Page 59 - March April 2020 TPA

because the City made intentional physical contact existed here. Thus, the automobile exception is
with Taylor’s vehicle. As the district court properly inapplicable. Here, unlike Cardwell, the City
found, this physical intrusion, regardless of how commences its search on vehicles that are parked
slight, constitutes common-law trespass. This is so, legally, without probable cause or even so much as
even though “no damage [is done] at all.” “individualized suspicion of wrongdoing”—the
Our search analysis under Jones does not end there. touchstone of the reasonableness standard.
Rather, once we determine the government has Next, the City attempts to seek refuge in the
trespassed upon a constitutionally protected area, community caretaker exception. This exception
we must then determine whether the trespass was applies “whe[n] . . . government actors [are]
“conjoined with . . . an attempt to find something or performing ‘community-caretaker’ functions rather
to obtain information.” Here, it was. Neither party than traditional law-enforcement functions.” To
disputes that the City uses the chalk marks for the apply, this function must be “totally divorced from
purpose of identifying vehicles that have been the detection, investigation, or acquisition of
parked in the same location for a certain period of evidence relating to the violation of a criminal
time. That information is then used by the City to statute.” We explained that “the community
issue citations. caretaker exception does not provide the
Having answered the first question under our government with refuge from the warrant
Fourth Amendment analysis, we now turn to requirement except when delay is reasonably likely
whether the search was reasonable. to result in injury or ongoing harm to the
Taylor argues that the search was unreasonable community at large.” Courts have applied the
because the City fails to establish an exception to community caretaker exception in narrow instances
the warrant requirement. Specifically, Taylor when public safety is at risk. The City fails to carry
argues that the search at issue is not covered by the its burden of establishing that the community
community caretaker exception and that the City caretaker exception applies in this instance. First,
fails to establish that any other exception applies to on these facts, the City fails to demonstrate how
their warrantless search. The City responds that, this search bears a relation to public safety. The
even if chalking is a search under Jones, the search City does not show that the location or length of
was reasonable because there is a reduced time that Taylor’s vehicle was parked created the
expectation of privacy in an automobile. The City type of “hazard” or traffic impediment amounting
further contends that the search was subject to the to a public safety concern. Nor does the City
community caretaker exception. We disagree with demonstrate that delaying a search would result in
the City. “injury or ongoing harm to the community.” To the
“[W]e must begin with the basic rule that searches contrary, at the time of the search, Taylor’s vehicle
conducted outside the judicial process, without was lawfully parked in a proper parking location,
prior approval by [a] judge or magistrate, are per imposing no safety risk whatsoever. Because the
se unreasonable under the Fourth Amendment— purpose of chalking is to raise revenue, and not to
subject only to a few specifically established and mitigate public hazard, the City was not acting in
well-delineated exceptions.” The government its “role as [a] community caretake[.]”
bears the burden of demonstrating an exception to For the reasons above, we REVERSE the district
the warrant requirement. court’s order granting the City’s motion to dismiss
The automobile exception permits officers to and REMAND for further proceedings consistent
search a vehicle without a warrant if they have with this order.
th
“probable cause to believe that the vehicle contains Taylor v. City of Saginaw, No. 17-2126, 6 Circuit
evidence of a crime.” No such probable cause Court of Appeals, April 22, 2019.

52 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal