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the totality of the circumstances, the district court CHALK-MARKING TIRES FOR PARKING
held that Dawsey had reasonable suspicion of
illegal activity to extend the stop.
C. Glenn’s consent to search
The Government must prove Glenn voluntarily
consented to the search by a preponderance of the
evidence. We use the following test to determine
voluntariness:
(1) the voluntariness of the defendant’s custodial
status; (2) the presence of coercive police
procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the
defendant’s awareness of his right to refuse
consent; (5) the defendant’s education and
intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.
The district court found that some factors favored
Glenn, but that there were no coercive police
procedures, Glenn was cooperative, and Glenn
appeared to be intelligent and well-educated. The
District Court concluded that Glenn had
voluntarily consented.
We find no clear error in this finding and thus no
error in admitting the evidence from the search of
the car.
AFFIRMED.
th
U. S. v. Glenn, 5 th Circuit, July 26 , 2019.
40 www.texaspoliceassociation.com • 866-997-8282
ENFORCEMENT: Unconstitutional????
The Sixth Circuit Court of Appeals recently (April
22 nd , 2019) held in a case out of the Federal
District Court in Michigan that marking tires with
a chalk marker was an “unreasonable search” and
therefore a violation of the Fourth Amendment.
Note, this is a Sixth Circuit case and is not
binding here in Texas until/unless the holding is
adopted by the U.S. Supreme Court or the Fifth
Circuit Court of Appeals. Further proceedings
are likely on this case. Unless this holding is
reversed, we can expect claims such as this in
Texas. xcerpts from the Sixth Circuit opinion are
below:
Alison Taylor, a frequent recipient of parking
tickets, sued the City and its parking enforcement
officer Tabitha Hoskins, alleging that chalking
violated her Fourth Amendment right to be free
from unreasonable search. The City moved to
dismiss the action. The district court granted the
City’s motion, finding that, while chalking may
have constituted a search under the Fourth
Amendment, the search was reasonable. Because
we chalk this practice up to a regulatory exercise,
rather than a community-caretaking function, we
REVERSE.
To determine whether a Fourth Amendment
violation has occurred, we ask two primary
questions: first, whether the alleged government
conduct constitutes a search within the meaning of
the Fourth Amendment; and second, whether the
search was reasonable. We address each in turn.
…a search occurs when a government official
invades an area in which “a person has a
constitutionally protected reasonable expectation
of privacy.” 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.’” A “physical
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