Petition for Writ of Certiorari — Andre Verdun, et al., Petitioners v. City of San Diego, California, et al.

APPENDIX

TABLE OF CONTENTS

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

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APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDRE VERDUN; IAN

ANOUSH GOLKAR, on

behalf of himself and a

class of all others similarly situated,

Plaintiffs-Appellants,

v.

CITY OF SAN DIEGO;

SAN DIEGO POLICE

DEPARTMENT,

No. 21-55046

D.C. No.

3:19-cv-00839AJB-WVG

OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted February 17, 2022

Pasadena, California

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Before: Daniel A. Bress and Patrick J. Bumatay, Circuit Judges, and Robert S. Lasnik,* District Judge.

Opinion by Judge Bress;

Dissent by Judge Bumatay

_________________________________________________

COUNSEL

_________________________________________________

Daryoosh Khashayar (argued), Khashayar Law

Group, San Diego, California; Ramin R. Hariri, Hariri

Law Group, San Diego, California; for Plaintiffs-Appellants.

Meghan A. Wharton (argued), Deputy City Attorney;

George F. Schaefer, Assistant City Attorney; Mara W.

Elliott, City Attorney; Office of the City Attorney, San

Diego, California; for Defendants-Appellees.

OPINION

BRESS, Circuit Judge:

We are asked to decide whether the longstanding

practice of chalking tires for parking enforcement purposes violates the Fourth Amendment. It does not.

Even assuming the temporary dusting of chalk on a

tire constitutes a Fourth Amendment “search,” it falls

within the administrative search exception to the

* The Honorable Robert S. Lasnik, United States District

Judge for the Western District of Washington, sitting by designation.

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warrant requirement. Complementing a broader program of traffic control, tire chalking is reasonable in

its scope and manner of execution. It is not used for

general crime control purposes. And its intrusion on

personal liberty is de minimis at most. We hold that

municipalities are not required to obtain warrants before chalking tires as part of enforcing time limits on

city parking spots. We affirm the district court’s grant

of summary judgment to the City of San Diego.

I

The City of San Diego owns thousands of parking

spaces that are located on City property. The San Diego Municipal Code governs the use of the City’s

parking spaces. Drivers who violate the Code’s parking regulations may be required to pay civil fines.

Pursuant to the Code, the City imposes time limits

that are publicly posted and that restrict how long a

vehicle may remain in a particular parking spot.

Since at least the 1970s, San Diego has used tire

chalking as one method of enforcing time limits for its

parking spaces. Chalking consists of a City parking

officer placing an impermanent chalk mark of no more

than a few inches on the tread of one tire on a parked

vehicle. The parking officer must place the chalk mark

on every vehicle parked in a given area of the City;

officers do not single out particular vehicles for chalking. If a vehicle’s chalk mark is undisturbed after the

parking limit has expired, this shows the vehicle has

exceeded the time limit for the space. The parking officer may then issue a citation for violation of the

City’s parking regulations. According to the district

court’s findings, the chalk mark on the tire rubs off

within a few tire rotations after driving.

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The record reflects that San Diego’s parking enforcement methods, including chalking, are intended

to enhance public safety, improve traffic control, and

promote commerce. Insufficient parking enforcement

can lead to widespread noncompliance with the City’s

parking limits, whereas consistent enforcement increases parking space turnover and allows the City to

increase the availability of parking in high-demand

areas. When parking spaces do not regularly turn

over, drivers may engage in “cruising”—that is, circling blocks in search of parking—or may double-park

in lanes of traffic while waiting for spaces to become

available. Drivers may also illegally park in zones reserved for buses, disabled drivers, or emergency

personnel.

Insufficient parking impacts public safety. Cruising, double parking, and illegal parking all lead to

increased traffic congestion that makes it more difficult for public buses and emergency vehicles to

navigate city streets. Illegally parked vehicles may

block access to fire hydrants or bus lanes. Greater

traffic volume poses greater safety risks to pedestrians, bicyclists, and drivers, and drivers searching for

spots are also distracted and more likely to cause collisions. Stop-and-go traffic and idling vehicles

associated with congestion and parking shortages also

result in increased localized vehicle emissions.

Increasing parking availability and reducing traffic congestion in turn improves commerce. Local

businesses and commercial districts depend on the

availability of parking. Enforcing parking time limits

by chalking tires improves parking turnover and encourages customers to visit, shop, and dine within a

reasonable time to allow more customers to do the

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same. Businesses and restaurants have frequently

complained to the City about the availability of parking, and often request that the City enforce parking

time limits more regularly. Expanding parking availability

increases

commercial

activity

and,

correspondingly, the City’s sales tax revenues.

Although the City has other ways of enforcing its

parking regulations, there is considerable evidence

that chalking is its most cost-effective method, and

that it is more efficient and accurate than other methods. Photographing cars, for instance, would require

parking officers to take and review hundreds of photographs. The City cannot currently manage the

volume of data that would be involved in such an effort. The City previously experimented with the use of

streetlight cameras for parking enforcement but

abandoned the program after it posed too many difficulties. Visual marking—which requires officers to

record information about a vehicle and then check

their notes later—is less efficient and more time-consuming. After the City used visual marking briefly

during the pendency of this litigation, it received an

uptick in complaints from business owners about vehicles overstaying parking limits.

In recent years, some municipalities have adopted

License Plate Reader (LPR) technology to enforce

parking regulations. Although LPR technology is effective, it would cost the City millions of dollars and

take several years to implement. LPR technology

would also require the City to maintain time-stamped

photographs and Global Positioning System (GPS)

data for vehicles parked in City parking spaces, which

could raise privacy concerns. In short, San Diego

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views tire chalking as superior to other methods or

parking enforcement.

Plaintiffs Andre Verdun and Ian Anoush Golkar

each received at least one parking citation from the

City after their vehicles were chalked. In May 2019,

they filed a putative class action under 42 U.S.C.

§ 1983, alleging that tire chalking violated the Fourth

Amendment. Plaintiffs asked for an injunction

against chalking and monetary damages. The alleged

damages consist of amounts the putative class has

paid in parking tickets when their cars were ticketed

after chalking.

The district court concluded that tire chalking

constitutes a Fourth Amendment search but that it is

justified under the administrative search exception to

the warrant requirement. The district court thus

granted summary judgment to the City. Plaintiffs

timely appeal. Our review is de novo. Butcher v. Knudsen, 38 F.4th 1163, 1168 (9th Cir. 2022).

II

A

The Fourth Amendment, which applies to the City

of San Diego through the Fourteenth Amendment,

protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend IV.

Before the reorientation of Fourth Amendment

“search” doctrine around the physical trespass theory,

as set forth in United States v. Jones, 565 U.S. 400,

406-07 (2012), and later in Florida v. Jardines, 569

U.S. 1, 5 (2013), it is not apparent that anyone viewed

tire chalking as presenting a grave question of

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constitutional law, or indeed any question of constitutional dimension.

There is evidence that municipalities have been

chalking tires for parking enforcement purposes since

at least the 1930s. See Kerry Segrave, Parking Cars

in America, 1910–1945: A History 120 (2012) (discussing tire chalking in 1935 in Dallas, Texas); Owens v.

Owens, 8 S.E.2d 339, 340 (S.C. 1940) (noting the practice of tire chalking in Columbia, South Carolina);

State v. Sweeney, 5 A.2d 41, 41 (N.H. 1939) (describing

a police officer chalking a tire in Nashua, New Hampshire); Commonwealth v. Kroger, 122 S.W.2d 1006,

1007 (Ky. Ct. App. 1938) (describing a policeman

chalking a tire in Newport, Kentucky on November 7,

1938). In San Diego, tire chalking has been used since

at least the 1970s.

For most of tire chalking’s nearly one-hundredyear history as a parking enforcement tool—a history

that would seem to coincide with the rise of the automobile—it appears that tire chalking went

unchallenged on constitutional grounds. Plaintiffs

have not cited any challenges, successful or otherwise,

to the constitutionality of tire chalking that predated

Jones. So there is some reason to be skeptical of plaintiffs’ effort to have us suddenly declare as violating the

United States Constitution a rather innocuous parking management practice that has been commonly

used without question for several generations in localities across the country. Cf. NLRB v. Noel Canning,

573 U.S. 513, 533 (2014) (“[T]hree-quarters of a century of settled practice is long enough to entitle a

practice to ‘great weight in a proper interpretation’ of

the constitutional provision.”) (quoting The Pocket

Veto Case, 279 U.S. 655, 689 (1929)).

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But we will put any such skepticism completely to

the side and undertake a full analysis under the

Fourth Amendment. The initial question is whether

tire chalking is even a Fourth Amendment “search” in

the first place. We will assume without deciding that

it is. The plaintiffs rely heavily on Jones. There, the

Supreme Court held that a search occurs when the

government “physically occup[ies] private property for

the purpose of obtaining information.” 565 U.S. at

404. It is not clear Jones should be read to suggest

that every physical touch that is designed to obtain

information, even one as fleeting as tire chalking,

rises to the level of a “physical intrusion,” as required

for a Fourth Amendment search. Id.; see also Orin S.

Kerr, The Curious History of Fourth Amendment

Searches, 2012 Sup. Ct. Rev. 67, 90-93 (2012) (discussing ambiguities in Jones’s conception of trespass). And

even if it would be correct to describe chalking as a

search of the car itself, which is unclear, there would

also appear to be meaningful differences between

chalking a parked car and the GPS device at issue in

Jones, which provided weeks’ worth of data on where

a person traveled, a veritable treasure trove of information. 565 U.S. at 403.

Despite these questions, we will assume that

chalking is a search and proceed to the rest of the

analysis.

B

Warrantless searches are presumptively unreasonable under the Fourth Amendment, subject to

certain exceptions. City of Los Angeles v. Patel, 576

U.S. 409, 419 (2015). One such exception, perhaps

more accurately described as a set of exceptions, is

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known as the “administrative search” or “special

needs” exception. The Supreme Court has explained

that “[s]earch regimes where no warrant is ever required may be reasonable where ‘special needs …

make the warrant and probable-cause requirement

impracticable,’ and where the ‘primary purpose’ of the

searches is ‘[d]istinguishable from the general interest in crime control.’” Id. at 420 (first quoting Skinner

v. Ry. Lab. Execs. Ass’n, 489 U.S. 602, 619 (1989), and

then quoting Indianapolis v. Edmond, 531 U.S. 32, 44

(2000)); see generally Eve Primus, Disentangling Administrative Searches, 111 Colum. L. Rev. 254 (2011)

(surveying administrative search exception doctrine).

Despite their different names, the Supreme Court

has often discussed “administrative” and “special

needs” searches together. See, e.g., Patel, 576 U.S. at

420-23; Ashcroft v. al-Kidd, 563 U.S. 731, 736-37

(2011). As we once put it, “[t]here is a ‘special needs’

exception to the warrant requirement for administrative searches.” Whalen v. McMullen, 907 F.3d 1139,

1151 (9th Cir. 2018). For purposes of our analysis, we

thus treat administrative and special needs searches

together, as species of a common genus.

Housed within this broader category of administrative or special needs searches lie several archetypal

situations in which the Supreme Court has recognized

that countervailing interests outweigh the Fourth

Amendment’s default insistence on a warrant. Most

relevant here, and as we discuss further below, the

Supreme Court has permitted various types of dragnets in which police indiscriminately stop motorists

without individualized suspicion or a warrant, when

the stops are not used for the primary purpose of detecting general criminal wrongdoing. See generally

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Demarest v. City of Vallejo, 44 F.4th 1209, 1216-20

(9th Cir. 2022) (canvassing this doctrine). The Supreme Court has thus upheld against a Fourth

Amendment challenge a permanent immigration

checkpoint away from the international border at

which officers stopped cars to determine the immigration status of the travelers. United States v. MartinezFuerte, 428 U.S. 543, 552, 562 (1976). The Court has

upheld sobriety checkpoints used to determine if drivers are under the influence of alcohol. Michigan Dep’t

of State Police v. Sitz, 496 U.S. 444, 455 (1990). And

in Illinois v. Lidster, 540 U.S. 419, 422, 428 (2004), the

Court upheld a suspicionless highway checkpoint

search conducted near the location of a recent hit-andrun, set up for the purpose of asking drivers about the

accident. The Supreme Court additionally “ma[de]

clear” in Indianapolis v. Edmond that a “‘roadblock

with the primary purpose of verifying drivers’ licenses

and vehicle registrations would be permissible’ because it rests on a purpose of ensuring ‘highway

safety’ rather than general crime control.” Demarest,

44 F.4th at 1220 (quoting Edmond, 531 U.S. at 38-39)

(brackets omitted); see also al-Kidd, 563 U.S. at 73637 (explaining that the Court “had previously approved vehicle checkpoints set up for the purpose of

keeping off the road unlicensed drivers” in Delaware

v. Prouse, 440 U.S. 648, 663 (1979)). An example from

our own case law is United States v. Fraire, 575 F.3d

929 (9th Cir. 2009). There, we upheld a dragnet checkpoint set up at the entrance to a national park, at

which park officers, as part of preventing illegal

poaching, asked motorists if they had been hunting.

