Petition for Writ of Certiorari — Andre Verdun, et al., Petitioners v. City of San Diego, California, et al.
Supreme Court briefMar 24, 2023
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No. 22-____
In the Supreme Court of the United States
________________________________________
ANDRE VERDUN AND IAN ANOUSH GOLKAR, ON BEHALF
OF THEMSELVES AND A CLASS OF ALL OTHERS
SIMILARLY SITUATED, PETITIONERS
v.
CITY OF SAN DIEGO AND SAN DIEGO
POLICE DEPARTMENT
________________________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________
Daryoosh Khashayar
KHASHAYAR
LAW GROUP
12636 High Bluff Dr.,
Ste. 400
San Diego, CA 92130
Ramin Hariri
HARIRI LAW GROUP
12526 High Bluff Dr.,
Ste. 300
San Diego, CA 92130
Shay Dvoretzky
Counsel of Record
Parker Rider-Longmaid
Sylvia O. Tsakos
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Ave. NW
Washington, DC 20005
202-371-7000
shay.dvoretzky@skadden.com
Counsel for Petitioners
i
QUESTION PRESENTED
The Fourth Amendment protects “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” Without a warrant or individualized suspicion, a search is unconstitutional unless it falls within
one of “a few specifically established and well-delineated exceptions” to the warrant requirement. City of
Los Angeles v. Patel, 576 U.S. 409, 419 (2015) (citation
omitted). The Court has repeatedly cautioned against
expanding those “jealously and carefully drawn” exceptions, Jones v. United States, 357 U.S. 493, 499
(1958), beyond what the “Court has recognized,”
Caniglia v. Strom, 141 S. Ct. 1596, 1599 (2021).
One of those exceptions is the “administrative
search” exception. Administrative searches have as
their “primary purpose” something other than general
crime control, and unless the search affords an opportunity for precompliance review, it must be closely
tied to a serious, clear, and specific public safety or
health risk. Patel, 576 U.S. at 420; see id. at 424.
Those vital interests are things like stopping crossborder smuggling and preventing drunk-driving.
The City of San Diego uses tire-chalking—where
parking officers draw a chalk mark on the tire of every
car in a particular location, for purposes of tracking
the car’s movement—to serve generalized interests,
like compliance with parking restrictions and minimizing traffic congestion, without affording an
opportunity for precompliance review.
The question presented is whether tire-chalking
falls outside the administrative-search exception to
the warrant requirement and thus violates the Fourth
Amendment.
ii
RELATED PROCEEDINGS
United States Court of Appeals (9th Cir.):
Verdun v. City of San Diego, No. 21-55046 (Oct.
26, 2022)
United States District Court (S.D. Cal.):
Verdun v. City of San Diego, No. 3:19-cv-000839AJB-WVG (Jan. 4, 2021)
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...........................................i
RELATED PROCEEDINGS ...................................... ii
TABLE OF AUTHORITIES ........................................ v
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 4
JURISDICTION .......................................................... 4
CONSTITUTIONAL PROVISION INVOLVED ........ 5
STATEMENT .............................................................. 5
A. Legal background ........................................... 5
B. Factual and procedural background .............. 7
REASONS FOR GRANTING THE PETITION ....... 11
I.
The Ninth Circuit split from the Sixth
Circuit by holding tire-chalking
constitutional under the administrativesearch exception. ................................................. 13
A. In the Sixth Circuit, the administrativesearch exception cannot justify tirechalking, and neither can the
community-caretaking or automobile
exceptions...................................................... 13
B. The Ninth Circuit holds that tirechalking is constitutional under the
administrative-search exception. ................. 17
C. San Diego’s tire-chalking scheme would
be unconstitutional in the Sixth Circuit. ..... 22
II. The Ninth Circuit’s decision is wrong. ............... 23
A. Tire-chalking violates the Fourth
Amendment and cannot be justified
iv
TABLE OF CONTENTS
(continued)
Page
under the administrative-search
exception to the warrant requirement......... 23
1. Warrantless, suspicionless searches are
unconstitutional unless they fall within
one of a limited number of narrow
exceptions to the warrant requirement. 23
2. Unless there is an opportunity for
precompliance review, a warrantless
administrative search is reasonable only
if it is necessary to address a serious,
clear, and specific public health or safety
risk. ......................................................... 24
3. Tire-chalking doesn’t qualify for the
administrative-search exception because
it doesn’t address a serious, clear, and
specific public safety or health risk. ...... 27
B. The Ninth Circuit erred in holding that
tire-chalking qualifies as a permissible
administrative search................................... 31
III. This case is the ideal vehicle to address this
important question. ............................................ 33
CONCLUSION .......................................................... 36
Appendix A
Court of appeals opinion,
October 26, 2022 ...................... 1a
Appendix B
Order granting the City of
San Diego’s Motion for
Summary Judgment,
January 4, 2021 ..................... 54a
v
TABLE OF AUTHORITIES
Page(s)
CASES
Arizona v. Gant,
556 U.S. 332 (2009) ...................................... 2, 23, 24
Board of Education of Independent
School District No. 92 v. Earls,
536 U.S. 822 (2002) ................................................ 18
Boyd v. United States,
116 U.S. 616 (1886) .......................................... 22, 33
Cady v. Dombrowski,
413 U.S. 433 (1973) ................................................ 30
Camara v. Municipal Court of City &
County of San Francisco,
387 U.S. 523 (1967) ............................................ 6, 20
Caniglia v. Strom,
141 S. Ct. 1596 (2021) .............................. 1, 6, 30, 32
Chandler v. Miller,
520 U.S. 305 (1997) .................................... 27, 29, 33
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) ............................ 6, 15, 25, 26, 27
City of Los Angeles v. Patel,
576 U.S. 409 (2015) ................................... 2, 6, 7, 15,
.................................................. 23, 24, 25, 27, 28, 29
Collins v. Virginia,
138 S. Ct. 1663 (2018) ................................ 24, 30, 32
Colonnade Catering Corp. v.
