Page 38 - May June 2019 TPA Journal

that the expectation be one that society is a reduced expectation of privacy in an
prepared to recognize as ‘reasonable.’” A automobile. The City further contends that the
“physical intrusion” is not necessary for a search search was subject to the community caretaker
to occur under Katz. In accordance with Jones, exception. We disagree with the City.
the threshold question is whether chalking
constitutes common-law trespass upon a “[W]e must begin with the basic rule that
constitutionally protected area. Though Jones searches conducted outside the judicial process,
[the GPS tracking case. Ed. ] does not provide without prior approval by [a] judge or magistrate,
clear boundaries for the meaning of common-law are per se unreasonable under the Fourth
trespass, . . . common-law trespass is “an act Amendment—subject only to a few specifically
which brings [about] intended physical contact established and well-delineated exceptions.” The
with a chattel in the possession of another.” government bears the burden of demonstrating an
Adopting this definition, there has been a trespass exception to the warrant requirement.
in this case because the City made intentional
The automobile exception permits officers to
physical contact with Taylor’s vehicle. As the
search a vehicle without a warrant if they have
district court properly found, this physical
“probable cause to believe that the vehicle
intrusion, regardless of how slight, constitutes
contains evidence of a crime.” No such probable
common-law trespass. This is so, even though
cause existed here. Thus, the automobile
“no damage [is done] at all.”
exception is inapplicable. Here, unlike Cardwell,
Our search analysis under Jones does not end the City commences its search on vehicles that
there. Rather, once we determine the government are parked legally, without probable cause or
has trespassed upon a constitutionally protected even so much as “individualized suspicion of
area, we must then determine whether the wrongdoing”—the touchstone of the
trespass was “conjoined with . . . an attempt to reasonableness standard.
find something or to obtain information.” Here,
Next, the City attempts to seek refuge in the
it was. Neither party disputes that the City uses
community caretaker exception. This exception
the chalk marks for the purpose of identifying
applies “whe[n] . . . government actors [are]
vehicles that have been parked in the same
performing ‘community-caretaker’ functions
location for a certain period of time. That
rather than traditional law-enforcement
information is then used by the City to issue
functions.” To apply, this function must be
citations.
“totally divorced from the detection,
Having answered the first question under our investigation, or acquisition of evidence relating
Fourth Amendment analysis, we now turn to to the violation of a criminal statute.” We
whether the search was reasonable. explained that “the community caretaker
exception does not provide the government with
Taylor argues that the search was unreasonable refuge from the warrant requirement except when
because the City fails to establish an exception to delay is reasonably likely to result in injury or
the warrant requirement. Specifically, Taylor ongoing harm to the community at large.” Courts
argues that the search at issue is not covered by have applied the community caretaker exception
the community caretaker exception and that the in narrow instances when public safety is at risk.
City fails to establish that any other exception The City fails to carry its burden of establishing
applies to their warrantless search. The City that the community caretaker exception applies in
responds that, even if chalking is a search under this instance. First, on these facts, the City fails to
Jones, the search was reasonable because there is demonstrate how this search bears a relation to

34 www.texaspoliceassociation.com • 866-997-8282 Texas Police Journal