Sixth Circuit Opinion, Chalking Tires for Parking Control is Unconstitutional, A Violation of the Fourth Amendment. 6th U.S. Circuit Court of Appeals Judges KEITH, KETHLEDGE, and DONALD are Added to My List of Heroes of the Fourth Amendment.

This has direct effect on my own situation and actions I plan to take. I have been harassed in Boise Idaho by the police department about parking. Others were allowed to park in one spot for weeks at times, while I left my overnight parking spot daily except for two days due to having influenza twice last winter secondary to health issues and living in a car during the cold of winter. That street has 72 hour parking, the two times they harassed me I was in the back of the car and had been there less than 24 hours. One the others parked on that street had vehicles unmarked while they had been there more than 24 hours to several days. The behavior of the cop was such that it is very obvious I was targeted. There was harassment from others as there is a network of evil organized stalking/harassment in Boise. More on that later and my actions to inform the city they needed to stop defacing my vehicle with their grafitti.


But first let me say I already had a hero of the Fourth Amendment, former 9th U.S Circuit Court of Appeals Chief Judge Alex Kozinski aka the Big Koz.

CHIEF JUDGE KOZINSKI, DISSENTING HERO OF THE FOURTH AMENDMENT

This case is going to make my fight against the harassment from the city of Boise easier. 

 

 ALISON PATRICIA TAYLOR v. CITY OF SAGINAW

 

Several phone calls have been made by myself to city of Boise departments with no answering, except the mayor's office from which came a suggestion to call the same places I already had and leave a message. Since all but one person recently do not call me back what would be the point of leaving them a message. I even tried the city attorney's office. The questions I have are simply what if any changes will you make secondary to the 6th circuit opinion on chalking tires for parking enforcement being unconstitutional? 

Boise decided to ignore the Ninth Circuit opinion that they should stop giving tickets to and arresting homeless people who slept outside when the shelters had no room. I also happen to know they will throw people out, even very severely mentally ill vulnerable people in the middle of the night due to lack of their own skills or empathy. They appealed the Ninth Circuit's opinion that what they were doing was unconstitutional and lost. It's clearly immoral and assholey too. Then they stated it wasn't any different than what they were already doing, LOL.  I have been shocked by Boise so many times, who would do something so heinous? After what I have been through here I believe there is nothing they could ever find too abusive to inflict upon their targets.

With this opinion from the 6th U.S. Circuit Court of Appeals I assume, especially considering it wasn't their specific U.S. Circuit Court of Appeals, the 9th, Boise will state they are going to continue to do the same chalking of tires as before, "until we hear from a higher court." If the city of Saginaw files an appeal which they will lose Boise can say, oh the changes are what we were doing already.  Since I can't get a statement of what if any effect this opinion has on their parking enforcement codes all I can do is speculate based on past decisions. 

 

There was no question in the opinion if chalking tires is a search, the only question was is this a reasonable search. They said no due to police causing an object to come into contact with our cars meeting the definition of trespassing. 

In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area.Though Jonesdoes not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is “an act which brings [about] intended physical contact with a chattel inthe possession of another.” Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, “[a]n actor may . . . commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object.” Id.Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor’s vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so,even though “no damage [is done] at all.” Jones, 565 U.S. at 405 (quoting Entickv. Carrington,95 Eng. Rep. 807, 817 (C.P.1765)).

Our search analysis under Jonesdoes not end there. Rather, once we determine the government has trespassed upon a constitutionally protected area, we must then determine whether the trespass was “conjoined with . . . an attempt to find something or to obtain information.” Id.at 408 n.5. Here, it was. Neither party disputes that the City uses the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time. That information is then used by the City to issue citations.As the district court aptly noted, “[d]espite the low-tech nature of the investigative technique . . . , the chalk marks clearly provided information to Hoskins.”3This practice amounts to an attempt to obtain information under Jones.4

The next question is was the search reasonable. They say no.

Taylor argues that the search was unreasonable because the City fails to establish an exception to the warrant requirement. Specifically, Taylor argues that the search at issue is not covered by the community caretakerexception and that the City fails to establish that any other exception applies to their warrantless search. The City responds that, even if chalking is a search under Jones, the search was reasonable because there is a reduced expectation of privacy in an automobile. The City further contends that the search was subject to the community caretaker exception. We disagree with the City. 

The Fourth Amendment does not proscribeall searches, “but only those that are unreasonable.” Skinner v. Ry. Labor Executives’Ass’n, 489 U.S. 602, 619 (1989). “[W]e must begin with the basic rule that searches conducted outside the judicial process, without prior approval by [a] judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” United States v. Hockenberry, 730 F.3d 645, 658 (6th Cir. 2013) (quotation marks omitted). The government bears the burden of demonstrating an exception to the warrant requirement. United States v.Jeffers, 342 U.S. 48, 51 (1951).

Being my home the vehicle brings up many other issues of privacy.  

