Just Pay the Ticket!: Is Chalking Tires an Unconstitutional Search?
Many municipalities offer time-limited free parking in municipally-owned public lots. Parking authorities enforce those time limits by having parking enforcement officers make periodic visits to the lot. During each visit the officers chalk the tires of all cars present in the parking lot. If any car remains when the next periodic visit occurs, the chalk mark will reveal that fact and the car will be ticketed.
Two years ago, the Sixth Circuit held that chalking a car’s tires to enforce time limits for using public parking spaces constitutes a Fourth Amendment search. Moreover, the Court held, the practice could not be justified by either the automobile or the “community caretaker” exceptions to the Fourth Amendment’s warrant requirement. Recently, the Sixth Circuit revisited the case and held that the “administrative search” exception, and the closely related “special needs” exception, did not encompass the practice of tire-chalking.
Humorists and lovers of irony might have a field day with this ruling. Intrusive warrantless/suspicionless airport screening is constitutional, but chalking tires in a free municipal parking lot is a violation of the Fourth Amendment? Law enforcement “tailing” of an individual while driving on public roads or hovering over an individual’s fenced-in back yard is not a “search,” but chalking tires is? And these distinctions are based on society conceptions of privacy?
The Sixth Circuit Opinions in Taylor I and Taylor II
In Taylor v. City of Saginaw, 922 F.3d 328 (2019)(Taylor I), the Sixth Circuit recognized two independent tests for determining whether an intrusion constituted a search, the traditional Katz “reasonable expectation of privacy” test and the more recently-minted Jones “physical intrusion” test. Id. at 332 (citing Katz v. United States, 389 U.S. 347 (1967), and United States v. Jones, 565 U.S. 400 (2012)). The Taylor Court focused on the latter. It did not conclude, and surely could not have concluded, that the practice of chalking tires in free municipal parking lots breached any reasonable expectation of privacy.
In Jones, the Supreme Court had addressed government agent’s surreptitious attachment of a GPS device to a suspect’s car to track the car’s movements. The Court held that the agents’ actions constituted a search because they had engaged in a trespass in order to gain information. Jones, 565 U.S. at 404-411. Thus under Jones, “when governmental invasions are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information.” Taylor I, 922 F.3d at 332. Applying that lesson, the Sixth Circuit panel found that chalking a tire was a trespass, citing the Second Restatement of Torts’ definition of the tort of trespass. Id. at 332-333 (referencing Restatement (Second) of Torts § 217 cmt. e (1965)). Moreover, the trespass was designed to gain information, albeit very limited information, namely whether the vehicle had not been moved for a certain period of time.
Thus a warrant based on probable cause was required unless the City could cite an exception to the warrant requirement. Taylor I, 922 F.3d at 334. The City of Saginaw argued that the Court should uphold the chalking tire practice under either the automobile or community caretaker exceptions to the warrant requirement. The Sixth Circuit panel rejected both theories.
With respect to the automobile exception, the panel noted that it permits a warrantless search of a vehicle only if officers “have ‘probable cause to believe that the vehicle contains evidence of a crime.’” Id. at 334 (quoting United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007)). But because the parking enforcement officer lacked probable cause to believe the vehicle contained evidence of a crime, the automobile exception was inapplicable.
Proceeding to the “community caretaker” exception, the Court explained that it applies only “whe[n] . . . government actors [are] performing ‘community-caretaker’ functions rather than traditional law-enforcement functions.” Id. at 334-35 (quoting Ziegler v. Aukerman, 512 F.3d 777, 785 (6th Cir. 2008)). The function being performed by the government actor “must be ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’” Id. at 335 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, (1973)).
The Court noted that courts“have applied the community caretaker exception in narrow instances when public safety is at risk.” Taylor I, 922 F.3d at 335. In the panel’s view, the City had neither demonstrated “how this search bears a relation to public safety,” nor how “delaying a search would result in ‘injury or ongoing harm to the community.’” Id.
In Taylor v. City of Saginaw (6th Cir. Aug. 25, 2021)(Taylor II), the Court addressed the City of Saginaw’s defense that warrantless tire chalking could be justified under the “administrative search” exception to the warrant requirement. The Court cautioned that the exception “is not a free-for-all for civil officers; among other requirements, ‘the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.’” Slip op. at 4-5 (quoting City of Los Angeles v. Patel, 576 U.S. 409, 420 (2015)). Because the City of Saginaw failed to meet that basic requirement, it could not rely upon the administrative search exception. Id. at 5. Nor could the City rely on the greater latitude afforded government in constructing administrative search regimes applicable to heavily-regulated industries. Id. Without much need for discussion, the Court concluded that a municipal parking was not such a heavily-regulated industry — unlike the industries the Supreme Court had identified as heavily-regulated, namely of liquor sales, firearm dealing, mining, or automobile junkyards, “municipal parking plainly does not ‘pose a clear and significant risk to the public welfare.’” Id. (quoting Patel, 576 U.S. at 424).
