Another Federal Court Says Chalking Tires Is A Violation Of The Fourth Amendment
from the bring-on-the-touchless-surveillance dept
In one of the more surprising Fourth Amendment decisions ever handed down, the Sixth Circuit Court of Appeals ruled "chalking" tires for parking enforcement was a search and, as such, violated the Constitution. The ruling, handed down last spring, sided with the plaintiff. It found that the use of chalk to mark tires for parking enforcement was an investigative act. The intrusion onto citizens' private property -- their cars -- for investigative reasons (rather than the community caretaking function the government claimed) was impermissible without a warrant, even if the cars were parked on public streets.
The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.
As is stated above, the Appeals Court didn't say the city wouldn't ultimately prevail, but that it couldn't prevail on the arguments made in this case. A trespass is a trespass, even if it's only with a piece of chalk. Parking enforcement officers use chalk to determine whether criminal infractions have occurred. That's an investigation, not caretaking. And the case returned to the lower court for a second pass with the Appeals Court's jurisprudence in mind.
This case, via Orin Kerr, is similar. But it originates in the Ninth Circuit. Nevertheless, the judge in this case applies the Sixth Circuit's ruling to the facts to find that chalking tires is a search under the Fourth Amendment. Taking into account this ruling -- along with the Supreme Court's ruling on the warrantless attachment of GPS trackers to people's cars -- the California federal court says this trespass violates Constitutional rights, no matter how minimal the trespass. From the decision [PDF]:
Considering Jones, a technical trespass occurs when there is unauthorized physical intrusion. Jones, 565 U.S. at 420 (Sotomayor, J., concurring). Although Jones does not outline the boundaries of how intrusive this unauthorized physical intrusion must be to be considered a trespass, the Supreme Court found that the physical contact of a GPS beeper to the undercarriage of a car was sufficient, even though the actual contact of the beeper did not cause any damage to the defendant’s effect.
Here, considering whether the Defendants’ conduct was trespassory, the Court finds Plaintiffs have pled sufficient facts to establish their claim. Defendants physically placed chalk marks on the tires of vehicles. Although this contact does not cause outward damage to Plaintiffs’ property, it is a technical trespass nonetheless.
Moreover, constitutionally protected areas include persons’ papers, houses, and effects. U.S. Const. amend. IV. This case involves constitutionally protected personal property – personal vehicles – belonging to the Plaintiffs. Once a technical trespass has been established, it must also be shown that the trespass is conjoined with an attempt to obtain information.
This is a fairly evident point established both in Jones and here. In Jones, the police used the installed beeper to track the defendant for investigatory purposes. Here, the police chalked Plaintiffs’ tires to obtain information as to whether Plaintiffs violated the parking limitations in order to issue a citation.
Chalking could still be permitted if the search is reasonable or supported by an exception to the Fourth Amendment. Community caretaking doesn't work, even if the court says chalking isn't necessarily always investigatory.
Although tire chalking is arguably divorced from investigation, it is unclear whether there is a public safety risk to justify the Defendants’ actions. Defendants have merely offered that it applies to address the “immediate need for safety in the City’s rights of way.” Accordingly, the Court finds Defendants are not entitled to dismissal under the community caretaking doctrine at this juncture.
Neither does the "special needs" exception. While "maintaining order in the public ways" is in the public interest, the method of doing this involves an unjustified trespass that exceeds what's needed to accomplish this goal. The privacy expectation inherent in people's cars outweighs the government's needs under this exception.
There is also no "implied license" exercised in the act of parking on a public street… at least not when it comes to allowing literally unwarranted trespasses by the government.
It is possible that law enforcement has an implied license to touch a vehicle in the same manner, and for the same purpose, as a private citizen distributing advertisements, but does not have an implied license to make contact for the purpose of investigating whether a violation of law has occurred. Defendants’ position seemingly ignores the purpose behind the two types of action: one is innocuous while the other is investigatory. On its face, the practice of chalking tires seems more investigatory than innocuous…
Like the Sixth Circuit, the California court doesn't say there's no way the government will be able to talk it into continuing to mark tires without a warrant. But it's not willing to dismiss the lawsuit at this point. For now, chalking tires in this federal district is an invitation to be sued.
