Post by High Priestess on May 12, 2019 17:10:25 GMT
A federal court in the USA has ruled that the common practice by police or parking enforcement officers of chalking tires to check if the car moves within the required amount of time, is an unconsitutional practice. It violates the 4th Amendment against unreasonable search and seizure.
www.usatoday.com/story/news/nation/2019/04/23/chalking-tires-parking-tickets-unconstitutional-court-rules/3549631002/
www.opn.ca6.uscourts.gov/opinions.pdf/19a0076p-06.pdf
From the court opinion:
In accordance with Jones, the threshold question is whether chalking constitutes
common-law trespass upon a constitutionally protected area. Though Jones does not provide
clear boundaries for the meaning of common-law trespass, the Restatement offers some
assistance. As defined by the Restatement, common-law trespass is “an act which brings about
intended physical contact with a chattel in the possession of another.” Restatement (Second) of
Torts § 217 cmt. e (1965). Moreover, “an actor may . . . commit a trespass by so acting upon a
chattel as intentionally to cause it to come in contact with some other object.” Id. Adopting this
definition, there has been a trespass in this case because the City made intentional physical
contact with Taylor’s vehicle. As the district court properly found, this physical intrusion,
regardless of how slight, constitutes common-law trespass. This is so, even though “no damage
[is done] at all.” Jones, 565 U.S. at 405 (quoting Entick v. Carrington)
Taylor argues that the search at issue is not
covered by the community caretaker exception and that the City fails to establish that any other
exception applies to their warrantless search. The City responds that, even if chalking is a search
under Jones, the search was reasonable because there is a reduced expectation of privacy in an
automobile. The City further contends that the search was subject to the community caretaker
exception. We disagree with the City.
The district court found that the City’s warrantless search of Taylor’s vehicle was
reasonable because there is a lesser expectation of privacy with automobiles. We disagree.
The automobile exception permits officers to search a vehicle without a warrant if they have “probable cause to
believe that the vehicle contains evidence of a crime.” United States v. Smith, 510 F.3d 641, 647
(6th Cir. 2007) (citation omitted). No such probable cause existed here. Thus, the automobile
exception is inapplicable.
Here, unlike Cardwell, the City commences its search on vehicles that are parked legally, without probable
cause or even so much as “individualized suspicion of wrongdoing”—the touchstone of the
reasonableness standard.
We explained that “the community caretaker exception does not provide the government
with refuge from the warrant requirement except when delay is reasonably likely to result in
injury or ongoing harm to the community at large.” United States v. Washington, 573 F.3d 279,
289 (6th Cir. 2009). Courts have applied the community caretaker exception in narrow instances
when public safety is at risk.
At the time of the search, Taylor’s vehicle was lawfully parked in a proper parking location, imposing no safety
risk whatsoever. Because the purpose of chalking is to raise revenue, and not to mitigate public
hazard, the City was not acting in its “role as a community caretaker” Id. at 287.
The City points to the importance of “maintaining efficient, orderly parking.” While the
City is entitled to maintain efficient, orderly parking, the manner in which it chooses to do so is
As the Supreme Court explains, “the [Fourth] Amendment
does not place an unduly oppressive weight on [the government] but merely . . . an orderly
procedure. . . .” Jeffers, 342 U.S. at 51 (citation omitted).
The City does not demonstrate, in law or logic, that the need to deter drivers from
exceeding the time permitted for parking—before they have even done so—is sufficient to
justify a warrantless search under the community caretaker rationale.
SOmeone in that article recommends that police instead use the practice of taking photos of the vehicle, to see if it's moved in the required amount of time. This would work as long as the law requires the vehicle to move entirely off the street or across the street after the specified time, eg 2 or 4 hour parking. It would not work if the law allows the vehicle to park back in the exact same spot after being driven, for instance for the 72 hr parking law. The 72 hr parking law which exists in most US states, stipulates that a vehicle must be moved every 72 hrs...cannot be parked over 72 hrs in the same spot. But, particularly because many people who park on the street choose to park in the same spot later, eg in front of their own home, I doubt that it would be permissible for any city to state that the car had to park across the street or on a different street every 72 hrs.
So...with the unconsitutionality of the chalking tires, and the fact that taking a photo of the car before and after cannot demonstrate that the car hasn't moved at all in the interim (could have been driven the required amount -- which in my city is 1 mile) and then parked in the exact same spot -- the only remaining way to verify a vehicle has been moved would be to look at the odometer. WHich can easily be covered up and made so it isn't visible to anyone peering into your car. For instance, I use my driver dashboard as a "to do bulletin board" and have my daily notes about tasks to do put up on the dash, which almost always block the odometer. Police cannot dictate what objects you can have in your car and where you put them.
