April 26, 2019
You know that feeling you get when you return to your parked car and there tucked under the windshield wiper is a parking ticket flapping in the wind. First, there is bewilderment, “how could this happen it’s free parking?” Then comes rage, “Why those rotten @?&%#!” Then there is resignation - the tire is chalked - “They got me.”
Not so fast. The U.S. Court of Appeals for the Sixth Circuit - covering Kentucky, Michigan, Ohio and Tennessee - ruled that marking a car’s tires to gather information is a form of trespass requiring a warrant.
Parking enforcers across the country have been chalking tires for years in areas without parking meters to keep track of time limits and issue tickets. It generates a lot of money but does it also keep streets safe from traffic and congestion?
Allison Taylor was fit to be tied after her 15th parking ticket in Saginaw, Michigan, between 2014 and 2017. The tickets were all from the same parking enforcement officer, Tabitha Hoskins. Taylor filed a federal civil rights suit against the City of Saginaw and Hoskins alleging they violated her Fourth Amendment right against unreasonable searches by placing chalk marks on her tires without her consent and without a valid search warrant.
The trial court dismissed Taylor’s lawsuit, finding that the city did engage in a search as defined by the Fourth Amendment. However, the Court found the city’s search reasonable because there is a lesser expectation of privacy in automobiles and because the “search” deals with community safety and therefore there is no need to get a warrant. Taylor filed an appeal.
There is no question that people driving vehicles, or the passengers in those vehicles, have a lesser expectation of privacy in their cars than in their homes.
Typically, the lesser expectation relates to physical searches of vehicles or its occupants. The reason, a car can be driven away, a house is normally stationary.
The Supreme Court has narrowed some of the broad exceptions to searching a vehicle without a warrant. The High Court has restricted the use of GPS tracking without a warrant, the search of rental vehicles and the search of vehicles in, on, or very near a home or garage.
More troubling was the trial court’s reliance on the community caretaker exception to getting a search warrant. The idea behind community caretaking is that police do not always function as law enforcement officials investigating and solving crimes, but sometimes act as community caretakers designed to prevent harm in emergency situations.
Circuit Court Judge Bernice Bouie Donald reversed the decision of the lower court. She found, as the lower court did, that chalking tires is a search, but she went a step further - she found the practice of tire-chalking is unconstitutional, violating the Fourth Amendment’s bar on unreasonable searches.
If a city wants to chalk tires they need a search warrant.
The judge also pooh-poohed the “caretaker” exception argument, saying that Taylor’s vehicle posed no safety risk. More to the point she wrote - as vehicle operators everywhere already know - parking tickets are not to “mitigate (a) public hazard,” but rather to raise revenue.
Is this the end of parking tickets for cities that don’t want to spring for parking meters? Probably not.
The Washington Post shared a tweet from Fourth Amendment expert Orin Kerr of the University of Southern California law school, “seems easy enough these days for parking enforcers to just take a photo of the car, or even just a close-up photo of the tire, rather than chalk it ... No 4A (Fourth Amendment) issues then.”
I’m sure cities across America are scrambling to trade in the chalk for iPhones to insure parking enforcement officers have all the 21st century tools to apprehend those fiendish parking violators.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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