Earlier this week, the Sixth Circuit issued a decision addressing a constitutional challenge to the practice of “chalking” the tires of parked cars for parking enforcement purposes. As we noted, that decision garnered a lot of attention from the national media.
Yesterday, the Court issued an amended opinion clarifying the scope of its ruling. The amended opinion contains the following new paragraph in its conclusion:
Taking the allegations in Taylor’s complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement—the “community caretaking” exception and the motor-vehicle exception—do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.
While the Sixth Circuit has thus held that chalking constitutes a “search” under Jones, the amended opinion stops short of declaring that such “searches” will always be unreasonable (or never fall under an exception to the warrant requirement).
The amended opinion thus tees up a debate over the “reasonableness” of the search on remand. Long story short: Ms. Taylor has survived the motion-to-dismiss-stage, but she has not yet evaded the parking authorities.