Nor did it find the special needs exception to the warrant requirement applicable. It saw “no special need” for chalking tires, noting defendant’s concession that the parking enforcement officer’s “job was not impacted in any respect if she did not chalk tires.” Id. at 6. Indeed, it observed, “common-sense commands this conclusion; for nearly as long as automobiles have parked along city streets, municipalities have found ways to enforce parking regulations without implicating the Fourth Amendment.” Id. The Court referenced the use of parking meters, which, of course, generally involves paid municipal parking. (Indeed, using today’s technological successor to the standard parking meter may involve the provision of a great deal of financial information.)
The Court invited yet additional attempts to fit tire chalking within the contours of a recognized exception to the warrant requirement — “[w]e express no opinion on the remaining exceptions to the warrant requirement because we are ‘a court of review, not first view.’” Slip op. at 7 (quoting United States v. Houston, 792 F.3d 663, 669 (6th Cir. 2015)).
Taylor II seems clearly wrong; wrong in a way that trivializes the interests the Fourth Amendment protects. In essence, Taylor II holds that the government cannot control how long drivers park cars in a municipally owned lot by using a method that provides only one piece of information, namely that the vehicle has overstayed the time limit for parking. Moreover, that one piece of information is directly relevant to the government’s exercise of dominion over its own property. More disturbingly, chalking is held to be a violation of the Fourth Amendment even though traffic enforcement officers exercise no discretion whatsoever as to which cars are chalked.
I will make four points. First, tire chalking is a permissible administrative search even though no pre-compliance hearing is afforded drivers who park their vehicles in a municipal lot. Second, tire chalking is permissible under an implicit consent theory — those who park in municipal lots (for free no less) implicitly consent to the chalking of tires upon choosing to use those lots. Third, chalking is less intrusive and has less serious privacy implications than monitoring that is clearly permissible under the Fourth Amendment. Fourth, while the physical intrusion doctrine of Jones is applicable, in terms of privacy (as opposed to the tort of trespass), Taylor is obviously quite distinguishable from Jones.
The Administrative Search Doctrine
This case differs from the typical administrative search case in ways that suggest no pre-search hearing is required. In City of Los Angeles v. Patel, 576 U.S. 409 (2015), as in many administrative search cases, much information is sought or can be revealed during the course of an administrative search. Further, in most administrative search regimes, there is selectivity in terms of the targets of searches. This selectivity is not based on particularized suspicion, which would take the search out of the scope of the administrative search doctrine. In many administrative search cases, the selectivity may be controlled by an administrative enforcement agency rule that governs the selection of targets, i.e., “an administrative plan containing specific, neutral criteria,” such as stopping every fifth motorist or visiting each premises subject to inspection once every three years. See, Marshall v. Barlow’s Inc., 436 U.S. 307, 320-321(1978); Camara v. Municipal Court, 387 U.S. 523, 538-39 (1967).
Patel held that a regulated entity subject to a search must be accorded an opportunity for pre-compliance review of the justification and legitimacy of the search. The case involved a municipal ordinance that required hotel operators to record numerous pieces of information regarding every guest, including: the guest’s name and address, the number of people in the guest’s party; the make, model, and license plate number of any vehicle the guest parked on hotel property; the guest’s date and time of arrival and scheduled departure date; the guest’s room number, the rate charged and amount collected; and the guest’s method of payment. City of Los Angeles v. Patel, 576 U.S. at 412-13 (referencing Los Angeles Municipal Code § 41.49). The ordinance also provided that “hotel guest records ‘shall be made available to any officer of the Los Angeles Police Department for inspection,’ provided that ‘[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.’” Id. at 413. In that context, the Court held that such an administrative search scheme required that the City provide hotel owners the opportunity to object to the search and to obtain a hearing conducted by a neutral magistrate before the search was conducted. Id. at 420-22.
The Court noted that “[a] hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot.” Id. at 421. And that it had previously held that government authorities cannot put business owners to that kind of choice. Id. The Court expressed concern that “[a]bsent an opportunity for precompliance review, the ordinance created an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.” Id. Nothing prevented an officer from demanding a hotel owner turn over his or her registry, or face immediate arrest, even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found. Id.
