“Chalking” Tires Preparatory to Issuing a Parking Citation

The federal Sixth Circuit Court of Appeal (in the State of Michigan) ruled in a recent case that for a parking enforcement officer to apply a chalk mark to the tire of a parked car, and then return later and find that the vehicle had not been moved in some specified time period (as determined by the continued presence of the chalk mark), constitutes a warrantless search and, without a search warrant, is illegal under the Fourth Amendment. (Taylor v. City Saginaw (6th Cir. Apr. 22, 2019) __ F.3rd __ [2019 U.S. App. LEXIS 12412].) The Court’s primary authority for its conclusions on this issue is the U.S. Supreme Court cases of United States v. Jones (2012) 565 U.S. 400, where it was held that placing a GPS device to a suspect’s vehicle does in fact constitute a Fourth Amendment search. But there are a number of significant factual and legal distinctions between the Jones and Taylor cases, rendering the two distinguishable. Jones, most obviously, involved the installation on a vehicle and the continuous monitoring of a GPS device, following a suspect around for some 28 days. Taylor, on the other hand, involved the significantly less intrusive act of marking a tire with chalk and coming back a couple of hours later to see if it had been moved. The Court in Taylor also found the placing of such a chalk mark on a person’s vehicle’s tires without a warrant to be “unreasonable” under Fourth Amendment, and thus illegal. Jones did not consider the “reasonableness” argument due to the failure of the government to raise the issue in the lower court. Taylor held that the “community caretaking” theory did not apply, nor was the lack of a warrant excused under the “administrative search” exception to the search warrant requirement; two legal theories not at issue in Jones. Also, the Taylor Court did not discuss the issue of “exigent circumstances” (i.e., is it even possible to obtain a search warrant for the purpose of chalking a parked car’s tires, given statutory restrictions, the time constraints, and the lack of probable cause to suspect a particular vehicle is, or will be, in violation of a parking time limitation ), an important exception to the search warrant requirement that was totally inapplicable to the situation in Jones. Also, no one in Taylor considered whether the “minimal intrusion” doctrine might apply. (See People v. Robinson (2012) 208 Cal.App.4th 232, 246-255; the ....

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