By Robert Phillips, Deputy District Attorney (Ret).

A couple of years ago, the federal Sixth Circuit Court of Appeal held that a city’s practice of chalking a person’s tires—done for the purpose of determining how long the vehicle is parked at a specific location—constitutes a “search,” and is a Fourth Amendment violation absent a search warrant.  Neither the automobile nor the community caretaking exceptions to the search warrant requirement applies.  (Taylor v. City of Saginaw (6th Cir. 2021) 11 F.4th 483.)  The Sixth Circuit also specifically held that the “administrative-search exception” to the search warrant requirement does not justify the city’s suspicionless chalking of car tires to enforce its parking regulations.  This, to me, is really one of the dumbest decisions ever to come out of a federal appeals court.  It must also be noted, however, that the Fifth Circuit Court of Appeal also held that “tapping” a stopped motorist’s tires out of concern that—having viewed them wobbling—they were a hazard to the motorist and others, is also a search, albeit a reasonable one under the circumstances. (See United States v. Richmond (5th Cir. Tex. 2019) 915 F.3rd 352.)  Well, finally, the Ninth Circuit Court of Appeal came to the rescue, . . . at least partially.

In a split, 2-to-1 decision, the Ninth Circuit reached the opposite conclusion.  The Ninth Circuit first notes that the practice of chalking the tires of parked cars has gone on unchallenged for nearly 100 years (since the 1930’s) as a valid and relatively simple parking enforcement tool.  During this time, the Court further notes that “it is not apparent that anyone viewed tire chalking as presenting a grave question of constitutional law, or indeed any question of constitutional dimension.”  Then, however, while recognizing that “(t)he initial question is whether tire chalking is even a Fourth Amendment ‘search’ in the first place,” the Court wimps out on us and “assume(s) without deciding that it is.”  However, specifically disagreeing with the Sixth Circuit, the Ninth held that a city’s practice of chalking tires as part of the practice of enforcing time limits on city parking spots falls within the “administrative search exception” to the Fourth Amendment’s warrant requirement.  This is because “complementing a broader program of traffic control, tire chalking is reasonable in its scope and manner of execution, it is not used for general crime control purposes, and its intrusion on personal liberty is de minimis at most.”  (Verdun v. City of San Diego (9th Cir. Oct. 26, 2022) 51 F.4th 1033.) 

Well, now with conflicting opinions, we can only hope that the issue is taken up for a final resolution before the U.S. Supreme Court as to whether chalking or tapping a person’s tires is really worthy of a Fourth Amendment analysis.  My belief is that if the High Court considers this ridiculous issue at all, it’s going to tell the lower courts do try to use their valuable time discussing more important problems.  In the meantime, the Ninth Circuit’s ruling takes precedence in California.