Chalking tires involves no such potential for abuse. Unlike in Patel, traffic enforcement officers engage in no selectivity. Every car in the lot at the time the parking enforcement officer arrives has its tires chalked. (And, of course, there is no arrest “on the spot,” or at all.) Thus, the practice of chalking tires does not give rise to the sorts of abuses feared the Court feared in Patel. Indeed, it is unclear what a pre-compliance hearing with regard to chalking a driver’s tires would even be about.
Considered as a conventional “administrative search” case, Taylor II is wrong. In light of the complete absence of selectivity in choosing the targets of a search, the practice of chalking tires without providing a pre-compliance hearing can be justified as an administrative search.
Many administrative search cases, and certainly the cases involving heavily-regulated entities, regard government regulation of activities taking place on or the condition of private property. Municipalities that engage in the practice of chalking tires do so as a part of exercising dominion over their own property, namely the limited free public parking spaces they make available in their commercial areas. Thus, in chalking tires of cars parked on municipal property, the municipality is acting as a proprietor of its own property, and not in a regulatory capacity.
The Government should possess the right enjoyed by private landowners to permit use of its property for a limited period of time and engage in “searches,” really innocuous monitoring, aimed solely at determining whether visitors have overstayed their license to use the property. While a precompliance hearing before an official engages in an administrative search may be a necessary safeguard when the government seeks to intrude upon private premises or property (except for property in heavily-regulated entities), it should not be necessary when the government seeks to control government property. That distinction alone justifies modifying the rigor of the requirements Patel imposes upon administrative searches directed at private records systems and private real property. Property and the property-owner’s right to exclude is not just on one side of the equation in Taylor.
More technically, the theory of implicit consent provides a sound basis for chalking tires to determine whether individuals have overstayed time limits for free municipal parking lots. The Government is entitled to exclude individuals from government-owned parking lots. Concomitantly, the government is entitled to permit individuals to use municipally-owned parking lots on condition that (1) the user comply with time limits for parking and (2) consent to the chalking of tires necessary to determine whether they have overstayed their allotted time. The practice of chalking tires is presumably widely known in the municipalities that use that practice. And anyone who does not consent can presumably forgo the privilege of parking in the municipal parking lot, and use less conveniently located unrestricted parking spaces.
The Supreme Court approved a far more intrusive “search” regime on the basis of implied consent in Wyman v. James, 400 U.S. 309 (1971). There, the Supreme Court confronted a Fourth Amendment challenge to social service agency caseworkers’ inspections of aid recipients’ homes pursuant to the Aid to Families with Dependent Children (“AFDC”) program. Citizens unquestionably possess a reasonable expectation of privacy in their dwellings; indeed, the home receives paramount privacy protection. Payton v. New York, 445 U.S. 573, 589-90 (1980). Nevertheless, the Court found that state officials making home inspections, which were grounded neither on individualized suspicion and nor a warrant, had not breached the aid recipients’ expectation of privacy. Accordingly, such home inspections were permissible under the Fourth Amendment. In reaching that conclusion, the Court held that the aid recipient had waived her right to exclude state caseworkers by seeking to participate in the AFDC program. Id. at 317-18, 321-22. In effect, aid recipients had implicitly consented to such searches in seeking and obtaining government aid.
Of course, municipalities could preserve the practice in many states by making explicit what is now implicit. In particular, they could post a sign at the entrance of free municipal parking lots that cars parked in the lot are subject to having their tires chalked, and that by parking in the lot drivers consent to the practice.
The Greater Intrusiveness of Alternative Means of Monitoring Parking Lots
The Fourth Amendment, as interpreted by the United States Supreme Court, embodies a special concern about “general searches.” A “general search” is an unfocused search, not directed toward discovering any particular item, but conducted to uncover possible criminality. Such searches reveal many irrelevant matters, even if they also reveal relevant ones.
As noted earlier, the practice of chalking tires reveals only one piece of information, whether the driver of the car has overstayed the time his or her vehicles is licensed to remain on government premises. In this regard the practice of chalking tires resembles subjecting luggage to drug-sniffing dogs. Canine sniffs reveal only the presence of contraband. In United States v. Place, 462 U.S. 696 (1983), the Court held the practice did not even constitute a “search,” because dog sniffs revealed only on illegal activity. Id. at 707; accord, City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000)(finding dog sniff permissible, but not establishment of a roadblock to “detect evidence of ordinary criminal wrongdoing”); U.S. v. Jacobson, 466 U.S. 109, 123-24 (1984). Canine sniffs were not over-inclusive — i.e., they did not reveal to law enforcement officials an information about legal property the bag’s owner possessed. Id.
