For decades, municipalities nationwide have relied on the practice of “chalking”—using chalk to mark the tires of parked vehicles to track how long they have been parked—to enforce parking restrictions in unmetered public parking spaces. This longstanding practice has been presumed lawful until recently,1 when the Sixth Circuit issued a misguided decision—Taylor v. City of Saginaw2—that could be extended to bring the practice to a screeching halt. Thankfully, California public agencies may resist the City of Saginaw case—which is not binding on California courts or federal courts in the Ninth Circuit—by arguing that the case was wrongly decided, failed to address certain applicable exceptions to the warrant requirement, and did not resolve the constitutionality of chalking even in the Sixth Circuit.
II. The City of Saginaw Decision Casts Constitutional Doubt on the Practice of Chalking to Enforce Public Parking Restrictions
Like many other cities across the United States, the City of Saginaw, Michigan employs a parking enforcement practice known as “chalking,” in which parking enforcement officers use chalk to mark the tires of parked vehicles to enforce parking restrictions in unmetered parking spaces.3 Parking enforcement officers return to the car after the posted time for parking has passed, and if the chalk marks are still there (which signifies that the vehicle has not moved), the officer issues a citation.
In City of Saginaw, the Sixth Circuit concluded that this practice can give rise to a claim under 42 U.S.C. § 1983 for an unreasonable search in violation of the Fourth Amendment. The plaintiff brought suit against the City based on fifteen citations she had been issued over a two-year span based on the City’s chalking practice. The district court granted the City’s motion to dismiss on the ground that even though chalking constitutes a search under the Fourth Amendment, as a matter of law the search is reasonable under the community caretaker exception to the warrant requirement. The Sixth Circuit, however, reversed, agreeing that chalking is a search under the Fourth Amendment but holding that chalking without a warrant is not per se reasonable under certain exceptions to the warrant requirement.
A. The Sixth Circuit Concluded That Chalking Constitutes a “Search” Under the Fourth Amendment
First, the Sixth Circuit agreed with the district court and held that “chalking is a search for Fourth Amendment purposes.”4 The court explained that there are “two distinct approaches to determine when conduct by a governmental agent constitutes a search”—when (1) “a government official invades an area in which a person has a constitutionally protected reasonable expectation of privacy” (traditionally known as the Katz framework) or (2) “the government . . . trespasses upon a constitutionally protected area . . . to obtain information.”5
Analyzing the practice of chalking under the second approach, the Sixth Circuit concluded that chalking constitutes a common-law trespass “because the City made intentional physical contact with [the plaintiff’s] vehicle” and that “this practice amounts to an attempt to obtain information” because it is used “for the purpose of identifying vehicles that have been parked in the same location for a certain period of time” that is “then used by the City to issue citations.”6
B. The Sixth Circuit Concluded that Chalking Without a Warrant Is Not Per Se Reasonable
Second, the Sixth Circuit held that chalking without a warrant is not per se reasonable as a matter of law based on the two exceptions to the warrant requirement invoked by the City—the community caretaking exception and the automobile exception. The community caretaking exception allows officers to take automobiles into custody “[t]o permit the uninterrupted flow of traffic and in some circumstances to preserve evidence” and to secure and inventory the vehicles’ contents.7 The automobile exception provides that “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more.”8
In the Sixth Circuit’s view, the automobile exception did not apply to the chalking search at issue because no probable cause existed to believe there had been a parking violation and the community caretaking exception did not apply “[b]ecause the purpose of chalking is to raise revenue, and not to mitigate public hazard[s].”9
Critically, the court made clear that its decision should not be read to hold that chalking without a warrant necessarily violates the constitution as a matter of law. Rather, the court explained, it could not conclude at the pleadings stage of the litigation that chalking without a warrant was always reasonable under either the automobile exception or the community caretaking exception to the warrant requirement.10 As a result, the court reversed the district court’s order dismissing the case on the pleadings and remanded for further proceedings.11
III. How California Public Agencies Can Resist City of Saginaw
The Sixth Circuit’s decision—which casts a widely used municipal parking enforcement practice into constitutional doubt—may carry significant consequences for public agencies across the country. Although many commentators criticized the opinion as invalidating the practice of chalking,12 the court decided only that the constitutionality of chalking may not be decided on the pleadings. Moreover, there are ample arguments California agencies wishing to defend their chalking practices may make to convince state and federal courts in the Ninth Circuit not to follow the Sixth Circuit’s flawed decision.
