Page 40 - July August 2020 TPA Journal
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Even if the court had plainly erred, Maes cannot District Court in Michigan that marking tires with
show that the ruling partially excluding Minor’s a chalk marker was an “unreasonable search” and
proposed testimony affected Maes’s substantial therefore a violation of the Fourth Amendment.
rights. He cannot make this showing because the Note, this is a Sixth Circuit case and is not
jury actually heard the “disallowed” testimony. In binding here in Texas until/unless the holding is
violation of the district court’s order, Minor adopted by the U.S. Supreme Court or the Fifth
testified that the trio hatched a plan to get their Circuit Court of Appeals. Further proceedings
prison time cut, and the district court did not are likely on this case. Unless this holding is
instruct the jury to disregard the testimony. reversed, we can expect claims such as this in
Compounding the problem, Maes’s lawyer Texas. xcerpts from the Sixth Circuit opinion are
emphasized this disallowed-but-introduced below:
testimony during his closing argument, saying
Alison Taylor, a frequent recipient of parking
Minor “told you . . . how they were going to put
meth on [Maes] because meth is what the tickets, sued the City and its parking enforcement
officer Tabitha Hoskins, alleging that chalking
government needs in order for us to get our
sentence reduced and get out of here.” In sum, the violated her Fourth Amendment right to be free
district court’s ruling did not prevent Minor from from unreasonable search. The City moved to
dismiss the action. The district court granted the
testifying as Maes desired; and Maes’s lawyer
emphasized this during his closing argument. City’s motion, finding that, while chalking may
have constituted a search under the Fourth
For all of these reasons, Maes has failed to show
that the district court plainly erred in limiting Amendment, the search was reasonable. Because
Minor’s testimony. we chalk this practice up to a regulatory exercise,
rather than a community-caretaking function, we
[discussion regarding other procedural, REVERSE.
evidentiary and sentencing matters omitted.]
To determine whether a Fourth Amendment
For the foregoing reasons, we hold that Maes has violation has occurred, we ask two primary
failed to show that the district court reversibly questions: first, whether the alleged government
erred in any respect. We therefore AFFIRM his conduct constitutes a search within the meaning of
conviction and life sentence. the Fourth Amendment; and second, whether the
search was reasonable. We address each in turn.
U.S. v. MAES, 5 th Cir. no. 18-60881, June 01,
2020. …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
CHALK-MARKING TIRES FOR PARKING intrusion” is not necessary for a search to occur
ENFORCEMENT: Unconstitutional???? under Katz. In accordance with Jones, the
threshold question is whether chalking constitutes
The Sixth Circuit Court of Appeals recently (April common-law trespass upon a constitutionally
22 nd , 2019) held in a case out of the Federal protected area. Though Jones [the GPS tracking
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