Page 41 - July August 2020 TPA Journal

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
search a vehicle without a warrant if they have
with Taylor’s vehicle. As the district court
properly found, this physical intrusion, regardless “probable cause to believe that the vehicle
contains evidence of a crime.” No such probable
of how slight, constitutes common-law trespass.
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
Next, the City attempts to seek refuge in the
something or to obtain information.” Here, it was.
Neither party disputes that the City uses the chalk community caretaker exception. This exception
applies “whe[n] . . . government actors [are]
marks for the purpose of identifying vehicles that
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
functions.” To apply, this function must be
the City to issue citations.
“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
the government with refuge from the warrant
Taylor argues that the search was unreasonable requirement except when delay is reasonably
because the City fails to establish an exception to
likely to result in injury or ongoing harm to the
the warrant requirement. Specifically, Taylor community at large.” Courts have applied the
argues that the search at issue is not covered by the community caretaker exception in narrow
community caretaker exception and that the City
instances when public safety is at risk. The City
fails to establish that any other exception applies fails to carry its burden of establishing that the
to their warrantless search. The City responds that,
community caretaker exception applies in this
even if chalking is a search under Jones, the instance. First, on these facts, the City fails to
search was reasonable because there is a reduced demonstrate how this search bears a relation to
expectation of privacy in an automobile. The City
public safety. The City does not show that the
further contends that the search was subject to the location or length of time that Taylor’s vehicle
community caretaker exception. We disagree with
was parked created the type of “hazard” or traffic
the City. impediment amounting to a public safety concern.
Nor does the City demonstrate that delaying a
“[W]e must begin with the basic rule that searches
search would result in “injury or ongoing harm to
conducted outside the judicial process, without
the community.” To the contrary, at the time of the
prior approval by [a] judge or magistrate, are per

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