Page 37 - May June 2019 TPA Journal

Joe C. Tooley, Legal Digest Editor
Joe C. Tooley, Attorneys & Counselors, Rockwall, Texas
www.TooleyLaw.com 972-722-1058

TEXAS POLICE ASSOCIATION

LEGAL DIGEST

May/June 2019

AUTHOR’S NOTE: It is the goal of this submission to extract those portions of relevant appellate
opinions or the syllabus of the legal reporter which bear directly upon law enforcement methods
and provide guidance for officers on an operational level. Much of the information pertaining to
these cases is lifted verbatim from the court opinion or syllabus with independent analysis inserted
as appropriate. Due to clarity for training purposes, the distinction between quotes from the
opinions and inserted analysis is not always identified and legal citations within the opinion are
often omitted. Emphasis is placed upon reported decisions from the Fifth Circuit Court of Appeals
and the Texas Court of Criminal Appeals.

SEARCH & SEIZURE: violated her Fourth Amendment right to be free
from unreasonable search. The City moved to
CHALK-MARKING TIRES FOR PARKING dismiss the action. The district court granted the
ENFORCEMENT: Unconstitutional???? City’s motion, finding that, while chalking may
have constituted a search under the Fourth
The Sixth Circuit Court of Appeals recently (April Amendment, the search was reasonable. Because
22nd, 2019) held in a case out of the Federal we chalk this practice up to a regulatory exercise,
District Court in Michigan that marking tires with rather than a community-caretaking function, we
a chalk marker was an “unreasonable search” and REVERSE.
therefore a violation of the Fourth Amendment.
Note, this is a Sixth Circuit case and is not To determine whether a Fourth Amendment
binding here in Texas until/unless the holding is violation has occurred, we ask two primary
adopted by the U.S. Supreme Court or the Fifth questions: first, whether the alleged government
Circuit Court of Appeals. Further proceedings conduct constitutes a search within the meaning of
are likely on this case. Unless this holding is the Fourth Amendment; and second, whether the
reversed, we can expect claims such as this in search was reasonable. We address each in turn.
Texas. Excerpts from the Sixth Circuit opinion
are below: …a search occurs when a government official
invades an area in which “a person has a
Alison Taylor, a frequent recipient of parking constitutionally protected reasonable expectation
tickets, sued the City and its parking enforcement of privacy.” Under Katz, a search is analyzed in
officer Tabitha Hoskins, alleging that chalking two parts: “first that a person exhibit an actual
(subjective) expectation of privacy and, second,

May/June 2019 www.texaspoliceassociation.com • 866-997-8282 33