A. City of Saginaw Is Not Binding Law in the Ninth Circuit and Was Wrongly Decided
First, it is important to remember that the Sixth Circuit’s decision in City of Saginaw does not bind either California state courts or federal district courts in the Ninth Circuit. Rather, the Sixth Circuit’s decision binds only federal courts in Kentucky, Michigan, Ohio, and Tennessee.13 Accordingly, California public agencies remain free to argue that that the decision was wrongly decided because (1) chalking does not constitute a “search” and (2) chalking is reasonable as a matter of law even if it constitutes a search.
1. Chalking Is Not a Search Under the Fourth Amendment
The Sixth Circuit relied on United States v. Jones, in which the Supreme Court held that by affixing a GPS tracking device on a car’s undercarriage to monitor its movements for 28 days, federal agents subjected the defendant to a search under the Fourth Amendment. The Jones Court explained that a search occurs where the government “obtains information by physically intruding on a constitutionally protected area”14 and that a search occurred because the government “trespassorily inserted the information-gathering [GPS] device” on the undercarriage of the defendant’s car.15 Based on the Jones Court’s reasoning, the Sixth Circuit concluded that chalking “physically intrudes” on a constitutionally protected area because it amounts to a common-law trespass, “regardless of how slight.”16
California public agencies may argue that this conclusion should be rejected because chalking a tire is not a physical intrusion under Jones. As one commentator has explained, although the Supreme Court in Jones described the act of affixing a GPS device to the undercarriage of a car as “trespassory,” the Court did not provide further explanation of what level of physical contact is necessary to constitute a search:
It might conceivably include the full range of common law trespass doctrines, or it might include only a few. It might merely mean attachment to or penetration of personal property, or it might suggest broader types of interference with property interests. Jones sets up the question, but neither Jones nor the relevant history provides much in the way of answers.17
The Court subsequently applied Jones in Florida v. Jardines without describing the test as a trespass test, and instead explained that the test for determining whether a search has occurred turns on “physical intrusion.”18 There, the Court held that bringing a drug-sniffing dog onto the curtilage of a private home to determine whether there were drugs inside the home constituted a physical intrusion onto a constitutionally protected area.19 Here, unlike the physical invasion of the curtilage of a home with a drug-sniffing dog in Jardines or the placing of a GPS tracking device on the undercarriage of the defendant’s car in Jones that was intended to monitor his movements for 28 days, the simple act of chalking a tire cannot be said to “physically intrude” on the vehicle or tire.
2. Even If Chalking Were a Search, It Is Reasonable as a Matter of Law
California public agencies wishing to defend their chalking procedures may also argue that chalking without a warrant is reasonable as a matter of law notwithstanding City of Saginaw.
In particular, California public agencies may argue that chalking is reasonable under the “special needs” exception to the warrant requirement. The Supreme Court has “upheld certain regimes of suspicionless searches where the program was designed to serve ‘special needs, beyond the normal need for law enforcement’” and has “allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited.”20 In particular, the Court has approved the “warrantless administrative inspection of premises of ‘closely regulated’ businesses,” “administrative inspection of fire-damaged premises to determine cause of blaze,” “administrative inspection to ensure compliance with city housing code,” and “suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens . . . and at a sobriety checkpoint aimed at removing drunk drivers from the road.”21 The Court has even “suggested that a similar type of roadblock with the purpose of verifying drivers’ licenses and vehicle registrations would be permissible.”22
A critical factor in evaluating the reasonableness of such suspicionless seizures is whether the “primary purpose” is “to detect evidence of ordinary criminal wrongdoing.”23 As the Ninth Circuit has explained, “when the Supreme Court has upheld particular administrative or special needs programs, it has consistently observed that those programs, and the searches and seizures conducted pursuant to them, did not appear to be pretexts for obtaining evidence of criminal activity.”24
