Page 39 - May June 2020 TPA Journal

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

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