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Filed Under: 4th amendment, 9th circuit, chalking tires, parking enforcement, search, trespass
Reader Comments
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The best test is am I allowed to do this to police cars?
If the answer is yes, then there should be no problem. If the answer is no, you have created a rights violation. The same test can be applied to all police-related issues. Can the officer punch me for no reason? Not if I can't do the same to him. This test clearly fails when it comes to dogs who are somehow given more rights than the average citizen enjoys. If I stop a police dog from killing a child by breaking the dog's neck, I am now liable for assaulting an officer and will be lucky to survive intake.
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Wait, wait, wait, hold the phone...
You mean to tell me that the fourth amendment has teeth? Even after the USA PATRIOT Act? And various other legislation granting powers to spy agencies? Am I not living in a dream?
*pinches self*
Ouch! I guess not...
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This is the 21st century, why are we still chalking tires?
Come on folks, this is the 21st century. There is no need for chalking tires that couldn't be replaced with a timestamped photo of the vehicle, tires included. Make a note of where the tire stem is when it was taken, if it's in the same place when you check back on it, the car's been parked in that spot for too long.
See, not trespass needed.
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Re: This is the 21st century, why are we still chalking tires?
Or use the common UK version of the law, and make it no return for longer the parking is permitted. Such as 20 minute maximum, and no return for 2 hours. See the car parked, and find it parked 20+ minutes latter, then a ticket is issued and valid whether the car has been moved or not in the Interval.
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Re: Re: This is the 21st century, why are we still chalking tire
What?
Equal treatment for all and no way of allowing certain vehicles to park for longer without alerting the locals?
That will happen when they start speaking English.
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How is the chalking of tires not vandalism?
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Re: Re: Re: This is the 21st century, why are we still chalking
Easy, you can park in an area for up to a given length of time, but when you move, you cannot park back in that area for the no return time.
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At this point we have pretty good tech alternatives.
Even if we don't want to ALPR cars going into parking lots, we can still take a time-stamped picture of the car in its parking place, and probably have smart enough software to compare that picture to later images to confirm they're the same car.
Also we can ALPR cars going into parking lots. So long as the records are deleted when they're no longer needed to track parking time, that seems like a not-invasive use of such software.
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Re: At this point we have pretty good tech alternatives.
Came here to say this. These days, ALPR seems the way to go -- along with doing a MUCH better job of handling the ALPR data.
A number of my local parking lots use ALPR. When you drive in, your plate is captured. After you park, you go to a kiosk or use your phone to indicate what stall you parked in. For some of them, you also pre-pay a certain amount of time at this point. You then have to go back to a kiosk or pay by phone to top up, on these. At other lots, you simply pay as you leave, some at the kiosk, some at the gate. The scanner at the gate matches your plate as you leave to verify.
I presume there's an attendant who has an app that highlights when a stall should be empty. In reality, they don't need to know which car is in a stall, as the stall is either paid or unpaid, occupied or unoccupied. Their only concern should be unpaid occupied stalls.
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Tracking plates is still okay though
Wonderful. Putting a bit of chalk on your car is an intrusive act. Tracking your every movement using special camera systems to watch your plates and putting your cell phone location on the interwebz, on the other hand, is fine and dandy. This is what happens when Luddites sit at a big desk, wear robes, and make important decisions.
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Re: Re: Re: Re: This is the 21st century, why are we still chalk
How big are the areas, and how are they identified? Are the areas large enough that people can't rotate between several throughout the day? At the borders between areas, can people just move their car back and forth across the line?
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Re: Re: Re: Re: Re: This is the 21st century, why are we still c
The area is usually a street, serving a shopping district, marked out with parking signs. Often there is long term parking within a few hundred yards, that is easy walking distance for someone in reasonable health. The borders are usually long stretches of no parking, or stretches of unlimited parking, so if you move because of time limits, it will usually be to an unlimited time area, within walking distance of where you were parked. Supermarket car parks often use the same scheme, mainly to stop non customers parking in their car park the whole day.
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Re: The best test is am I allowed to do this to police cars?