Id. at 930-31.

The administrative use or special needs exception

has also been invoked to justify warrantless searches

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of certain closely regulated businesses for specified

purposes. See Donovan v. Dewey, 452 U.S. 594, 598

(1981) (“[L]egislative schemes authorizing warrantless administrative searches of commercial property

do not necessarily violate the Fourth Amendment.”);

Whalen, 907 F.3d at 1151 (explaining that the administrative search exception applies to “inspections of

regulated businesses”). Thus, the Supreme Court has

approved of warrantless administrative searches of

commercial establishments selling alcohol for purposes of checking compliance with federal laws

governing such businesses, see Colonnade Catering

Corp. v. United States, 397 U.S. 72, 76 (1970); of a

pawn shop’s gun storeroom for ensuring compliance

with firearm laws, see United States v. Biswell, 406

U.S. 311, 312, 317 (1972); of automobile junkyards, see

New York v. Burger, 482 U.S. 691, 703-04 (1987), and

stone quarries and mines, see Donovan, 452 U.S. at

606. Examples from our case law include administrative searches of massage parlors, see Killgore v. City

of S. El Monte, 3 F.4th 1186, 1192-93 (9th Cir. 2021);

day care centers, see Rush v. Obledo, 756 F.2d 713, 714

(9th Cir. 1985); and vessels in a salmon fishery, see

United States v. Raub, 637 F.2d 1205, 1211 (9th Cir.

1980). These types of warrantless searches are justified because the regulatory presence “is sufficiently

comprehensive and defined that the owner of the commercial property cannot help but be aware that his

property will be subject to periodic inspections undertaken for specific purposes.” Donovan, 452 U.S. at 600.

Under the broad heading of administrative or special needs searches, and in settings in which the

government has a sufficient justification and need for

particularized searching, courts have also upheld the

warrantless search of particular types of persons

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thought to have reduced expectations of privacy, or

persons in particular settings in which the same is

true. The category of the former includes drug and alcohol testing of certain railroad industry employees,

see Skinner, 489 U.S. at 634, and Customs Service employees seeking transfer or promotion to roles

involving drug interdiction, see Nat’l Treasury Emps.

Union v. Von Raab, 489 U.S. 656, 677 (1989); workrelated searches of the desks and offices of government employees, see O’Connor v. Ortega, 480 U.S. 709,

725-26 (1987) (plurality op.); id. at 731-32 (Scalia, J.,

concurring); random drug testing of students involved

in school athletics and competitive extracurricular activities, see Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 650, 665 (1995); Bd. of Educ. of Indep. Sch. Dist.

No. 92 v. Earls, 536 U.S. 822, 838 (2002); and warrantless “home visits … to verify eligibility for welfare

benefits,” Sanchez v. Cnty. of San Diego, 464 F.3d 916,

926, 928 (9th Cir. 2006).

Examples of particular settings in which certain

warrantless searches are permitted are airport

screens of passengers and luggage for weapons and

explosives, United States v. Davis, 482 F.2d 893, 912

(9th Cir. 1973), overruled on other grounds by United

States v. Aukai, 497 F.3d 955, 960-62 (9th Cir. 2007)

(en banc), including more intrusive searches following

the September 11 terrorist attacks, see Aukai, 497

F.3d at 956-57; and screens of persons entering courthouses to search for weapons, see McMorris v. Alioto,

567 F.2d 897, 898-99 (9th Cir. 1978). As the Supreme

Court has explained, “where the risk to public safety

is substantial and real, blanket suspicionless searches

calibrated to the risk may rank as ‘reasonable’—for

example, searches now routine at airports and at

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entrances to courts and other official buildings.”

Chandler v. Miller, 520 U.S. 305, 323 (1997).

This survey of administrative search exception

case law is not meant to be exhaustive, and the cases

could perhaps be organized in different ways. But our

discussion does reveal several relevant points. The

first is that neither the Supreme Court nor this court

has limited application of the administrative search

exception to particular contexts or factual scenarios.

That there is not a prior case applying the administrative search exception to tire chalking, or some

other parking enforcement mechanism, is therefore

not dispositive. The same could have been said of

other administrative searches occasioned by their own

societal or technological developments. Instead, as

new governmental needs arise, the Supreme Court

has evaluated whether a particular type of search or

seizure incident to those needs should be exempted

from the warrant requirement. Our task is not to treat

existing case law as an exclusive firmament restricting the scope of the administrative search exception,

but to reason by analogy from current doctrine, based

on the principles that animate the jurisprudence in

this area.

One such guiding principle is that warrantless administrative searches must bear a sufficient

connection to the governmental interests they serve

and cannot advance as their “primary purpose” “uncover[ing] evidence of ordinary criminal wrongdoing.”

Edmond, 531 U.S. at 41-42. Another broader principle

is that “where a Fourth Amendment intrusion serves

special government needs, beyond the normal need for

law enforcement, it is necessary to balance the individual’s

privacy

expectations

against

the

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Government’s interests to determine whether it is impractical to require a warrant or some level of

individualized suspicion in the particular context.”

Von Raab, 489 U.S. at 665-66. Yet another grounding

precept is that even when “a warrant is not required,

a search is not beyond Fourth Amendment scrutiny;

for it must be reasonable in its scope and manner of

execution.” Maryland v. King, 569 U.S. 435, 448

(2013). In other words, “[w]hile administrative

searches are an exception to the Fourth Amendment’s

warrant requirement, they are not an exception to the

Fourth Amendment’s standard of reasonableness.”

United States v. Bulacan, 156 F.3d 963, 967 (9th Cir.

1998).

At the same time, however, these broader principles and the case law from which they are derived

should not be misconstrued as creating absolute

“floors” drawn from the particular facts of individual

cases. That would effectively calcify the factual premises of other cases into hard-and-fast sub-rules,

without justification in the core Fourth Amendment

precepts we have discussed above. Thus, for example,

although we can agree that double parking may present less acute dangers than drunk driving, we do not

think it then follows that tire chalking can never fall

within the administrative search exception.

Nor do we think the administrative search exception invariably requires 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, as the plaintiffs here

maintain. Some cases in this area surely do involve

those circumstances, and we do not doubt this as a relevant factor in the reasonableness analysis. But we do

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not read the cases to impose this as a threshold legal

requirement, without which the administrative

search exception cannot apply. Indeed, such a requirement would be inconsistent with various

administrative search exception cases, such as the Supreme Court’s allowance of drivers’ license

checkpoints, see al-Kidd, 563 U.S. at 736-37; Edmond,

531 U.S. at 38-39; of a warrantless search of a student’s purse for cigarettes, New Jersey v. T.L.O., 469

U.S. 325, 343 (1985); and of periodic searches of regulated businesses, see, e.g., Burger, 482 U.S. at 703

(junkyards); Colonnade Catering, 397 U.S. at 76-77

(search of liquor store to check for tax compliance), to

name just a few.

C

Consistent with the foregoing principles, courts

have devised accompanying doctrinal tests that are

used to determine whether the administrative search

exception applies in particular contexts. Although

these doctrinal formulations vary from context to context, they are ultimately intended to serve the

underlying Fourth Amendment interests we have discussed above. In our view, tire chalking is most

factually and legally analogous to a motorist dragnet.

So we find it appropriate to analyze this case under

the doctrinal formulation of the administrative search

exception set forth in the vehicle dragnet cases. But

we will also draw on administrative search cases outside that context in explaining our result.

First, though, we explain the analogy to the motorist dragnet cases. A dragnet is a “search[] or

seizure[] of every person, place, or thing in a specific

location or involved in a specific activity.” Primus, 111

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Colum. L. Rev. at 260. That is what the City of San

Diego did here. A City parking enforcement officer

places a chalk mark on every vehicle in a given area.

Officers do not have discretion to chalk certain vehicles only. The chalking is not done based on individual

suspicion that certain drivers may have over-extended

their welcome in a city parking spot, but as part of a

broader programmatic effort of maintaining the flow

of traffic and monitoring the parking times of all visitors.

That San Diego has accomplished its objective

through a possible “search” rather than a seizure does

not make it any less of a dragnet. Instead of stopping

all drivers outside a busy city parking area and asking

if they parked longer than a certain amount time—

like the national park service officers who asked about

hunting in Fraire—the City has developed a more expedient process that involves the impermanent

dusting of chalk on tire tread. But the much less intrusive nature of the City’s actions as compared to a

checkpoint does not diminish the comparison to a

dragnet. We will thus work within the basic contours

of the motorist checkpoint doctrine, with due regard

for the fact that we have here a possible search rather

than a seizure.

In the checkpoint context, we have reduced the

Supreme Court’s guidance to a two-part analysis. See

Demarest, 44 F.4th at 1220; Fraire, 575 F.3d at 932.

First, we will ask whether the search is “‘per se invalid’ because its ‘primary purpose’ is ‘to advance the

general interest in crime control’ with respect to” the

drivers of the vehicles that are chalked. Demarest, 44

F.4th at 1220 (quoting Fraire, 575 F.3d at 932). If the

search is not per se invalid, we will proceed to the

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second step of the analysis and determine whether the

search is “reasonable[],” “on the basis of the individual

circumstances.” Id. (quoting Fraire, 575 F.3d at 933);

see also Lidster, 540 U.S. at 426; Edmond, 531 U.S. at

47.

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As to the first step, we have little difficulty concluding that tire chalking does not have the

impermissible “primary purpose” of “uncover[ing] evidence of ordinary criminal wrongdoing.” Edmond, 531

U.S. at 41-42. To satisfy the administrative search exception, the search’s primary purpose must not be

“general crime control.” Id. at 43; see also Patel, 576

U.S. at 420 (explaining the permissibility of warrantless administrative searches “where the primary

purpose of the searches is distinguishable from the

general interest in crime control”) (quotations and

brackets omitted).

Here, the “primary purpose” of tire chalking is not

a general interest in crime control, but to assist the

City in its overall management of vehicular traffic and

the use of city parking spots. See Demarest, 44 F.4th

at 1220 (explaining that under Edmond and Sitz, a

DUI checkpoint has the “primary purpose of ‘ensuring

roadway safety,’” which is “materially distinguishable

from the impermissible primary purpose of ‘serv[ing]

the general interest in crime control’” (quoting Edmond, 531 U.S. at 41-42)). Chalking is part of San

Diego’s broader effort to ensure the free flow of traffic

and mitigate the harms of congested city streets. As

an enforcement mechanism, chalking also functions

as a deterrent, encouraging compliance with City

parking regulations. See Fraire, 575 F.3d at 933

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(explaining that a checkpoint for illegal hunting “deter[s]

would-be

poachers”).

That

chalking

“accomplishe[s] this goal through the use of law enforcement techniques does not automatically

transform it into a crime control device for Fourth

Amendment purposes.” Id.

It is true, of course, that chalking can lead to a

driver receiving a parking citation. But many administrative searches that have been upheld against

Fourth Amendment challenges yielded evidence of

law violation that could lead to criminal or other consequences. A DUI checkpoint, for example, can lead to

arrests for drunk driving. An immigration checkpoint

can lead to arrests for immigration violations. Sometimes administrative searches lead to arrests for

violations outside the stated purpose of the administrative search, and yet even then they may be

permissible. In Fraire, for instance, we upheld a

checkpoint at a national park entrance asking

whether visitors had been hunting. 575 F.3d at 931,

935. Yet in Fraire itself, a park ranger who stopped a

vehicle at the checkpoint noticed the smell of alcohol

and observed the defendant exhibiting signs of drunkenness, which led to the defendant being charged with

driving while intoxicated. Id. at 931. Even then we

held that the warrantless checkpoint was permissible

“[b]ecause the primary purpose of the checkpoint is

distinguishable from the general interest in crime

control.” Id. at 933. In this case, and unlike other permitted administrative searches, the only information

that tire chalking could reveal is how long a vehicle

remained parked in a city parking space.