United States,
397 U.S. 72 (1970) ........................................ 8, 18, 25
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Coolidge v. New Hampshire,
403 U.S. 443 (1971) ............................................ 6, 31
Donovan v. Dewey,
452 U.S. 594 (1981) .................................... 18, 20, 25
Entick v. Carrington,
95 Eng. Rep. 807 (C.P. 1765) ........................... 19, 28
Florida v. Jardines,
569 U.S. 1 (2013) ........................................... 4, 5, 10,
.............................................................. 12, 19, 28, 35
Griffin v. Wisconsin,
483 U.S. 868 (1987) .......................................... 11, 20
Illinois v. Lidster,
540 U.S. 419 (2004) .............................. 11, 18, 21, 26
Jones v. United States,
357 U.S. 493 (1958) .......................................... 1, 3, 6
Madsen v. Women’s Health Center, Inc.,
512 U.S. 753 (1994) ................................................ 32
Michigan Department of
State Police v. Sitz,
496 U.S. 444 (1990) ................................. 8, 9, 11, 15,
.............................................................. 18, 21, 26, 27
National Treasury Employees
Union v. Von Raab,
489 U.S. 656 (1989) .................................... 18, 25, 26
New York v. Burger,
482 U.S. 691 (1987) ................................ 8, 15, 18, 25
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
O’Connor v. Ortega,
480 U.S. 709 (1987) ................................................ 18
Riley v. California,
573 U.S. 373 (2014) .................................. 5, 6, 24, 33
Schneckloth v. Bustamonte,
412 U.S. 218 (1973) ................................................ 30
Skinner v. Railway Labor
Executives’ Ass’n,
489 U.S. 602 (1989) .................................... 18, 25, 26
South Dakota v. Opperman,
428 U.S. 364 (1976) .......................................... 16, 30
State v. Dorff,
No. 48119, 2023 WL 2563783
(Idaho Mar. 20, 2023) ............................................ 34
Stern v. Marshall,
564 U.S. 462 (2011) ...................................... 3, 12, 33
Taylor v. City of Saginaw,
11 F.4th 483 (6th Cir. 2021) ......................... 2, 9, 13,
.............................................................. 14, 15, 16, 19
Taylor v. City of Saginaw,
922 F.3d 328 (6th Cir. 2019) ........................ 2, 14, 16
Taylor v. City of Saginaw,
No. 1:17-CV-11067,
2022 WL 3160734
(E.D. Mich. Aug. 8, 2022) ............................ 2, 14, 16
United States v. Ackerman,
831 F.3d 1292 (10th Cir. 2016) .............................. 34
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Biswell,
406 U.S. 311 (1972) .......................................... 18, 25
United States v. Jones,
565 U.S. 400 (2012) ................................. 4, 5, 10, 12,
........................................................ 14, 17, 19, 28, 35
United States v. Martinez-Fuerte,
428 U.S. 543 (1976) ................................... 11, 15, 18,
.............................................................. 20, 21, 26, 27
United States v. Richmond,
915 F.3d 352 (5th Cir. 2019) .................................. 34
Vernonia School District
47J v. Acton,
515 U.S. 646 (1995) .............................. 18, 25, 26, 27
CONSTITUTION AND STATUTES
U.S. Const. amend. IV ................................................. 5
28 U.S.C. § 1254(1) ...................................................... 5
28 U.S.C. § 2101(c) .................................................. 4, 5
42 U.S.C. § 1983 .......................................................... 7
OTHER AUTHORITY
Eve Brensike Primus,
Disentangling Administrative Searches,
111 Colum. L. Rev. 254 (2011) ........................ 33, 34
1
INTRODUCTION
This case presents an important question about
the improper expansion of one of the “jealously and
carefully drawn” exceptions to the Fourth Amendment’s warrant requirement, Jones v. United States,
357 U.S. 493, 499 (1958), the so-called administrativesearch exception. The question is whether that exception can justify widespread warrantless searches in
the name of administrative efficiency and commonplace, generalized government interests like traffic
flow and the overall “functioning of a municipality.”
Over a dissent by Judge Bumatay, the Ninth Circuit held that tire-chalking—where a parking officer
draws a chalk mark on the tire of every car in a particular location, for purposes of tracking the car’s
movement—is constitutional under the administrative-search exception. In doing so, the court disagreed
with the Sixth Circuit, which holds that the administrative-search exception cannot justify tire-chalking
(and, for that matter, neither can the communitycaretaking or automobile exceptions). The disagreement tees up an important question for this Court.
The Ninth Circuit expanded the narrow administrative-search exception “beyond anything [the] Court
has recognized.” Caniglia v. Strom, 141 S. Ct. 1596,
1599 (2021). Without this Court’s intervention, the
Ninth Circuit’s decision risks further “stealthy encroachments,” as Judge Bumatay put it, App. 31a
(Bumatay, J., dissenting), on fundamental Fourth
Amendment protections.
1. The question presented concerns the scope of
the administrative-search exception and whether tirechalking falls outside that exception, or any other exception to the warrant requirement, and thus
2
presumptively violates the Fourth Amendment. A
warrantless, suspicionless search is presumptively
unreasonable and violates the Fourth Amendment
unless it falls into one of a few limited exceptions to
the warrant requirement. Arizona v. Gant, 556 U.S.
332, 338 (2009). The administrative-search exception
applies to searches that have as their “primary purpose” something other than general crime control and
that serve “special needs” making the warrant or individualized suspicion requirements impractical. City
of Los Angeles v. Patel, 576 U.S. 409, 420 (2015) (citations omitted). Unless an administrative-search
scheme affords the subject of the search an opportunity for precompliance review, the search must be
tied to a grave, clear, and specific public safety or
health risk. Id.; see id. at 424.
2. The Ninth Circuit split from the Sixth over
whether tire-chalking is a constitutionally permissible administrative search. The Sixth Circuit says no.
Taylor v. City of Saginaw, 11 F.4th 483, 489 (6th Cir.
2021) (Taylor II). As the Sixth Circuit explained, tirechalking isn’t justified because it doesn’t afford an opportunity for precompliance review and it doesn’t
serve any exceptional law enforcement need. Id.
What’s more, the Sixth Circuit has also rejected the
community-caretaking and automobile exceptions as
defenses to tire-chalking. Taylor v. City of Saginaw,
922 F.3d 328, 334-35 (6th Cir. 2019) (Taylor I). On remand, the district court declared tire-chalking
unconstitutional. Taylor v. City of Saginaw, No. 1:17CV-11067, 2022 WL 3160734, at *3, 8 (E.D. Mich. Aug.
8, 2022).
The Ninth Circuit disagrees. Over a dissent by
Judge Bumatay, who would have sided with the Sixth
Circuit, the Ninth Circuit held that a nearly identical
3
tire-chalking scheme was constitutional under the administrative-search exception. The Ninth Circuit
concluded that the interests tire-chalking purportedly
serves—like reducing traffic congestion and encouraging compliance with parking restrictions—outweigh
the minimal intrusion it imposes. App. 23a. The court
thought it didn’t matter that tire-chalking didn’t fit
into existing categories of permissible warrantless administrative searches, because, in the court’s view, the
exception isn’t limited to particular “contexts or factual scenarios.” App. 13a.
3. The Ninth Circuit’s decision is wrong. Tirechalking is a warrantless, suspicionless search that
violates the Fourth Amendment. It’s not justified by
the administrative-search exception because it fails to
afford vehicle owners an opportunity for precompliance review, and it doesn’t address any serious, clear,
and specific public health or safety risk. No other exceptions to the warrant requirement can salvage San
Diego’s tire-chalking scheme, either. The Ninth Circuit’s decision blows open a “jealously and carefully
drawn” exception and leaves an anything-goes reasonableness standard in its wake. Jones, 357 U.S. at 499.
Worse yet, it allows generic and ever-present government interests in things like traffic flow and
compliance with parking restrictions to override core
Fourth Amendment concerns with suspicionless
searches.
4. This case is an ideal vehicle for resolving this
important question. Courts play a critical role in
pumping the brakes on government practices that,
though they may at first seem minimally intrusive,
threaten to open the gates to more obviously “illegitimate and unconstitutional” ones. Stern v. Marshall,
564 U.S. 462, 503 (2011) (citation omitted). Tolerating
4
the City’s tire-chalking scheme means abdicating that
role. And it treads on fundamental Fourth Amendment protections in the name of administrative
convenience.
The Court’s reinvigoration of the Founding-era
principle that a trespass onto private property to
gather information is a search has contributed to the
disagreement about the scope of the administrativesearch exception. See United States v. Jones, 565 U.S.
400, 404-07 & n.3 (2012); Florida v. Jardines, 569 U.S.
1, 5 (2013). The split highlights the need for the Court
to provide guidance to governments, citizens, and
lower courts alike about the circumstances under
which a warrantless, suspicionless administrative
search can pass constitutional muster.
This case is an ideal vehicle. Both the district
court and court of appeals squarely decided the question presented. Both courts relied only on the
administrative-search exception to justify the City’s
tire-chalking scheme, and the courts’ holdings that
the exception applied were dispositive.
Only this Court can resolve the clear circuit split
on this important question. The Court should grant
review.
OPINIONS BELOW
The court of appeals’ opinion (App. 1a-53a) is reported at 51 F.4th 1033. The district court’s opinion
(App. 54a-72a) is reported at 549 F. Supp. 3d 1192.
