The federal Sixth Circuit Court of Appeal (in the State of Michigan) ruled in a recent case that for a parking enforcement officer to apply a chalk mark to the tire of a parked car, and then return later and find that the vehicle had not been moved in some specified time period (as determined by the continued presence of the chalk mark), constitutes a warrantless search and, without a search warrant, is illegal under the Fourth Amendment. (Taylor v. City Saginaw (6th Cir. Apr. 22, 2019) __ F.3rd __ [2019 U.S. App. LEXIS 12412].) The Court’s primary authority for its conclusions on this issue is the U.S. Supreme Court cases of United States v. Jones (2012) 565 U.S. 400, where it was held that placing a GPS device to a suspect’s vehicle does in fact constitute a Fourth Amendment search. But there are a number of significant factual and legal distinctions between the Jones and Taylor cases, rendering the two distinguishable. Jones, most obviously, involved the installation on a vehicle and the continuous monitoring of a GPS device, following a suspect around for some 28 days. Taylor, on the other hand, involved the significantly less intrusive act of marking a tire with chalk and coming back a couple of hours later to see if it had been moved. The Court in Taylor also found the placing of such a chalk mark on a person’s vehicle’s tires without a warrant to be “unreasonable” under Fourth Amendment, and thus illegal. Jones did not consider the “reasonableness” argument due to the failure of the government to raise the issue in the lower court. Taylor held that the “community caretaking” theory did not apply, nor was the lack of a warrant excused under the “administrative search” exception to the search warrant requirement; two legal theories not at issue in Jones. Also, the Taylor Court did not discuss the issue of “exigent circumstances” (i.e., is it even possible to obtain a search warrant for the purpose of chalking a parked car’s tires, given statutory restrictions, the time constraints, and the lack of probable cause to suspect a particular vehicle is, or will be, in violation of a parking time limitation?), an important exception to the search warrant requirement that was totally inapplicable to the situation in Jones. Also, no one in Taylor considered whether the “minimal intrusion” doctrine might apply. (See People v. Robinson (2012) 208 Cal.App.4th 232, 246-255; the insertion and turning of a key in a door lock held not to be grounds for the suppression of evidence, being, at best, “minimally intrusive;” and Illinois v. McArthur (2001) 531 U.S. 326, 330, noting that “minimal intrusions . . . may render a warrantless search or seizure reasonable.”) It is arguable that nothing could be more minimally intrusive than the simple act of making a chalk mark on a person’s tire on a car parked in a public place. Lastly, while the Court in Taylor did discuss the lesser expectation of privacy typically applicable to motor vehicles, it rejected this theory as an excuse for not obtaining a search warrant; a questionable conclusion. All-in-all, the ruling in Taylor is subject to attack on a number of fronts. In fact, it appears that the 6th Circuit justices themselves are already catching heat over this ridiculous ruling in that they subsequently filed an amended version of their decision, completely contradicting themselves by adding to the “Conclusion,” and I quote: “This does not mean, however, that chalking violates the Fourth Amendment.” Rather, they say that no one has yet shown them an applicable exception to the search warrant requirement, remanding the case to the trial court for that purpose. So we’re not done with this issue yet. In the meantime, it should be also be noted that federal circuit opinions are not binding on 3 California state courts, particularly when from outside the Ninth Circuit, having at best a “persuasive” value only. So the question has come up: “Should California parking enforcement officers change their chalking and ticketing policies based upon Taylor v. City of Saginaw? I should think not! But that’s easy for me so say, and it’s your choice; not mine.