• The Sixth Circuit Court of Appeals: Tire “Chalking” is a Violation of the Fourth Amendment
  • May 29, 2019
  • Law Firm: Berman, Berman, Berman, Schneider & Lowary, LLP - Office
  • The practice of marking parked car tires with chalk has been common with enforcement officers since the 1920s. However, that practice could be coming to an end due to a recent Sixth Circuit decision (Taylor v. City of Saginaw (April 22, 2019) No. 17-2126).

    Philip Ellison, an attorney in Michigan, was inspired when he was having a phone conversation with his firm’s partner as the partner was parked at Saginaw County Courthouse. As the partner sat in the parked car, a traffic enforcement officer came by and chalked all four of the partner’s tires. This triggered Mr. Ellison to contemplate the similarities between this situation and a 2012 Supreme Court decision in U.S. v. Jones (2012) 565 U.S. 400.

    In Jones, Antoine Jones was arrested in 2005 for drug possession after police attached a GPS tracker to Jones’ jeep without a warrant. Jones was convicted of drug trafficking. In a 9-0 opinion by Justice Scalia, the Court held that the conviction for drug trafficking must be reversed when the evidence to convict him was obtained through the GPS tracking device on his car. The Court reasoned that the attachment of the GPS tracking device constituted a “search” for purposes of the Fourth Amendment.

    The Fourth Amendment to the United States Constitution protects people from warrantless searches of places or seizures of persons or objects. The Fourth Amendment expectation of privacy test originated from Katz v. United States (1967) 389 U.S. 347. In that case, Justice Harlan created a two-part test: (i) whether an individual has exhibited an actual (subjective) expectation of privacy; and (ii) whether the expectation is one that society is prepared to recognize as reasonable. When both of these elements have been met, and the government has taken an action that violates this expectation of privacy, then the government is considered to have violated a person’s Fourth Amendment rights unless they had a warrant or meet an exception.

    Alison Taylor, a resident of Saginaw, Michigan, contacted Mr. Ellison complaining that over the course of a few years she received fifteen citations after her vehicle’s tires were marked with chalk. Mr. Ellison took on the case against the city of Saginaw, but he lost at the district court level. He appealed, and on April 22, 2019 the Sixth Circuit reversed the lower court’s granting of the City’s motion to dismiss. The Sixth Circuit held that placing a chalk mark on tires to keep track of how long a vehicle is parked violates the Fourth Amendment right against unreasonable searches. In this particular case, the Court also ruled that the purpose of marking tires was to raise revenue and not protect the public against a safety risk, and therefore, the Sixth Circuit rejected the City’s argument that a valid exception applied.

    It remains to be seen whether municipalities can tailor parking enforcement tracking procedures to avoid the Taylor problem of constitutional invalidity. The attorneys at Berman, Berman, Berman, Schneider & Lowary LLP can address any questions you have regarding the above, and they are uniquely qualified to provide additional insight and guidance.