JURISDICTION
The court of appeals affirmed the district court’s
judgment on October 26, 2022. App. 1a. On January
10, 2023, Justice Kagan extended the time to file this
petition by 60 days, until March 25, 2023. See 28
5
U.S.C. § 2101(c). This Court has jurisdiction under 28
U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the U.S. Constitution
provides:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.
STATEMENT
A. Legal background
1. The Fourth Amendment protects “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” The Amendment was enacted in response to
the Framers’ disdain for general warrants and writs
of assistance, which allowed officers to “rummage”
“unrestrained” through peoples’ belongings “for evidence of criminal activity.” Riley v. California, 573
U.S. 373, 403 (2014). “Opposition to such searches was
in fact one of the driving forces behind the Revolution
itself.” Id.
The Court has made clear that “a vehicle is an ‘effect’” under the Fourth Amendment. Jones, 565 U.S.
at 404 (citation omitted). And under the original
meaning of the Amendment, the government’s physical trespass onto “private property”—like a vehicle—
“for the purpose of obtaining information,” is a search.
Id. at 404-07 & n.3; Jardines, 569 U.S. at 5. In deciding whether a search complies with the Fourth
6
Amendment, “the ultimate touchstone” “is reasonableness. Riley, 573 U.S. at 381 (citation omitted).
2. A search conducted without a judicial warrant
or individualized suspicion of criminal conduct is unreasonable unless “it falls within a specific exception
to the warrant requirement.” Id. at 382; City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). Those
exceptions are “jealously and carefully drawn,” Jones,
357 U.S. at 499, and apply only “in certain carefully
defined classes of cases,” Camara v. Municipal Court
of City & County of San Francisco, 387 U.S. 523, 52829 (1967). The Court has cautioned against expanding
those limited exceptions “beyond anything [it] has recognized,” particularly when the rationale behind a
given exception doesn’t justify the search. Caniglia,
141 S. Ct. at 1599. The government bears the burden
of showing that a warrantless search falls within a
recognized exception. Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971).
The question presented here concerns the socalled “administrative-search” exception. An administrative search must have as its “primary purpose”
something other than general crime control. Patel, 576
U.S. at 420 (citation omitted). And under the administrative-search exception, warrantless, suspicionless
administrative searches are unreasonable unless
there is an opportunity for “precompliance review before a neutral decisionmaker,” there are “special
needs” that render the warrant or individualized suspicion requirements impractical, and the search
addresses a substantial government interest. Id. In
some limited circumstances, warrantless administrative searches are allowed even without an opportunity
for precompliance review, but only if the government’s
approach is tied to a serious, clear, and specific public
7
safety or health risk, or if another exception applies.
Id.; see id. at 424.
B. Factual and procedural background
1. The San Diego Municipal Code imposes restrictions on how long a car can remain in a City
parking space, and the City can issue civil fines to
drivers who violate those restrictions. App. 3a-4a. One
way the City enforces the time limits on parking
spaces is by “tire-chalking.” App. 3a. Tire-chalking is
when a City parking officer draws a chalk mark on the
tire of every vehicle in a given area that is parked in a
space subject to City time restrictions. Id. The officer
draws chalk on the tire of every vehicle, even if those
vehicles are parked legally. Id. When the parking
limit has expired, the officer checks the tires; if the
chalk mark is undisturbed, the officer concludes that
the vehicle has exceeded the maximum parking time
and thus that she can issue a fine. Id.
2. In May 2019, Petitioners Andre Verdun and
Ian Anoush Golkar filed a class action complaint under 42 U.S.C. § 1983, alleging that the City violated
their Fourth Amendment rights by chalking their car
tires and then issuing them parking citations and
fines. App. 6a.
The district court granted summary judgment for
the City. Id. The court concluded that the City’s practice of tire-chalking was a search under the Fourth
Amendment. App. 61a-62a. It also held that although
the search was conducted without a warrant, it fell
within the administrative-search exception to the
warrant requirement. App. 71a. The court thus dismissed Mr. Verdun and Mr. Golkar’s complaint for
failing to establish that the City’s tire-chalking program violated the Fourth Amendment. Id.
8
3. The court of appeals affirmed over a dissent
by Judge Bumatay.
a. The panel majority assumed that tire-chalking is a search, and held that the practice is
constitutional under the administrative-search exception. App. 2a.
In the panel’s view, the public interests that tirechalking supposedly serves outweigh tire-chalking’s
minimal “intrusion on personal liberty.” App. 3a. As
the court explained, the City uses tire-chalking as
part of “its overall management of vehicular traffic
and the use of city parking spots”; as part of “a broader
program of traffic control”; and as a means of “encouraging compliance with City parking regulations.” App
3a, 17a. The court thought that the “scope and manner
of execution” of the City’s tire-chalking scheme were
reasonably tailored to those ends. App. 3a.
In reaching its conclusion, the court reasoned that
a warrantless administrative search doesn’t have to
address “a special need premised on an imminent
threat to public health or safety, or circumstances otherwise demanding immediate action in the face of
dangerous conditions.” App. 14a. In the majority’s
view, the administrative searches this Court has
greenlighted involved no such threats or imminent
need. See App. 14a-15a. The court pointed to “periodic
searches of regulated businesses” like automobile
junkyards and liquor stores, or suspicionless highway
checkpoints set up to detect intoxicated drivers. App.
15a (citing New York v. Burger, 482 U.S. 691, 703
(1987) (junkyards); Colonnade Catering Corp. v.
United States, 397 U.S. 72, 76-77 (1970) (liquor
stores)); App. 18a-19a (citing Michigan Dep’t of State
Police v. Sitz, 496 U.S. 444, 455 (1990) (intoxicated
9
drivers)). It didn’t matter that tire-chalking doesn’t fit
into existing categories of permissible warrantless administrative searches, the court reasoned, because
this Court hasn’t limited the administrative-search
exception to particular “contexts or factual scenarios.”
App. 13a.
The court acknowledged that the concerns tirechalking is meant to address are “less acute dangers
than drunk driving” and other hazards that highway
checkpoints are meant to serve. App. 14a. But the
court determined that the public interests outweighed
the resulting minimal intrusion. App. 23a. The court
also thought the intrusion was particularly negligible
because there is “a reduced expectation of privacy for
vehicles,” especially vehicles parked on public streets.
Id. The court thus concluded that tire-chalking is “appropriately tailored” to the public interests it serves,
that it would be impractical to require the City to obtain warrants to monitor parking spaces, and that it
was irrelevant that the City might be able to use alternative methods to achieve its goals. App. 22a
(citation omitted).
The Ninth Circuit recognized that it was
“part[ing] ways with the Sixth Circuit’s” holding in
Taylor II that a nearly identical tire-chalking scheme
didn’t fall within the administrative-search exception.
App. 25a. In the Ninth Circuit’s view, however, the
Sixth Circuit should have asked “whether tire chalking fits within the administrative search exception
under the governing principles and precedents,” and
shouldn’t have focused on whether there were other
available methods that wouldn’t be Fourth Amendment searches. App. 26a. The Ninth Circuit also
characterized the Sixth Circuit’s decision as improperly focusing on whether the city there could enforce
10
its parking regulations by means other than tirechalking. App. 25a-26a.
b. Judge Bumatay dissented, explaining that
“[t]he City … violates the constitutional rights of its
citizens” when it engages in tire-chalking. App. 30a.
Under the tire-chalking scheme, he observed, the City
“marks with chalk every parked vehicle on certain city
streets on the chance that a car might overstay its allotted time.” Id. That practice is unconstitutional
because it is a physical trespass onto private property
“with no warrant, no suspicion of an ordinance violation, and no pressing and exceptional governmental
interest.” Id. Judge Bumatay reasoned that the majority was abdicating the judiciary’s duty to
“safeguard against even ‘stealthy encroachments’” on
constitutional protections.” App. 31a (citation omitted). In his view, neither “the original understanding
of the Fourth Amendment nor Supreme Court precedent” permits the City’s “policy of indiscriminate
searches” for the generalized goal of “improving traffic
congestion.” Id.
