Page 45 - SEPT OCTOBER 2019_PJ - Final_Neat

intrusion” is not necessary for a search to occur community caretaker exception. We disagree with
under Katz. In accordance with Jones, the the City.
threshold question is whether chalking constitutes
“[W]e must begin with the basic rule that searches
common-law trespass upon a constitutionally
conducted outside the judicial process, without
protected area. Though Jones [the GPS tracking
prior approval by [a] judge or magistrate, are per
case. Ed. ] does not provide clear boundaries for
se unreasonable under the Fourth Amendment—
the meaning of common-law trespass, . . .
subject only to a few specifically established and
common-law trespass is “an act which brings
well-delineated exceptions.” The government
[about] intended physical contact with a chattel in
bears the burden of demonstrating an exception to
the possession of another.” Adopting this
the warrant requirement.
definition, there has been a trespass in this case
because the City made intentional physical contact The automobile exception permits officers to
with Taylor’s vehicle. As the district court search a vehicle without a warrant if they have
properly found, this physical intrusion, regardless “probable cause to believe that the vehicle
of how slight, constitutes common-law trespass. contains evidence of a crime.” No such probable
This is so, even though “no damage [is done] at cause existed here. Thus, the automobile
all.” exception is inapplicable. Here, unlike Cardwell,

the City commences its search on vehicles that are
Our search analysis under Jones does not end
parked legally, without probable cause or even so
there. Rather, once we determine the government
much as “individualized suspicion of
has trespassed upon a constitutionally protected
wrongdoing”—the touchstone of the
area, we must then determine whether the trespass
reasonableness standard.
was “conjoined with . . . an attempt to find
something or to obtain information.” Here, it was. Next, the City attempts to seek refuge in the
Neither party disputes that the City uses the chalk community caretaker exception. This exception
marks for the purpose of identifying vehicles that applies “whe[n] . . . government actors [are]
have been parked in the same location for a certain performing ‘community-caretaker’ functions
period of time. That information is then used by rather than traditional law-enforcement
the City to issue citations. functions.” To apply, this function must be

“totally divorced from the detection, investigation,
Having answered the first question under our
or acquisition of evidence relating to the violation
Fourth Amendment analysis, we now turn to
of a criminal statute.” We explained that “the
whether the search was reasonable.
community caretaker exception does not provide
Taylor argues that the search was unreasonable the government with refuge from the warrant
because the City fails to establish an exception to requirement except when delay is reasonably
the warrant requirement. Specifically, Taylor likely to result in injury or ongoing harm to the
argues that the search at issue is not covered by the community at large.” Courts have applied the
community caretaker exception and that the City community caretaker exception in narrow
fails to establish that any other exception applies instances when public safety is at risk. The City
to their warrantless search. The City responds that, fails to carry its burden of establishing that the
even if chalking is a search under Jones, the community caretaker exception applies in this
search was reasonable because there is a reduced instance. First, on these facts, the City fails to
expectation of privacy in an automobile. The City demonstrate how this search bears a relation to
further contends that the search was subject to the public safety. The City does not show that the

Sept./Oct. 2019 www.texaspoliceassociation.com • 866-997-8282 41