As we explained in Fraire, warrantless checkpoints have been found not to have general law

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enforcement as their primary purpose when there is a

“close connection between the checkpoint and the

harm it was seeking to prevent.” 575 F.3d at 933. The

Supreme Court’s decisions in Sitz and Edmond showcase this distinction. Sitz upheld automobile

checkpoints to look for intoxicated drivers, 496 U.S. at

455, but then Edmond struck down virtually identical

checkpoints to look for drugs. 531 U.S. at 44. Edmond

explained that the DUI checkpoints at issue in Sitz

served a permissible purpose because of the “obvious

connection between the imperative of highway safety

and the law enforcement practice at issue.” 531 U.S.

at 39; see also id. at 43. By contrast, the concealment

of drugs had no close “connection to the roadway,” so

the drug checkpoint at issue in Edmond served only a

“general interest in crime control.” Id. at 43-44.

Here, as in Sitz and Fraire, there is a close connection between the chalking of tires and the harm it

seeks to prevent, namely, vehicles staying too long in

city spots. And because San Diego requires parking

officers to chalk all cars in a given area, San Diego has

avoided the “kind of standardless and unconstrained

discretion” that has presented constitutional problems in other cases by raising the specter of a

generalized law enforcement purpose. Sitz, 496 U.S.

at 454 (quoting Prouse, 440 U.S. at 661).

For these reasons, we easily conclude that tire

chalking does not have an impermissible primary purpose of uncovering evidence of ordinary criminal

wrongdoing or serving a general interest in crime control. Chalking is therefore not “per se” invalid under

the Fourth Amendment. See Fraire, 575 F.3d at 932.

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2

Turning to the second part of the analysis, we now

consider “the reasonableness” of the search “‘on the

basis of the individual circumstances.’” Demarest, 44

F.4th at 1220 (quoting Lidster, 540 U.S. at 426). This

requires us to evaluate “[1] the gravity of the public

concerns served by the [search], [2] the degree to

which the [search] advances the public interest, and

[3] the severity of the interference with individual liberty.” Id. at 1222 (quoting Lidster, 540 U.S. at 427).

We conclude that, within the meaning of the Fourth

Amendment, San Diego’s practice of tire chalking is

reasonable.

We begin with the gravity of the public concerns

that chalking serves. One can of course review other

administrative search exception cases and find instances in which a permitted search related to a more

pressing danger. As we noted above, we do not mean

to suggest that traffic congestion presents the same

risk of harm as drunk driving. But at the same time,

chalking is part of a broader program of parking and

traffic management that reflects a substantial and

“compelling administrative objective.” Bulacan, 156

F.3d at 968 (quoting United States v. $124,570 U.S.

Currency, 873 F.2d 1240, 1244 (9th Cir. 1989)). It does

not take an advanced degree in urban planning to appreciate the significance of free-moving vehicular

traffic and parking availability to the basic functioning of a municipality and the quality of life of its

residents, businesses, and visitors.

The record amply reflects this. San Diego has

demonstrated that failure to ensure compliance with

City parking regulations can lead to double-parking,

cruising, and illegal parking. These practices increase

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traffic congestion and can delay public transit; pose

safety risks to pedestrians, bicyclists, and motorists;

reduce air quality; and impede the movement of emergency vehicles. These harms also work to the City’s

fiscal detriment because local businesses depend on

the availability of parking, and the City’s tax revenues

in turn depend on the level of commercial activity.

In a variety of different legal contexts, therefore,

courts have recognized the strong governmental interest in managing traffic and parking. See, e.g., Madsen

v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994)

(“The State also has a strong interest in … promoting

the free flow of traffic on public streets and sidewalks ….”); Prouse, 440 U.S. at 658 (“[W]e are aware

of the danger to life and property posed by vehicular

traffic and of the difficulties that even a cautious and

an experienced driver may encounter.”); Pimentel v.

City of Los Angeles, 974 F.3d 917, 924 (9th Cir. 2020)

(recognizing that “overstay[ed] parking meters lead[]

to increased congestion and impede[] traffic flow”).

The plaintiffs do not disagree. Though they challenge the means the City has chosen to further its

objectives, in opposing summary judgment the plaintiffs themselves “d[id] not dispute the necessity or

importance of enforcing time limits in City parking

spaces.” Indeed, when discussing the asserted “emphasis on its safety, environmental, and business

interests” that chalking serves, the plaintiffs “d[id]

not dispute that such interests are significant, or that

they may be served through parking enforcement.”

We cannot conclude that the City’s interests here are

so insufficient as to preclude chalking.

Turning next to the degree to which chalking advances the public interest, we conclude that chalking

22a

is “appropriately tailored” to that interest. Lidster,

540 U.S. at 427. As we described above, chalking bears

a tight nexus to parking management. Unlike other

permitted administrative searches, it has no apparent

“spillover” use outside of its stated purpose; there is

no suggestion that chalking can yield evidence of any

law violation other than overstaying a parking time

limit. And it is clearly “impracticable,” Skinner, 489

U.S. at 631, to require San Diego to seek warrants for

monitoring parking violations in thousands of parking

spaces, which would create delays antithetical to the

timely enforcement of parking regulations. See O’Connor, 480 U.S. at 720 (explaining that “a warrant

requirement is not appropriate when ‘the burden of

obtaining a warrant is likely to frustrate the governmental purpose behind the search’” (quoting Camara

v. Mun. Ct., 387 U.S. 523, 533 (1967)).

The plaintiffs respond that there are various other

methods of parking enforcement that San Diego could

use besides chalking. But the City already employs

other approaches in addition to chalking. And the City

reasonably explained why some of the plaintiffs’ preferred enforcement methods were not feasible

replacements for tire chalking. This debate about

other approaches the City might have taken is also beside the point: the Supreme Court has “repeatedly

refused to declare that only the least intrusive search

practicable can be reasonable under the Fourth

Amendment.” City of Ontario, Cal. v. Quon, 560 U.S.

746, 763 (2010) (quoting Vernonia, 515 U.S. at 663).

Otherwise, plaintiffs’ “less-restrictive-alternative arguments could raise insuperable barriers to the

exercise of virtually all search-and-seizure powers, because judges engaged in post hoc evaluations of

government conduct can almost always imagine some

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alternative means by which the objectives of the [government] might have been accomplished.” Skinner,

489 U.S. at 629 n.9 (quotations omitted).

We lastly consider the severity of the interference

that chalking may have on individual liberty. Lidster,

540 U.S. at 427. Suffice it to say, it is hard to imagine

a “search” that involves less of an intrusion on personal liberty than the temporary dusting of chalk on

the outer part of a tire on a vehicle parked in a public

space. Chalking involves no detention of persons or

property; it does not damage property or add anything

permanent to it; and the search does not create “substantial anxiety,” as some searches may. See Prouse,

440 U.S. at 657. If being stopped at a lawful vehicle

checkpoint “interfere[s] only minimally with liberty of

the sort the Fourth Amendment seeks to protect,” Lidster, 540 U.S. at 427, the interference with liberty that

chalking causes is infinitesimal.

3

The context in which chalking is used only further

bears out our reasonableness analysis. There is already a reduced expectation of privacy for vehicles.

See, e.g., Byrd v. United States, 138 S. Ct. 1518, 1526

(2018); South Dakota v. Opperman, 428 U.S. 364, 36768 (1976). That is even more so when the vehicle is

parked on city streets, where drivers frequently find

fliers affixed to their windshields and can also reasonably expect greater administrative scrutiny for

compliance with parking laws—expectations not unlike those of the closely regulated businesses for which

the administrative search exception is routinely applied. Simply put, tire chalking does not present the

risks of government abuse or overreach that may be

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present in other contexts in which the government

seeks to operate without a warrant.

Thus, however much plaintiffs may attempt to argue that San Diego’s asserted interest is not as strong

as other situations in which administrative searches

have been allowed, the degree of intrusion on personal

liberty here is correspondingly vastly lower. And we

think the Fourth Amendment reasonableness analysis must permit some degree of offset of these

considerations when the government’s asserted interest is permissible, as it is here. See Sitz, 496 U.S. at

450, 453 (applying a “balancing analysis”). Indeed,

although the “administrative search” label has been

applied to a wide variety of different types of searches

and seizures, what says “administrative search” more

than a discretion-free program of lightly chalking

tires to monitor how long vehicles have stayed in parking spaces? Tire chalking would seem to present a

considerably stronger case under the core principles

motivating the administrative search exception than

many past cases that have already endorsed its use.

All of this confirms that the plaintiffs’ position

cannot be readily situated within a coherent theory of

Fourth Amendment jurisprudence. Without a warrant, people can be lawfully stopped at road

checkpoints for detecting drunk driving, driving without a license, and illegal hunting; government

employees and students can be lawfully searched, including through drug testing; closely regulated

businesses can be subject to periodic inspection; and

airplane passengers can have their luggage opened

and their bodies patted down. People can also be detained based only on reasonable suspicion of

wrongdoing (“not a particularly high threshold to

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reach”), United States v. Valdes-Vega, 738 F.3d 1074,

1078 (9th Cir. 2013) (en banc), and can be arrested

based only on probable cause (“not a high bar”). Kaley

v. United States, 571 U.S. 320, 338 (2014). Within this

body of established law, it would be passing strange if

tire chalking, of all things, were somehow a Fourth

Amendment red line that cannot be crossed. That is

not a theory we can endorse. And that is especially so

when the upshot of plaintiffs’ lawsuit is that San Diego should instead use other methods of

enforcement—such as photographing cars or using license plate reader technology and GPS data—that

would ironically invite greater intrusions into personal privacy.

D

For these reasons, we respectfully part ways with

the Sixth Circuit’s decision in Taylor v. City of Saginaw, 11 F.4th 483, 488-89 (6th Cir. 2021) (“Taylor II”),

which held that tire chalking was not subject to the

administrative search exception (but which expressed

no opinion on whether chalking might be subject to

some other exception to the warrant requirement).

While we are reluctant to create a possible circuit

split, we do not find Taylor II’s analysis persuasive.

Taylor II viewed the question of a special governmental need narrowly by focusing on whether a

municipality can enforce its parking regulations without relying on chalking. See id. at 489. Taylor II

emphasized that a parking officer’s “job was not impacted in any respect if she did not chalk tires,” and

that “for nearly as long as automobiles have parked

along city streets, municipalities have found ways to

enforce parking regulations without implicating the

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Fourth Amendment.” Id. But the relevant question is

not whether there are other parking enforcement

methods that would not constitute Fourth Amendment searches; it is whether tire chalking fits within

the administrative search exception under the governing principles and precedents. For the reasons we

have given, it does.

We also respectfully disagree with our fine dissenting colleague, who like the Sixth Circuit would

hold that tire chalking is unconstitutional, but on a

very different rationale. In the dissent’s view, tire

chalking is unlawful under “the original understanding of the Fourth Amendment.” On this point, the

dissent seriously fails in its proof.

Merely citing the general concerns that animated

the Fourth Amendment and some basic legal history,

as the dissent does, hardly proves the more specific

proposition that tire chalking violates the Constitution. Far, far more historical and originalist analysis

would be required to reach that conclusion and to take

the significant step of constitutionalizing the well-established technical traffic policy choices of

municipalities across this Circuit. See Vernonia, 515

U.S. at 653-54 (explaining that in the administrative

search context, “where there was no clear practice, either approving or disapproving the type of search at

issue, at the time the constitutional provision was enacted, whether a particular search meets the

reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment

interests against its promotion of legitimate governmental interests”) (footnote and quotations omitted).

Nor can tire chalking be made to violate the Constitution through hyperbole. The dissent offers no

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support for its grandiose suggestion that the benign

practice of lightly dusting chalk on the tire of a car

parked in a city space is comparable to the “Crown officials’ abuse of investigative tools” that “helped spark

the American Revolution.” And the dissent’s apparent

contention that tire chalking “‘exhibit[s] the same

characteristics as general warrants and writs’” is obviously inaccurate. The general warrants of the

colonial era “allowed royal officials to search and seize

whatever and whomever they pleased while investigating crimes or affronts to the Crown,” Ashcroft v. alKidd, 563 U.S. 731, 742 (2011), with officers “rummag[ing] through homes in an unrestrained search for

evidence of criminal activity.” Riley v. California, 573

U.S. 373, 403 (2014). Tire chalking is of course not

that.

Much of the dissenting opinion appears grounded

in the belief that the entire administrative search doctrine is an affront to the original meaning of the

Fourth Amendment and should therefore be extremely limited in its application. But the Supreme

Court has never said this. The dissent’s high-level historical overview certainly does not prove it, either.

And the same can be said of the dissent’s repeated reliance on a dissenting opinion from Justice O’Connor

in Vernonia, which of course is not the law.