First, Judge Bumatay explained that tire-chalking is a Fourth Amendment search because it
trespasses on private property to obtain information:
the chalk mark physically intrudes on a private effect,
a car, for the purpose of determining how long the car
has remained in a particular location. App. 32a-36a
(Bumatay, J., dissenting) (citing Jones, 565 U.S. 400;
Jardines, 569 U.S. 1).
Second, Judge Bumatay reasoned that tire-chalking is presumptively unreasonable because it
“indiscriminately targets lawfully parked vehicles”—
precisely the type of “suspicionless search[]” the
11
Fourth Amendment originally was understood to forbid. App. 36a, 45a (Bumatay, J., dissenting).
Third, Judge Bumatay reasoned that the City’s
tire-chalking scheme “fails to fit any Fourth Amendment exception.” App. 45a (Bumatay, J., dissenting).
He explained that tire-chalking doesn’t fit within the
administrative-search exception to the warrant requirement, because administrative searches “must be
limited to specific, imminent, and vital interests—rather than the routine, ordinary challenges often faced
by governments.” App. 50a. The City’s tire-chalking
practice doesn’t satisfy that test. It “isn’t designed to
address a pressing and exceptional governmental interest,” like the need to stop cross-border smuggling
operations, prevent drunk-driving accidents, or help
apprehend the perpetrator of a fatal hit-and-run accident that permissible highway checkpoints are
intended to address. App. 46a-49a (citing Sitz, 496
U.S. 444; Illinois v. Lidster, 540 U.S. 419 (2004);
United States v. Martinez-Fuerte, 428 U.S. 543 (1976);
Griffin v. Wisconsin, 483 U.S. 868 (1987)). Instead,
tire-chalking purports to serve the City’s generalized
interests in mitigating traffic congestion, enhancing
commercial activity, and “preserving ‘the quality of
urban life.’” App. 51a. Those may be “commendable
goals,” but they do not justify an exception to the
Fourth Amendment’s warrant requirement. Id.
REASONS FOR GRANTING THE PETITION
The courts of appeals have split on an important
Fourth Amendment question, and the Ninth Circuit
below got it wrong. The Ninth Circuit split from the
Sixth Circuit by holding that tire-chalking is constitutional under the administrative-search exception to
the warrant requirement. The Sixth Circuit, in
12
contrast, holds that a warrantless, suspicionless tirechalking scheme cannot be justified as an administrative-search or under the community-caretaking or
automobile exceptions to the warrant requirement.
The circuit division warrants this Court’s review.
The Ninth Circuit’s decision is wrong. Warrantless, suspicionless tire-chalking violates the Fourth
Amendment’s prohibition on unreasonable searches.
It’s not justified by the administrative-search exception because it doesn’t address any serious, clear, and
specific public health or safety risk. Nor does it satisfy
any other exception to the warrant requirement. The
Ninth Circuit’s conclusion that the administrativesearch exception justifies tire-chalking transforms an
otherwise narrow exception into an amorphous reasonableness standard. It also improperly permits
generic government interests in everyday challenges
like traffic control and parking enforcement to override fundamental Fourth Amendment protections.
The question presented is important. Seemingly
benign practices often serve as the “first footing” for
more blatantly “illegitimate and unconstitutional”
ones. Stern, 564 U.S. at 503 (citation omitted). And
courts play an essential role in protecting against such
“stealthy encroachments.” App. 31 (Bumatay, J., dissenting). Condoning tire-chalking as a constitutional
search also undermines the Fourth Amendment’s core
concern with suspicionless searches. The split also
highlights disagreement among the courts about the
scope of the administrative-search exception. And
when Jones and Jardines reinvigorated the propertybased approach to the Fourth Amendment search doctrine, they also raised the stakes for that
disagreement. Courts need guidance for assessing
government searches, governments need guidance on
13
how to implement their administrative programs, and
members of the public need clarity on their Fourth
Amendment rights.
This case is the ideal vehicle to clarify the administrative-search exception. The question was squarely
decided by and fully briefed before both the district
court and court of appeals; both courts relied only on
the administrative-search exception to justify the
city’s tire-chalking scheme; and the courts’ holdings
that the exception applied were dispositive.
The Court should grant review.
I.
The Ninth Circuit split from the Sixth
Circuit
by
holding
tire-chalking
constitutional under the administrativesearch exception.
In the Sixth Circuit, tire-chalking isn’t justified by
the administrative-search, community-caretaking, or
automobile exceptions to the warrant requirement,
and thus is presumptively unconstitutional. The
Ninth Circuit disagrees. Over a dissent siding with
the Sixth Circuit, the Ninth Circuit here held that
tire-chalking is a reasonable administrative search.
A. In the Sixth Circuit, the administrativesearch exception cannot justify tirechalking,
and
neither
can
the
community-caretaking or automobile
exceptions.
In the Sixth Circuit, tire-chalking is a search that
cannot be justified by the administrative-search exception
and
therefore
is
presumptively
unconstitutional. Taylor II, 11 F.4th at 489. Indeed,
the Sixth Circuit has also rejected the communitycaretaking and automobile exceptions as defenses for
14
tire-chalking, Taylor I, 922 F.3d at 334-35, leading to
a declaration that the practice is unconstitutional,
Taylor, 2022 WL 3160734, at *8 .
1. In Taylor II, the Sixth Circuit first concluded
that tire-chalking constitutes a Fourth Amendment
search under Jones’s property-based approach. 11
F.4th at 487 (citing Jones, 565 U.S. at 406 n.3, 408
n.5). That’s because placing a chalk mark on the tire
of a privately-owned vehicle is “a physical trespass to
a constitutionally protected area with the intent to obtain information.” Id.; see Taylor I, 922 F.3d at 332-33.
2. The court then concluded that the government
failed to meet its burden of establishing that tirechalking is reasonable under the Fourth Amendment.
The court explained that because tire-chalking is a
warrantless search, it’s presumptively unreasonable.
Taylor II, 11 F.4th at 487. As a result, the government
had to show that the policy fits within one of the “few
specifically established and well-delineated exceptions” to the warrant requirement. Id. (quoting Patel,
576 U.S. at 419).
The Sixth Circuit held that the City failed to make
that showing. The court explained that the administrative-search exception has several requirements.
Searches must be “conducted for an administrative
purpose and pursuant to a regulatory scheme—such
as inspecting a home for compliance with a municipal
housing code”—and must meet “reasonable legislative
or administrative standards.” Id. at 488 (citation omitted). That means that the court must “balanc[e] the
need to search against the invasion which the search
entails.” Id. (citation omitted). And the subject of the
search must have “an opportunity to obtain
15
precompliance review before a
sionmaker.” Id. (citation omitted).
neutral
deci-
If there’s no opportunity for precompliance review, however, a search can qualify as a permissible
administrative search only if (1) there is a substantial
government interest (2) making the warrantless inspections necessary and (3) the inspection scheme, “in
terms of the certainty and regularity of its application, … provide[s] a constitutionally adequate
substitute for a warrant.” Id. (quoting Burger, 482
U.S. at 702-03). That’s the test that authorizes warrantless administrative searches of certain “closely
regulated industries,” like “liquor sales, firearm dealing, mining, or automobile junkyards.” Id. The
exception also permits suspicionless searches that are
part of a broader program “designed to serve special
needs, beyond the normal need for law enforcement,”
like “highway checkpoints near borders to curb illegal
immigration,” “sobriety checkpoints aimed at removing drunk drivers from the road,” and drug and alcohol
tests “for student-athletes, federal employees seeking
promotions, and railway employees involved in accidents.” Id. at 488-89 (citing Martinez-Fuerte, 428 U.S.
at 556-58; Sitz, 496 U.S. at 451-53; and Edmond, 531
U.S. at 37).
