On April 25, 2019, the Court of Appeals of the Sixth Circuit decided Taylor v. City of Saginaw, in which the court examined whether a parking enforcement officer’s action of marking a tire with chalk violated the Fourth Amendment.[i] In Taylor, a parking enforcement officer, Tabitha Hoskins, used chalk to mark Taylor’s tires on fifteen separate occasions and issued her citations in kind. Each citation documented the date and time Taylor’s tires were marked with chalk. The cost of a citation started at $15 and increased with additional offenses.
Taylor subsequently filed suit against Hoskins and the City and alleged that marking her tires with chalk without her consent or a search warrant violated her rights under the Fourth Amendment.
On appeal, the Sixth Circuit noted that they must determine (1) whether marking tires of a parked car with chalk constitutes a “search” under the Fourth Amendment and (2) if it is a search, whether the search was reasonable.
Issue One: Does marking the tires of a parked car constitute a search under the Fourth Amendment?
- Was marking the tires with chalk a trespass?
The court then examined the legal principles relevant to this issue. The court stated that the traditional test of whether officers conducted a search under the meaning of the Fourth Amendment is to ask whether the officer intruded into a place where a person has a reasonable expectation of privacy. Specifically, the court stated
[I]n Katz. v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), a search occurs when a government official invades an area in which “a person has a constitutionally protected reasonable expectation of privacy.” Id. at 360 (Harlan, J., concurring). Under Katz, a search is analyzed in two parts: “first that a person exhibit an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.'” Id. at 361. A “physical intrusion” is not necessary for a search to occur under Katz. See id. at 360.[ii]
However, in 2012, the Supreme Court decided the United States v. Jones in which they held that an officer also conducts a search within the meaning of the Fourth Amendment when the officer (1) intrudes upon an area that is constitutionally protected (2) for the purpose of obtaining information. Specifically, 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, 132 S. Ct. 945, 181 L. Ed. 2d 911 (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.[iii]
In Jones, officers secretly placed a GPS tracking device on a suspect’s vehicle for the purpose of tracking the vehicle over a month long period. The Supreme Court stated that placing the GPS on the car was a “trespass” and, since it was for the purpose of obtaining information about the travels of the suspect, it constituted a search under the Fourth Amendment.
The court of appeals then stated that Taylor’s case must be analyzed under the reasoning of Jones.
The court also sought to determine what type of action constitutes a “trespass.” The court stated
Though Jones does not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. 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.”[iv]
The court of appeals then held that under the definition above, the physical contact of marking the tire with chalk did constitute a trespass. The court explained
Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor’s vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so, even though “no damage [is done] at all.” Jones, 565 U.S. at 405.[v]
- Were the tires marked in order to obtain information?
The court observed that the parking enforcement officer’s purpose in marking the tires was to determine the length of time the car was parked at that location. The officer would then issue citations based upon the information obtained from marking the tires. The City did not dispute this information.
Thus, the court of appeals held that marking Taylor’s tires with chalk, under the framework from Jones, does constitute a “search” under the Fourth Amendment.
Issue Two: Was the search reasonable under the Fourth Amendment?
Taylor argued that the search was not reasonable because it did not fall under one of the exceptions to the search warrant requirement. The City argued the search was reasonable under the “community caretaking exception” and the “automobile exception.”
- The Automobile Exception
The automobile exception allows officers to search vehicles without a warrant when the officer has probable cause to believe there is evidence of a crime located within the vehicle. The court stated
The automobile exception permits officers to search a vehicle without a warrant if they have “probable cause to believe that the vehicle contains evidence of a crime.” United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007)[vi]
In Taylor’s case, the court of appeals noted that the parking enforcement officer did not have probable cause that Taylor was committing a crime with her vehicle. Rather, the tires were marked with chalk to determine if, in the future, the vehicle remained parked in the location longer than allowed by law. Therefore, since the search in Taylor’s case (marking tires with chalk) was not conducted with probable cause, the automobile exception did not apply.