The dissent not only fails to explain why the original meaning of the Fourth Amendment requires its

result, it is essentially in opposition to longstanding

Supreme Court precedent setting forth an exception

for certain administrative searches. “As the text of the

Fourth Amendment indicates, the ultimate measure

of the constitutionality of a governmental search is

‘reasonableness,’” and “a warrant is not required to

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establish the reasonableness of all government

searches.” Vernonia, 515 U.S. at 653. The administrative search exception is a paradigmatic example of

this. The dissent’s assertion that individualized suspicion is required for a search “[a]bsent a wellrecognized exception” elides the fact that the administrative search exception is such a well-recognized

exception.

To this point, and tellingly, the dissent does not

even purport to work within the Supreme Court’s established doctrinal framework governing this area.

The dissent states that the administrative search exception is limited to “pressing and exceptional” and

“extraordinary and immediate” governmental interests, reserved for “uniquely urgent and exceptional

cases” that involve “immediate and unusual governmental hardships.” The Supreme Court has never

required any of this. And as we explained above, this

type of exceedingly high threshold would be inconsistent with many cases in this area of law from both

the Supreme Court and this court.

In claiming that tire chalking fails under the administrative search exception, the dissent also

misconstrues precedent by plucking stray words in

the Supreme Court’s Edmond decision and redeploying them out of context. The dissent states that the

administrative search exception cannot be “used to

support suspicionless searches for ‘ordinary’ and

‘ever-present’ government interests.” (quoting Edmond, 531 U.S. at 44). But the problem in Edmond

was not the magnitude of the government’s interest in

drug interdiction, which the Court fully endorsed. See

Edmond, 531 U.S. at 42. It was that, unlike the sobriety checkpoint in Sitz, a vehicle checkpoint search for

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drugs had no close “connection to the roadway,” meaning that its primary purpose was a “general interest

in crime control” not related to the nature of the stop.

Id. at 43-44.

The actual quote from Edmond from which the

dissent draws reads: “We decline to suspend the usual

requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the

ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized

and ever-present possibility that interrogation and inspection may reveal that any given motorist has

committed some crime.” Id. at 44. This passage speaks

to the required relationship between the harm and the

dragnet. As we have explained, San Diego’s tire chalking policy—a discretion-free traffic management tool

that bears a close connection to the harm it seeks to

prevent and yields no evidence of any other law violation—clearly does not have the impermissible

“primary purpose” of “uncover[ing] evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 4142. The dissent ignores the tests that govern our review.

Equally misleading is the dissent’s quoting of Edmond for the asserted proposition that the Supreme

Court has left “the administrative-search exception

open for ‘emergenc[ies]’ and ‘exigencies’ like thwarting

‘an imminent terrorist attack’ or catching ‘a dangerous

criminal.’” (quoting Edmond, 531 U.S. at 44). In the

passage the dissent quotes, the Supreme Court was

making clear that there are some dire circumstances

that would justify a suspicionless checkpoint search

even in the name of general crime control disconnected

from roadway safety. See Edmond, 531 U.S. at 44

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(explaining that “[o]f course, there are circumstances

that may justify a law enforcement checkpoint where

the primary purpose would otherwise, but for some

emergency, relate to ordinary crime control,” and listing terrorist attacks or catching a dangerous fleeing

criminal as examples). The Court was by no means

suggesting that these circumstances must be present

when, as here, the primary purpose of the search is

not a generalized interest in crime control.

The dissent’s unsupported and revisionist account

of Fourth Amendment doctrine is not one we are permitted to follow. For the reasons we have given,

whatever may be said of tire chalking, the Fourth

Amendment does not forbid it.

***

The judgment of the district court is

AFFIRMED.

BUMATAY, Circuit Judge, dissenting:

The City of San Diego marks with chalk every

parked vehicle on certain city streets on the chance

that a car might overstay its allotted time. It does so

with no warrant, no suspicion of an ordinance violation, and no pressing and exceptional governmental

interest. The City thus violates the constitutional

rights of its citizens.

No matter how well meaning, modest, or

longstanding the intrusion into personal effects, the

Fourth Amendment commands that all government

searches, with some narrow exceptions, be supported

by a warrant and individualized suspicion of wrongdoing. That government officials must have reason to

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suspect lawbreaking before initiating a search stems

directly from our Founding generation’s aversion to

Crown officials’ abuse of investigative tools to search

and seize at will and without explanation. Those encounters helped spark the American Revolution and

led to the Fourth Amendment and its protection from

“unreasonable” searches and seizures, which was

meant to forever bar such baseless intrusion into lives

and property of others.

Undaunted by the constitutional design, the City

argues that its interests in improving traffic congestion justify dispensing with individualized suspicion.

But neither the original understanding of the Fourth

Amendment nor Supreme Court precedent permit a

policy of indiscriminate searches for such an ordinary

government enterprise. While chalking tires may not

constitute the greatest affront to personal liberty, our

duty is to safeguard against even “stealthy encroachments” on the Fourth Amendment. Boyd v. United

States, 116 U.S. 616, 635 (1886). Thus, I would not expand Fourth Amendment exceptions to accommodate

the City’s chalking program and I would hold that it

is unconstitutional.

For these reasons, I respectfully dissent.

I.

The City’s Chalking Policy Violates the Fourth

Amendment

The Fourth Amendment commands that the

“right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S.

Const. amend. IV.

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The Amendment “is to be construed in the light of

what was deemed an unreasonable search and seizure

when it was adopted.” Carroll v. United States, 267

U.S. 132, 149 (1925). After all, “[c]onstitutional rights

are enshrined with the scope they were understood to

have when the people adopted them.” District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008). Thus,

we rely “on history to inform the meaning of constitutional text.” New York State Rifle & Pistol Ass’n, Inc.

v. Bruen, 142 S. Ct. 2111, 2130 (2022).

By its text, the Fourth Amendment requires us to

first determine whether a government action constitutes a “search” and, if so, whether the search was

“unreasonable.” In resolving these questions, we are

guided by historical sources. Bruen, 142 S. Ct. at 2130.

Based on the original understanding of the Amendment, the City’s chalking policy is both a “search” and

“unreasonable” and thus violates the Fourth Amendment.

A.

Tire Chalking is a Search

Under both the original understanding of the

Fourth Amendment and modern precedent, we apply

a “property-based approach” to determine whether

government action is a “search.” See, e.g., United

States v. Jones, 565 U.S. 400 (2012); Florida v.

Jardines, 569 U.S. 1 (2013). Here, the City admits

that its chalking policy requires parking enforcement

officers to mark the tires of privately owned vehicles

lawfully parked on public streets. Under a commonlaw trespass inquiry, the City’s tire chalking easily

33a

constitutes a “search” subject to Fourth Amendment

protections.

As a historical matter, the Fourth Amendment

had a “close connection to property.” Jones, 565 U.S.

at 405. For much of this country’s history, Fourth

Amendment jurisprudence was “tied to common-law

trespass.” Id. And under a common-law trespassory

test, any government intrusion on property is trespass

no matter that “[the trespasser] does no damage at

all.” Id. (quoting Entick v. Carrington, 95 Eng. Rep.

807, 817 (C.P. 1765)). While modern jurisprudence

has built upon this “property-based approach,” our

law continues to hold “the property of every man so

sacred, that no man can set his foot upon his neighbour’s close without his leave.” Id. (quoting Entick, 95

Eng. Rep. at 817); see also id. at 405, 409 (explaining

that Katz’s reasonable expectation of privacy test has

been “added to, not substituted for, the common-law

trespassory test”). Thus, when a government official

physically intrudes on property in “an attempt to find

something or to obtain information,” a search has occurred under the Fourth Amendment. Id. at 408 n.5.

In Jones, the Supreme Court held that agents conducted a Fourth Amendment search by placing a GPS

tracker on the undercarriage of a car. Id. at 404-05. In

installing the GPS device, “[t]he Government physically occupied private property for the purpose of

obtaining information.” Id. at 404. “[S]uch a physical

intrusion,” the Court reasoned, “would have been considered a ‘search’ within the meaning of the Fourth

Amendment when it was adopted.” Id. at 404-05.

One year later, in Jardines, the Court continued

the emphasis on the property-based view of the

Fourth Amendment. There, the Court said the use of

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a drug-sniffing police dog to explore the curtilage of a

home was a “physical intrusion.” 569 U.S. at 11. In

that case, police handlers let the police dog rummage

through the curtilage of the house until the canine

alerted to the odor of narcotics at the front door. Id. at

4. Sure enough, after officers applied for a warrant to

search the house, they found marijuana plants

stashed in the property. Id. The Court concluded,

“[w]hen the Government obtains information by physically intruding on persons, houses, papers, or effects,

a search within the original meaning of the Fourth

Amendment has undoubtedly occurred.” Id. at 5 (simplified). To the Court, such a “property-rights

baseline … keeps easy cases easy.” Id. at 11. Whenever officers “learn[] what they learn[] only by

physically intruding on [private] property,” then that

is enough to “establish that a search occurred.” Id.

And it makes no difference that odor-detecting dogs

“have been commonly used by police for centuries.” Id.

That’s because “when the government uses a physical

intrusion to explore details” of private property, “the

antiquity” or longstanding value of the tools they use

is irrelevant to the Court’s analysis. Id.

In applying this property-based approach, our

court has found even modest intrusions into personal

effects to be searches under the Fourth Amendment.

For example, an officer inserting a key into a locked

vehicle to see if it worked was a Fourth Amendment

search. United States v. Dixon, 984 F.3d 814, 820 (9th

Cir. 2020). By “insert[ing] the key into the minivan’s

lock, an ‘effect,’” we explained that the officer “physically intruded onto a constitutionally protected

area … for the express purpose of obtaining information.” Id. Similarly, an officer who opened a car

door and leaned in to ask the driver questions had

35a

committed a search. United States v. Ngumezi, 980

F.3d 1285, 1289 (9th Cir. 2020). “Although the intrusion … may have been modest,” we emphasized that

“the Supreme Court has never suggested that the

magnitude of a physical intrusion is relevant to the

Fourth Amendment analysis.” Id.

So at its core, a Fourth Amendment search occurs

when there is (1) a physical intrusion, (2) of a person

or protected area (“persons, houses, papers, or effects”), (3) to obtain information or find something.

Based on this understanding and our precedents, it is

no heavy lift to hold that tire chalking is a “search”

under the Fourth Amendment.

First, tire chalking is a “physical intrusion” because an officer must physically touch and mark the

tire to leave a visible chalk mark. And it makes no difference that the contact is modest or causes no lasting

damage. If placing a key into a car door (Dixon) or

leaning into an open door constitute a search

(Ngumezi), then the physical touching and marking of

vehicles must also count.

Second, the tires of privately owned vehicles are

“effects” under the Fourth Amendment and are thus

protected areas. As the Court has said, “[i]t is beyond

dispute that a vehicle is an ‘effect’ as that term is used

in the Amendment.” Jones, 565 U.S. at 404. And I see

no distinction between the undercarriage and the

tires of a vehicle for Fourth Amendment purposes.

And third, tire chalking is done to obtain information about how long the car has been parked at the

same location. As Dixon and Ngumezi show, it’s irrelevant that the government’s snooping was only

seconds long. As long as there’s a physical intrusion

coupled with government information gathering, then

36a

it’s a search. Here, it’s still a search even though the

chalk on the tire—and the government’s tracking of

the vehicle—lingers for only a few hours.

As a result, this is an “easy case[],” Jardines, 569

U.S. at 11, the City’s tire chalking is a Fourth Amendment search. So rather than simply assume that

chalking is a Fourth Amendment search and sow confusion over the law, I would hold that it is

unequivocally one. See also Taylor v. City of Saginaw,

11 F.4th 483, 487 (6th Cir. 2021) (“[C]halking is a

search for Fourth Amendment purposes under the

property-based Jones test.”) (simplified).

B.

Tire Chalking is Unreasonable

We next turn to whether the City’s tire chalking

policy is constitutionally reasonable. As a matter of

original understanding, the Fourth Amendment protects against suspicionless searches. “A search or

seizure is ordinarily unreasonable in the absence of

individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). Here, the

City’s tire-chalking policy indiscriminately targets

lawfully parked vehicles for chalking and so it’s presumptively unreasonable.

The City, however, argues that its tire-chalking

policy falls under an “administrative search” exception to the Fourth Amendment’s prohibition against

suspicionless searches. But given the history of the

Fourth Amendment and the limited scope of the administrative search doctrine, the City’s argument

fails.