The Sixth Circuit concluded that tire-chalking
doesn’t fit into any of those well-established categories. “[U]nlike the closely regulated industries of
liquor sales, firearm dealing, mining, or automobile
junkyards,” the court reasoned, “municipal parking
plainly does not ‘pose[] a clear and significant risk to
the public welfare.’” Id. at 488 (second alteration in
original; citation omitted). Tire-chalking doesn’t serve
a “special need” either, the court explained, because it
isn’t necessary to enforce the City’s parking
16
regulations. Id. at 489. Thus, in the Sixth Circuit’s
view, “tire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the
extraordinary.” Id.
3. a. In an earlier appeal, the Sixth Circuit also
rejected the City’s argument that tire-chalking is justified under the automobile or community-caretaking
exceptions to the Fourth Amendment’s warrant requirement. Taylor I, 922 F.3d at 334-35. The court
acknowledged that there’s a reduced expectation of
privacy when it comes to vehicles, but held that because there is no probable cause to believe the vehicles
being marked with chalk contain evidence of a crime,
the automobile exception doesn’t apply. Id. And the
community-caretaking exception applies only “in narrow instances when public safety is at risk.” Id. at 335
(citing South Dakota v. Opperman, 428 U.S. 364, 369
(1976)). The court rejected that exception, too, explaining, among other things, that the City had not
shown “that the location or length of time [the] vehicle
was parked” created a public safety hazard, or “that
delaying [the] search would result in ‘injury or ongoing harm to the community.’” Id. (citation omitted).
b. Given the Sixth Circuit’s rejection of not just
the administrative-search exception but also the community-caretaking and automobile exceptions to the
Fourth Amendment warrant requirement, tire-chalking is presumptively unconstitutional in the Sixth
Circuit. Indeed, on remand from Taylor II, the district
court held exactly that on summary judgment. Taylor,
2022 WL 3160734, at *8.
17
B. The Ninth Circuit holds that tirechalking is constitutional under the
administrative-search exception.
In stark contrast to the Sixth Circuit, the Ninth
Circuit holds that tire-chalking is constitutional.
Here, over a dissent by Judge Bumatay, the Ninth Circuit disagreed with the Sixth Circuit and concluded
that the City of San Diego’s tire-chalking program,
which was nearly identical to the program the Sixth
Circuit considered, is constitutional under the administrative-search exception.
1. a. In the Ninth Circuit’s view, warrantless
tire-chalking is constitutional because the City’s interests in traffic control and enforcing parking
restrictions are important to “the basic functioning of
a municipality and the quality of life of its residents,
businesses, and visitors,” App. 20a, and outweigh the
intrusions.
The Ninth Circuit first assumed without deciding
that tire-chalking is a Fourth Amendment search under Jones. App. 8a. The court then held that tirechalking is a reasonable warrantless search under the
“administrative search” or “special needs” exception
because the “primary purpose” of the search is regulatory and “special needs” make it impractical to obtain
a warrant. App. 8a-9a. In the court’s view, the administrative-search exception isn’t limited “to particular
contexts or factual scenarios.” App. 13a. All that’s required, the majority continued, is that the search is
sufficiently tethered to the purported governmental
interest and is “reasonable in … scope and manner of
execution,” and that the public interest outweighs any
countervailing privacy interests. App. 13a-14a (citation omitted). The majority rejected the requirement
18
that the search must be connected to any “special need
premised on an imminent threat to public health or
safety,” or must address circumstances that “otherwise [would] demand[] immediate action in the face of
dangerous conditions.” App. 14a.
The majority rested its decision on a review of administrative searches in three contexts: highway
checkpoints or roadblocks, App. 9a-10a (citing Martinez-Fuerte, 428 U.S. 543; Sitz, 496 U.S. 444; and
Lidster, 540 U.S. 419); searches of closely regulated
businesses, App. 11a (citing Donovan v. Dewey, 452
U.S. 594 (1981); Colonnade Catering, 397 U.S. 72;
United States v. Biswell, 406 U.S. 311 (1972); and
Burger, 482 U.S. 691); and searches of certain groups
of people with a “reduced expectation[] of privacy,”
App. 12a (citing Skinner v. Railway Labor Executives’
Ass’n, 489 U.S. 602, 634 (1989); National Treasury
Employees Union v. Von Raab, 489 U.S. 656 (1989);
O’Connor v. Ortega, 480 U.S. 709 (1987) (plurality
op.); Vernonia School District 47J v. Acton, 515 U.S.
646 (1995); and Board of Education of Independent
School District No. 92 v. Earls, 536 U.S. 822 (2002)).
The majority recognized that tire-chalking didn’t fall
neatly into any of these recognized categories. See
App. 14a. But it thought the practice analogous to suspicionless highway checkpoints, or “motorist
dragnet[s].” App. 15a. The court acknowledged that
the concerns tire-chalking is meant to address are
“less acute dangers than drunk driving” and other
hazards that highway checkpoints are meant to serve,
App. 14a—a “broader program of traffic control” and
“compliance with City parking regulations,” App. 2a3a, 17a. The court nonetheless thought those interests
outweighed any individual intrusion, particularly
19
because there is “a reduced expectation of privacy for
vehicles” parked on public streets. App. 23a.
b. The Ninth Circuit recognized that it was
“part[ing] ways with the Sixth Circuit’s” holding in
Taylor II that the City of Saginaw’s nearly identical
tire-chalking scheme didn’t fall within the administrative-search exception. App. 25a. In the Ninth
Circuit’s view, however, the Sixth Circuit’s formulation of the administrative-search exception was too
narrow, and it should have conducted a broader inquiry to determine whether tire-chalking could be
justified under the exception. App. 25-26a.
2. Judge Bumatay dissented. In his view, the
City’s warrantless tire-chalking scheme violates the
Fourth Amendment because it doesn’t require individualized suspicion or target a “pressing and exceptional
governmental interest.” App. 30a (Bumatay, J., dissenting). Judge Bumatay cautioned that the
majority’s holding threatens to expand the administrative-search exception so much that it swallows the
general rule that warrantless, suspicionless searches
are unreasonable. Id.
a. Judge Bumatay first explained that “[u]nder
both the original understanding of the Fourth Amendment and modern precedent,” courts “apply a
‘property-based approach’ to determine whether government action is a ‘search.’” App. 32a (Bumatay, J.,
dissenting) (quoting Jones, 565 U.S. 400; citing
Jardines, 569 U.S. 1). At common law, “any government intrusion on property [was a] trespass” no
matter whether the trespasser damaged the property.
App. 33a (citing Jones, 565 U.S. at 405; Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765)). And
“modern jurisprudence” confirms that property-based
20
approach. Id. Tire-chalking thus is a Fourth Amendment search, Judge Bumatay concluded, because the
chalk mark trespasses on private property to obtain
information about how long the car has remained in a
particular location. App. 35a-36a.
b. Judge Bumatay then concluded that tirechalking is presumptively unreasonable because it
“indiscriminately targets lawfully parked vehicles”—
precisely the type of “suspicionless search[]” the
Fourth Amendment originally was understood to forbid. App. 36a, 45a (Bumatay, J., dissenting). And
because it doesn’t fit into “any Fourth Amendment exception,”
he
concluded,
tire-chalking
is
unconstitutional. App. 45a.
Specifically rejecting the majority’s reliance on
the administrative-search exception, Judge Bumatay
explained that permissible administrative searches
are designed “to address certain narrow concerns.”
App. 46a (Bumatay, J., dissenting). Those concerns include “public-safety code compliance,” “closely
regulated businesses,” “dragnets or checkpoints for
imminent dangers,” and “special needs populations.”
