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Is Tire Chalking by Police an Illegal Search?

Most of us have parked a car, left it and returned to see a chalk mark on the car tire.  In seeing the chalk mark, one realizes that a government parking enforcement officer is keeping track of the time the car was parked.  This may seem like a search by some.

Those who regard chalking as a searach may find some affirmation in United States v. Jones (2012) 565 U.S. 400, 406-407, wherein the United States Supreme Court held that a search occurs when the government “physically occup[ies] private property for the purposes of obtaining information.”  Jones, at 404.  Jones involved the government placing a GPS device on a car to monitor the car’s whereabouts, as the government suspected the owner was using the car to commit certain crimes. 

If chalking a tire is likewise considered a search of the car, there would appear to be an analogy between tracking a car’s whereabout and tracking the car’s length of staying at a particular location, however, in Jones, the GPS device tracked the car for weeks, providing a “treasure trove” of information.  Chalking a tire, in contrast, is intended to “track” a car for just an hour or two.

The City of San Diego uses chalking, as do many other cities, that own hundreds or even thousands of parking spaces located on city property.  Drivers who violate the City’s parking regulations concerning time limits for parking in one space may be required to pay civil fines.  The time limits are posted on signs near the restricted spaces.

Since at least the 1970’s, San Diego has used tire chalking as one method of enforcing time limits for its parking spaces.  Chalking consists of a City parking officer placing an impermanent chalk mark of no more than a few inches on the tread of one tire of the parked vehicle.  The City requires that the parking officer place the mark on every car, not just certain cars, parked in a given area.  Officers cannot “single out” certain cars and ignore others for chalking.

If the vehicle’s chalk mark is undisturbed after the parking time limit has expired, this shows the vehicle has been parked in excess of the time limit for the space.  The parking officer can then issue a parking ticket.

Plaintiffs Andre Verdun and Ian Anoush Golkar each received at least one parking citation from the City after their vehicle were chalked.  In May 2019, they filed a putative class action under 42 U.S.C. § 1983 is federal district court, alleging that tire chalking violated the Fourth Amendment.  In their case, Andre Verdun and Ian Anoush Golkar v. City of San Diego; San Diego Police Department, they asked for an injunction against chalking and monetary damages.  The alleged damages consist of amounts the putative class members paid in parking tickets when their cars were ticketed after chalking. 

The case was apparently filed with knowledge that a federal judge in the Eastern District of Michigan ruled on a similar issue, finding that the Saginaw Police Department violated the Fourth Amendment through the same practice of tire chalking.  Taylor v. City of Saginaw, 1:17-cv-11067 (E.D. Mich. Filed April 5, 2017).

However, the plaintiffs in that case did not receive any compensatory damages for the parking tickets.  Instead, they received $1 in nominal damages according to court records.

In the putative class action case against the City of San Diego and the San Diego Police Department, the U.S. District Court agreed with plaintiffs that the tire chalking constituted a Fourth Amendment search, but that it was justified under the administrative exception to the warrant requirement.  The district court thus granted summary judgment to the City.

Plaintiffs then appealed to the U.S. Court of Appeals for the Ninth Circuit in Pasadena, which affirmed the district court.  The Ninth Circuit held that tire chalking by parking enforcement employees is constitutional and does not require a search warrant, agreeing that even if it is a search (which the court did not decide), it fell under the administrative search exception to the warrant requirement. 

Thus, there was no Fourth Amendment violation, even before the vehicle owners violated the law, to determine later whether they overstayed their parking limits.  Tire chalking was reasonable in its scope and manner of execution.  Its intrusion on personal liberty is “de minimis at most.” 

However, Circuit Judge Patrick J. Bumstay, disagreed, writing in dissent that tire chalking by officers was illegal because officers needed a reason to suspect lawbreaking before marking people’s property.  He explained that no matter how well meaning, modest or long-standing the intrusion into personal effect, the Fourth Amendment requires all government searches, with some narrow exceptions, to be supported by a warrant and individualized suspicion of wrongdoing.

We doubt plaintiffs will appeal this ruling to the U.S. Supreme Court.

For more information about the Fourth Amendment in general, please click on the following articles:
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