Page 44 - January February 2020 TPJ

CHALK-MARKING TIRES FOR PARKING a chattel in the possession of another.” Adopting this
ENFORCEMENT: Unconstitutional???? definition, there has been a trespass in this case because
the City made intentional physical contact with Taylor’s
The Sixth Circuit Court of Appeals recently (April vehicle. As the district court properly found, this
22 nd , 2019) held in a case out of the Federal District physical intrusion, regardless of how slight, constitutes
Court in Michigan that marking tires with a chalk common-law trespass. This is so, even though “no
marker was an “unreasonable search” and therefore a damage [is done] at all.”
violation of the Fourth Amendment. Note, this is a
Sixth Circuit case and is not binding here in Texas Our search analysis under Jones does not end there.
Rather, once we determine the government has
until/unless the holding is adopted by the U.S.
trespassed upon a constitutionally protected area, we
Supreme Court or the Fifth Circuit Court of
Appeals. Further proceedings are likely on this case. must then determine whether the trespass was
Unless this holding is reversed, we can expect claims “conjoined with . . . an attempt to find something or to
such as this in Texas. xcerpts from the Sixth Circuit obtain information.” Here, it was. Neither party
opinion are below: disputes that the City uses the chalk marks for the
purpose of identifying vehicles that have been parked
Alison Taylor, a frequent recipient of parking tickets, in the same location for a certain period of time. That
sued the City and its parking enforcement officer information is then used by the City to issue citations.
Tabitha Hoskins, alleging that chalking violated her
Fourth Amendment right to be free from unreasonable Having answered the first question under our Fourth
search. The City moved to dismiss the action. The Amendment analysis, we now turn to whether the search
district court granted the City’s motion, finding that, was reasonable.
while chalking may have constituted a search under the
Taylor argues that the search was unreasonable because
Fourth Amendment, the search was reasonable. Because
the City fails to establish an exception to the warrant
we chalk this practice up to a regulatory exercise, rather requirement. Specifically, Taylor argues that the search
than a community-caretaking function, we REVERSE.
at issue is not covered by the community caretaker
To determine whether a Fourth Amendment violation exception and that the City fails to establish that any
has occurred, we ask two primary questions: first, other exception applies to their warrantless search. The
whether the alleged government conduct constitutes a City responds that, even if chalking is a search under
search within the meaning of the Fourth Amendment; Jones, the search was reasonable because there is a
and second, whether the search was reasonable. We reduced expectation of privacy in an automobile. The
address each in turn. City further contends that the search was subject to the
community caretaker exception. We disagree with the
…a search occurs when a government official invades City.
an area in which “a person has a constitutionally
protected reasonable expectation of privacy.” Under “[W]e must begin with the basic rule that searches
Katz, a search is analyzed in two parts: “first that a conducted outside the judicial process, without prior
person exhibit an actual (subjective) expectation of approval by [a] judge or magistrate, are per se
privacy and, second, that the expectation be one that unreasonable under the Fourth Amendment—subject
society is prepared to recognize as ‘reasonable.’” A only to a few specifically established and well-
“physical intrusion” is not necessary for a search to delineated exceptions.” The government bears the
occur under Katz. In accordance with Jones, the burden of demonstrating an exception to the warrant
threshold question is whether chalking constitutes requirement.
common-law trespass upon a constitutionally protected
The automobile exception permits officers to search a
area. Though Jones [the GPS tracking case. Ed. ] does
vehicle without a warrant if they have “probable cause
not provide clear boundaries for the meaning of to believe that the vehicle contains evidence of a crime.”
common-law trespass, . . . common-law trespass is “an
No such probable cause existed here. Thus, the
act which brings [about] intended physical contact with

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