App. 45a-46a (citing Camara, 387 U.S. 523; Donovan,
452 U.S. 594; Martinez-Fuerte, 428 U.S. 543; Griffin,
483 U.S. 868). And tire-chalking doesn’t fit into any of
those categories. App. 47a-51a.
In Judge Bumatay’s view, the panel majority’s reliance on motorist checkpoint cases was misplaced.
Those cases limit warrantless, suspicionless administrative searches “to specific, imminent, and vital
interests—rather than the routine, ordinary challenges often faced by governments.” App. 50a
(Bumatay, J., dissenting). Such “exceptional circumstances” might include highway immigration
21
checkpoints to address “the ‘formidable law enforcement problems’ posed by border enforcement,” like
covert “‘smuggling operations’ and the fact that illegal
immigration could not ‘be controlled effectively at the
border.’” App. 47a-48a (quoting Martinez-Fuerte, 428
U.S. at 552, 556-57). Other “pressing and exceptional
governmental interest[s]” might include preventing
drunk-driving accidents, or helping apprehend the
perpetrator of a fatal hit-and-run accident. App. 46a49a (citing Sitz, 496 U.S. 444; Lidster, 540 U.S. 419).
But the City’s tire-chalking scheme isn’t designed
to address any such “pressing and exceptional” interest. Rather, tire-chalking is intended to advance the
generalized interests in mitigating traffic congestion,
enhancing commercial activity, and “preserving ‘the
quality of urban life.’” App. 50a-51a (Bumatay, J., dissenting). Those may be “commendable goals,” Judge
Bumatay explained, but they “are too generalized and
commonplace” to justify an exception to the warrant
requirement. Id.
In reaching that conclusion, Judge Bumatay
stressed that the exceptions to the warrant requirement are narrow, and for good reason. Surveying
history leading up to the adoption of the Fourth
Amendment and through its incorporation against the
States, Judge Bumatay explained that the Amendment was intended to protect against suspicionless
searches, given “our Founding generation’s aversion
to Crown officials’ abuse of investigative tools to
search and seize at will and without explanation.”
App. 30a-31a, 36a-45a, 51a-52a (Bumatay, J., dissenting). Those very concerns, he explained, prohibit “a
policy of indiscriminate searches” for the “ordinary
government enterprise” of “improving traffic congestion.” App. 31a.
22
Judge Bumatay recognized that “chalking tires
may not constitute the greatest affront to personal liberty.” Id. (Bumatay, J., dissenting). But he warned
that accepting it as a reasonable search risks
“‘stealthy encroachments’ on the Fourth Amendment.”
Id. (quoting Boyd v. United States, 116 U.S. 616, 635
(1886)). “No matter how well meaning, modest, or
longstanding the intrusion into personal effects,”
Judge Bumatay cautioned, “the Fourth Amendment
commands that all government searches, with some
narrow exceptions, be supported by a warrant and individualized suspicion of wrongdoing.” App. 30a. After
all, “the administrative search exception is still the exception.” App. 53a. To be sure, “law enforcement,
traffic enforcement, and almost any other government
function would be more efficient and more convenient
if officers could skirt the Fourth Amendment.” Id. But
the City doesn’t get a ticket to violate the Fourth
Amendment for efficiency’s sake. Id.
C. San Diego’s tire-chalking scheme would
be unconstitutional in the Sixth Circuit.
The circuit split matters. In the Sixth Circuit, this
case would have come out the other way, for the reasons Judge Bumatay and the Sixth Circuit explained.
San Diego’s tire-chalking scheme would be an unconstitutional search under the Fourth Amendment. As
discussed, the Sixth Circuit rejected a nearly identical
tire-chalking scheme not only under the administrative-search exception, but also under the automobile
and community-caretaking exceptions. Supra pp. 1316. Unsurprisingly, the district court on remand declared the practice unconstitutional. Supra p. 16.
23
II. The Ninth Circuit’s decision is wrong.
The Ninth Circuit’s decision is wrong. Tire-chalking is a warrantless, suspicionless search that violates
the Fourth Amendment. It falls outside the administrative-search exception because it neither affords
vehicle owners an opportunity for precompliance review before a neutral decisionmaker nor is tethered to
any serious, clear, and specific public health or safety
risk. No other exceptions can save San Diego’s tirechalking scheme, either.
The Ninth Circuit’s contrary conclusion—that the
administrative-search exception justifies tire-chalking—lacks merit. The Ninth Circuit improperly mixed
and matched from the discrete categories of cases in
which the Court has allowed warrantless administrative searches to create a permissive reasonableness
inquiry allowing commonplace and generalized government interests to justify a warrantless
administrative search. As this Court’s decisions make
clear, only serious, clear, and specific interests can
justify dispensing with the warrant requirement under the administrative-search exception.
A. Tire-chalking
violates
the
Fourth
Amendment and cannot be justified
under
the
administrative-search
exception to the warrant requirement.
1. Warrantless, suspicionless searches
are unconstitutional unless they fall
within one of a limited number of
narrow exceptions to the warrant
requirement.
Warrantless, suspicionless searches are unconstitutional unless they satisfy one of “a few specifically
established and well-delineated exceptions” to the
24
warrant requirement. Patel, 576 U.S. at 419 (quoting
Gant, 556 U.S. at 338). The Court narrowly construes
the exceptions to ensure that they don’t become unmoored “from the justifications underlying [them]” or
“undervalue” fundamental Fourth Amendment concerns. Collins v. Virginia, 138 S. Ct. 1663, 1671-72
(2018) (citation omitted). Indeed, one of the Framers’
core concerns when the Fourth Amendment was
adopted was that general warrants and writs of assistance afforded officers the power to “rummage”
“unrestrained” and without individualized suspicion
through peoples’ belongings “for evidence of criminal
activity.” Riley, 573 U.S. at 403; App. 37a-45a (Bumatay, J., dissenting).
2. Unless there is an opportunity for
precompliance review, a warrantless
administrative search is reasonable
only if it is necessary to address a
serious, clear, and specific public
health or safety risk.
One limited exception to the warrant requirement
involves administrative searches, which have as their
“primary purpose” something other than general
crime control. Patel, 576 U.S. at 420 (citation omitted).
Under the administrative-search exception, suspicionless searches are unreasonable unless the subject
of the search has an opportunity for “precompliance
review before a neutral decisionmaker”; “special
needs” make the warrant or individualized suspicion
requirements impractical; and the search addresses a
substantial government interest. Id. In some limited
circumstances, warrantless administrative searches
may satisfy constitutional scrutiny even without an
opportunity for precompliance review, but only if the
search is tied to a serious, clear, and specific public
25
safety or health risk. Id.; see id. at 424. The narrow
set of circumstances in which warrantless, suspicionless administrative searches may be reasonable
without an opportunity for precompliance review involve (a) certain closely regulated businesses,
(b) drug-testing of certain populations with a lesser
expectation of privacy, and (c) brief highway checkpoint seizures in light of pressing roadway dangers.
a. In the last half-century, the Court has upheld
warrantless administrative searches of only four types
of closely regulated businesses. The Court has allowed
those searches because the industries at issue have
such an extensive “history of government oversight”
that a manager of that business could have “no reasonable expectation of privacy … over the stock of
such an enterprise.’” Id. at 424 (citation omitted); Edmond, 531 U.S. at 37. Those four businesses are ones
that sell liquor, deal firearms, are engaged in mining,
or operate automobile junkyards. Patel, 576 U.S. at
424 (citing Colonnade Catering, 397 U.S. 72 (liquor);
Biswell, 406 U.S. 311 (firearms); Donovan, 452 U.S.
