ANDRE VERDUN V. CITY OF SAN DIEGO

FILED
OCT 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRE VERDUN; IAN ANOUSH No. 21-55046
GOLKAR, on behalf of himself and a
class of all others similarly situated,
Plaintiffs-Appellants, D.C. No.
3:19-cv-00839-
AJB-WVG
v. OPINION
CITY OF SAN DIEGO; SAN
DIEGO POLICE DEPARTMENT,
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
Before: Daniel A. Bress and Patrick J. Bumatay, Circuit
Judges, and Robert S. Lasnik,* District Judge.
Opinion by Judge Bress;
Dissent by Judge Bumatay
__________________
*
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
SUMMARY **
Civil Rights
The panel affirmed the district court’s summary
judgment for defendants and held that municipalities are not
required to obtain warrants before chalking tires as part of
enforcing time limits on city parking spots.
Plaintiffs brought a putative class action under 42 U.S.C.
§ 1983 alleging that tire chalking violated the Fourth
Amendment. The panel held that even assuming the
temporary dusting of chalk on a tire constitutes a Fourth
Amendment “search,” it falls within the administrative
search exception to the 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.
Dissenting, Judge Bumatay stated that 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 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, the court’s
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
duty is to safeguard against even “stealthy encroachments”
on the Fourth Amendment. Thus, Judge Bumatay would not
expand Fourth Amendment exceptions to accommodate the
City’s chalking program and would hold that it is
unconstitutional.
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.
VERDUN V. CITY OF SAN DIEGO 1
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 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
2 VERDUN V. CITY OF SAN DIEGO
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.
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
VERDUN V. CITY OF SAN DIEGO 3
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 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
4 VERDUN V. CITY OF SAN DIEGO
Diego views tire chalking as superior to other methods of
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 constitutional
law, or indeed any question of constitutional dimension.
VERDUN V. CITY OF SAN DIEGO 5
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-hundred-year
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)).
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
6 VERDUN V. CITY OF SAN DIEGO
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 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
VERDUN V. CITY OF SAN DIEGO 7
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
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. Martinez-Fuerte, 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
8 VERDUN V. CITY OF SAN DIEGO
upheld a suspicionless highway checkpoint search
conducted near the location of a recent hit-and-run, 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. at38–39) (brackets omitted); see also al-Kidd, 563 U.S. at736–37 (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 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
VERDUN V. CITY OF SAN DIEGO 9
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 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); work-related
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
10 VERDUN V. CITY OF SAN DIEGO
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 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
VERDUN V. CITY OF SAN DIEGO 11
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
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
12 VERDUN V. CITY OF SAN DIEGO
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 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
VERDUN V. CITY OF SAN DIEGO 13
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 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’
14 VERDUN V. CITY OF SAN DIEGO
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 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.
1
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 (explaining that a
checkpoint for illegal hunting “deter[s] would-be
VERDUN V. CITY OF SAN DIEGO 15
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 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
16 VERDUN V. CITY OF SAN DIEGO
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.
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
VERDUN V. CITY OF SAN DIEGO 17
[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 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
18 VERDUN V. CITY OF SAN DIEGO
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 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,
VERDUN V. CITY OF SAN DIEGO 19
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 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
20 VERDUN V. CITY OF SAN DIEGO
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, 367–68 (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 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?
VERDUN V. CITY OF SAN DIEGO 21
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 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
22 VERDUN V. CITY OF SAN DIEGO
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 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
VERDUN V. CITY OF SAN DIEGO 23
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 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. al-Kidd, 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.
24 VERDUN V. CITY OF SAN DIEGO
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 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
well-recognized 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
VERDUN V. CITY OF SAN DIEGO 25
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 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 41–42. 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
26 VERDUN V. CITY OF SAN DIEGO
suspicionless checkpoint search even in the name of general
crime control disconnected from roadway safety. See
Edmond, 531 U.S. at 44 (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.
VERDUN V. CITY OF SAN DIEGO 27
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 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.
28 VERDUN V. CITY OF SAN DIEGO
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.
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.
VERDUN V. CITY OF SAN DIEGO 29
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
common-law trespass inquiry, the City’s tire chalking easily
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.
30 VERDUN V. CITY OF SAN DIEGO
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 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.
VERDUN V. CITY OF SAN DIEGO 31
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 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
32 VERDUN V. CITY OF SAN DIEGO
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 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.
VERDUN V. CITY OF SAN DIEGO 33
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.
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
34 VERDUN V. CITY OF SAN DIEGO
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
their discretion. Boyd, 116 U.S. at 625. Revolutionary-era
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
VERDUN V. CITY OF SAN DIEGO 35
colonies. Id. at 502. A prominent example occurred in 1761
during Paxton’s Case. There, an English officer, Charles
Paxton, was 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 of the prosecution.”
Id. at 1071. Lord Camden ruled for Entick and found the
36 VERDUN V. CITY OF SAN DIEGO
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
VERDUN V. CITY OF SAN DIEGO 37
foundation of them be not 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 intrusion into property and
persons that our Nation ratified the Constitution.
38 VERDUN V. CITY OF SAN DIEGO
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 Anti-
Federalists 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, 13-14 (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:
[G]eneral warrants, by which an officer may search
suspected places, without evidence of the
commission of a fact, or seize any person, without
VERDUN V. CITY OF SAN DIEGO 39
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 691–92. 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 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
40 VERDUN V. CITY OF SAN DIEGO
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, 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-
VERDUN V. CITY OF SAN DIEGO 41
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 individualized-suspicion 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 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.
42 VERDUN V. CITY OF SAN DIEGO
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 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
VERDUN V. CITY OF SAN DIEGO 43
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 “ever-
present” 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 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
44 VERDUN V. CITY OF SAN DIEGO
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 ever-present” 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 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
VERDUN V. CITY OF SAN DIEGO 45
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 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
46 VERDUN V. CITY OF SAN DIEGO
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.
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
hit-and-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.
VERDUN V. CITY OF SAN DIEGO 47
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 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
48 VERDUN V. CITY OF SAN DIEGO
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 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.