Page 58 - March April 2020 TPA

with the “collocation of circumstances,” they may violation of the Fourth Amendment. Note, this is a
permit a jury to infer that an individual participated Sixth Circuit case and is not binding here in Texas
34 until/unless the holding is adopted by the U.S.
in the crime.” Wise’s argumentasks us to
Supreme Court or the Fifth Circuit Court of
assume that the jury ignored one of its key roles—
Appeals. Further proceedings are likely on this case.
makingrational inferences—which we cannot do. Unless this holding is reversed, we can expect claims
. . . such as this in Texas. xcerpts from the Sixth Circuit
Though the evidence of Wise’s guilt is more opinion are below:
circumstantial than evidence connecting Jordan to Alison Taylor, a frequent recipient of parking
the crime, the record is not so devoid of evidence tickets, sued the City and its parking enforcement
that his guilty conviction is “shocking.” For officer Tabitha Hoskins, alleging that chalking
instance, Wise was observed moving between the violated her Fourth Amendment right to be free
four robbery vehicles the morning of the crime and from unreasonable search. The City moved to
communicating with various co-defendants. He dismiss the action. The district court granted the
ultimately switched vehicles with Anderson, who City’s motion, finding that, while chalking may
had been brought into the plan only that morning, have constituted a search under the Fourth
so that he would be in the same car as Santee, who Amendment, the search was reasonable. Because
didn’t have any details about the robbery. The we chalk this practice up to a regulatory exercise,
evidence also demonstrates that Wise was on a rather than a community-caretaking function, we
conference call with the co-defendants throughout REVERSE.
the commission of the robbery, and he was To determine whether a Fourth Amendment
ultimately arrested in a vehicle following the violation has occurred, we ask two primary
fleeing Tundra after the robbery was completed. questions: first, whether the alleged government
Witnesses testified that one bank employee was conduct constitutes a search within the meaning of
assaulted during the robbery; another employee the Fourth Amendment; and second, whether the
was threatened, albeit implicitly, when one of the search was reasonable. We address each in turn.
robbers brandished his firearm; and a gun was …a search occurs when a government official
pointed at a bank customer when he tried to enter invades an area in which “a person has a
the credit union. Guns were later retrieved from the constitutionally protected reasonable expectation
Tundra and from Jordan’s brother’s apartment in a of privacy.” Under Katz, a search is analyzed in
shoebox with other robbery paraphernalia. Based two parts: “first that a person exhibit an actual
on this evidence, a reasonable jury, without being (subjective) expectation of privacy and, second,
manifestly unjust, could conclude that Wise was that the expectation be one that society is prepared
aware that his co-defendants would be carrying to recognize as ‘reasonable.’” A “physical
weapons in the commission of the robbery, and that intrusion” is not necessary for a search to occur
those weapons would be used to threaten or assault under Katz. In accordance with Jones, the
those the robbers confronted. threshold question is whether chalking constitutes
common-law trespass upon a constitutionally
protected area. Though Jones [the GPS tracking
CHALK-MARKING TIRES FOR PARKING case. Ed. ] does not provide clear boundaries for
ENFORCEMENT: Unconstitutional???? the meaning of common-law trespass, . . .
The Sixth Circuit Court of Appeals recently (April common-law trespass is “an act which brings
22 nd , 2019) held in a case out of the Federal District [about] intended physical contact with a chattel in
Court in Michigan that marking tires with a chalk the possession of another.” Adopting this
marker was an “unreasonable search” and therefore a definition, there has been a trespass in this case

March/April 2020 www.texaspoliceassociation.com • (512) 458-3140 51