594 (mining); and Burger, 482 U.S. 691 (automobile
junkyard)). The Court has explained that those types
of businesses themselves “pose[] a clear and significant risk to the public welfare.” Id.
b. The Court also has allowed warrantless, suspicionless drug-testing of student athletes in public
schools, of federal customs employees seeking certain
transfer or promotion opportunities, and of “railway
employees involved in train accidents or found to be in
violation of particular safety regulations.” Edmond,
531 U.S. at 37 (citing Vernonia, 515 U.S. 646 (studentathletes); Von Raab, 489 U.S. 656 (federal customs
employees); and Skinner, 489 U.S. 602 (railway employees)). Critically, the specific administrative goals
26
also involved immediate and significant public health
and safety risks involving drug abuse, border security,
and railway safety. Vernonia, 515 U.S. at 660-62; Von
Raab, 489 U.S. at 674, 677; Skinner, 489 U.S. at 63334. And given the school or work environments, the
individuals subject to the administrative searches had
a reduced expectation of privacy. Vernonia, 515 U.S.
at 657; Von Raab, 489 U.S. at 672; Skinner, 489 U.S.
at 634.
c. In a distinct category of cases, the Court has
upheld brief, suspicionless highway checkpoints that
address serious, clear, and specific dangers to highway safety. For example, the Court has permitted
“brief, suspicionless seizures of motorists at a fixed
Border Patrol checkpoint designed to intercept illegal
aliens,” “at a sobriety checkpoint aimed at removing
drunk drivers from the road,” Edmond, 531 U.S. at 37
(citing Martinez-Fuerte, 428 U.S. 543; and Sitz, 496
U.S. 444), and at a highway checkpoint aimed at gathering information from the public about a recent fatal
hit-and-run accident, Lidster, 540 U.S. at 421.
Those cases involved the “serious public danger”
of drunk driving, Sitz, 496 U.S. at 453-55, the pressing
interest in intercepting illegal aliens near the border,
Martinez-Fuerte, 428 U.S. at 556-59, and the “grave”
“public concern” in “investigating a crime that had resulted in a human death,” Lidster, 540 U.S. at 427. In
each case, the Court concluded that those interests
outweighed the intrusions that the brief stops of every
motorist passing through the checkpoint would experience. Sitz, 496 U.S. at 453-55; Martinez-Fuerte, 428
U.S. at 556-59; Lidster, 540 U.S. at 427-28.
ited
d. To be sure, the Court has found that in “limcircumstances,” warrantless administrative
27
searches can be reasonable under the Fourth Amendment. Edmond, 531 U.S. at 37. But the Court has also
repeatedly refused to expand the exception to accommodate
additional
types
of
warrantless
administrative searches, and has cautioned against
permitting “narrow exception[s] to swallow the rule.”
Patel, 576 U.S. at 424-25.
Start with “closely regulated” businesses. The
Court has held that hotels don’t qualify because “nothing inherent in the operation of hotels poses a clear
and significant risk to the public welfare.” Id. at 424.
The Court also warned that suspicionless drug-tests
of certain populations wouldn’t necessarily “pass constitutional muster in other contexts.” Vernonia, 515
U.S. at 665. Indeed, in striking down a state law requiring candidates for state office to pass a “relatively
noninvasive” drug test, the Court declined to expand
the administrative-search exception because there
was no “indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.”
Chandler v. Miller, 520 U.S. 305, 318-19 (1997). In the
context of highway checkpoints, too, the Court has
made clear that “cases dealing with police stops of motorists on public highways” are unique to that
particular context. Sitz, 496 U.S. at 450; see MartinezFuerte, 428 U.S. at 567.
3. Tire-chalking doesn’t qualify for the
administrative-search
exception
because it doesn’t address a serious,
clear, and specific public safety or
health risk.
Tire-chalking falls outside the administrativesearch exception to the warrant requirement because
it fails both to provide an opportunity for
28
precompliance review and to address a serious, clear,
and specific public safety or health risk.
a. As an initial matter, tire-chalking is a Fourth
Amendment search. In United States v. Jones, the
Court explained that under the original meaning of
the Amendment, a government trespass on “private
property for the purpose of obtaining information” is a
search, regardless whether the trespass causes any
damage. 565 U.S. at 404-07 & n.3 (citing Entick, 95
Eng. Rep. at 817). That “simple baseline” has long
“formed the exclusive basis for [Fourth Amendment]
protections.” Jardines, 569 U.S. at 5. Thus, as the dissent and the Sixth Circuit recognized (and as the
Ninth Circuit assumed) tire-chalking is a search because the chalk mark physically intrudes on a private
effect, a car, for the purpose of determining how long
the car has remained in a particular location. San Diego’s use of tire-chalking “[s]ince at least the 1970s”
doesn’t alter that conclusion. App. 3a. When officers
physically intrude on private property to obtain information, “the antiquity of the tools that they bring
along is irrelevant.” Jardines, 569 U.S. at 11.
b. San Diego’s warrantless, suspicionless tirechalking falls outside the administrative-search exception. Because there is no opportunity for vehicle
owners to obtain precompliance review, see Patel, 576
U.S. at 420-23, the practice can be justified only if tirechalking is necessary to address a serious, clear, and
specific public health or safety risk. But tire-chalking
addresses no such risk. Instead, tire-chalking is
meant to help maintain traffic flow, help manage use
of city parking spaces, encourage drivers to comply
with parking regulations, increase safety on and near
the roads, and promote “the basic functioning of [the]
municipality and the quality of life of its residents,
29
businesses, and visitors.” App. 20a. Although those
goals may be “commendable,” they can’t justify a warrantless administrative search because they’re
generalized, “ever-present,” and “pedestrian[]” concerns, untethered to any grave, clear, and specific
threat to public safety or health. App. 50a-51a (Bumatay, J., dissenting).
Compare the search here to administrative
searches of historically closely regulated businesses.
Not only does tire-chalking have nothing to do with
searching a business, much less a closely regulated
one, it doesn’t address any “clear and significant risk
to the public welfare.” Patel, 576 U.S. at 424. There’s
nothing at issue resembling the immediate hazards
that businesses selling liquor, dealing in firearms, or
operating mining or automobile junkyards pose to the
public. See supra pp. 25, 27.
The same is true about the limited class of cases
permitting warrantless drug-testing of particular
groups of people. Even if tire-chalking is a “relatively
noninvasive” search, there’s no immediate, “concrete
danger demanding departure from the Fourth Amendment’s main rule,” Chandler, 520 U.S. at 318-19, like
there is with safety risks involving drug abuse, border
security, and railways. See supra pp. 25-27.
Cases involving brief seizures at highway checkpoints don’t support tire-chalking, either. The wideranging concerns that tire-chalking is supposed to address—like traffic congestion, general road safety, and
“the basic functioning of [the] municipality and the
quality of life”—are entirely different in kind from the
grave and immediate dangers arising from drunkdriving, the smuggling of illegal aliens near the
30
border, and an at-large perpetrator of a fatal hit-andrun. Supra p. 26.
c. What’s more, tire-chalking doesn’t fall within
any other exceptions to the warrant requirement.
The automobile exception doesn’t fit, because it requires probable cause. Collins, 138 S. Ct. at 1670. But
officers in San Diego mark tires indiscriminately, so
the search isn’t based on probable cause.
Community-caretaking doesn’t work, because
tire-chalking is wholly unlike a “search of an impounded vehicle” to locate “an unsecured firearm” or
to inventory the vehicle’s contents. Caniglia, 141
S. Ct. at 1598; see Cady v. Dombrowski, 413 U.S. 433,
446-47 (1973); Opperman, 428 U.S. at 373-76. Those
inventory searches have been found reasonable given
the “noncriminal ‘community caretaking functions’”
that police officers patrolling “public highways” often
perform to ensure public safety. Caniglia, 141 S. Ct.
at 1598 (quoting Cady, 413 U.S. at 441). Here, the vehicles subject to tire-chalking haven’t been
impounded, so the rationale behind the communitycaretaking exception doesn’t apply, and neither does
the narrow exception itself. See id. at 1599-1600.