Moreover, the information obtained from chalking tires has no permanence, once the car leaves the lot, the record of the car’s presence vanishes for all practical purposes.
Consider an alternative means of enforcing parking time limits. A parking enforcement agent could take pictures of the cars in the lot and then compare them with pictures taken on the next visit. If a car remains in the same position, the enforcement officer would have a basis to issue a ticket for exceeding the time limit for parking. Photographing cars in a public lot is not considered a search — it neither transgresses a reasonable expectation of privacy nor involves any trespass. But it does reveal more information about the vehicle, and its owner — it might certainly include bumper stickers with political or non-political slogans. It can have permanence, in a way chalk marks do not; the photographs taken by parking enforcement officers can be retained by the parking enforcement bureau and shared with police authorities upon request.
Or consider a higher-tech alternative to enforcing parking time limits — the use of license plate scanners, which would indicate the time the car entered or left the parking lot. Such data would almost certainly be stored as a record for some period of time.
Requiring municipalities to adopt means that are more intrusive, in terms of privacy, or to charge visitors for parking, which the Sixth Circuit suggests, should not be required by Fourth Amendment doctrine.
United States v. Jones, on which the Sixth Circuit placed such reliance, is readily distinguishable Taylor. In Jones, officers assigned to a joint narcotics FBI/Metropolitan Polices task force placed a GPS tracker on the suspect’s wife’s vehicle; indisputably, the search was for law enforcement purposes and based on individualized suspicion. 565 U.S. at 402. The “search” in Taylor does not target an individual and is not intended to detect criminal activity; it is used to enforce, by modest fine, the municipality’s rules regarding sharing with others the community’s limited public park space.
Moreover, installation of a GPS device intrudes far more deeply into drivers’ and car owners’ privacy than chalking a car’s tires. The GPS device reveals a wealth of information about the driver or owner of the car, including much that is of no legitimate law enforcement interest. It will reveal every location that the user of the car visits and the route by which the person travels to reach them. This information can provide a significant amount of sensitive information regarding an individual, including the individual’s political beliefs, business relationships, and social relationships, some of which the individual may seek to keep confidential for entirely legitimate reasons. See, Jones, 565 U.S. at 415-16 (Sotomayor, J., concurring)(“some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention”). By contrast, chalking tires reveals one piece of information about an individual’s car, a piece of information directly relevant to the government’s control over its own property. It reveals only whether a vehicle has been on government property longer than it is permitted to be there.
Indeed, Taylor may reveal a flaw in Jones. The Jones “physical intrusion” test seems render inapposite all doctrines developed under the Katz test for determining whether an intrusion constitutes a search. Thus, Jones appears to make irrelevant the holding that highly focused intrusions, which provide one piece of information, may not constitute “searches” in certain circumstances. Even though there is a physical intrusion, the physical intrusion in Taylor has little relevance to informational privacy, unlike the physical intrusion in Jones.
Taylor perhaps reveals the truth of Justice Alito’s criticism of Jones. He remarked: “the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). Jones, 565 U.S. at 424-25.
In short Taylor I, and particularly Taylor II, were wrongly decided. The practice of chalking tires of cars parked in municipal lots, does not violate the Fourth Amendment.
 U.S. v. Jones, 565 U.S. 400, 425 (2012) (Alito, concurring)(surveilling a car using unmarked cars and aerial assistance is not a search under current Fourth Amendment doctrine); see, Florida v. Riley, 488 U.S. 445 (1989)(aerial surveillance); California v. Ciraolo, 476 U.S. 207, 215 n.3 (1986)(same); Dow Chemical Co. v. United States, 476 U.S. 227 (1986)(satellite surveillance).
 I have discussed the importance of location in the analysis of privacy questions previously. Theatrical Investigation: White-Collar Crime, Undercover Operations, and Privacy, 11 WM. & MARY BILL RTS. J. 151, 166-171 (2002-2003).
 Orrin Kerr offered his tentative views on the case in a blogpost. Orin S. Kerr, Chalking Tires and the Fourth Amendment, THE VOLOKH CONSPIRACY, Reason.com (posted 4.23.2019 5:49 AM).
 See, e.g., Amanda Erickson, A Brief History of the Parking Meter, Bloomberg CityLab (April 3, 2012) (last visited Aug. 9, 2021). See, The IEM Group, Smart Parking Meters (last visited Sept. 2, 2021)(“IEM parking meters support virtual tickets, where each transaction is associated with a vehicle. This payment system requires the input of the number plate on an alphanumeric keyboard. Once payment is made, the virtual ticket is saved and can be checked by the enforcement officer on his PDA”).