37a

While an exhaustive history of the meaning of the

Fourth Amendment would not be possible in these

pages, a brief review is illuminating. “[B]y looking to

tradition and history, we see how constitutional text

came to be and how the People closest to its ratification understood and practiced the right.” Duncan v.

Bonta, 19 F.4th 1087, 1150 (9th Cir. 2021) (en banc)

(Bumatay, J., dissenting). At the very least, by embracing the historical record, we can prevent further

deviations “from the original understanding of the

Constitution.” Mai v. United States, 974 F.3d 1082,

1091 (9th 2020) (Bumatay, J., dissenting from denial

of reh’g en banc). Indeed, relying on history to inform

constitutional meaning is “more legitimate[] and more

administrable,” than asking judges to make difficult

interest-balancing calculations. Bruen, 142 S. Ct. at

2130. And here, history explains why we should not

be so quick to expand Fourth Amendment exceptions

to accommodate the City’s chalking policy.

1.

Protection Against Suspicionless Searches

As a general matter, one of the evils that the

Fourth Amendment was designed to protect against

was the abuse of suspicionless general warrants. See

William J. Cuddihy, The Fourth Amendment: Origins

and Original Meaning, 603-12, 691-724 (2009). These

general warrants allowed government officers to

search a property or person for evidence of wrongdoing without designating what they were looking for or

why they had suspicion to search. Of particular concern to our Founding generation was the issuance of

“writs of assistance,” which empowered revenue officers to search suspected places for smuggled goods at

38a

their discretion. Boyd, 116 U.S. at 625. Revolutionaryera Massachusetts lawyer James Otis pronounced

these writs as “the worst instrument of arbitrary

power, the most destructive of English liberty and the

fundamental principles of law” because they placed

“the liberty of every man in the hands of every petty

officer.” Id. (simplified). Indeed, the Fourth Amendment “reflect[s] the determination of those who wrote

the Bill of Rights that the people of this new Nation

should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by

officers acting under the unbridled authority of a general warrant.” Stanford v. State of Tex., 379 U.S. 476,

481 (1965).

Early History

For centuries predating the Founding of our country, suspicionless general warrants and writs of

assistance permitted great exercises of arbitrary

power. See Thomas K. Clancy, The Role of Individualized Suspicion, 25 U. Mem. L. Rev. 483, 528-29 (1995).

These tools rose to prominence during the reign of

Charles I when the Crown issued writs of assistance,

imposed by the Star Chamber, without any suspicion

of illegal activity and enforceable wherever Crown officers pleased. See id. at 497. Such officers were

authorized “to enter into any vessel, house, warehouse, or cellar, search in any trunk or chest and

breach any bulk whatsoever[.]” Id. (simplified).

Over time, the English writs of assistance made

their way to the colonies. From as early as 1696, English officers could seek writs of assistance to enforce

customs laws in the colonies. Id. at 502. A prominent

example occurred in 1761 during Paxton’s Case.

There, an English officer, Charles Paxton, was

39a

authorized by a writ to search places he suspected of

containing contraband. Cuddihy at 378. It was this

case that caused Otis to forcefully argue against the

writs’ “total[] annihilat[ion]” of the “most essential

branches of English liberty.” Id. Although Otis lost his

case, John Adams would later observe that his argument was a “flame of fire” that helped ignite the

American Revolution. See Frank v. Maryland, 359

U.S. 360, 364 n.3 (1959).

Resistance to these general warrants came from

both sides of the Atlantic. One famous English case

was Entick, 95 Eng. Rep. 807—a case familiar to

“‘every American statesman’ at the time the Constitution was adopted[] and considered to be ‘the true and

ultimate expression of constitutional law’ with regard

to search and seizure.” Jones, 565 U.S. at 404 (quoting

Boyd, 116 U.S. at 626-27). In that 1765 libel case, a

Crown officer issued a warrant to seize an author,

John Entick, and to search his books and papers without limitation. But Lord Camden observed “one

should naturally expect that the law to warrant [such

power] should be clear in proportion as the power is

exorbitant. If it is law, it will be found in our books. If

it is not to be found there, it is not law.” 19 T.B. Howell, A Complete Collection of State Trials 1066 (5th ed.

1816). If the case was decided in the government’s favor, Lord Camden cautioned that “the secret cabinets

and bureaus of every subject in this kingdom will be

thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to

charge, or even to suspect, a person to be the author,

printer, or publisher of a seditious libel.” Id. at 1063.

He went on, “[i]f libels may be seized it ought to be laid

down with precision, when, where, upon what charge,

against whom, by what magistrate, and in what stage

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of the prosecution.” Id. at 1071. Lord Camden ruled

for Entick and found the government’s action to be a

trespass. Thus, shortly before the Founding, even

English courts had begun to require some form of suspicion before allowing the use of a writ of assistance.

State Constitutions and State Practice

The suspicionless writs of assistance were considered so oppressive that, when colonies became newly

independent States, they acted quickly to prohibit

them. See Nelson Lasson, The History and Development of the Fourth Amendment 79-83 (1970).

The Virginia Bill of Rights of 1776, for example,

considered “general warrants, whereby an officer or

messenger may be commanded to search suspected

places without evidence of a fact committed, or to seize

any person or persons not named, or whose offense is

not particularly described and supported by evidence,

are grievous and oppressive and ought not to be

granted.” Va. Const. art. I, § 10.

Maryland’s 1776 constitution incorporated a protection that “all general warrants—to search

suspected places, or to apprehend suspected persons,

without naming or describing the place, or the person

in special—are illegal, and ought not to be granted.”

Md. Const. art. I, § 23 (1776) reproduced in 3 Francis

N. Thorpe, The Federal and State Constitutions 1688

(1909).

Directly foreshadowing the text of the Fourth

Amendment, the Massachusetts Constitution of 1790

guaranteed that “[e]very subject has a right to be secure from all unreasonable searches, and seizures, of

his person, his houses, his papers, and all his possessions” and that “[a]ll warrants … are contrary to this

right, if the cause or foundation of them be not

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previously supported by oath or affirmation … [or] not

accompanied with a special designation of the persons

or objects of search, arrest, or seizure.” Mass. Const.

art. XIV.

And Pennsylvania’s 1776 constitution barred any

search warrants made “without oaths or affirmations

first made affording a sufficient foundation for them.”

Pa. Const. art. I, § 10 (1776) reproduced in The Complete Bill of Rights 345 (Neil H. Cogan ed., 2d ed.

2015).

Of course, there is some countervailing history. At

the time of the Founding, general searches—even

warrantless searches—were common for commercial

establishments. Cuddihy at 743. For example, even

States with protections against general warrants, like

Massachusetts, New Hampshire, Connecticut, Pennsylvania, and Maryland, permitted warrantless

inspections of breweries, bakeries, and certain other

workplaces. Id. Indeed, warrantless inspection of

“inns and similar places of public accommodation

were commonplace” in early American history. City of

Los Angeles v. Patel, 576 U.S. 409, 433, (2015) (Scalia,

J., dissenting).

Even accounting for these exceptions, post-Revolution America expanded the category of

“unreasonable search and seizure.” As Cuddihy

states, “[b]y 1787, the states had not only reified the

right against unreasonable search and seizure but extended it, defined it, and, in a word, Americanized it.”

Cuddihy at 667. Along with halting general warrants,

States declared unannounced searches and nighttime

searches to be “unreasonable” and pioneered the warrant specificity requirement. Id. at 668. It is with this

growing call for the protection against government

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intrusion into property and persons that our Nation

ratified the Constitution.

Ratification of the Constitution

So when it came time to draft the Fourth Amendment, the Framers understood the dangers posed by

the suspicionless writs of assistance and general warrants. After the initial drafting of the Constitution,

several proposals were made to add protections

against their abuse. In one example, Richard Henry

Lee of Virginia and Melancton Smith of New York proposed a prohibition of “unreasonable searches and

seizures” as appeared in the Massachusetts Constitution. Cuddihy at 672. Such a proposal would proscribe

general warrants but also a growing category of unreasonable searches and seizures. Id.

And in a broader effort, several prominent AntiFederalists circulated pamphlets arguing that

“general warrants, writs of assistance, and general excise searches” would flourish without express

protections against them. Id. at 674-79. Anti-Federalist essayist, a “Farmer,” for example, inveighed that

the Constitution may revitalize general warrants because it offered no bill of rights prohibiting their use.

Essays by a Farmer, Feb. 15, 1788, reprinted in Herbert Storing, the Complete Anti-Federalists vol. 5, 1314 (1981). He feared that courts would not enforce protections against such warrants, “especially in those

cases which may strongly interest the passions of government.” Id. at 14.

More evidence of the distrust of suspicionless warrants comes from the debates that occurred at the

State ratification conventions. Take Patrick Henry

during the Virginia convention:

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[G]eneral warrants, by which an officer may

search suspected places, without evidence of

the commission of a fact, or seize any person,

without evidence of his crime, ought to be prohibited. As these are admitted, any man may

be seized, any property may be taken, in the

most arbitrary manner, without any evidence

or reason. Every thing the most sacred may be

searched and ransacked by the strong hand of

power.

3 The Debates in the Several State Conventions on the

Adoption of the Federal Constitution 532 (Jonathan

Elliot ed., 2d ed. 1836). And at the Maryland convention, a proposal was made to require a civil jury trial

in “all cases of trespasses” where government officials

would have to establish the reasonableness of the

search by pointing to some basis of suspicion. See

Akhil R. Amar, Fourth Amendment First Principles,

107 Harv. L. Rev. 757, 777-78 (1994).

Indeed, it was the Anti-Federalist concern for general warrants that caused James Madison to present

a federal bill of rights with protection against “unreasonable search and seizure” in 1789. Cuddihy at 69192. Thus, the driving focus on limiting writs of assistance coupled with a reasonableness requirement

suggests that the Fourth Amendment was intended to

require some reason for suspicion. Cf. Clancy, 25 U.

Mem. L. Rev. at 528-31.

Early Congressional Practice

Early Congressional practice confirms that a reasonable search needed some form of suspicion.

Starting with the first Congress—the same Congress

that adopted the Fourth Amendment—statutes authorizing search also required a predicate of some

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suspicion. For example, the first Congress passed the

Act of 1789 which allowed federal naval inspectors to

enter ships without warrants so long as they “shall

have reason to suspect any goods, wares, or merchandise subject to duty shall be concealed.” Act of July 31,

1789, § 24, 1 Stat. 29, 43 (1789) (repealed 1790). Similar versions of this law were reauthorized in 1790,

1793, and 1799. See Amar, 107 Harv. L. Rev. at 766.

Another early example was a 1791 Act that imposed

duties on liquor and allowed the issuance of search

warrants upon “reasonable cause of suspicion” that

liquor had been concealed. Act of March 3, 1791, § 32,

1 Stat. 199, 207 (1791).

Congress generally continued this pattern

throughout the nineteenth century. In 1815, Congress

authorized customs officers to “stop, search, and examine any vehicle, beast, or person on whom they

should suspect there was merchandise which was subject to duty.” Act of March 3, 1815, 3 Stat. 231, 232

(1815). And Congress extended suspicion requirements for searches in Indian territory as well. For

example, in 1822, Congress passed a law allowing Indian agents to search certain traders for liquor “upon

suspicion or information that ardent spirits are carried into the Indian countries” by the traders. Act of

May 6, 1822, 3 Stat. 682 § 2 (1822). And in 1834, Congress passed a similar law allowing Indian agents to

search boats, stores, or places of deposit if the agents

suspected the places contained liquor. Act of June 30,

1834, 4 Stat. 729, 732 (1834).

So throughout American history, including

through the Fourth Amendment’s incorporation

against the States by the Fourteenth Amendment,

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warrantless and suspicionless searches were seen as

“unreasonable.”

***

Put together, this historical evidence establishes

that our Founding generation had a deep-seated aversion to suspicionless searches. As an original matter,

absent a well-recognized exception, any government

policy that indiscriminately targets the property of

others for search— without any suspicion of wrongdoing—is unreasonable. As Justice O’Connor explained,

“the particular way the Framers chose to curb the

abuses of general warrants—and by implication, all

general searches—was not to impose a novel ‘evenhandedness’ requirement; it was to retain the

individualized suspicion requirement … [and] to

make that requirement meaningful and enforceable.”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 670

(1995) (O’Connor, J., dissenting).

Here, the City’s tire-chalking policy of warrantless and suspicionless searches faces a daunting climb

given the original understanding of the Fourth

Amendment. Unless the chalking policy can satisfy

one of the limited exceptions to the individualizedsuspicion requirement, it must be held unconstitutional. As the following shows, the City’s policy fails to

fit any Fourth Amendment exception.

