11 ms·

Definitely not a lawyer, and I know a lot of places are moving to photo enforcement of parking anyway, but it's hard for me to understand why a chalk mark on a

by krisrm 7y ago

Definitely not a lawyer, and I know a lot of places are moving to photo enforcement of parking anyway, but it's hard for me to understand why a chalk mark on a tire would be determined an "unreasonable" search by the court.

codezero 7y ago
It really feels like a stretch if you ask me. But since the car is private property, even though it's on a public road, the mark itself is an "action" taken by the police against your property despite not having committed any crime. I'm wondering how many other weird interpretations of this new ruling one could come up with where it would apply to a bunch of other things.
- saynay 7y ago
  I wonder if they only marked the road, and not the vehicle, if that would be sufficient.
- efraim 7y ago
  Would a police officer looking at tire tread depth also be considered an illegal search?
  - pmiller2 7y ago
    Anything in public and in plain sight is considered not a search wrt the 4th. Otherwise, cops could never be eyewitnesses in court.
  - abruzzi 7y ago
    Not if they had reason to believe that your tires were worn out. The problem is that your tire is being marked when there is no evidence that you will overstay your parking. Everyone is marked indiscriminately. At least, thats how I understood the description.
SilasX 7y ago
Ditto. I'm reminded of the practice of police officers touching the tail light at the start of a traffic stop to leave a mark of their presence as later evidence [1]. Is that a search too? A little colored talcum powder on the wheel seems like such a trivial, short-term intrusion that I just don't see the issue. Those perfume spraying salespeople at department stores routinely do something much more invasive. [1] http://mentalfloss.com/article/502605/reason-police-officers-tap-your-taillight-when-they-pull-you-over http://mentalfloss.com/article/502605/reason-police-officers...
- floatingatoll 7y ago
  The various levels of governments are generally is not permitted “trivial, short-term intrusions”, regardless of the duration or triviality. Specific exceptions are permitted in certain circumstances, which is why (for example) firefighters can smash your windows and run a fire hose through them if you block a fire hydrant.
  - SilasX 7y ago
    You're either being overly pedantic or wrong. Why is a traffic stop limited to 20 minutes if the duration never matters? Why are DUI checkpoints? Edit: I'm well aware that circumstances can generate cause for intrusion, which, if we're going to be that pedantic, also refutes 'governments are generally is not permitted “trivial, short-term intrusions”, regardless of the duration or triviality.'
    - floatingatoll 7y ago
      Traffic stops are not limited to 20 minutes. They are limited to the time reasonably necessary to conclude the traffic stop and either release the driver or, with probable cause, escalate to investigation and/or arrest. Delays of far less than 20 minutes for the purpose of generating probable cause through drug dogs have been found illegal: https://ecf.ca8.uscourts.gov/opndir/14/01/131176P.pdf https://ecf.ca8.uscourts.gov/opndir/14/01/131176P.pdf DUI checkpoints were found by the Supreme Court to be a specific instance of permissible intrusion in service of the public good, as the benefits of the theoretically-impermissible search outweigh the trivial, short-term intrusion: https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1436&context=plr https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=... Both cases clearly indicate that while the trivial, short-term intrusions are normally unacceptable, the public good in each circumstance outweighs the violation of constitutional rights. In the chalking case, the court found no cause sufficient to justify the violation. It seems likely it will be appealed to SCOTUS, which I’m quite looking forward to if they accept it! I encourage you to look up other such cases; I suspect you’ll find that violations of the general principle against any intrusion, regardless of duration, will be carefully scoped to ensure they cannot be generalized.
rayiner 7y ago
The 4th amendment requires a warrant for actions that would constitute a trespass at a common law. (Under modern interpretations, a warrant is required for some things that don't constitute a trespass, but most people agree that a warrant is required at least for things that are a trespass.) Chalking your car is a trespass to chattels (personal property) and so requires a warrant.
- SilasX 7y ago
  Is there actual case law about someone being prosecuted for the trespass of putting chalk at the bottom of someone's tire? How about sneezing? What about leaving a fingerprint on someone's car, which (per my uncle comment) police routinely do without enough evidence for a search, and which ordinary people do all the time? Sticking a flyer in the windshield?
  - rayiner 7y ago
    The Court of Appeals cited the Restatement of Torts (a treatise articulating general principles of common law) for the definition of trespass to chattels: > In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area.Though Jonesdoes not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is “an act which brings [about] intended physical contact with a chattel in the possession of another.” Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, “[a]n actor may . . . commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object.” Id.Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor’s vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so,even though “no damage [is done] at all.” Jones, 565 U.S. at 405 (quoting Entickv. Carrington,95 Eng. Rep. 807, 817 (C.P.1765)) The Restatement explains, in Section 218, that liability for trespass generally requires some sort of injury or deprivation of use. So you can't sue someone just for touching your car. But it also explains in Section 217 that the trespass itself can occur absent injury or dispossession, and that trespass can have legal significance even if it is not directly actionable.
rtkwe 7y ago
The reasonableness of the search never really comes into factor though because there's no basis for the 'search', no suspicion of wrongdoing, so how minimally invasive it is doesn't matter.
thaumasiotes 7y ago
Based on the text of the article, it sounds like the search is "unreasonable" because it is performed against cars that haven't done anything wrong. When they apply the chalk, the car is presumably under the parking limit. It's when they later check on the chalk that the car is over the limit.
- deathanatos 7y ago
  When cars are stopped at a DUI checkpoint, the vast majority of the drivers haven't done anything wrong, and there's no reason to suspect any of them have done anything wrong. Nonetheless, such stops have been upheld as "reasonable". From Wikipedia[1], > The Supreme Court held that Michigan had a "substantial government interest" to advance in stopping drunk driving, and that this technique was rationally related to achieving that goal (though there was some evidence to the contrary). The Court also held that the impact on drivers, such as in delaying them from reaching their destination, was negligible, and that the brief questioning to gain "reasonable suspicion" similarly had a negligible impact on the drivers' Fourth Amendment right from unreasonable search (implying that any more detailed or invasive searches would be treated differently). Applying a balancing test, then, the Court found that the Constitutionality of the search tilted in favor of the government. Assuming one agrees with that ruling, I'm not seeing how chalking cars isn't a sufficiently minimal "reasonable" search to allow the government to enforce things it has an interest in. (Assuming also that parking enforcement qualifies as a "substantial government interest" — which, IDK, perhaps it doesn't.) [1]: https://en.wikipedia.org/wiki/Michigan_Department_of_State_Police_v._Sitz https://en.wikipedia.org/wiki/Michigan_Department_of_State_P...
  - tantalor 7y ago
    Chalking fails the balancing test because parking enforcement is about generating revenue, not public safety.
  - thaumasiotes 7y ago
    I'm not providing a legal opinion, just my view of what it says in the news article. I have no opinion on the legality. From a practical perspective, I don't see any problem with chalking and I think this is a mistake on the part of the court.

