“Despite the low-tech nature of the investigative technique … , the chalk marks clearly provided information.”

“The City commences its search on vehicles that are parked legally, without probable cause or even so much as individualized suspicion of wrongdoing.”

— Taylor v. City of Saginaw

We’ve nearly all had the experience. You park in a downtown area where parking is limited. Perhaps some of the spots have meters, but others simply have signs limiting the amount of time you can remain in the space. The times aren’t arbitrary — they’re intended to allow a reasonable period to shop, eat, conduct business, and then open the space up for others to do the same.

But to make sure that the spaces aren’t abused, city police departments use a decidedly low-tech method of making sure that cars don’t stay too long. In many cities, including Columbus and Delaware, the police department places a small chalk mark on the tire of the vehicle. If the car, and the mark, are in the same place hours later, then a parking citation is issued to the owner. The practice has gone on so long, and is so widely used, that no one really thought to consider whether the action was constitutional or not.

And really, for years, there wasn’t much reason to wonder about it. The logic behind the justification for the mark seemed simple. The police weren’t entering the vehicle, or searching it. They weren’t damaging or disturbing it. They weren’t going onto private property or even looking inside the vehicle. They were simply walking up to a car in a public place and placing a small, easily removable chalk mark on the tire.

For five decades, the analysis of whether this kind of contact passed constitutional muster was done under a test set down in the case of Katz v. United States. Under Katz, courts looked at two things. First, did the member of the public have an expectation of privacy in the situation that they were in. Second, was that expectation of privacy “reasonable.” Analyzed under the Katz test, it was difficult to see how a person could expect that the tire of their vehicle, parked in a public place, was going to be private.

Times change, however, and so does the law. And when the U.S. Supreme Court hands down major rulings, those rulings sometimes cause unexpected ripples in other places. Seven years ago, in United States v. Jones, the Supreme Court added to the Katz test. Jones involved the placing of GPS devices on a car in a public place. In short, Jones adds a second analysis if the search involves a physical intrusion of private property. If so, the court must ask if the search was in a constitutionally protected area, and if it was to gain information. Knowing that this new test had been created in the GPS search case, an attorney in Saginaw, Michigan, decided to sue the city to test how the GPS analysis would be applied to the chalking of tires. His initial lawsuit was thrown out by a federal trial court, but earlier this week, the federal appeals court (which also governs Ohio cases) reinstated it.

The appeals court found that under common law, any physical contact with the property of another person was a trespass. And they also concluded that the act of chalking the tires was most definitely to gather information — information about when the car was parked there, how long it remained there, and whether a parking infraction had occurred. The GPS test from the Jones case therefore being satisfied, the appeals court overturned the trial court decision dismissing the case, and sent the matter back to the trial court to proceed.

Now, it’s important to note a few things. First, news outlets have largely reported that this case is over and done, and the ruling is final. That’s not really accurate. The appeals court has simply overturned the “summary judgment” ruling from the trial court (granted, they were pretty clear in their reasoning as to why). The trial court still has to hear the underlying case, and then the whole thing will be subject to more appeals. It could even get back to the Supreme Court again.

And that means that cities have to figure out what to do for the time being. The City of Columbus has already announced that it will cease chalking tires. When I contacted Delaware City officials on Wednesday, they told me that they have discontinued chalking tires, but will chalk the pavement next to the car. They are also considering switching to a much more high tech enforcement method — and one that will work in the rain, too — taking pictures of where cars are parked.

Thus, the chalk giveth, but the camera may taketh away.