Chalk One Up for the Fourth Amendment

[XLFD]

Every citizen should stand up and cheer when a high court broadens the Constitutional rights of the people and narrows the powers of the government in order to respect that right.  The Sixth Circuit Court of Appeals recently bucked a trend in the court that has seen Fourth Amendment rights (commonly known as protection of the people from unreasonable search and seizure by government) steadily eroded. 

The ruling also has local significance as the practice of police chalking tires in order to enforce parking time restrictions has been tacitly affirmed by Ludington's local government as late as this last July in a conversation between Councilor Carol Pomorski and LPD Chief Mark Barnett at the 38 minute mark of a council meeting: 

July 9th, 2018 Ludington City Council meeting from Mason County District Library on Vimeo.

Pomorski: How are you going to make sure on two hour parking? How are you going to enforce that?
Barnett: Well, basically the two hour parking is what we have now. What we hope to do is go and have officers go and chalk tires and come back a couple of hours later and vehicles that have not been moved, to issue citations for those.
Pomorski: Will we have time for that then?
Barnett: We will make time to make sure parking is enforced.

Fifteen months earlier than this, Saginaw resident Alison Taylor filed a federal lawsuit against the City of Saginaw after parking enforcement agents acting on behalf of the city mercilessly gifted her with numerous parking citations using the same tactic of chalking her tires.  She alleged that such chalking violated her Fourth Amendment right to be free from unreasonable search.  

The district court found in the City's favor, finding that, while chalking may have constituted a search under the Fourth Amendment, the search was reasonable, finding that it fell under a 'community caretaking function' of the local police.  It was appealed and the federal appeals court chalked the practice up as a regulatory exercise instead, and reversed the lower court's decision.

In finding that a Fourth Amendment violation had occurred, the court sought answers for two primary questions: first, whether the alleged government conduct constituted a search within the meaning of the Fourth Amendment; and second, whether the search was reasonable.

In the recent Supreme Court decision United States v. Jones, 565 U.S. 400 (2012), it was found that when governmental invasions are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information. 

Because the City made intentional physical contact with Taylor’s vehicle it was a common law trespass fulfilling the first part of the test.  Furthermore, it was undisputed that the City used the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time, fulfilling the second part.  Therefore a 'search' had occurred, a finding made through another approach by the original court.

In finding the search unreasonable the court concluded that the City of Saginaw did not bear its burden of showing how the 'warrantless search' was warranted.  Ms. Taylor's car was parked legally and was not creating any articulated public hazard in being there for more than the arbitrary time set by the City.  The court reasoned that because the purpose of chalking was to raise revenue and not to mitigate public hazard, that it did not justify a warrantless search under the community caretaker rationale. 

With the current mix of the Supreme Court, this finding is likely to stand if it does get further appealed by the City, and should lead to the end of this practice throughout America.  Will City's adapt their strategy to continue to raise money through parking fines using more expensive (yet less intrusive) means through cameras and meters?   Of course.

[shinblind]

By marking the pavement how would the city prove that the exact model, make, and color vehicle didn't leave earlier and you driving the same model make and color vehicle just happened to now occupy the same spot?

Seems like they would have to record the license plate number which still would not prove that you didn't leave and then return and were fortunate to again park in the same space.

Burden of proof and all of that.

[stump]

After reading the early postings I looked the latest parking meters available also. New and improved as they say. Coins? who has pocket full of change any more or at least the correct change. Plastic is fantastic or better yet use your phone. If your from some foreign country , they can be programed to your language so you know how to pay, that is if you know what the parking meter is . What surprised me was the initial cost and the yearly  upkeep maintenance cost. Really don't see how any money is made except for the people selling and maintaining the meters.  I can see the city leaders going down this snake hole and putting the city in more dept.

[Willy]

Also with the use of plastic, phones or payment other than money, we can expect identity thieves to help themselves to some more easily obtained information. Unlike "Cool Hand Luke" the police will have no idea who will be accessing meter users info.

[shinblind]

I would be more concerned about misuse by those in power.

Just think of the fun Chief Barnett could have if he could remotely change the cost of the hourly rate for parking and also held you plastic.  Additionally he could nick your card for whatever he wished as payment for a parking violation.

Police pension shortfall? Why, the pension fund could have a surplus in the $$million$.

"What we have here is failure to communicate."