Legal Update

LEGAL UPDATE By: Ann Short

The Bosch Law Firm

HIGH TECH, LOW TECH, AND PRIVACY RIGHTS

Alison Taylor lived in Saginaw, Michigan and received several parking tickets from the City of Saginaw. Each time, Parking Enforcer Hoskins chalked the tire of Taylor’s vehicle several hours before issuing the ticket. Every ticket noted the time Taylor’s vehicle was first “marked” with chalk in the regulated area. Hoskins also documented the ticket with one or more photographs of the offending vehicle. Much aggrieved, Taylor instituted a 42 U.S.C. 1983 civil rights action against the City and the Parking Enforcer.

In round one of this case, the district court held that the tire chalking did not violate Taylor’s Fourth Amendment rights. The Sixth Circuit disagreed and remanded for further proceedings.1 In round two, the district court granted summary judgment to defendants, ruling that tire chalking fell within an exception to the Fourth Amendment for administrative searches. In a unanimous decision, the Sixth Circuit again disagreed and remanded on August 25, 2021.2

So, what do we make of Taylor? Is it legal foolishness? Is it a constitutional anomaly? Is it sui generis, like a dog sniff? Does anyone (except those who have received parking tickets based on tire chalking) really lose any sleep. If he were alive, Supreme Court Justice Scalia could answer these questions in person. Since he is no longer with us, what follows is my modest attempt to explain.

I recall being struck at the time by three sentences Justice Scalia wrote in 1987 in Arizona v. Hicks, 3: [T]he “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent -- serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.

Fast forward to 2012 and United States v. Jones. 4 Federal agents (without a warrant) installed a GPS tracking device on the undercarriage of a vehicle registered to a suspected drug-trafficker’s wife while it was parked in a public lot. Over the next 28 days, the Government used the device to track the vehicle’s movements. The appellate court found that admission of the evidence obtained by “warrantless” use of the GPS device violated the Fourth Amendment. The U.S. Supreme Court, per Justice Scalia, determined that the Government’s installation of the GPS device, and its use of that device to monitor the vehicle’s movements, constituted a “search,” because under the common-law trespassory test, the Government physically occupied private property for the purpose of obtaining information. Such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

Jones exposed a tension between a Fourth Amendment search based on the common-law trespassory test and the more recent legal formulation that a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable – the so-called Katz test.5 Justice Scalia did not view the two approaches as mutually exclusive. Katz’s reasonableexpectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it. So, too, Justice Scalia pointed out that the Court was not deviating from the understanding that mere visual observation does not constitute a search and that a person “traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”6

If GPS tracking is regarded as “high tech,” tire chalking ranks as “low tech” along with old-fashioned police stakeouts. Being “low tech” does not, however, insulate law enforcement conduct from Fourth Amendment scrutiny. Touching and chalking a person’s vehicle constitutes a common-law trespass. Or does it? In Taylor I, the Sixth Circuit pointed out that Jones did not provide boundaries for the meaning of common-law trespass. The Sixth Circuit ended up resorting to the Restatement (Second) of Torts to conclude that tire chalking, “regardless of how slight, constitute[d] common-law trespass” and, therefore, a Fourth Amendment search.7 In Taylor II, and because Jones did not address the precise situation, the Sixth Circuit ruled that qualified immunity protected the parking enforcer because every reasonable parking officer would not have understood from Jones that suspicionless chalking of car tires violates the Fourth Amendment.

At least in the Sixth Circuit, it is now settled for now that warrantless and suspicionless tire chalking does violate a person’s Fourth Amendment rights. And, at least for now in the Sixth Circuit, tire chalking does not fall within an exception to the Fourth Amendment for administrative searches. The United States Supreme Court may yet weigh in on the issue, as the Sixth Circuit denied a petition for rehearing on September 14, 2021, and the time to file a petition for writ of certiorari has not expired.

Justice Scalia is no longer available to weigh in on the Fourth Amendment’s Katz’s reasonable-expectation-of-privacy test and the common-law trespassory test. Nor was he available when a bare 5-4 majority in 2018, in United States v. Carpenter, held that the government’s acquisition from wireless carriers of defendant’s historical cell-site location information (CSLI) was a search under the Fourth Amendment and invaded the defendant’s reasonable expectation of privacy in the whole of his physical movements, despite that the government obtained the information from a third party.8 Justice Gorsuch replaced Justice Scalia on the Supreme Court, and Justice Gorsuch dissented from the majority opinion in Carpenter.

High tech, low tech, and privacy rights will continue to be finetuned by the courts. Reasonable expectations of privacy “may” continue to evolve in the digital age, but nothing is guaranteed. Justice Ginsburg voted with the majority in Carpenter. Justice Kennedy dissented in Carpenter. Justice Barrett, who replaced Justice Ginsburg, may hold the key whether Fourth Amendment privacy decisions, such as seen in Carpenter, prevail or are discarded.

1 Taylor v. City v. Saginaw (Taylor I), 922 F.3d 328 (6th Cir. 2019). 2 Taylor v. City v. Saginaw (Taylor II), ___ F.4th ___ (6th Cir. 2021). ³ 480 U.S. 321 (1987). 4 565 U.S. 400 (2012). 5 Katz v. United States, 389 U.S. 347, 361 (1967). 6 Jones, 565 U.S. at 412. 7 See Taylor I, 922 F.3d at 332-33. 8 Carpenter v. United States, 138 S. Ct. 2206, 2208 (2018).