by krisrm 7y ago

codezero 7y ago

It really feels like a stretch if you ask me. But since the car is private property, even though it's on a public road, the mark itself is an "action" taken by the police against your property despite not having committed any crime. I'm wondering how many other weird interpretations of this new ruling one could come up with where it would apply to a bunch of other things.

saynay 7y ago
I wonder if they only marked the road, and not the vehicle, if that would be sufficient.
efraim 7y ago
Would a police officer looking at tire tread depth also be considered an illegal search?
- pmiller2 7y ago
  Anything in public and in plain sight is considered not a search wrt the 4th. Otherwise, cops could never be eyewitnesses in court.
- abruzzi 7y ago
  Not if they had reason to believe that your tires were worn out. The problem is that your tire is being marked when there is no evidence that you will overstay your parking. Everyone is marked indiscriminately. At least, thats how I understood the description.

SilasX 7y ago

Ditto. I'm reminded of the practice of police officers touching the tail light at the start of a traffic stop to leave a mark of their presence as later evidence [1]. Is that a search too? A little colored talcum powder on the wheel seems like such a trivial, short-term intrusion that I just don't see the issue. Those perfume spraying salespeople at department stores routinely do something much more invasive. [1] http://mentalfloss.com/article/502605/reason-police-officers-tap-your-taillight-when-they-pull-you-over http://mentalfloss.com/article/502605/reason-police-officers...