2.

The Administrative Search Doctrine

Beginning in the 1960s, and continuing for several

decades, the Supreme Court has fashioned exceptions

to the Fourth Amendment’s strict requirement of

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individualized suspicion. Sometimes collectively

known as the “administrative search” doctrine, these

exceptions were created to address certain narrow

concerns, such as (1) public-safety code compliance,

see Camara v. Mun. Ct. of San Francisco, 387 U.S. 523

(1967); (2) closely regulated businesses, see Donovan

v. Dewey, 452 U.S. 594 (1981); (3) dragnets or checkpoints for imminent dangers, see United States v.

Martinez-Fuerte, 428 U.S. 543 (1976); and (4) special

needs populations, see Griffin v. Wisconsin, 483 U.S.

868 (1987). See also Eve B. Primus, Disentangling Administrative Searches, 111 Colum. L. Rev. 254, 260-61

(2011).

The City contends that its tire-chalking policy

falls within the exception for warrantless and suspicionless “dragnet” searches because City officials

exercise no discretion in marking vehicles, and its

parking enforcement scheme is for an administrative

purpose. In determining whether a government program meets this exception, courts look “closely at the

nature of the public interests that such a regime is designed principally to serve.” Edmond, 531 U.S. at 43.

And the government has the burden of proving that

its interests warrant this exception. United States v.

Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012). But

because the City’s tire-chalking policy isn’t designed

to address a pressing and exceptional governmental

interest, the City has failed to sustain its burden and

its policy is unconstitutional.

The dragnet exception is potent. It authorizes a

search or seizure of every effect or person at a specific

location or engaged in a specific activity. See Primus,

111 Colum. L. Rev. at 260. Because dragnets operate

without a warrant or individualized suspicion—the

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safeguards against arbitrary power—they have been

justified in “only limited” contexts involving extraordinary and immediate governmental interests.

Edmond, 531 U.S. at 41-42. And given the historical

aversion to these suspicionless searches and the dictates of the Fourth Amendment, we must

scrupulously guard against the expansion of government concerns that warrant this rare exception. As

then-Judge Anthony Kennedy wrote, “[c]are must be

taken so that the exception is not unduly extended.”

McMorris v. Alioto, 567 F.2d 897, 899 (9th Cir. 1978).

Otherwise, we risk swallowing the protections of the

Fourth Amendment within its exception and putting—in the words of Otis—our “liberty … in the

hands of every petty officer.” Boyd, 116 U.S. at 625.

Indeed, both the Supreme Court and this court

have established a high bar for justifying the suspension of the individualized-suspicion requirement—

only relaxing the constitutional requirement for

uniquely urgent and exceptional cases. The exception

cannot, however, be used to support suspicionless

searches for “ordinary” and “everpresent” government

interests. Edmond, 531 U.S. at 44. And those routine,

generalized government concerns are exactly what we

see here.

Start with the exceptional concerns in United

States v. Martinez-Fuerte, 428 U.S. 543 (1976). In that

case, the Court applied the exception to immigration

checkpoints to stem the “flow of illegal entrants from

Mexico.” Id. at 552, 566. The Court noted the “formidable law enforcement problems” posed by border

enforcement, id. at 552, including “well-disguised

smuggling operations” and the fact that illegal immigration could not “be controlled effectively at the

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border,” id. at 556-57. Based on this “great [need],” the

Court authorized the suspicionless checkpoint seizures without a prior warrant as “necessary.” Id. at

556-57, 562.

Or take the immediate danger faced in Michigan

Department of State Police v. Sitz, 496 U.S. 444 (1990).

That case extended the exception to sobriety checkpoints to take drunk drivers off the road. The Court

emphasized the “magnitude of the drunken driving

problem,” including the significant “alcohol-related

death and mutilation on the Nation’s roads.” Id. at

451. To the Court, the problem represented a “tragedy” and an “increasing slaughter.” Id. (simplified).

And this overwhelming interest was balanced against

the “slight” intrusion on motorists caused by the

checkpoint. Thus, the State had a strong interest in

preventing the immediate hazard posed by drunk

drivers and did not need individualized suspicion to

perform the brief stops. Id. at 453.

Edmond then showed the outer limits of the exception. In that case, officers used drug-sniffing dogs

at a vehicle checkpoint to interdict illegal drugs. Edmond, 531 U.S. at 40. The Court struck down the

program because it too broadly targeted “evidence of

ordinary criminal wrongdoing.” Id. at 41-42. It made

clear that dragnet searches were “only limited exceptions,” not to be extended to “generalized and everpresent” concerns. Id. at 41, 44. And unlike the “problems of policing the border or the necessity of ensuring

roadway safety,” the city’s interest in detecting drugs

was an “ordinary enterprise” of government activity.

Id. at 44. The Court concluded that the “general interest in crime control” can never justify suspicionless

stops. Id. While leaving the administrative-search

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exception open for “emergenc[ies]” and “exigencies”

like thwarting “an imminent terrorist attack” or

catching “a dangerous criminal,” the Court did not

permit authorities to “simply stop cars as a matter of

course to see if there just happens” to be a crime committed. Id. (emphasis added). “Without drawing the

line at roadblocks designed primarily to serve the general interest in crime control,” the Court feared that

“the Fourth Amendment would do little to prevent

such intrusions from becoming a routine part of American life.” Id. at 42.

Next came approval of the exception for a specific

and pressing concern in Illinois v. Lidster, 540 U.S.

419 (2004). There, officers set up a checkpoint to ask

motorists for information about a recent hit-and-run.

Id. at 419. Unlike the general crime control interest in

Edmond, the “public concern [here] was grave” and

the “stop’s objective was to help find the perpetrator

of a specific and known crime, not of unknown crimes

of a general sort.” Id. at 427. Indeed, the purpose of

the checkpoint was not to apprehend a vehicle’s occupants, but to gather information to apprehend a

specific lawbreaker on the lam. Id. at 423.

And our court has continued to apply the administrative search exception to immediate and unusual

governmental hardships. Look at United States v. Davis, 482 F.2d 893 (9th Cir. 1973). There, we held

airport screenings were valid administrative searches

because they advanced the “grave and urgent” need to

“prevent the carrying of weapons or explosives aboard

aircraft” and “thereby … prevent hijackings.” Id. at

908, 910. We then extended this screening search to

courthouses to “secure [the] vital governmental interest” in “protecting sensitive facilities from a real

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danger of violence.” McMorris, 567 F.2d at 899. The

same goes for federal buildings. United States v. Bulacan, 156 F.3d 963, 968 (9th Cir. 1998). We even

applied the exception to a “wildlife checkpoint” based

on the unique interests in the case. United States v.

Fraire, 575 F.3d 929 (9th Cir. 2009). There, a checkpoint at the entrance of a national park was

permissible to “mitigate the illegal taking of animals

in the park.” Id. at 931. That’s because the specific interest in “prevent[ing] hunters from destroying a

precious natural resource,” such as protected wildlife,

compared to the “immediate harm to motorists” from

a DUI checkpoint. Id. at 933.

So neither the Supreme Court nor our court has

ever approved of an administrative search for such pedestrian concerns like the City asks us to. An

administrative search must be limited to specific, imminent, and vital interests— rather than the routine,

ordinary challenges often faced by governments. The

Sitz checkpoints took an immediate hazard—drunk

drivers—off the road. The Martinez-Fuerte checkpoints deterred illegal aliens from absconding into the

interior of the country. Lidster sought to solve a recent

fatality. Davis prevented the hijacking of airplanes.

And McMorris and Bulacani protected against real

threats to government buildings. Even Fraire preserved endangered species. In all these cases, the

government’s suspicionless search was designed to address immediate and extraordinary interests. On the

other hand, Edmond shows the dragnet exception has

no application for “ordinary” and “general” governmental concerns—even as laudable an interest as

interdicting illegal narcotics.

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Simply put, the City’s interests in perpetuating its

parking enforcement regime don’t chalk up. The City

lists several benefits of its tire-chalking policy, such

as improving traffic congestion, preventing pedestrians and bicyclists from breathing car exhaust,

promoting a “dynamic and robust commercial district,” and preserving “the quality of urban life.” While

all commendable goals, they fall well short of the type

of singular interests justifying the rare exception to

the individualized-suspicion requirement. The City

argues that its interests resemble the “road safety”

concern in Sitz. But the City asks us to equate concerns for ever-present traffic congestion with taking

deadly drunk drivers off the road. There’s no such

equivalence. Nor do the City’s interests look anything

like other applications of the exception such as preventing hijacking (Davis), detecting human

smuggling (Martinez-Fuerte), or catching a recent hitand-run suspect (Lidster). In sum, the City’s routine

interests do not come close to prior applications of the

administrative search exception. At core, the interests

in reducing traffic congestion are too generalized and

commonplace to support granting the City such substantial power.

If there was any remaining doubt, we must evaluate administrative search precedent under the

original understanding of the Fourth Amendment.

See, e.g., Edmo v. Corizon, 949 F.3d 489, 506 (Bumatay, J., dissenting from denial of reh’g en banc).

Indeed, “[r]ather than rely on our own sense of what

is the right balance of freedom and government restraint,” we should “follow the meaning of the People’s

law as understood at the time it was enacted.” Duncan, 19 F.4th at 1149 (Bumatay, J., dissenting). After

all, our job as judges is to “preserve that degree of

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respect for the privacy of persons and the inviolability

of their property that existed when the [Fourth

Amendment] was adopted—even if a later, less virtuous age should become accustomed to considering all

sorts of intrusion ‘reasonable.’” Minnesota v. Dickerson, 508 U.S. 366, 380 (1993) (Scalia, J., concurring).

And here, the individualized-suspicion requirement

was a core feature of “reasonableness” at the time of

the Founding. Indeed, “[t]he individualized suspicion

requirement has a legal pedigree as old as the Fourth

Amendment itself, and it may not be easily cast aside

in the name of policy concerns.” Vernonia Sch. Dist.,

515 U.S. at 678 (O’Connor, J., dissenting).

Given this history, “[c]an there be any doubt that

the colonists would have vigorously opposed warrantless searches exhibiting the same characteristics as

general warrants and writs” all for the sake of improving traffic? Yale Kamisar, Does (Did)(Should) the

Exclusionary Rule Rest on a ‘Principled Basis’ Rather

than an ‘Empirical Proposition’?, 16 Creighton L. Rev.

565, 575 (1983). Obviously not. So rather than jumping straight into interest balancing every time the

government seeks to effect some “administrative

search,” our duty should be to first ask whether the

“magnitude of the State’s interest,” Edmond, 531 U.S.

at 39, is sufficient to justify a suspicionless search as

compared to historically recognized exceptions. Because the City has failed to meet this threshold

question, I would end the inquiry there.

II.

The touchstone of the Fourth Amendment is, of

course, reasonableness. But that doesn’t mean that

judges have free rein to interest-balance under

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whatever conception of “reasonableness” we like. At

all times, we must be guided by the text and history

of the Constitution. Those guideposts make clear that

individualized suspicion is the norm when the government wants to search personal property. And while

there are some limited circumstances that relax the

requirement of individualized suspicion, we should

disfavor any expansion of those exceptions given their

tension with the original understanding of the Constitution. Otherwise, we leave “the liberty of every”

person not only “in the hands of every petty officer”

but also in the interest-balancing calculus of every

judge.

To sum up: the administrative search exception is

still the exception. It is no doubt true that law enforcement, traffic enforcement, and almost any other

government function would be more efficient and

more convenient if officers could skirt the Fourth

Amendment. But inconvenience is the constitutional

design. At least when issuing parking tickets, the City

must obey the Fourth Amendment.

I respectfully dissent.

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APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

ANDRE VERDUN; IAN

ANOUSH GOLKAR, on

behalf of themselves and

a class of all others similarly situated.,

Plaintiffs,

v.

CITY OF SAN DIEGO;

Does 1-130, inclusive

Case No. 3:19-cv00839-AJB-WVG

ORDER GRANTING THE CITY OF

SAN DIEGO’S

MOTION FOR

SUMMARY

JUDGMENT

(Doc. No. 27)

Defendants.

Before the Court is Defendant City of San Diego’s

(“City”) motion for summary judgment against Plaintiffs Andre Verdun and Ian Anoush Golkar’s

(“Plaintiffs”) pursuant to Rule 56 of the Federal Rules

of Civil Procedure. (Doc. No. 27.) The Court finds the

motion suitable for determination on the papers and

without oral argument. Thus, the motion hearing on

January 21, 2021 is VACATED. Civil Local R. 7.1.d.1.

