a Search Under the Fourth Amendment, Sixth Circuit Finds

Court Did Not Address Whether Chalking Violates the Right Against Unreasonable Searches

“Chalking” Vehicles is a Search Under the Fourth Amendment, Sixth Circuit Finds

The City of Saginaw, Mich. uses the common technique of “chalking” — marking a parked car’s tire with chalk to track how long it is stationary. If an officer sees the chalk on the tire beyond the amount of time of the parking restriction, indicating the vehicle has likely not moved, a citation is issued. A resident who receives frequent parking tickets sued the City, arguing that chalking violated her Fourth Amendment right to be free from unreasonable government searches. While a federal appeals court found that chalking is a search under the Fourth Amendment, it stopped short of deciding whether the practice violated rights guaranteed by the Amendment.
 
In Taylor v. Saginaw, et al., the U.S. Sixth Circuit Court of Appeals reversed a lower court’s decision finding that chalking constituted a search and that the City failed to establish a sufficient rationale for why a search warrant would not be required. The Sixth Circuit relied heavily on a 2012 U.S. Supreme Court decision that addressed the government’s attaching a GPS device to a car. In that case, the High Court said the government’s actions constituted a “search” under the Fourth Amendment because it was a “trespass” coupled with an attempt to obtain information, namely the car’s whereabouts. The Sixth Circuit found that marking cars with chalk similarly constituted a search because, regardless of how slight the physical intrusion, it constituted a trespass to obtain information on that particular car.
 
The City argued chalking did not constitute a search under the Fourth Amendment. Alternatively, the City argued that, if the practice did constitute a search, it was reasonable because there is a reduced expectation of privacy in an automobile and because the search was subject to the “community caretaker” exception. The community caretaker exception applies when a search delay may result in injury or ongoing harm to the community at large. The Sixth Circuit disagreed with the City and found that neither exception applied to chalking.
 
After it initially delivered its decision, the court issued an amended opinion to emphasize its decision’s limited scope. The amended opinion took pains to explain that the chalking practice itself is not unconstitutional but that, in this case, the City failed to meet its burden to show that the exceptions to the Fourth Amendment’s warrant requirements applied. Because the case is not in the Ninth Circuit, the Taylor decision does not control in California. The City of Saginaw has not announced whether it will seek further review of the decision from either the full Sixth Circuit or the U.S. Supreme Court.
 
For more information about this decision and how it may impact your agency, contact the authors of this Legal Alert listed at the right in the firm’s Municipal Law practice group or your BB&K attorney.
 
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