COURTESY ENFORCER.COM

By ERIN ROLL
roll@montclairlocal.news

The Sixth Circuit Court of Appeals in Ohio ruled that chalking tires is a violation of the Fourth Amendment, which prohibits searches of property without a warrant. The court ruling applies to jurisdictions in the Sixth District Court, which includes Michigan, Ohio, Kentucky and Indiana. But it remains to be seen what the ruling would mean for other jurisdictions.

Chalk is used by parking authority officers to make a mark on a car’s tires to assess if a car has overstayed its time on time-limited streets.

It was a woman from Ohio with a series of parking tickets who challenged the chalking of tires. The ruling found that the act of the officer touching the car with the chalk constituted an invasion of privacy.

In Montclair, on streets with parking time limits, parking enforcement officers will put a chalk mark the street — not the tires— to help track how long a car is parked there.

Most parking spaces located directly within Montclair’s business districts are metered spaces. Just outside of the business districts, there are parking spaces that allow drivers to park for one to two hours.

Parking Authority officer Rita Catalano said the township has been chalking for the 29 years she has been with the parking authority.

The method of chalking in Montclair may not be called into question since the officers don’t actually touch the tires, and instead the officers mark the ground in front of and behind the tires. The officers also enter the vehicle’s license plate into a handheld device.

For many years, the Fourth Amendment has been interpreted as to implicate a violation of privacy, said John “Kip” Cornwell, a professor at Seton Hall University’s School of Law. But in 2012, the Supreme Court brought back the standard of prohibiting the government from intruding on a protected area — including a car.

“In this [case], they equated putting a chalk mark on a tire as a physical intrusion,” he said. “And that’s one of the things that’s getting so much attention nationally because of this Sixth Circuit Court decision.”

Under the Fourth Amendment, authorities must reasonably believe the person whose property is being searched has broken the law. In the case of a parking officer chalking a tire, it is to assess if the law will be broken. “They’re doing it just to keep track,” he said. “When you put the chalk mark on, [the driver hasn’t] done anything wrong.”

The case could, however, mean that other law enforcement methods could be fall under scrutiny as technology improves. For example, police use of a scanner to see into protected parts of a person’s clothing, such as their pockets, without a person realizing it.

The Sixth Circuit Court decision has a limited reach: it only applies to states within the Sixth Circuit, including Michigan and Ohio.
New Jersey falls under the Third Circuit Court, which, if it were to hear a similar case, might take a different opinion, Cornwell said.

And it is not unusual for circuit courts to get into disputes with each other over legal matters. But he said, the subject of chalking tires may be a topic of interest that the Supreme Court may decide to review it.

“While not binding for New Jersey, I am sure the township manager and parking utility will take it under advisement and utilize enforcement strategies as appropriate,” said Third Ward Councilman Sean Spiller.

Locally, Cornwell thinks police could dodge the Fourth Amendment issue by “marking anywhere that’s not on the car,” which is the case in Montclair according to parking officials.

The larger ramifications from the case are not completely clear at this point. “It just opens up a lot of questions, is what I say,” Cornwell added.