CA6: Parking enforcement’s chalking a car tire is a trespass and a search

The City’s chalking a car tire for a potential parking violation invades the property of the owner of the vehicle and constitutes a search. Taylor v. City of Saginaw, 2019 U.S. App. LEXIS 11586 (6th Cir. Apr. 22, 2019):

The answer to the first question is yes, chalking is a search for Fourth Amendment purposes. The Supreme Court has articulated two distinct approaches to determine when conduct by a governmental agent constitutes a search. Under the most prevalent and widely-used search analysis articulated in Katz. v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), a search occurs when a government official invades an area in which “a person has a constitutionally protected reasonable expectation of privacy.” Id. at 360 (Harlan, J., concurring). 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.'” Id. at 361. A “physical intrusion” is not necessary for a search to occur under Katz. See id. at 360.

In recent years, however, the Supreme Court revisited the seldom used “property-based” approach to the Fourth Amendment search inquiry in United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012). Under Jones, when governmental invasions are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information. Id. at 404-405.

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In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area. Though Jones does not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is “an act which brings [about] intended physical contact with a chattel in the possession of another.” Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, “[a]n actor may … commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object.” Id. Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor’s vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so, even though “no damage [is done] at all.” Jones, 565 U.S. at 405 (quoting Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765)).

Our search analysis under Jones does not end there. Rather, once we determine the government has trespassed upon a constitutionally protected area, we must then determine whether the trespass was “conjoined with … an attempt to find something or to obtain information.” Id. at 408 n.5. Here, it was. Neither party disputes that the City uses the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time. That information is then used by the City to issue citations. As the district court aptly noted, “[d]espite the low-tech nature of the investigative technique …, the chalk marks clearly provided information to Hoskins.” This practice amounts to an attempt to obtain information under Jones.

Having answered the first question under our Fourth Amendment analysis, we now turn to whether the search was reasonable.