- The Community Caretaking Exception
The court examined the legal principles related to this exception and stated
[T]he City attempts to seek refuge in the community caretaker exception. This exception applies “whe[n] . . . government actors [are] performing ‘community-caretaker’ functions rather than traditional law-enforcement functions.” Ziegler v. Aukerman, 512 F.3d 777, 785 (6th Cir. 2008). 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, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).[vii]
In Taylor’s case, the purpose of marking the tires was in fact to investigate or detect a violation of law. Therefore, this exception does not apply.
As such, the court of appeals remanded the case back to the district court for further proceedings, leaving open that possibility that some other exception to the warrant requirement may apply. The district court subsequently granted qualified immunity to the officer and summary judgment for the City.
Taylor again appealed to the Sixth Circuit, and the case was decided on August 25, 2021.[viii] On appeal, the City argued that the search was legal under the “administrative search exception” to the warrant requirement, specifically the exception related to closely regulated industries.
The court of appeals first examined the applicable legal principles and stated
Consider first the “closely regulated industries” category. See Patel, 576 U.S. at 424. Businesses in these industries “have such a history of government oversight that no reasonable expectation of privacy could exist,” . . . [W]e apply three criteria to warrantless inspections of closely regulated industries: (1) “[T]here must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless inspections must be ‘necessary’ to further the regulatory scheme”; and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant[ix].” New York v. Burger, 482 U.S. 691, 702-03, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987)
The court noted that this type of exception has been applied to businesses such as liquor sales, firearms dealers, mining, and automobile junkyards. The court then stated
[M]unicipal parking plainly does not “pose a clear and significant risk to the public welfare.” Patel, 576 U.S. at 424. That automobiles are regulated and involved in parking is inconsequential because the exception applies to industries, not objects. So, for example, a state’s statutory scheme authorizing a warrantless inspection of an automobile junkyard resulting in the search of a Ford Mustang may be permissible, see Burger, 482 U.S. at 702-03, but it does not apply to the search of the same convertible parked on a city street.[x]
Thus, the “closely regulated industry administrative search exception” does not apply in this case.
The court also examined the “special needs administrative search” that serves a purpose beyond law enforcement. This is the exception that allows border searches and traffic safety checkpoints. These searches are allowed because of a special need that only that type of search can fulfill. However, the court stated
We see no special need here, which defendants concede by admitting that “Ms. Hoskins’s job was not impacted in any respect if she did not chalk tires.” And commonsense commands this conclusion; for nearly as long as automobiles have parked along city streets, municipalities have found ways to enforce parking regulations without implicating the Fourth Amendment.[xi]
Thus, the court held that the City failed to identify an exception to the search warrant requirement for the search (marking the tires with chalk) and as such, parking enforcement officer Hoskin’s violated the Fourth Amendment when she marked the tires with Chalk.
Was the officer entitled to qualified immunity?
The court then set out to determine if Hoskins was entitled to qualified immunity. Qualified immunity shields government officials from suit when they act in their discretionary capacity, as Hoskins did here. To overcome qualified immunity, a plaintiff must show (1) that their rights were violated, and (2) that the law was clearly established such that any reasonable officer in the same situation would have known he or she was violating the constitution.
The court of appeals held that the law was not clearly established such that any reasonable officer would have known it was a violation of the Fourth Amendment to mark tires with chalk. As such, Hoskins was entitled to qualified immunity.
Thus, the court of appeals affirmed the district court’s grant of qualified immunity for the officer, but reversed the grant of summary judgment for the City. The case against the City of Saginaw was remanded back to the district court for further proceedings.
[i] 922 F.3d 328 (6th Cir. 2019)
[ii] Id. at 332
[iv] Id. at 332-333 (emphasis added)
[v] Id. at 333
[vi] Id. at 334 (emphasis added)
[vii] Id. at 334-335 (emphasis added)
[viii] Taylor v. City of Saginaw, Nos. 20-1538/1588 (6th Cir. Decided August 25, 2021)
[ix] Id. at 5-6 (emphasis added)
[x] Id. at 6