Chalking Tires Requires a Warrant

Chalking Tires Requires a Warrant

On Monday, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled that chalking tires requires a warrant.

Chalking is a search for Fourth Amendment purposes.  

In coming to its decision, the court used the analytical framework found in United States v. Jones (2012) 565 U.S. 400.  In Jones, the United States Supreme Court ruled that a GPS device attached to a vehicle for the purposes of tracking a vehicle’s movements, constitutes a search under the Fourth Amendment and requires a warrant.  Under Jones, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information.  Applying Jones, the threshold question before the court was whether chalking constitutes common-law trespass upon a constitutionally protected area.  The court answered that question in the affirmative finding that chalking is a search for Fourth Amendment purposes.  .

What of the Expectation of Privacy?

Two approaches are used by the court to determine whether conduct by a governmental agent constitutes a search. Under Katz. v. United States (1967) 389 U.S. 347 (“Katz”) a search occurs when a government official invades an area where a person has a constitutionally protected reasonable expectation of privacy, both subjectively and an expectation society is prepared to recognize as a reasonable expectation.

However, there is another older approach known as the “property-based” analysis used in Jones that stands for the proposition that when a governmental invasion is accompanied by physical intrusions upon a constitutionally protected area to obtain information, a search has occurred.  Jones stated the “[t]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Id. at 409.

The U.S. Court of Appeals decision affects Michigan, Ohio, Kentucky and Tennessee.

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0076p-06.pdf