Alison Taylor is the latest participant in one of the great American pastimes: seizing upon an unwelcome inconvenience, and bellowing unto the state, "Debate me!" Last week, the 6th Circuit Court of Appeals ruled in her favor, declaring chalking tires for parking enforcement a warrantless search of personal property under the Fourth Amendment.
Wearied by her 15th citation, Taylor—a prolific earner of parking tickets in her small Michigan town of Saginaw—sued the city and its parking enforcement officer. Saginaw used a method of parking enforcement known as chalking, in which a car's tire is marked with chalk at regular increments to see if the car has overstayed the time limit.
Taylor's lawsuit argued that chalking tires involves an intrusion to gain information, and as such is a search of personal property under the Fourth Amendment, which protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
The 6th Circuit Court unanimously agreed. Now, in the 6th Circuit states of Michigan, Ohio, Kentucky, and Tennessee, chalking is probably unconstitutional without a warrant. (The court has established chalking is a search, but Saginaw still has a chance to prove that it's a reasonable warrantless search during its forthcoming trial. How might it prove it? Legal scholars say that a suspicionless search can be legal if it's applied without discrimination, as with checkpoints at airports and borders. If the town chalks everyone who parks downtown, a similar "reasonableness" exception might apply.)
To those within and without the legal profession, the ruling is strange. "It's an interesting and unusual case," says Stephen Smith, retired federal judge and Director of Fourth Amendment & Open Courts at Stanford University''s Center for Internet and Society.
Part of the reason the decision is so bizarre is that the court's reasoning is extremely formalistic—concerned with the letter of the law more than its substance. "When you think about what a search is, normally you wouldn't think a chalk mark would count," says Matthew Kugler, a privacy law professor at Northwestern University. "It's more a way of keeping a record."
However odd the ruling may seem, it's a clear consequence of the direction that the Supreme Court and many legal scholars have been pushing Fourth Amendment law over the last decade: a return to the preeminence of a property-based conception of Fourth Amendment protections, perhaps at the expense of courts fully considering expectations of privacy.
What exactly constitutes a search under the Fourth Amendment, let alone a reasonable one, is "a term of art," Smith says. But traditionally, for the government to frisk you, or, say, riffle through the house or car that you own, it needed a warrant or immediate probable cause. Up until 1967, courts' understanding of Fourth Amendment protections were dominated by the property doctrine, which—relying on centuries of common law—focused on protecting physical property ownership from warrantless searches.
A massive shift occurred with the Supreme Court's 1967 ruling in Katz v. United States that listening to phone calls (even those conducted in a public phone booth) without a warrant was an unconstitutional search because it violated a "reasonable expectation of privacy." There was no personal property being searched, so the property doctrine didn't apply, but the court said that personal phone conversations were deserving of protection.
This opinion introduced the privacy doctrine, moving Fourth Amendment protections out of the concrete and into the realm of metaphysics that would come to dominate courts' thinking about the Fourth Amendment for much of the next four decades. A shift toward the privacy doctrine, however, didn't necessarily mean uniform expansion of protections against searches. In 1984, for example, the Supreme Court ruled that police did not need a warrant to cross onto privately owned fields affixed with NO TRESPASSING signs, because open fields did not "legitimately demand privacy."
However, the long dormant property doctrine has awoken from its hibernation and is returning to prominence. Of late, the Supreme Court's preferred rubric for Fourth Amendment cases has been a traditional, property-based approach. "This is the direction the Supreme Court has been moving in the last decade, beginning with the case of United States v. Jones," says Christopher Slobogin, a Fourth Amendment scholar at Vanderbilt Law School.
In its 2012 Jones decision, the Supreme Court ruled that placing a GPS tracking device on someone's car is a Fourth Amendment search, and, as such, one that requires a warrant. Though some of the court's members felt that this kind of tracking violated a reasonable expectation of privacy, a majority could only agree that the physical intrusion of private property—however minor—was unconstitutional. (The 6th Circuit's opinion in the chalking case relies heavily on Jones' precedent.) The following year the Supreme Court ruled the use of a drug-sniffing dog from outside a person's property to smell inside their home was a search, following property doctrine reasoning.