For the reasons set forth below, the Court GRANTS

the City’s motion.

//

//

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//

//

I. BACKGROUND1

Throughout its jurisdictional boundaries, the City

owns thousands of parking spaces located on Cityowned property. Access to, and use of, the City’s parking spaces are governed by provisions of the San Diego

Municipal Code (“SDMC”). A driver’s violation of a

SDMC parking provision is a regulatory violation,

which may result in a fine. Pursuant to SDMC section

86.0106, the City is authorized to establish time limits

for its parking spaces. The time limits for parking in

these spaces are illustrated in signs providing notice

of the time limits.

The regulation of parking falls within the City’s

police powers, and the City has authority to enforce

parking ordinances within its jurisdiction. The City

uses “chalking” as a method of enforcing the time limit

for its parking spaces. While a vehicle is parked in a

space, a parking enforcement officer (PEO) places an

impermanent chalk mark of no more than a few inches

on the tread of one of the vehicle’s tires. The PEO is

trained to mark every vehicle in the area; the PEO

does not have discretion to choose which vehicles to

mark. After allowing the posted amount of time allowed for the area to expire, the PEO returns and

examines each vehicle to determine whether the mark

on the tire tread is undisturbed. If the mark is undisturbed, the PEO knows that the driver violated the

time limit for the City’s parking space. Any vehicle

1 The following facts are undisputed. (Doc. Nos. 27-1 at 10-17; 33

at 13.)

56a

parked in violation of the posted time limit may be issued a citation.

This litigation centers on the City’s method of

chalking the tires of parked vehicles to determine

whether the vehicle has overstayed the parking

space’s time limit. Specifically, Plaintiffs challenge

the City’s tire chalking as an unreasonable search in

violation of the Fourth Amendment to the United

States Constitution. Plaintiffs claim that the City’s

placement of chalk marks on the tires of privatelyowned vehicles for surveillance purposes violates the

owners’ property rights and caused constitutional and

monetary harm.

On May 3, 2019, Plaintiffs commenced this lawsuit by filing the operative complaint, wherein they

allege a cause of action pursuant to 42 U.S.C § 1983,

namely, a civil action for deprivation of rights under

the Fourth Amendment to the United States Constitution. On March 21, 2020, the Court denied the City’s

motion to dismiss Plaintiffs’ complaint, finding that at

the pleading stage of litigation, Plaintiffs pled sufficient facts to allege a violation of the Fourth

Amendment. And while the City argued that its practice is justified under certain exceptions to the general

warrant requirement, the Court deemed it improper,

at the motion to dismiss stage, to dismiss Plaintiffs’

entire action pursuant to a warrant exception based

only on the facts pled.

This case is now beyond the pleading stage. On

October 23, 2020, the City filed the instant motion for

summary judgment. (Doc. No. 27.) Plaintiffs filed an

opposition to the City’s motion, to which the City replied. (Doc. Nos. 33, 38.) This order follows.

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II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment

permits a court to enter judgment on factually unsupported claims, see Celotex Corp. v. Catrett, 477 U.S.

319, 327 (1986), and may also be used on affirmative

defenses. Dam v. Gen’l. Elec. Co., 265 F.2d 612, 614

(9th Cir. 1958). Granting summary judgment is

proper if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A fact is material

when, under the governing substantive law, it could

affect the outcome of the case. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about

a material fact is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Id.

The moving party has the initial burden of demonstrating that summary judgment is proper. See

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).

The burden then shifts to the opposing party to provide admissible evidence beyond the pleadings to

show that summary judgment is not appropriate. See

Celotex, 477 U.S. at 322, 324. The court must review

the record as a whole and draw all reasonable inferences in favor of the non-moving party. Hernandez v.

Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir.

2003). However, unsupported conjecture or conclusory

statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d

1097, 1103 (9th Cir. 2008). “The mere existence of a

scintilla of evidence in support of the plaintiff’s position will be insufficient to survive summary

judgment.” Anderson, 477 U.S. at 252. A party

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opposing summary judgment must come forward with

“significant probative evidence tending to support its

claim that material, triable issues of fact remain.”

Sanchez v. Vild, 891 F.2d 240, 242 (1989).

III. DISCUSSION

To prevail on a civil rights claim pursuant to 42

U.S.C. § 1983, Plaintiffs must show “the violation of a

right secured by the Constitution and laws of the

United States and must show that the alleged deprivation was committed by a person acting under color

of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)

(citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)).

Consequently, if the City establishes that Plaintiffs

cannot meet their burden to show that tire chalking

violates the Fourth Amendment, Plaintiffs’ Section

1983 claim necessarily fails. The City seeks to establish just that.

The Fourth Amendment to the United States Constitution guards against unreasonable searches and

seizures. It states:

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.

U.S. Const. amend. IV. In analyzing a Fourth Amendment claim, the Court applies a two-step framework,

which considers (1) whether a search or seizure occurred, and if so, (2) whether the search or seizure was

unreasonable. See Whalen v. McMullen, 907 F.3d

59a

1139, 1146, 1151 (9th Cir. 2018) (evaluating whether

a “[s]earch within the meaning of the Fourth Amendment” occurred and whether the “particular search

me[t] the reasonableness standard”).

In this case, the City moves for summary judgment, arguing that it is entitled to judgment as a

matter of law because chalking tires does not amount

to a search for purposes of the Fourth Amendment.

(Doc. No. 27-1 at 19-20.)2 The City further argues that

even assuming that tire chalking is a search, it does

not violate the Fourth Amendment because the City’s

conduct qualifies under an exception to the warrant

requirement. (Id. at 24-40.) The Court considers these

arguments in turn.

A. “Search” Within the Meaning of the

Fourth Amendment

In the Court’s order denying the City’s motion to

dismiss, the Court found that— based on Plaintiffs’

allegations that the City physically intruded on their

parked vehicles by marking the tires with chalk to determine whether they violated the City’s parking

limitations—a “search” within the meaning of the

Fourth Amendment occurred in this case. (Doc. No. 15

at 5.) In so finding, the Court relied on the common

law trespassory test applied in United States v. Jones,

565 U.S. 400, 404-05 (2012). Under Jones, when a governmental intrusion includes a physical intrusion, a

search occurs when that intrusion (1) trespasses upon

a constitutionally protected area (2) to obtain information. Id. at 404-05.

2 The pinpoint page citations in this decision refer to the ECF-

generated page numbers that appear at the top of each filing.

60a

Although Jones did not outline the boundaries of

how intrusive an unauthorized physical intrusion

must be to be considered a trespass, the Supreme

Court held that the act of placing a GPS beeper to the

undercarriage of a car amounted to a search, even

though the actual contact of the beeper did not cause

any damage to the defendant’s effect. 565 U.S. at 403.

The Court affirms its previous finding that that the

City’s conduct in this case is sufficiently analogous to

that in Jones.

Here, like in Jones, the City intentionally made

physical contact with the exterior of Plaintiffs’ vehicles. Specifically, the City placed chalk marks on the

vehicles’ tires, and while this contact did not cause

outward damage to the vehicles, it is nonetheless a

trespass. See generally Jones, 565 U.S. at 405 (“[O]ur

law holds the property of every man so sacred, that no

man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he

does no damage at all; if he will tread upon his

neighbour’s ground, he must justify it by law.”) (emphasis added) (quoting Entick v. Carrington, 95 Eng.

Rep. 807, 817 (C.P. 1765)). As in Jones, the officers in

this case “did more than conduct a visual inspection”

of Plaintiffs’ vehicles. Id. at 410 (emphasis in original).

By physically and deliberately chalking the vehicles’

tires, the City “encroached on a protected area.” Id. “It

is beyond dispute that a vehicle is an ‘effect’ as that

term is used in the Amendment.” Id. at 404 (citation

omitted).

The Court also finds persuasive that the Sixth

Circuit in Taylor v. City of Saginaw analyzed virtually

identical circumstances and found that chalking of

tires constitutes a trespass “because the City made

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intentional physical contact with Taylor’s vehicle” and

“this physical intrusion, regardless of how slight, constitutes common-law trespass.” 922 F.3d 328, 333 (6th

Cir. 2019) (citing Jones, 565 U.S. at 405 and adopting

the Restatement definition of trespass). Accordingly,

as the City’s physical intrusion against the exterior of

Plaintiffs’ vehicles is akin to that which occurred in

Jones, the Court finds that the City effected a physical

trespass on Plaintiffs’ constitutionally protected effects.

Having found that a trespass occurred, the Court

turns to whether the trespass is conjoined with an attempt to obtain information. 565 U.S. at 408 n.5.

(“Trespass alone does not qualify, but there must be

conjoined with that what was present here: an attempt to find something or to obtain information.”).

Here, the answer is yes because the PEOs chalk tires

“to determine whether a vehicle overstayed the time

limit for a City Parking Space.” (Doc. No. 27-1 at 12.)

This information is then used to issue a citation pursuant to the City’s parking regulations. (Id.) Thus,

because the City physically trespassed on Plaintiffs’

vehicles to obtain information, the Court finds that a

search has occurred in this case. See Jones, 565 U.S.

at 404-05; Taylor, 922 F.3d at 333.

The City has not presented evidence or argument

sufficient to change the Court’s determination. While

the City urges the Court to consider “the privacy interests in the effects” (Doc. No. 27-1 at 21), the Ninth

Circuit has explained that following the Supreme

Court’s decision in Jones, “when the government

‘physically occupies private property for the purpose

of obtaining information,’ a Fourth Amendment

search occurs, regardless whether the intrusion

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violated any reasonable expectation of privacy.”

Whalen, 907 F.3d at 1146 (alteration and citation

omitted) (quoting Jones, 565 U.S. at 404). The City

also requests the Court to “apply lessened constitutional scrutiny to the City’s regulatory parking

enforcement activities because the City is acting in a

proprietary capacity when it enforces regulations governing City-owned parking spaces.” (Doc. No. 38 at

11.) The Court, however, cannot discern what such

lessened constitutional scrutiny in the context of a

Fourth Amendment claim would look like.

To be sure, the City mentions in its brief that in

the context of the First Amendment, “the Supreme

Court ruled that when the government acts in a proprietary capacity, the proper level of scrutiny is the

more relaxed reasonableness standard that examines

whether the government action is arbitrary, capricious or invidious.” (Id. at 10.) However, it is already

well-settled that “the ultimate touchstone of the

Fourth Amendment is ‘reasonableness’[.]” Brigham

City, Utah v. Stuart, 547 U.S. 398, 403 (2006). The

Court therefore finds that application of the proposed

lessened standard would not meaningfully differ from

the reasonableness analysis employed in every Fourth

Amendment case. See S. Dakota v. Opperman, 428

U.S. 364, 375 (1976) (“[W]hether a search and seizure

is unreasonable within the meaning of the Fourth

Amendment depends upon the facts and circumstances of each case[.]”) (citing Cooper v. State of Cal.,

386 U.S. 58, 59 (1967)). Thus, having found that a

search within the meaning of the Fourth Amendment

occurred in this case, the Court considers the reasonableness of the search.

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B. Whether the Search was Reasonable

Searches conducted outside the judicial process,

without prior approval by a judge or magistrate, are

unreasonable under the Fourth Amendment unless

an exception to the warrant requirement applies.

Terry v. Ohio, 392 U.S. 1, 19 (1968). Otherwise stated,

if the City’s conduct is justified by an exception then

its conduct is valid under the Fourth Amendment. Id.

Here, the City contends that tire chalking is a

dragnet search that is reasonable under the administrative search exception to the warrant requirement.

(Doc. No. 27-1 at 25-35.) Plaintiffs concede that “tire

chalking is essentially a ‘dragnet’ search, applied

without discretion to choose vehicles or individualized

suspicion.” (Doc. No. 33 at 28.) They argue, however,

that the administrative search exception is nevertheless inapplicable because the exception “applies only

to regulatory inspections of closely regulated businesses” and “[b]ecause the primary purpose of tire

chalking is the enforcement of parking laws.” (Id. at

29-30.)

As an initial matter, the Court rejects Plaintiffs’

assertion that the administrative search exception applies only to cases involving closely regulated

businesses. Neither the Supreme Court nor the Ninth

Circuit has explicitly narrowed the application of the

administrative search exception in this manner. And

Plaintiffs’ cited cases make no express limitation on

the administrative search doctrine.3 While the Court

Plaintiffs primarily rely on Tarabochia v. Adkins, 766 F.3d

1115, 1122-23 (9th Cir. 2014). This case, however, is not analogous enough to Plaintiffs’ case to be controlling. Unlike the City’s

tire chalking program, the search at issue in Tarabochia involved

officers engaged in a “roving” automobile stop, which the

3

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recognizes that there is a separate line of administrative search case law in the context of closely regulated

businesses, the Court declines to find that the exception is limited only to those cases.