floatingatoll 7y ago
The various levels of governments are generally is not permitted “trivial, short-term intrusions”, regardless of the duration or triviality. Specific exceptions are permitted in certain circumstances, which is why (for example) firefighters can smash your windows and run a fire hose through them if you block a fire hydrant.
- SilasX 7y ago
  You're either being overly pedantic or wrong. Why is a traffic stop limited to 20 minutes if the duration never matters? Why are DUI checkpoints? Edit: I'm well aware that circumstances can generate cause for intrusion, which, if we're going to be that pedantic, also refutes 'governments are generally is not permitted “trivial, short-term intrusions”, regardless of the duration or triviality.'
  - floatingatoll 7y ago
    Traffic stops are not limited to 20 minutes. They are limited to the time reasonably necessary to conclude the traffic stop and either release the driver or, with probable cause, escalate to investigation and/or arrest. Delays of far less than 20 minutes for the purpose of generating probable cause through drug dogs have been found illegal: https://ecf.ca8.uscourts.gov/opndir/14/01/131176P.pdf https://ecf.ca8.uscourts.gov/opndir/14/01/131176P.pdf DUI checkpoints were found by the Supreme Court to be a specific instance of permissible intrusion in service of the public good, as the benefits of the theoretically-impermissible search outweigh the trivial, short-term intrusion: https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1436&context=plr https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=... Both cases clearly indicate that while the trivial, short-term intrusions are normally unacceptable, the public good in each circumstance outweighs the violation of constitutional rights. In the chalking case, the court found no cause sufficient to justify the violation. It seems likely it will be appealed to SCOTUS, which I’m quite looking forward to if they accept it! I encourage you to look up other such cases; I suspect you’ll find that violations of the general principle against any intrusion, regardless of duration, will be carefully scoped to ensure they cannot be generalized.

rayiner 7y ago

The 4th amendment requires a warrant for actions that would constitute a trespass at a common law. (Under modern interpretations, a warrant is required for some things that don't constitute a trespass, but most people agree that a warrant is required at least for things that are a trespass.) Chalking your car is a trespass to chattels (personal property) and so requires a warrant.

SilasX 7y ago
Is there actual case law about someone being prosecuted for the trespass of putting chalk at the bottom of someone's tire? How about sneezing? What about leaving a fingerprint on someone's car, which (per my uncle comment) police routinely do without enough evidence for a search, and which ordinary people do all the time? Sticking a flyer in the windshield?
- rayiner 7y ago
  The Court of Appeals cited the Restatement of Torts (a treatise articulating general principles of common law) for the definition of trespass to chattels: > In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area.Though Jonesdoes not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is “an act which brings [about] intended physical contact with a chattel in the possession of another.” Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, “[a]n actor may . . . commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object.” Id.Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor’s vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so,even though “no damage [is done] at all.” Jones, 565 U.S. at 405 (quoting Entickv. Carrington,95 Eng. Rep. 807, 817 (C.P.1765)) The Restatement explains, in Section 218, that liability for trespass generally requires some sort of injury or deprivation of use. So you can't sue someone just for touching your car. But it also explains in Section 217 that the trespass itself can occur absent injury or dispossession, and that trespass can have legal significance even if it is not directly actionable.

rtkwe 7y ago

The reasonableness of the search never really comes into factor though because there's no basis for the 'search', no suspicion of wrongdoing, so how minimally invasive it is doesn't matter.

thaumasiotes 7y ago

Based on the text of the article, it sounds like the search is "unreasonable" because it is performed against cars that haven't done anything wrong. When they apply the chalk, the car is presumably under the parking limit. It's when they later check on the chalk that the car is over the limit.

deathanatos 7y ago
When cars are stopped at a DUI checkpoint, the vast majority of the drivers haven't done anything wrong, and there's no reason to suspect any of them have done anything wrong. Nonetheless, such stops have been upheld as "reasonable". From Wikipedia[1], > The Supreme Court held that Michigan had a "substantial government interest" to advance in stopping drunk driving, and that this technique was rationally related to achieving that goal (though there was some evidence to the contrary). The Court also held that the impact on drivers, such as in delaying them from reaching their destination, was negligible, and that the brief questioning to gain "reasonable suspicion" similarly had a negligible impact on the drivers' Fourth Amendment right from unreasonable search (implying that any more detailed or invasive searches would be treated differently). Applying a balancing test, then, the Court found that the Constitutionality of the search tilted in favor of the government. Assuming one agrees with that ruling, I'm not seeing how chalking cars isn't a sufficiently minimal "reasonable" search to allow the government to enforce things it has an interest in. (Assuming also that parking enforcement qualifies as a "substantial government interest" — which, IDK, perhaps it doesn't.) [1]: https://en.wikipedia.org/wiki/Michigan_Department_of_State_Police_v._Sitz https://en.wikipedia.org/wiki/Michigan_Department_of_State_P...
- tantalor 7y ago
  Chalking fails the balancing test because parking enforcement is about generating revenue, not public safety.
- thaumasiotes 7y ago
  I'm not providing a legal opinion, just my view of what it says in the news article. I have no opinion on the legality. From a practical perspective, I don't see any problem with chalking and I think this is a mistake on the part of the court.