 Property owner’s right to exclude is one of the most important rights of property ownership. See, e.g., Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2072 (2021)(citing sources); 2 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 2 (1766).
 Bernard W. Bell, Wiretapping’s Fruits, the First Amendment, and the Paradigms of Privacy 10-11 (March 4, 2004)(“Anglo-Saxon tradition has long held the home as particularly sacrosanct, and the Supreme Court has largely honored that tradition.”).
 Accord, Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. 2006); see generally, Walsh v. Erie County Dept. of Job and Family Services, 240 F. Supp. 2d 731 (N. D.Ohio 2003)(distinguishing home visits where the homeowner has not sought government financial assistance).
The Wyman v. James Court offered additional rationales as well, perhaps revealing a discomfort with relying solely on an implied consent theory. The Court noted that authorities had engaged in no snooping, provided the recipient advanced written notice of the inspection, and used no deception in conducting the home inspection — in short, the means of intrusion were “gentle.” Wyman v. James, 400 U.S. at 319-21. I have suggested elsewhere that the decision could also be explained by a conclusion that aid recipients cannot have a right of privacy in the condition of their homes (at least not one that allows them to exclude caseworkers) given the relevance of those conditions to both their continued eligibility for the AFDC program and an assessment of the aid’s efficacy. Theatrical Investigation, supra note 1, 11 WILLIAM & MARY BILL OF RIGHTS JOURNAL at 188 n.153; accord, Legislatively Revising Kelo v. City of New London: Eminent Domain, Federalism, and Congressional Powers, 32 NOTRE DAME JOURNAL OF LEGISLATION 165, 211 n. 353 (2006).
 The law permitting exactions, government conditioning permits on relinquishing certain rights to property, suggests that government can require individuals to waive property rights to obtain a government benefit. See, Nollan v. California Coastal Commission, 483 U.S. 825, 836-37 (1987). Granted there must be a connection between the state’s purpose and an “exaction,” Dolan v. City of Tigard, 512 U.S. 374, 391 (1994)(requiring “rough proportionality” between the exaction and the problems caused by permitting a particular land use) , but any such nexus requirement transposed into the Fourth Amendment context would clearly be met with regard to chalking tires.
 In Verdun v. City of San Diego, 3:19-cv-00839-AJB-WVG (S.D. Calf. March 23, 2020), the District Judge found San Diego’s practice of tire-chalking unconstitutional. The Court rejected the City’s implied consent argument, though the argument was based on a different premise than that presented above. The City analogized tire chalking to knocking on the front door of a private home. The District Judge reasoned that when law enforcement officers knock on a front door with a law enforcement purpose rather than the non-law enforcement purposes that lead most visitors to knock on front doors, there is no implicit consent. Similarly, the fact that leafleters might be viewed as having implied consent to touch a parked car to deliver their leaflets, did not establish implied consent to touch the car for law enforcement purposes. Of course, the City’s argument and the Court’s response, do not address the point made above, that the private citizen has placed his or her vehicle on the government’s property based on the government’s limited license for the private citizen to do so. The Verdun Court does not discuss Wyman v. James.
 Wiretapping’s Fruits, the First Amendment, and the Paradigms of Privacy, supra note 6, at 22-23
 Kyllo v. United States, 533 U.S. 27, 31 (2001), provides an interesting contrast. Kyllo involved the use of thermal imaging devices to determine the heat signature of particular buildings. In Kyllo, law enforcement used such devices to determine whether marijuana was being grown in a home. Law enforcement officers typically used such devices for that narrow purpose. Nevertheless, the Court classified thermal imaging a search because thermal imaging devices could reveal other information about a home as well; indeed more sophisticated devices might make it possible to discern all human activity occurring within the home. Id. at 35-36.
 Arguably the permanence of a record of a “search” is relevant to its intrusiveness. See, Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. REV. 989, 1041-44 (1995)(relying on the problems of dissemination to distinguish observing a person in a public place and photographing a person in a public place); Theatrical Investigations, supra note 1, 11 WM. & MARY BILL RTS. J. at 182-84 (comparing “undercover” individuals repetition of conversations and recording them); Wiretapping’s Fruits, the First Amendment, and the Paradigms of Privacy, supra note 6, at 30-31.
 Carol Gorga Williams and Larry Higgs, Shopping at the Freehold Mall? Big Brother will be watching (Aug. 15, 2013); Kaitlyn Schallhorn, N.J. Mall Installs License Plate Scanners To Track For Criminals, Washingtonexaminer.com August 16, 2013 10:29 AM.
 Indeed, the officers had sought and obtained a warrant to attach the GPS device, but had not complied with the warrants’ terms. Id.