This is an excellent rule of thumb for rights violations, because with only two exceptions police do not have any rights private citizens lack.
The first exception is that police are granted a statutory right to carry weapons in many places where private citizens are forbidden to.
The second exception is that police may advance into danger and still claim self defense, while a private citizen can at best stand their ground.
Other than those two, if a cop can do it to you without or without a warrant or probable cause or reasonable suspicion, then you can do it to a cop equally lawfully on the same basis.
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Re: Wait, wait, wait, hold the phone...
The fourth amendment - along with all the other amendments, the core of the Constitution and various statutes that create statutory rights have had teeth for decades.
https://www.justice.gov/crt/statutes-enforced-criminal-section
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Re: Re: This is the 21st century, why are we still chalking tire
The flaw is what if the parking warden returns every hour, but the car wasn't parked there for 35 minutes out of that hour?
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Re:
How is anyone silly enough to think it is?
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Re: Tracking plates is still okay though
Agreed. Why spend a just few cents when you can achieve the same result by spending thousands of dollars on technology with a ripe history of abuse?
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Re: Re:
Try doing that to a rich person's fancy sports car, then come back and tell us about it.
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chalking every hour
The parking warden is supposed to give the car owner the benefit of the doubt. If he checks and chalks every hour, and there's a two hour limit, then he tickets after there are two chalks already in place.
Yes, this means the owner may escape ticketing even if parked for more than two hours sometimes.
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Re: Re: Re:
It doesn't matter how rich they are or how fancy their car is, it's still not vandalism. They may not like you doing it but that doesn't change the meaning of the word.
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Re: Re: Re: Re:
Chalking the ground or a wall is often ruled as vandalism, why wouldn't the same apply to a car?
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Re: Re: Re: Re:
Listen, just because you personally drive a rusted out piece of shit where you wouldn't notice if someone spray painted "junk" on the side of it, much less chalking your tires, doesn't mean the rest of us do.
Some of us can afford more than a junkyard salvage title car, and have pride in what it looks like.
The city could just as easily stick in this newfangled invention called (wait for it...) A PARKING METER. Ever heard of them?
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Re: Re: Re: Re:
"doesn't change the meaning of the word"
Cool ... the appearance was not affected then
vandalism noun
willful or malicious destruction or defacement of public or private property
merriam-webster
deface verb
to mar the appearance of : injure by effacing significant details
merriam-webster
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Re: Re: Tracking plates is still okay though
Or, don't be so anal about parking.
The one thing that stops many from going downtown is parking, so maybe not having adequate parking facilities is their way of limiting the number of people downtown.
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Re: Re: Re: Re: Re:
When parking meters break down, and they do, then they have to resort back to timing them, themselves.
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Re: Re: Tracking plates is still okay though
Show us on the doll where the parking meter touched you.
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Re: This is the 21st century, why are we still chalking tires?
Yes, I've seen our city use vehicles with a camera pointing toward the front side to pick up license plates and one pointing directly left to pick up rim placement. Same result - you have a photo of the vehicle and the alignment of the rim spokes, so difficult to argue vehicle had moved. Plus, the GPS combined with license plate reader means a city vehicle can patrol much more area, stopping only to stick the paper under a wiper when the computer indicates a parking violation.
For higher traffic areas, they have the pay box for the block concept, and no right of return to that block for the rest of the day after your 2 hours plus a half-hour extension is done.
It's all about the money.
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Though I tend to take privacy seriously, I don't take it to extremes.
This judgment does seem a little extreme to me.
This mark can be labeled as an investigative technique, I'll grant that much. But I wouldn't label this a "search".
It's pretty much anonymous (until the police actually writes the ticket) and you can get rid of it with a bit of water. Your tires will likely have worst treatment in their life cycle. There is no actual search of vehicle (nothing of the identity of the owner nor of the content of the car are investigated) and it just tracks an estimation of the parking time in a cheap and non-intrusive way.
Nowadays, there are alternative that would leave no mark on the car (taking photos, writing down licence plates) and some of them can even be automated (such ALPR which would cost way more than a piece of chalk). But their consequences on privacy can be much worse, despite not leaving traces on the spot.
