Chalk It Up to Lessons Learned: Sixth Circuit’s New Fourth Amendment Decision Provides Insight for Appellate LitigantsGiven the progress of modern society, including the use of motor vehicles, cell phones, and infrared technology, few constitutional amendments have evolved as fully and as rapidly as the Fourth Amendment. Recently, the United States Court of Appeals for the Sixth Circuit further defined the parameters of the prohibition against unreasonable searches and seizures, ruling that the common municipal practice of chalking tires violates the Fourth Amendment.

In Taylor v. City of Saginaw, the court considered the plaintiff’s challenge under 42 U.S.C. § 1983 against the city and its employee, who chalked the plaintiff’s tires and issued her citations on 15 separate occasions. The plaintiff argued that the defendants violated her Fourth Amendment right by chalking her tires without her consent or a valid search warrant. The trial court dismissed the complaint, holding that the defendants’ search of the plaintiff’s car was reasonable because vehicles enjoy a lesser expectation of privacy and the search was justified under the community-caretaker exception to the Fourth Amendment’s warrant requirement.

The Court of Appeals disagreed. To analyze this Fourth Amendment challenge, the court applied the familiar two-step analysis, asking (1) whether the challenged government conduct amounted to a search under the Fourth Amendment; and (2) whether the search was reasonable. The Court of Appeals agreed with the trial court that the defendants’ conduct amounted to a search. Applying United States v. Jones, 565 U.S. 400 (2012), the court determined that the defendants had conducted a search by trespassing upon a constitutionally protected area to obtain information. Under well-settled tort principles, chalking amounts to common-law trespass, and the defendants chalk cars to obtain information about vehicles that have been parked in the same location for a certain period of time. Through this lens, chalking tires constitutes a Fourth Amendment search.

But the meat of the court’s decision—and its disagreement with the trial court—focused on whether the search was reasonable. The court distinguished the trial court’s dual rationale on this point. That vehicles enjoy a lesser expectation of privacy is no defense because the automobile exception to the warrant requirement is predicated on the existence of probable cause. The defendants had no probable cause to believe that plaintiff had committed a crime at the time her tires were chalked, as her car was legally parked at the time. This fact (that no crime had been committed at the time of the search) is the linchpin of this analysis and the most determinative fact. And the defendants’ fared no better with the community-caretaker exception, which applies where government actors are performing caretaking functions rather than traditional law enforcement functions. This exception generally applies to prevent injury or ongoing harm to the community in narrow circumstances where the public safety is at risk. The defendants introduced no evidence that chalking tires bears a relationship with public safety—for example, by showing that the plaintiff’s vehicle was parked in such a way as to impede the flow of traffic. The city’s interest in “maintaining efficient, orderly parking” is not without constitutional limitation.

The court was careful to limit its holding to the facts of this case, noting that other exceptions to the warrant requirement might have provided a better defense. Notably, the defendants waived an argument regarding the administrative-search exception that had been raised in the trial court. The court also noted that the community-caretaker exception might apply to the warrantless search of a lawfully parked vehicle under different circumstances.

Aside from its fascinating analysis, Taylor provides appellate litigants sound advice. As noted above, arguments not briefed on appeal are waived, so it is prudent to think carefully about which defenses raised in the trial court might provide the best arguments on appeal. The Taylor court did not suggest whether an argument on the administrative-search exception would have been successful, but summary briefing on the issue might have preserved the defendants’ trial court victory. And, most importantly, Taylor is a lesson in creativity: Don’t be afraid to bring novel challenges (provided, of course, that the challenges are legally colorable). For some, the thought of challenging the practice of chalking as an unconstitutional search would have drawn nothing more than skepticism. For Ms. Taylor and her attorneys, though, it brought a victory in the Court of Appeals and a place in constitutional law dialogue.