CA9: Chalking tires not a 4A violation

Disagreeing with the Sixth Circuit, the Ninth holds that chalking tires does not violate the Fourth Amendment. It was going on for nearly a century before anyone challenged it. Verdun v. City of San Diego, 2022 U.S. App. LEXIS 29803 (9th Cir. Oct. 26, 2022):

For most of tire chalking’s nearly one-hundred-year history as a parking enforcement tool—a history that would seem to coincide with the rise of the automobile—it appears that tire chalking went unchallenged on constitutional grounds. Plaintiffs have not cited any challenges, successful or otherwise, to the constitutionality of tire chalking that predated Jones. So there is some reason to be skeptical of plaintiffs’ effort to have us suddenly declare as violating the United States Constitution a rather innocuous parking management practice that has been commonly used without question for several generations in localities across the country. Cf. NLRB v. Noel Canning, 573 U.S. 513, 533, 134 S. Ct. 2550, 189 L. Ed. 2d 538 (2014) (“[T]hree-quarters of a century of settled practice is long enough to entitle a practice to ‘great weight in a proper interpretation’ of the constitutional provision.”) (quoting The Pocket Veto Case, 279 U.S. 655, 689, 49 S. Ct. 463, 73 L. Ed. 894, 68 Ct. Cl. 786 (1929)).

But we will put any such skepticism completely to the side and undertake a full analysis under the Fourth Amendment. The initial question is whether tire chalking is even a Fourth Amendment “search” in the first place. We will assume without deciding that it is. The plaintiffs rely heavily on Jones. There, the Supreme Court held that a search occurs when the government “physically occup[ies] private property for the purpose of obtaining information.” 565 U.S. at 404. It is not clear Jones should be read to suggest that every physical touch that is designed to obtain information, even one as fleeting as tire chalking, rises to the level of a “physical intrusion,” as required for a Fourth Amendment search. Id.; see also Orin S. Kerr, The Curious History of Fourth Amendment Searches, 2012 Sup. Ct. Rev. 67, 90-93 (2012) (discussing ambiguities in Jones’s conception of trespass). And even if it would be correct to describe chalking as a search of the car itself, which is unclear, there would also appear to be meaningful differences between chalking a parked car and the GPS device at issue in Jones, which provided weeks’ worth of data on where a person traveled, a veritable treasure trove of information. 565 U.S. at 403.

Despite these questions, we will assume that chalking is a search and proceed to the rest of the analysis.