Nor can consent do the trick. To overcome the warrant requirement, consent must be “freely and
voluntarily given.” Schneckloth v. Bustamonte, 412
U.S. 218, 222 (1973) (citation omitted). Here, San Diego hasn’t established that it has informed vehicleowners that it will draw chalk marks on their tires,
and that the owners voluntarily consented to that intrusion.
31
B. The Ninth Circuit erred in holding that
tire-chalking qualifies as a permissible
administrative search.
The Ninth Circuit erred in concluding that tirechalking falls within the administrative-search exception. In reaching that conclusion, the Ninth Circuit
took two critical wrong turns: (1) it invented a hybrid,
free-wheeling reasonableness test to justify the practice rather than adhering to the limited class of cases
in which warrantless administrative searches are permitted, and (2) it allowed commonplace, generalized
concerns to justify the search when only serious, clear,
and specific concerns suffice.
1. The Ninth Circuit found highway checkpoints,
or “dragnet” searches, most “analogous” to tire-chalking. App. 15a. It did so despite the Court’s observation
that highway checkpoint cases are themselves unique.
Supra p. 27. And the court went even farther afield by
“draw[ing] on administrative search cases outside
that context” to justify tire-chalking App. 15a. In doing so, the Ninth Circuit patched together narrow
categories of permissible warrantless administrative
searches—those relating to closely regulated businesses and drug-testing of certain populations. Supra
pp. 17-18; App. 22a-25a. The result was a broad reasonableness exception that swallows the baseline rule
that warrantless searches are unreasonable. Supra
pp. 17-19.
The Ninth Circuit’s observation that there “is already a reduced expectation of privacy for vehicles” is
no defense. App. 23a. As this Court has recognized,
“the word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and
disappears.” Coolidge, 403 U.S. at 461-62.
32
2. The Ninth Circuit also opened the door for any
generalized, commonplace government interest to
serve as the basis for a warrantless administrative
search. That approach undermines the Fourth
Amendment’s core concern with suspicionless, warrantless searches and “unmoor[s]” the exception from
its rationale. Collins, 138 S. Ct. at 1671-72.
The Ninth Circuit recognized that the concerns
that tire-chalking supposedly addresses are “less
acute” than the serious dangers that highway checkpoints are essential to curb. App. 14a. But it found
those concerns sufficient all the same. That was error.
The government’s interest in maintaining traffic flow,
promoting general road safety, and encouraging compliance with parking restrictions cannot be equated
with the serious and specific dangers that drunk driving, the smuggling of illegal aliens, and an at-large
perpetrator of a fatal hit-and-run pose. Supra pp. 2930. And even if those supposed concerns were sufficient, it’s parking enforcement generally, and not tirechalking specifically, that serves them.
The Ninth Circuit’s observation that “courts have
recognized the strong governmental interest in managing traffic and parking” in “different legal
contexts”—like in First Amendment challenges—
doesn’t help, either. App. 21a (citing Madsen v.
Women’s Health Center, Inc., 512 U.S. 753 (1994)).
This Court has warned against mixing and matching
concepts within its Fourth Amendment jurisprudence
to expand exceptions to the warrant requirement “beyond anything [the] Court has recognized.” Caniglia,
141 S. Ct. at 1599; see Collins, 138 S. Ct. at 1671-72.
Mixing and matching beyond the Fourth Amendment
context doesn’t work, either.
33
III. This case is the ideal vehicle to address this
important question.
A. The question presented is important. In the
Ninth Circuit’s view, tire-chalking is no big deal, so
“why the fuss?” Stern, 564 U.S. at 502. But the Court
has long recognized that “illegitimate and unconstitutional practices get their first footing,” in many cases,
from practices that “may seem innocuous at first
blush.” Id. at 503 (quoting Boyd, 116 U.S. at 635). And
as Judge Bumatay recognized in dissent, expanding
the administrative-search exception to sweep in warrantless, suspicionless searches that purport to
promote generalized, commonplace government interests invites “stealthy encroachments” on Fourth
Amendment protections. App. 31a (Bumatay, J., dissenting) (citation omitted).
What’s more, expanding the administrativesearch doctrine strikes at the core of the Fourth
Amendment’s concern with suspicionless searches. Indeed, the Founders’ disdain for such searches in large
part motivated the adoption of the Fourth Amendment. Riley, 573 U.S. at 403. Broadening the “closely
guarded category of constitutionally permissible suspicionless” administrative searches to situations
involving generalized government goals not tied to
grave, clear, and specific public dangers would enable
abuse of those searches and undermine the Founders’
intent. Chandler, 520 U.S. at 309.
The clear split also exacerbates general disagreement and confusion about the bounds of constitutional
administrative searches and calls for this Court’s
guidance. The parameters of the administrativesearch exception already were “notoriously unclear”
before the Ninth Circuit parted ways with the Sixth.
34
E. Brensike Primus, Disentangling Administrative
Searches, 111 Colum. L. Rev. 254, 257 (2011). Jones’s
trespass-based approach to deciding whether a physical intrusion is a Fourth Amendment search, see 565
U.S. at 404-08, makes the need for guidance even
more acute. Lower courts and Fourth Amendment
scholars alike consider Jones to be “a sea change.”
United States v. Richmond, 915 F.3d 352, 357 (5th Cir.
2019); see United States v. Ackerman, 831 F.3d 1292,
1307 (10th Cir. 2016) (Gorsuch, J.). Indeed, courts now
assess questions like whether a search has occurred
“when an officer leans on the door of a car while questioning its driver” or taps a car tire to determine
whether it’s filled with “more than just air,” Richmond, 915 F.3d at 354-57, or when a drug-sniffing
dogs puts its paws on the exterior of a car while sniffing, State v. Dorff, No. 48119, 2023 WL 2563783, at
*3-9 (Idaho Mar. 20, 2023).
By blurring the lines around the administrativesearch exception, particularly in light of Jones’s property-based search analysis, the split leaves
governments without guidance about how to comply
with the Fourth Amendment. And in the Ninth Circuit, the rule leaves the government with little
accountability if it can just articulate some interests
that it thinks a search might advance. The split thus
also leaves the public without confidence that sweeping administrative programs will respect their
constitutional rights.
B. This case is the ideal vehicle to clarify the administrative-search exception and keep it in its lane.
The question was squarely decided by and fully
briefed before both the district court and court of appeals. Both courts relied only on the administrativesearch exception to justify the City’s tire-chalking
35
program. App. 2a-3a, 63a-71a. And the courts’ holdings that the exception applied were dispositive.
*
*
*
The Ninth Circuit has split from the Sixth over an
important question about the scope of the administrative-search exception to the Fourth Amendment’s
warrant requirement. Only this Court can resolve the
acknowledged disagreement over whether the practice of warrantless, suspicionless tire-chalking is an
unconstitutional search under the Fourth Amendment. Only this Court can provide the guidance that
courts, governments, and citizens need about the
scope of the administrative-search exception after
Jones and Jardines. The Court should grant review.
36
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted.
Daryoosh Khashayar
KHASHAYAR
LAW GROUP
12636 High Bluff Dr.,
Ste. 400
San Diego, CA 92130
Ramin Hariri
HARIRI LAW GROUP
12526 High Bluff Dr.,
Ste. 300
San Diego, CA 92130
Shay Dvoretzky
Counsel of Record
Parker Rider-Longmaid
Sylvia O. Tsakos
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Ave. NW
Washington, DC 20005
202-371-7000
shay.dvoretzky@skadden.com
Counsel for Petitioners
March 24, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.