For example, in United States v Davis, the Ninth

Circuit applied the administrative search exception

where the government conducted warrantless, suspicionless “pre-boarding screening of all [airline]

passengers and carry-on articles” which was “part of

a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying

of weapons or explosives aboard aircraft, and thereby

to prevent hijackings.” 482 F.2d 893, 910 (9th Cir.

1973). Citing a series of Supreme Court and Ninth

Circuit cases relating to administrative searches, the

Davis court explained:

The essence of these decisions is that searches

conducted as part of a general regulatory

scheme in furtherance of an administrative

purpose, rather than as part of a criminal investigation to secure evidence of crime, may

be permissible under the Fourth Amendment

though not supported by a showing of probable cause directed to a particular place or

person to be searched.

Id. at 908.

Contrary to Plaintiff’s position that the administrative search doctrine requires a threshold showing

of a “closely regulated business,” the Ninth Circuit did

not require such a showing or make such a finding in

Supreme Court deemed unconstitutional in Delaware v. Prouse,

440 U.S. 648, 661 (1979), and the officers’ discretion to stop and

search automobiles was not sufficiently cabined.

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Davis. Instead, the Davis court simply noted that “[t]o

pass constitutional muster, an administrative search

must meet the Fourth Amendment’s standard of reasonableness.” Id. at 910; accord United States v.

Bulacan, 156 F.3d 963, 967 (9th Cir. 1998), as

amended (Nov. 16, 1998) (“While administrative

searches are an exception to the Fourth Amendment’s

warrant requirement, they are not an exception to the

Fourth Amendment’s standard of reasonableness.”).

As to the reasonableness standard, “[u]nfortunately, there can be no ready test for determining

reasonableness other than by balancing the need to

search against the invasion which the search entails.”

Davis, 482 F.2d at 910 (quoting Camara v. Municipal

Court of S.F., 387 U.S. 523, 536-37 (1967)). Lastly, in

the context of indiscriminate administrative searches,

the lack of a warrant is not fatal where the decision to

search is not “subject to the discretion of the official in

the field” and requiring a warrant would “frustrate

the governmental purpose behind the search.” Id. (citing Camara, 387 U.S. at 532, 533).

These principles in Davis remain good law in the

Ninth Circuit, and none of Plaintiffs’ cited cases indicate otherwise.4 Because Plaintiffs’ case is analogous

to Davis—both involve a blanket nondiscretionary

search on a person’s property—the Court finds Davis

4 United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) cited

with approval the holding in Davis that suspicionless airport

screenings do not violate the Fourth Amendment because they

“are constitutionally reasonable administrative searches,” but

overruled a portion of the Davis decision relating to consent.

That portion is of no consequence here. See id. at 962 (“To the

extent our cases have predicated the reasonableness of an airport

screening search upon either ongoing consent or irrevocable implied consent, they are overruled.”).

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and its progeny, as well as Supreme Court cases concerning similar dragnet programs controlling in this

case.5 For instance, in U.S. v. Martinez-Fuerte, the Supreme Court upheld a brief warrantless, suspicionless

seizure of all vehicles at a fixed immigration checkpoint. 428 U.S. 543, 545 (1976) (“We hold today that

such stops are consistent with the Fourth Amendment. We also hold that the operation of a fixed

checkpoint need not be authorized in advance by a judicial warrant.”). Similarly, in Michigan Dept. of State

Police v. Sitz, the Supreme Court upheld a brief warrantless, suspicionless seizure of all vehicles at

sobriety checkpoints. 496 U.S. 444, 455 (1990) (“[T]he

balance of the State’s interest in preventing drunken

driving, the extent to which this system can reasonably be said to advance that interest, and the degree of

intrusion upon individual motorists who are briefly

stopped, weighs in favor of the state program.”). And

in Delaware v. Prouse, the Supreme Court suggested

that a similar vehicle roadblock to verify drivers’ licenses and registrations would be permissible to serve

a highway safety interest. 440 U.S. 648, 663 (1979).

Finding the aforementioned cases instructive, the

Court will consider whether the City’s tire chalking is

“conducted as part of a general regulatory scheme in

furtherance of an administrative purpose, rather than

as part of a criminal investigation to secure evidence

of crime.” Davis, 482 F.2d at 908. See also City of Indianapolis v. Edmond, 531 U.S. 32, 38 (2000) (noting

that the Supreme Court has never “indicate[d]

5 See, e.g., U.S. v. Bulacan, 156 F.3d 963 (9th Cir. 1998); U.S. v.

McCarty, 648 F.3d 820 (9th Cir. 2011). See also City of Indianapolis v. Edmond, 531 U.S. 32 (2000); Michigan Dept. of State Police

v. Sitz, 496 U.S. 444 (1990).

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approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal

wrongdoing.”). Then, the Court will determine

whether the administrative search is constitutionally

permissible “by balancing the need to search against

the invasion which the search entails.” Davis, 482

F.2d at 910. See also Prouse, 440 U.S. at 654 (“[T]he

permissibility of a particular law enforcement practice

is judged by balancing its intrusion on the individual’s

Fourth Amendment interests against its promotion of

legitimate governmental interests.”).

To begin, the Court finds that the City’s practice

of tire chalking is conducted as “part of a general regulatory scheme in furtherance of an administrative

purpose,” and “not as part of a criminal investigation

to secure evidence of crime.”6 Davis, 482 F.2d at 908.

The parties do not dispute that “[c]halking is a component of the City’s parking enforcement operations

used to enforce parking regulations governing time

limited City Parking Spaces.” (Doc. No. 27-5 at 5.)7

The parties also do not dispute that “PEOs are trained

to use chalk to enforce time limits during the field

training they receive at the start of employment.”

(Doc. Nos. 27-1 at 11; 33 at 13.) The evidence therefore

6 The Court is not convinced by Plaintiffs’ argument that enforce-

ment of parking regulations is an improper purpose that

precludes the City from establishing that it conducted a constitutionally permissible administrative search in this case.

7 The statements in Mr. Tucker’s declaration to which the Court

cites in this decision have not been objected to by Plaintiffs. And

because the Court does not rely on the evidence that Plaintiffs

object to in reaching its decision, the Court need not consider

Plaintiffs’ objections. (Doc. No. 33 at 14-16.)

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establishes that tire chalking is a part of the City’s

general parking regulations.

Additionally, Plaintiffs do not assert that the

City’s tire chalking is being used as a subterfuge for

general crime search and investigation. Bulacan, 156

F.3d at 973 (“[C]ourts must guard against the danger

that a permissible administrative search will be ‘subverted into a general search for evidence of crime.’”).

Thus, the primary purpose of tire chalking at a programmatic level is the administrative enforcement of

parking regulations—not a general interest in crime

control or detecting evidence of criminal wrongdoing.

Cf. Edmond, 531 U.S. at 48 (“Because the primary

purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest

in crime control, the checkpoints violate the Fourth

Amendment.”). Accordingly, the Court finds that the

City’s tire chalking program amounts to an administrative search that is permissible under the Fourth

Amendment, so long as it is reasonable. See Davis, 482

F.2d at 908.

Turning then to the question of reasonableness,

the Court balances the City’s interest in the search

against the intrusion the search entails. See id. at 910.

Here, the City’s interest in the search is legitimate

and important because tire chalking furthers the administrative purposes of preventing widespread

noncompliance with parking regulations, which in

turn prevents cruising, double parking, and illegal

parking. As the parties concede, cruising, double parking, and illegal parking lead to increased traffic

congestion, which causes major negative public safety,

environmental, and business impacts on the City of

San Diego. Indeed, as stated in their brief, “Plaintiffs

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do not dispute the necessity or importance of enforcing

time limits in City parking spaces.” (Doc. No. 33 at

14.) And “Plaintiffs do not dispute that such interests

are significant, or that they may be served through

parking enforcement[.]” (Id. at 36.)

Regarding the invasiveness of the search, Plaintiffs have offered no evidence to rebut the City’s claim

that chalking of their tires involved a brief and minimal intrusion upon their privacy interest in the

exterior of their vehicles. As the Supreme Court has

recognized, the “search of an automobile is far less intrusive on the rights protected by the Fourth

Amendment than the search of one’s person or of a

building.” Almeida-Sanchez v. U.S., 413 U.S. 266, 279

(1973). On balance, the Court finds that that the

City’s practice of tire chalking is minimally intrusive

and does not extend beyond that which is necessary to

achieve the purpose of the search, that is, to determine whether a vehicle has overstayed the parking

limitation. See Davis, 482 F.2d at 910. (“To meet the

test of reasonableness, an administrative screening

search must be as limited in its intrusiveness as is

consistent with satisfaction of the administrative

need that justifies it.”).

Indeed, Plaintiffs do not dispute that the City’s

practice entails the placement of “an impermanent

chalk mark of no more than a few inches on the tread

of [a] vehicle’ tires.” (Doc. Nos. 27-1 at 12; 33 at 13.)

“When chalking, the PEO makes minimal contact

with the vehicle in a public place that lasts only a fraction of a second.” (Doc. No. 27-5 at 6.) Moreover, the

practice “does not track the actions of the driver beyond the fact of their presence on City property for the

duration of the time the vehicle is parked in a City

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Parking Space.” (Id.) Lastly, “the chalk used by PEOs

rubs off the tire tread within a few rotations after the

vehicle departs the City Parking Space.” (Id.) On

these facts, the Court finds that the City’s search was

a brief and minimal intrusion on the tire treads of

Plaintiffs’ vehicles, which is no more invasive than

necessary to serve a legitimate and important administrative purpose.8 See Davis, 482 F.2d at 910.

As a final note, it bears repeating that “reasonableness” is the ultimate touchstone of the Fourth

Amendment. Stuart, 547 U.S. at 403. And its essential

purpose is protecting against arbitrary intrusions by

government officials. See Prouse, 440 U.S. at 653-54.

The undisputed facts in this case simply does not support a finding that the City’s nearly 50-year practice

of placing a short, impermanent chalk mark on a vehicle’s tire treads in furtherance of the City’s parking

regulations amounts to unreasonable or arbitrary government intrusion. As the record makes clear, the

parking officers must mark every vehicle parked in

City-owned spaces, and do not have discretion over

which vehicles to mark. (Doc. No. 27-5 at 5.) See

Prouse, 440 U.S. at 661 (noting that the Supreme

Court has “insisted that the discretion of the official

in the field be circumscribed, at least to some extent”

to guard against the evil of “standardless and unconstrained discretion”). Relatedly, that the officers did

8 To the extent that Plaintiffs assert that the City must show that

“chalking must be the method used” to enforce its parking regulations (Doc. No. 33 at 36), they are mistaken. There is no such

requirement. See, e.g., Sitz, 496 U.S. at 453-54 (“[F]or purposes

of Fourth Amendment analysis, the choice among such reasonable alternatives remains with the governmental officials who

have a unique understanding of, and a responsibility for, limited

public resources, including a finite number of police officers.”).

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not have a warrant for their search is not fatal because the City’s program mandates that they chalk

vehicles in a nondiscretionary manner and requiring

a warrant would frustrate the purpose of efficient

parking enforcement. See Davis, 482 F.2d at 910.

Consequently, based on the foregoing, the City’s

tire chalking program is a reasonable administrative

search, and therefore passes constitutional muster

under the Fourth Amendment. See id. There being no

constitutional violation in this case, Plaintiffs cannot

establish their Section 1983 claim. See West, 487 U.S.

at 48. As such, the City is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(a); Sanchez, 891

F.2d at 242 (The nonmoving party must come forward

with “significant probative evidence tending to support its claim that material, triable issues of fact

remain.”). Accordingly, the Court will grant the City’s

motion for summary judgment and dismiss with prejudice Plaintiffs’ complaint.9

IV. CONCLUSION

For the reasons stated, the Court GRANTS the

City’s motion for summary judgment. (Doc. No. 27.) In

addition, the Court DISMISSES WITH PREJUDICE Plaintiffs’ Complaint. (Doc. No. 1.) The Clerk of

Court is DIRECTED to VACATE the motion hearing

on January 21, 2021 and close this case.

9 The City also argued that tire chalking is reasonable pursuant

to the community caretaker exception to the warrant requirement, and because drivers impliedly license the chalking.

However, as the City’s search is constitutionally permissible pursuant to the administrative search exception, the Court need not

consider these additional arguments.

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IT IS SO ORDERED.

Dated: January 4, 2021