Which results in the fact that it may become nearly impossible to enforce the 72 hr parking law.
www.usatoday.com/story/news/nation/2019/04/23/chalking-tires-parking-tickets-unconstitutional-court-rules/3549631002/
www.opn.ca6.uscourts.gov/opinions.pdf/19a0076p-06.pdf
From the court opinion:
In accordance with Jones, the threshold question is whether chalking constitutes
common-law trespass upon a constitutionally protected area. Though Jones does not provide
clear boundaries for the meaning of common-law trespass, the Restatement offers some
assistance. As defined by the Restatement, common-law trespass is “an act which brings about
intended physical contact with a chattel in the possession of another.” Restatement (Second) of
Torts § 217 cmt. e (1965). Moreover, “an actor may . . . commit a trespass by so acting upon a
chattel as intentionally to cause it to come in contact with some other object.” Id. Adopting this
definition, there has been a trespass in this case because the City made intentional physical
contact with Taylor’s vehicle. As the district court properly found, this physical intrusion,
regardless of how slight, constitutes common-law trespass. This is so, even though “no damage
[is done] at all.” Jones, 565 U.S. at 405 (quoting Entick v. Carrington)
Taylor argues that the search at issue is not
covered by the community caretaker exception and that the City fails to establish that any other
exception applies to their warrantless search. The City responds that, even if chalking is a search
under Jones, the search was reasonable because there is a reduced expectation of privacy in an
automobile. The City further contends that the search was subject to the community caretaker
exception. We disagree with the City.
The district court found that the City’s warrantless search of Taylor’s vehicle was
reasonable because there is a lesser expectation of privacy with automobiles. We disagree.
The automobile exception permits officers to search a vehicle without a warrant if they have “probable cause to
believe that the vehicle contains evidence of a crime.” United States v. Smith, 510 F.3d 641, 647
(6th Cir. 2007) (citation omitted). No such probable cause existed here. Thus, the automobile
exception is inapplicable.
Here, unlike Cardwell, the City commences its search on vehicles that are parked legally, without probable
cause or even so much as “individualized suspicion of wrongdoing”—the touchstone of the
reasonableness standard.
We explained that “the community caretaker exception does not provide the government
with refuge from the warrant requirement except when delay is reasonably likely to result in
injury or ongoing harm to the community at large.” United States v. Washington, 573 F.3d 279,
289 (6th Cir. 2009). Courts have applied the community caretaker exception in narrow instances
when public safety is at risk.
At the time of the search, Taylor’s vehicle was lawfully parked in a proper parking location, imposing no safety
risk whatsoever. Because the purpose of chalking is to raise revenue, and not to mitigate public
hazard, the City was not acting in its “role as a community caretaker” Id. at 287.
The City points to the importance of “maintaining efficient, orderly parking.” While the
City is entitled to maintain efficient, orderly parking, the manner in which it chooses to do so is
As the Supreme Court explains, “the [Fourth] Amendment
does not place an unduly oppressive weight on [the government] but merely . . . an orderly
procedure. . . .” Jeffers, 342 U.S. at 51 (citation omitted).
The City does not demonstrate, in law or logic, that the need to deter drivers from
exceeding the time permitted for parking—before they have even done so—is sufficient to
justify a warrantless search under the community caretaker rationale.
SOmeone in that article recommends that police instead use the practice of taking photos of the vehicle, to see if it's moved in the required amount of time. This would work as long as the law requires the vehicle to move entirely off the street or across the street after the specified time, eg 2 or 4 hour parking. It would not work if the law allows the vehicle to park back in the exact same spot after being driven, for instance for the 72 hr parking law. The 72 hr parking law which exists in most US states, stipulates that a vehicle must be moved every 72 hrs...cannot be parked over 72 hrs in the same spot. But, particularly because many people who park on the street choose to park in the same spot later, eg in front of their own home, I doubt that it would be permissible for any city to state that the car had to park across the street or on a different street every 72 hrs.
So...with the unconsitutionality of the chalking tires, and the fact that taking a photo of the car before and after cannot demonstrate that the car hasn't moved at all in the interim (could have been driven the required amount -- which in my city is 1 mile) and then parked in the exact same spot -- the only remaining way to verify a vehicle has been moved would be to look at the odometer. WHich can easily be covered up and made so it isn't visible to anyone peering into your car. For instance, I use my driver dashboard as a "to do bulletin board" and have my daily notes about tasks to do put up on the dash, which almost always block the odometer. Police cannot dictate what objects you can have in your car and where you put them.
Which results in the fact that it may become nearly impossible to enforce the 72 hr parking law.