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Fascinating CA6 opinion today holding that chalking a tire for parking enforcement -- to see if the car had been there a while in violation of parking rules -- violates the 4th Amendment. Not sure where I come out on it, but fun issue. Here's a thread.… #N
The court first reasons that the chalking is a Jones trespass, which the court, without analysis, says is determined by a common law trespass test as interpreted by the Restatement 2nd of Torts.
The court then says the trespass was done "to obtain information," as required by Jones, b/c the purpose of chalking is to find out what cars haven't been moved.
Having found a Jones trespass, the court then says the search was unreasonable. First, the automobile exception doesn't apply b/c there was no probable cause.
Second, the community caretaker exception doesn't apply.
Third, there is no general reasonableness based on the government need to maintain efficient and orderly parking. B/c no exception to the warrant requirement applies, the chalking violated the 4th Amendment.
I find this analysis plausible, but I'm not entirely sure it's right. Holding this a trespass seems likely right just based on the factual similarity to Jones: If attaching property in Jones was a physical intrusion or trespass, as SCT said w/o explanation, this is similar.
I'm not sure the test should be from the Restatement of Torts, though: As I wrote back in 2012, there's a ton of uncertainty about what the trespass/intrusion test is supposed to be. A lot of choices here; why this one?…
Whether the chalking was done to obtain information is an interesting question. It wasn't done to obtain info at the time; the only info obtained is later when the parking officer looks at the tire. But then that was true in Jones; the obtaining of info was later then, too.
On reasonableness, court may be right, although some courts have treated these sorts of relatively low-level searches as being reasonable w/o suspicion. See, for example, use of smart meters in last year's CA7 decision:…
Three more thoughts. First, this is the first case I know of on this issue. Other suits are going to be brought outside the 6th Cir, but it will be interesting to see if other jurisdictions continue the practice in the meantime.
Second, if you were chalked and that led to a ticket, I'm not sure you have a suppression remedy: Parking is normally a civil infraction, and the exclusionary rule may not apply under United States v. Janis, 428 U.S. 433 (1976).…
Third, and finally, seems easy enough these days for parking enforcers to just take a photo of the car, or even just a close-up photo of the tire, rather than chalk it. That way parking enforcement can learn the placement of the car w/o physically marking it. No 4A issues then.
I ended up putting up a long blog post about the case here. Check it out if you want to know more.…
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