As the property doctrine has rebounded in popularity, a growing group of scholars and judges are pushing for the extension of property rights from the physical to the digital world, to things like location data and Web cookies, Slobogin says. In a dissenting opinion published last year in a case about cell phone location data, Supreme Court Justice Neil Gorsuch called for the extension of property rights to the digital sphere and for the 1967 "reasonable expectation" case to be overturned, eliminating the privacy doctrine. For Gorsuch, the government has no business protecting privacy, only property. "It will be interesting to see whether the Supreme Court moves in that direction in the coming years," Smith says.
But why has the Property Doctrine come back into vogue? One reason is that it's a bit more concrete than the squishier privacy doctrine, which has been criticized for being too broad, or alternatively too narrow, or difficult to apply. "The reasonable expectation [of privacy] test is a vessel into which many fluids can be poured," Kugler says.
Many progressive legal scholars dislike the privacy doctrine because they fear it permits courts to narrow the scope of the Fourth Amendment to cover very few situations—greenlighting potentially abusive behavior by police and intelligence agencies. More conservative jurists are wary of it for the opposite reasons: Perhaps a reasonable person could expect privacy of almost anything, and then police action and governmental surveillance would be severely limited.
Property law didn't anticipate the digital world, but it does offer centuries of established law where some conservatives and progressives can find common ground, whereas, "privacy is an incredibly amorphous concept," Slobogin says. "And the fear is, that is very manipulable."
However, a more cynical reading of the Supreme Court's motives might also explain its return to property doctrine: The justices finally see themselves at risk of invasive searches. Prior to newer technological developments, the kind of people whose Fourth Amendment rights have usually been scrutinized by the court come from very different circumstances than the justices, according to Slobogin. "Up until relatively recently, it's mostly, you know, other people who have been been affected by the Supreme Court rulings [regarding the Fourth Amendment]," he says. "But technology has basically allowed them to be equal opportunity privacy offenders, and, as a result, we've got a court that's a little bit more attentive to the scope of the Fourth Amendment than they were before."
During the oral arguments of Jones, Chief Justice John Roberts laid this concern out plainly. "You think there would also not be a search if you put a GPS device on all of [the Supreme Court Justices'] cars, monitored our movements for a month?" he asked Deputy Solicitor General Michael Dreeben. Roberts would later sign the majority opinion ruling the practice an unconstitutional search—on property doctrine grounds.
Back in Michigan, Taylor's chalking argument undoubtedly benefited from judicial winds that have shifted in her favor over the last decade, but it remains to be seen whether her case will shift any winds itself. Smith, for one, doesn't predict the case getting Supreme Court attention. "It's just not that important an important issue," he says. "The courts are worrying about electronic searches and digital searches involving computers and cell phones."
It's possible, though, that one of those worrisome digital search cases could involve whatever replaces chalking. If chalking is unconstitutional, electronic searches might become the standard method of parking enforcement. "That is one of the ironic effects of this case," Kugler says. "By adopting such a formal reading of what a search is, the court is encouraging a more intrusive surveillance regime."
Slobogin sees the ruling as highly consequential, if it stands. Following the court's reasoning, ringing a doorbell or knocking on a window could be a search if there's not a sidewalk leading up to it, he says. It also could possibly also extend to digital property—not on privacy, but digital trespass grounds.
Wherever it may lead, the chalking ruling is now one of many examples in the jurist's arsenal.
"Many doctrinal tests don't have a ton of inherent content and to understand them you have to look to the examples," Kugler says.
The Fourth Amendment might be written in pen, but its interpretations are written in chalk." "It's an area that is difficult to harmonize," Smith says. "Certainly even all the Supreme Court decisions, much less lower court decisions."