Surveillance camera / Maksim Kabakou - Fotolia Maksim Kabakou – Fotolia

In Taylor v. City of Saginaw, the Sixth Circuit held that the common parking enforcement practice known as “chalking” was unconstitutional and required a search warrant to be effectuated. It remanded the matter to the district court where the plaintiff was seeking a class action to obtain refunds for other “chalkees.”

Saginaw parking enforcement officers chalked the tires of parked vehicles to determine how long they had been parked; the area did not have parking meters to enforce time limits. A citation was then issued if the officer returned after the posted time for parking had passed and the incriminating chalk mark was still present, indicating the vehicle had not moved and over-utilized the allotted time. Alison Taylor had received 15 such parking tickets for exceeding the two-hour limit from the same officer, with an initial fine of $15. She sued the city and the officer, under 42 U.S.C. §, 1983, claiming that the chalking violated her Fourth Amendment right of freedom from unreasonable search because she had not consented and the city had not obtained a valid search warrant. The district court granted the city’s motion, finding that although there was a search, it was reasonable because there is a lesser expectation of privacy in automobiles and the search was subject to the community caretaker exception. The Sixth Circuit, however, found this procedure was a regulatory exercise as opposed to a community-caretaking function, and reversed.

The Sixth Circuit first found that the chalking does constitute a search under the Fourth Amendment. It found that under Katz v. United States, a search occurs when a government official invades a zone in which “a person has a constitutionally protected reasonable expectation of privacy.” The court also held that under United States v. Jones, a case where agents had installed a GPS tracking device on the undercarriage of a vehicle to track its movements, Justice Scalia had emphasized that the Katz standard, focusing on reasonable expectation of privacy, had “been added to, not substituted for, the common-law trespassory test.” According to Scalia, the government physically intruded into private property by installing the GPS for the purpose of obtaining information, and the action would have been a “search” at the time when the Fourth Amendment had been adopted.

Applying Jones to the facts, the Sixth Circuit asked whether the chalking represented a common-law trespass upon a constitutionally protected area. Relying on the Restatement (Second) of Torts, it found that it did. It then proceeded to the next question: Was there an attempt to obtain information? Although low-tech in nature, it held the chalking was an investigative technique used to provide information as to whether a parked vehicle exceeded the allotted time.

The court then turned to reasonableness and found that the marking was not. It held that although there is “reduced expectation [] of privacy” due to “ready mobility,” as set forth in California v. Carney, the search of Taylor’s vehicle was not reasonable as there was no “probable cause to believe that the vehicle contain[ed] evidence of a crime.” When the vehicle was chalked, it was presumably parked legally.

The court rejected the city’s community caretaker exception defense, finding that a warrant is not necessary only if a “delay is reasonably likely to result in injury or ongoing harm to the community at large.” This exception is applied narrowly and only where public safety is at risk. In Taylor, the city could not prove any relation to public safety as the vehicle was not creating a “hazard,” and delaying the search would not harm the community. The purpose of targeting legally parked cars was for raising revenue and not to protect the public. Maintenance of an efficient and orderly parking system is important, but it must be conducted constitutionally. There might be other factors that would justify a warrantless search of a lawfully parked vehicle, but the Sixth Circuit insisted that the record did not sustain such conclusion.

Taylor takes the trespass rationale of the Jones majority and applies it to a trivial case. The car is in plain view on a public street. Using modern technology, a parking enforcement officer could exercise the same surveillance by time-stamped electronic photo. A tablet could be programmed to ticket by comparing two photos of the same vehicle in the same space. For that matter, the officer could use the old-fashioned device of writing license plate numbers in a notebook. Those methods would generate the same parking tickets without the technical trespass of chalk on the tire. The real issue is not search but scrutiny—when is the government allowed to systematically collect, record and retain openly available information about someone not known to have violated any law to retain as evidence in case they violate it in the future. Traditional Fourth Amendment concepts based on property law and analogies to it do not address the permissible threshold of scrutiny. The combination of cheap electronic memory, search and retrieval, video recording, and image recognition is making universal surveillance of public spaces possible, and the right to be lost and forgotten in the crowd will not depend on chalk.