As for "suspicion", this seems like a pointless requirement in this case. Nobody is really investigated (only the parking time is), the mark is basically anonymous and it's no so different from a parking meter. Just cheaper for the driver and the fact that it's only a less accurate estimate of parking time is also in his favor.
I do think police must be kept in check because they can and do easily abuse their power and authority, but "chalking" doesn't seem to be the case to me. Though it's just my opinion, I see this as an abuse of the law in the same way (but nowhere near the same scale) as police often does it.
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Chalking tiree
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Re:
Your tires will likely have worst treatment in their life cycle.
That's not a license to fuck with them. Arguably, your oil gets a harsher treatment than your tires, but it wouldn't be prudent to say that it's free game for some lazy fuck to mess with it.
But their consequences on privacy can be much worse, despite not leaving traces on the spot.
Are they? Ever pass a toll booth with a license plate reader? Are you concerned about your privacy then, where you'd be comfortable waiting in a line with your change? How about cops parked on the side of their road with a license plate reader? How many times have you stopped and asked them to delete your data?
Sorry, but resorting to putting chalk on my fucking car because you're too lazy to install a fucking parking meter isn't acceptable. If keeping track of how long a car is parked somewhere without fucking with it is hard, then the solution is to get some fucking people who aren't too fucking lazy to do it right.
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Re: Re:
Chalking a sidewalk has been considered vandalism in the past, and the rain will wash chalk off a horizontal surface more easily than from a vertical one.
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Re: Re:
My point exactly.
These solutions are more intrusive to my privacy, but still accepted.
They just don't leave traces on the spot, by which I mean that you don't immediately realize that your privacy was breached.
Chalking doesn't, unless the cop chalking your tire also writes down your plate number (or photographs it), in which chalking still doesn't breach your privacy: writing down the plate does.
In my everyday life, I accept a measure of loss of privacy (which is how I introduced my comment). This is an easy acceptable loss, while having ALPR everywhere wouldn't be.
As for your examples, they are more tolerable than acceptable. Mostly because I wouldn't bother doing much about it unless the company managing them has a severe data breach.
This article shows the opposite stance where someone decided to go to war (figuratively speaking) over one such minor (in my opinion) loss of privacy. One that I even rank as acceptable, particularly since one's identity is not even part of that loss.
The law might be on the plaintiff's side there, so he's well within his right to sue, but I just find this pointless and possibly counter-productive. What will the cops do if they can't chalk your tires? They will have to use one of those other methods that might have a higher risk of breach of privacy. More ALPR, or at the very least keeping track of your plate number. You think that's a win? Ever heard of a Pyrrhic victory?
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Not a Search
A search is when yhou are looking for something. It might be evidence, it might be contraband, it might be a lost coin, it might even be your car in a mall parking lot. But the essence of a search is looking for something.
Chalking tires does not fit this model. The person doing it is not looking for anything, they are merely using a handy tool to regulate parking. It is not even investigation.
The later walk-by where the tire mark is observed is probably investigation. But that also does not require much of a search, since the tire with its chalk mark is visible from a place where the parking enforcement officer can legitimately be. There is thus no privacy interest implicated in walking by looking for chalk marks.
Sometimes the courts do not reach reliable results. You just have to expect that sort of thing to happen, and perhaps hope that looney decisions will be rare.
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Re: Re: Re: Re: Re:
Yes. People hate them. They seem to run out of time at inconvenient intervals, they need coinage to operate, and they still require someone to go around to issue tickets.
My office is in the city. The removal of the parking meters was one of the best things that happened to downtown. It has been many years, and people still praise their removal.
Yes, many of my customers do like to park on the street.
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Is it a crime to pre-caulk your tires? Put about eight or nine marks all around each tire.
I read a while back how it is illegal in the UK or maybe just London, to put mud over your vehicle plates
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Re: [here's mud in yhour eye]
Almost surely illegal in most places where display of a license plate is required, because it is obscuring the visibility of the plate.
Pre-chalking one's own tires ought not be illegal, it is expressive conduct. However, it will be difficult for the parking enforcer to know if his mark is both present and sufficiently stale.
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