In one of the more surprising Fourth Amendment decisions ever handed down, the Sixth Circuit Court of Appeals ruled “chalking” tires for parking enforcement was a search and, as such, violated the Constitution. The ruling, handed down last spring, sided with the plaintiff. It found that the use of chalk to mark tires for parking enforcement was an investigative act. The intrusion onto citizens’ private property — their cars — for investigative reasons (rather than the community caretaking function the government claimed) was impermissible without a warrant, even if the cars were parked on public streets.

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.

As is stated above, the Appeals Court didn’t say the city wouldn’t ultimately prevail, but that it couldn’t prevail on the arguments made in this case. A trespass is a trespass, even if it’s only with a piece of chalk. Parking enforcement officers use chalk to determine whether criminal infractions have occurred. That’s an investigation, not caretaking. And the case returned to the lower court for a second pass with the Appeals Court’s jurisprudence in mind.

This case, via Orin Kerr, is similar. But it originates in the Ninth Circuit. Nevertheless, the judge in this case applies the Sixth Circuit’s ruling to the facts to find that chalking tires is a search under the Fourth Amendment. Taking into account this ruling — along with the Supreme Court’s ruling on the warrantless attachment of GPS trackers to people’s cars — the California federal court says this trespass violates Constitutional rights, no matter how minimal the trespass. From the decision [PDF]:

Considering Jones, a technical trespass occurs when there is unauthorized physical intrusion. Jones, 565 U.S. at 420 (Sotomayor, J., concurring). Although Jones does not outline the boundaries of how intrusive this unauthorized physical intrusion must be to be considered a trespass, the Supreme Court found that the physical contact of a GPS beeper to the undercarriage of a car was sufficient, even though the actual contact of the beeper did not cause any damage to the defendant’s effect.

Here, considering whether the Defendants’ conduct was trespassory, the Court finds Plaintiffs have pled sufficient facts to establish their claim. Defendants physically placed chalk marks on the tires of vehicles. Although this contact does not cause outward damage to Plaintiffs’ property, it is a technical trespass nonetheless.

Moreover, constitutionally protected areas include persons’ papers, houses, and effects. U.S. Const. amend. IV. This case involves constitutionally protected personal property – personal vehicles – belonging to the Plaintiffs. Once a technical trespass has been established, it must also be shown that the trespass is conjoined with an attempt to obtain information.

This is a fairly evident point established both in Jones and here. In Jones, the police used the installed beeper to track the defendant for investigatory purposes. Here, the police chalked Plaintiffs’ tires to obtain information as to whether Plaintiffs violated the parking limitations in order to issue a citation.

Chalking could still be permitted if the search is reasonable or supported by an exception to the Fourth Amendment. Community caretaking doesn’t work, even if the court says chalking isn’t necessarily always investigatory.

Although tire chalking is arguably divorced from investigation, it is unclear whether there is a public safety risk to justify the Defendants’ actions. Defendants have merely offered that it applies to address the “immediate need for safety in the City’s rights of way.” Accordingly, the Court finds Defendants are not entitled to dismissal under the community caretaking doctrine at this juncture.  

Neither does the “special needs” exception. While “maintaining order in the public ways” is in the public interest, the method of doing this involves an unjustified trespass that exceeds what’s needed to accomplish this goal. The privacy expectations inherent in people’s cars outweighs the government’s needs under this exception.

There is also no “implied license” exercised in the act of parking on a public street… at least not when it comes to allowing literally unwarranted trespasses by the government.

It is possible that law enforcement has an implied license to touch a vehicle in the same manner, and for the same purpose, as a private citizen distributing advertisements, but does not have an implied license to make contact for the purpose of investigating whether a violation of law has occurred. Defendants’ position seemingly ignores the purpose behind the two types of action: one is innocuous while the other is investigatory. On its face, the practice of chalking tires seems more investigatory than innocuous…

Like the Sixth Circuit, the California court doesn’t say there’s no way the government will be able to talk it into continuing to mark tires without a warrant. But it’s not willing to dismiss the lawsuit at this point. For now, chalking tires in this federal district is an invitation to be sued.

Techdirt.