Last month, the US Court of Appeals for the Sixth Circuit issued a surprising ruling. It held that the police must have probable cause and a warrant before marking the tires of a parked car with chalk to determine whether the car remained in place after the posted time for parking has passed. This column will consider the wisdom of the court’s ruling.
To evaluate a decision about Fourth Amendment searches, it is useful to understand the legal meaning of “search.” Starting in 1967, in Katz v. United States, the Supreme Court defined the term as referring to the government’s invasion of an individual’s reasonable expectation of privacy. If a person has a reasonable expectation of privacy in a telephone conversation, then police may not use listening devices to record such a conversation unless they have a search warrant. And that is exactly what the Court said in Katz (or actually, what Justice Harlan said in a concurring opinion, which later became what the Court described as the Katz rule).
If we examine the phrase “reasonable expectation of privacy,” we find at least two components: whether a person in fact expects this and whether, from some independent perspective, it is appropriate, sensible, or legitimate to demand that this expectation be fulfilled. We can understand the word “reasonable,” in turn, in two different ways, each of which has been part of the search doctrine. One is that it is empirically realistic to expect privacy in such circumstances. Absent police officer/governmental intrusions, then, one could expect one’s words on the telephone (or the inside of one’s home) to remain hidden from others.
A second meaning of reasonable has a normative rather than a descriptive connotation. It turns on whether society regards the individual’s expectation, realistic or not, as a worthy one, entitled to be honored. An individual might, for example, be impoverished and live in a high-crime neighborhood in an apartment with an inadequate lock on the door. Under the first meaning of “reasonable,” it would be unreasonable for such an individual to expect privacy, because reality suggests that other people with ill intent will break into this person’s home and see everything he might conceal there. If he expects privacy, he is engaging in wishful thinking. Yet I suspect that not even one justice on the US Supreme Court would deny such an individual a privacy right in his home. Society regards as sacrosanct an individual’s privacy in his own home, however humble and vulnerable to predators.
Conversely, there are unprotected areas where it is very realistic but normatively unreasonable to expect freedom from observation. “A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’”
A burglar would be rational in expecting to remain free from being seen there. Yet a burglar would enjoy no Fourth Amendment reasonable expectation of privacy in the cabin in question. That is because of the normative definition of “reasonable.” People unlawfully occupying other people’s homes and thus engaging in burglary do not deserve privacy. It is therefore unreasonable for them to expect it, even if it is realistic.
Before returning to the Sixth Circuit case, consider a second meaning that the Court has given to the word “search” in the Fourth Amendment. This meaning goes back to the period prior to Katz and has returned with cases like Jones v. United States and Florida v. Jardines and holds that a search occurs when government officials trespass on one of the areas the Fourth Amendment enumerates (persons, houses, papers, and effects) and gather information through that trespass. The Court held in Jones, for instance, that attaching a GPS device to a car and then collecting the resulting location information is a search subject to the Fourth Amendment’s requirements.
Now we can consider the Sixth Circuit decision. Police have been using a clever technique to find out whether drivers are leaving their cars parked after the posted time limit has passed. The officers mark a car’s tires with chalk and then return to see if the chalked car is still there when the parking time has expired. If so, then the officer knows that the person who parked the car has violated the law, and the officer can issue a citation. The question before the court was whether that use of chalk was a search requiring a warrant.
The Sixth Circuit held that chalking qualified as a search. The judges reasoned under the old/new approach to defining a search that marking a person’s tires with chalk constitutes a trespass on constitutionally protected “effects”—listed in the Fourth Amendment. The officer uses that trespass, moreover, to gather information. Q.E.D.
But does that logic hold up to scrutiny? The first step, the trespass, is plainly established. Indeed, a friend told me that the chalk is very adhesive and difficult to remove without a high-pressure hose, so it is an obnoxious trespass. And importantly, the chalking enables the officer to gather information as well. The problem is that the chalk is nothing like the GPS in Jones, though the Sixth Circuit court draws the analogy—it is not a device that gathers data. Chalk provides information entirely through human inferences. It is like putting a tissue in the door and returning later to see whether it has fallen down, as an indicator of whether anyone has opened the door. Whether the car has overstayed its welcome in a parking space is not a secret fact. An officer could sit and watch the car and find out the same thing without chalk. Using the chalk is simply a time-saver, not due to a high-tech capacity but due to the visibility of chalk marks on a tire. The chalk is not uncovering otherwise secret facts any more than a post-it placed inside a long book.
If you accept this analysis, then you see that the Jones trespass plus information test for a search is incomplete. It requires some description of the sort of information that gets disclosed. It cannot be utterly un-secret in its implications like how long a car has been in an outdoor parking space. And it cannot be entirely criminal in nature, such as whether someone did or did not stay parked illegally. It must be the sort of information in which people hold a reasonable expectation of privacy. Having parked in a space for an impermissible period of time is no more private than having kept illicit drugs on one’s person that a police dog can smell by walking nearby. And once we need that test, combining trespass and information-gathering and some privacy interest in that information, it seems the trespass plus information test should perhaps fall by wayside. We could simply return to the Katz test that has more or less worked quite well since 1967.