On April 22, 2019, the Sixth Circuit Court of Appeals decided Taylor v. City of Saginaw[i], in which the court examined whether marking a parked car’s tires with chalk to determine if the car is being moved, violates the Fourth Amendment.
In Taylor, parking enforcement officers for the City of Saginaw used a technique called “chalking” to determine how long a car has been parked. Using this technique, the officer will use chalk to mark a parked car’s tires. The officer will then check the chalk marks after a period of time to determine if the car has been moved. If the chalk marks are still on the tire, which is a sign that the car has not been moved, the officer will issue a citation. A parking enforcement officer used this technique on Taylor’s vehicle fifteen (15) times between 2014 and 2017, which resulting in Taylor receiving parking fines.
Taylor sued the city and the parking enforcement officer and alleged that the chalking his tires was a search under the Fourth Amendment and required a search warrant. The district court held that chalking was a search under the Fourth Amendment but that it was reasonable. Taylor appealed to the Sixth Circuit Court of Appeals.
The Sixth Circuit set out to determine (1) whether chalking is a search under the Fourth Amendment, and (2) if so, whether it was reasonable under the Fourth Amendment.
Regarding whether marking Taylor’s tires with chalk constituted a search under the Fourth Amendment, the court looked to Supreme Court precedent. The court stated
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.
In Jones, the government surreptitiously attached a GPS device to a car to track the car’s movements. Id. at 403. The Supreme Court held that the government’s trespass upon an effect—the vehicle—to obtain information related to the car’s movement was a search. Id. at 404-405. Jones echoed the understanding that the “[t]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Id. at 409.[ii]
Thus, the court stated that they had to determine (1) whether chalking constituted a “common-law trespass” on Taylor’s vehicle and (2) if so, whether that trespass was intended to obtain information.
The court then looked to the Restatement (Second) of Torts for a definition of “common-law trespass.” The court stated
As defined by the Restatement, common-law trespass is “an act which brings [about] intended physical contact with a chattel in the possession of another.” Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, “[a]n actor may . . . commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object.”[iii]
In light of the fact that the parking officer made physical contact with vehicle belonging to Taylor, the definition of “common-law trespass” was satisfied. Thus, the first prong of the test was satisfied.
The court then examined whether the chalking, a common-law trespass, was intended to obtain information. Clearly, it was, in that it provided information about whether the vehicle had been driven within a certain time period. The court stated
As the district court aptly noted, “[d]espite the low-tech nature of the investigative technique . . ., the chalk marks clearly provided information to [the parking enforcement officer].” This practice amounts to an attempt to obtain information under Jones.[iv]
Since chalking was a “common-law trespass” which was intended to obtain information, it constituted a “search” under the Fourth Amendment.
The court then set out to determine if the warrantless “search” was reasonable under the Fourth Amendment.
Taylor argued that the warrantless search was not reasonable. The city argued that the warrantless search was reasonable (1) because people have a lesser expectation of privacy with vehicles because they are exposed to the public and mobile, and (2) because checking illegal parking is part of the “community caretaker” exception to the warrant requirement.
Regarding the city’s first argument, particularly the reduced expectation of privacy for motor vehicles, the court stated that this actually refers to the “automobile exception” to the search warrant requirement. Thus, if an officer has probable cause to believe a motor vehicle contains evidence of a crime, an officer can search it without a search warrant. This is because vehicles are mobile. However, the court noted that probable cause is still required. This principle is largely unrelated to the parking enforcement officer’s actions in Taylor’s case and as such, the court stated it does not apply in this case.
Regarding the city’s second argument, the community caretaking function, the court stated
Unlike other exceptions, it requires that we “look at the function performed by a [government agent]” when a search occurs. Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009) (emphasis in original). To apply, this function must be “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, 441 (1973) . . . the community caretaker exception does not provide the government with refuge from the warrant requirement except when delay is reasonably likely to result in injury or ongoing harm to the community at large.” United States v. Washington, 573 F.3d 279, 289 (6th Cir. 2009). [v]
The court noted that in this case, the function being performed by the city was parking enforcement, an activity that results in fines. Further, there was no evidence that Taylor’s vehicle was parked in such a manner as to create a safety hazard. Therefore, the court of appeals held that the community caretaker exception did not apply in Taylor’s case.
The court of appeals then held
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.
Therefore, the Sixth Circuit reversed the district court’s grant of the motion to dismiss and remanded the case for further proceedings.
[i] No. 17-2126 (6th Cir. Decided April 22, 2019)
[ii] Id. at 4 [emphasis added]
[iii] Id. at 5 [emphasis added]
[v] Id. at 8 [emphasis added]