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Wednesday, April 24, 2019

"Chalking" Practice in Parking Enforcement Found Unconstitutional by Sixth Circuit

In a surprising decision out of the 6th Circuit Court of Appeals, the court struck down a City's practice of "chalking" the tires of parked cars to track how long they have been parked as part of the City's parking enforcement program. Taylor v. City of Saginaw.

Like many other municipalities across the country, the City of Saginaw, Michigan's parking enforcement officers place chalk marks on the tires of parked cars, then return to the car after the posted time for parking has passed to see if the chalk marks are still there - a sign that the vehicle has not moved. If they remain, the officer issues a citation. Taylor, a frequent recipient of parking tickets, sued the City and one of its parking enforcement officers claiming that the chalking practice violated her Fourth Amendment right to be free from unreasonable search. The district court did find that the City's practice of "chalking" was a search under the Fourth Amendment, but found that the search was reasonable and dismissed the case.

Is chalking a search?

On appeal, the 6th Circuit Court of Appeals also held that the practice of "chalking" was a "search" under the Fourth Amendment. The court compared chalking a tire to the placement of a GPS device on a car, which the Supreme Court has held was a government trespass on the vehicle and a search. Similarly, the court said that that the City's placement of chalking on a vehicle's tire was a government trespass for the purpose of obtaining information. And, like the placement of a GPS device, the placement of chalk constitutes a search under the Fourth Amendment.

Was the "search" reasonable?

The 6th Circuit Court of Appeals then addressed the issue of whether the search was reasonable, acknowledging that not all government searches are unconstitutional. The district court had found the chalking practice reasonable because there is a lesser expectation of privacy in automobiles and it fell within the "caretaker" exception to the warrant requirement. The Court of Appeals disagreed with both reasons, however. First, the Court of Appeals found that the City needs probable cause to search a vehicle without a warrant, and no probable cause existed in this circumstance. Second, the City failed to show how the search related to the protection of public safety, where the parked car did not create any hazard. Instead, the purpose of chalking is to raise revenues, and not in furtherance of  public safety concerns. 

In sum, the Court of Appeals held that the City did not demonstrated that the need to deter drivers from exceeding the time permitted for parking was sufficient to justify a warrantless search. 

It's important to note that this decision is in the 6th Circuit Court of Appeals, so it does not cover Illinois. However, if a similar challenge was made in the 7th Circuit (which covers Illinois), it might provide some guidance to that Court of Appeals.

Following the release of this decision, some commentators have suggested that municipalities might avoid a similar challenge by changing to the use of photographs or chalking the street rather than the tires to document parking times. Those particular practices were not discussed or addressed in this case, but might avoid the "trespass" issue that was crucial to the Court of Appeals decision since "trespass" was defined by the Court as "physical contact" or a "physical intrusion" to the private property of another. A focus on the safety reasons for any traffic enforcement practice is also important.


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