Based on the foregoing, public agencies may argue that chalking is reasonable because it serves special needs and is not designed to detect evidence of ordinary criminal wrongdoing. In United States v. Orozco, the Ninth Circuit recently explained that a Nevada administrative scheme permitting law enforcement officers to stop commercial vehicles and conduct limited inspections without reasonable suspicion to enforce the provisions of laws and regulations “relating to motor carriers, the safety of their vehicles and equipment, and their transportation of hazardous materials and other cargo” was “valid on its face because its purpose is to ensure the safe operation of commercial vehicles—not to provide cover for criminal investigatory purposes, such as drug interdiction, for which reasonable suspicion or probable cause is lacking.”25 The Ninth Circuit found unconstitutional a particular stop made pursuant to the scheme because the challenged “stop was a pretext for a stop to investigate information of suspected criminal activity short of that necessary to give rise to reasonable suspicion.”26 But the court explained that stops undertaken in good faith pursuant to the scheme would be constitutional:
Because the programmatic purpose of the Nevada inspection scheme may be valid, a stop undertaken in furtherance of that purpose does not violate the Fourth Amendment, even if reasonable suspicion or probable cause is lacking.27
Here, to the extent that California public agencies use chalking to enforce a civil regulatory scheme meant to ensure regular turnover at public parking spots, rather than a criminal scheme, they may rely on Orozco to argue that chalking—even if a search under the Fourth Amendment—is reasonable as a matter of law. Put another way, chalking does not violate the Fourth Amendment because it is undertaken in furtherance of the programmatic purpose of a legitimate administrative parking enforcement scheme that does not serve traditional criminal law enforcement investigatory functions. Critically, the City of Saginaw did not raise the special needs or administrative search exception to the warrant requirement on appeal and the Sixth Circuit left open the possibility that “other exceptions to the warrant requirement might apply in this case.”28
Moreover, those agencies that task non-peace officers with parking enforcement may also rely on a recent Seventh Circuit decision to argue that chalking is reasonable because it promotes a substantial government interest, “is unrelated to law enforcement, is minimally invasive, and presents little risk of corollary criminal consequences.”29 In Naperville Smart Meter Awareness v. City of Naperville, the Seventh Circuit upheld a city’s warrantless collection of its residents’ energy-consumption data as reasonable where “[e]mployees of the city’s public utility—not law enforcement—collect[ed] and review[ed] the data” because of the substantial government interest allowing “utilities to reduce costs, provide cheaper power to consumers, encourage energy efficiency, and increase grid stability” and the fact that the city did not actually enter the homes at issue.30
California public agencies may argue that chalking does not constitute an unreasonable search on the additional ground that “[a] license may be implied from the habits of the country”31 based on the widespread and longstanding practice of chalking and that the physical intrusion of chalking is “no more than any private citizen might do”32 in the course of leaving flyers and coupons on vehicles without permission. Indeed, the district court in City of Saginaw declined to resolve this issue on the pleadings, but it nevertheless observed:
The very fact that the parties appear to agree that chalking is a widespread and long-standing feature of parking enforcement undercuts Taylor’s assertion that the physical trespass was unlicensed. Taylor’s decision to use public parking could be construed as an implicit license for the City to enforce its parking regulations, including via the longstanding practice of chalking. Further, the type of physical trespass here appears to be “no more than any private citizen might do.” King, 563 U.S. at 469. Private citizens frequently leave fliers and coupons on vehicles without permission. It is unclear how leaving a small, temporary chalk mark is distinguishable.33
Although the Sixth Circuit rejected this argument in a conclusory footnote,34 California public agencies defending against chalking challenges may invoke similar arguments to demonstrate that parking in an unmetered public parking space with posted hour restrictions gives an implied license to parking enforcement authorities chalking tires.35
B. City of Saginaw Did Not Resolve the Constitutionality of Chalking Even in the Sixth Circuit.
Second, even under the approach taken by the Sixth Circuit, cities have the opportunity to introduce evidence to establish the reasonableness of a “chalking” search.
Indeed, perhaps in response to the overwhelming commentary criticizing the opinion, the Sixth Circuit issued an amended opinion just days later clarifying the decision’s narrow reach:
Taking the allegations in Taylor’s complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement—the “community caretaking” exception and the motor-vehicle exception—do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.36
Put another way, the constitutional reasonableness of the City of Saginaw’s chalking practice has not yet been decided and will instead turn on which other exceptions to the warrant requirement the city invokes and how the factual record develops in the case on remand.
Thus, even if a court rejects a California public agency’s argument that City of Saginaw was wrongly decided, a court applying that decision may still find that the agency’s chalking practice is reasonable under the Fourth Amendment.