Thursday, April 25, 2019

Sixth Circuit uses Supreme Court case, pun, to find "chalking" tires to be an unreasonable search.

As lawyers are often aware (as frequent short-term parkers near courthouses), parking enforcement often keeps track of how long a particular car has been in a particular location by 'chalking' the tires of a car during every circuit they walk (or drive).

But, according to the Sixth Circuit,  chalking the tires of a car is a search under the property-based approach to the Fourth Amendment that was revived in United States v. Jones, 565 U.S. 400 (2012). The Sixth Circuit found chalking to be a search under a trespass theory that includes placing chattel "in contact with some other object." And the chalking also includes "an attempt to find something or to obtain information" under Jones because it identifies how long a vehicle was parked in a certain place. Finally, because the search was not reasonable nor did it implicate a community caretaking function, "we chalk this practice up to a regulatory exercise, rather than a community-caretaking function." 

Besides appreciating the pun, this case is a good reminder to keep an eye out for what actions law enforcement take in relation to our clients property and how any contact might implicate the Fourth Amendment. Although the property-based approach was forgotten for some time, we should not forget that it is a viable option in the Fourth Amendment context.

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