This is of strong interest to me due to the harassment I have endured and the vehicle being my home which brings up many more questions with the chalking of tires than with a simple parked car. In my case the chalking was done when I was home, in the back of the minivan, windows covered, in pajamas on a weekend morning or early afternoon. As demonstrated by video evidence I have the particular police officer who did the chalking which was quite vigorous and made me wonder if the shaking of my vehicle was an earthquake knew full well I lived in my vehicle and was concerned about the police giving tickets and marking tires on the same street. 

The city of Boise through their lack of caring that lower income individuals would not be able to afford rents as they made decisions that facilitated rapid growth of Boise and did not take action to see that more affordable housing was built caused homelessness, suffering of people and many social problems. There are other cities which also could care less about the homeless but Boise is one of the fastest growing causing rents to rapidly rise.

I was gangstalked in subsidized housing, most of the units were section 8, mine was section 42 (tax credits lowering the rent below the market rate). It was a nightmare and no one listened to me because the city was involved in it and a component of the organized harassment is the spreading of false rumors about the target, often horrible untrue things. 

The Boise Police Department would not allow me to file police reports about the harassment. When asked why one officer told me, "Because we don't believe those stories you tell." At that point I said, OK, I can post the videos on the internet publicly then. This really pisses me off because I do not lie, make things up nor am I psychotic. 

Now while living in the vehicle there has been sadistic harassment on many levels including by police. They used the city codes to have access to me by marking my tires when they clearly knew I never exceeded the restriction of 72 hours. They also had bicycle cops come by and look directly, obviously into my vehicle, cops in cars would ride by me often or park close by, they did the same before I had the vehicle and was walking or riding a bicycle. I have to park in the park system during the daytime often, Parks and Recreation vehicles along with Boise City vehicles would drive by me frequently, some circled around me over and over. Community policing components would also show up often. I have had City of Boise vehicles show up and drive by me in out of the way places where I park. I am never doing anything illegal, but they seem to consider writing or telling the truth to be a terrorist act.  Apparently their main weapon against the truth is to slander the truth teller.

For the homeless population the Constitution and Bill of Rights has been completely thrown out. The homeless, powerless, vulnerable subset of the population keeps growing and cities all over the country have worked often together to subject people who are just trying to survive and are brutalized, psychologically tortured as Professor Sara Rankin writes for "survival crimes." Everyone has to be somewhere, the concentration camp homeless shelters are not health physically or psychologically, so to protect ourselves the homeless lives outside or in a vehicle. Whatever the homeless do to try and protect ourselves from abuse and psychological torture they come after us and blame us for the situation we did not create. The massive homelessness in the United States was created intentionally over several decades. The opioid epidemic was intentionally created to sedate, disrupt and make slaves of a percentage of the population by intelligence agencies and Big Pharma. The prison industrial complex generates homelessness and was created to enslave part of the population, remove a particular category of voters, create an underclass removed from the workforce and so corporations could make huge profits. Young people have a hell of a time affording college if they are not from a wealthy family, they have to either carry huge debt their whole lives or stop their education at high school. The lack of hope creates homelessness. That was also intentionally created. The more homeless people they can create the larger the segment of the population that has no rights.

I am not responsible for living in a country where I have been a serial whistleblower due to the corruption and dysfunction because of my morals, empathy, conscience or belief in the Constitution and Bill of Rights, I am however responsible for working to fix those problems. In trying to do so my career was destroyed, they nearly destroyed me and a war against me has been waged on a massive scale that makes no sense at all. I am not responsible for Big Pharma lying to my mother and giving her DES to take which damaged my body, I am not responsible for NIH and CDC not doing the research needed for treatment of ME/cfs and their demonization of it and those who suffer from it. What are they trying to cover up? There is so much good I could have done, but good is not what the psychopaths running this country are looking for. 

CHIEF JUDGE KOZINSKI, DISSENTING HERO OF THE FOURTH AMENDMENT

Chief Judge Kozinski, "It seems to me that this is what makes this country truly great -- that we can have a judiciary where the person who appoints you doesn't own you."










By Adam Cohen for Time:

Government agents can sneak onto your property in the middle of the night, put a GPS device on the bottom of your car and keep track of everywhere you go. This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway - and no reasonable expectation that the government isn't tracking your movements.
That is the bizarre - and scary - rule that now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants - with no need for a search warrant.
It is a dangerous decision - one that, as the dissenting judges warned, could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich.
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Chief Judge Alex Kozinski, who dissented from this month's decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's. The court's ruling, he said means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.

Judge Kozinski is a leading conservative, appointed by President Ronald Reagan, but in his dissent he came across as a raging liberal. "There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist," he wrote. "No truly poor people are appointed as federal judges, or as state judges for that matter." The judges in the majority, he charged, were guilty of "cultural elitism."
*****
There is no liberal or conservative in the constitution. Here is the section this quote comes from:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter, Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect-----and did certainly did not consent----to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.
When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them it’s unselfconscious cultural elitism.

Judge Kozinski’s dissenting opinion is a thing of beauty and I would encourage everyone to please read the whole thing. I have included my favorite parts which I read with glee and hope I did not wake my neighbor yelling YES several times. Chief Judge Kozinski was born in Romania, his parents were both survivors of the Holocaust. His nicknames are the Big Kozinski and the Wizard of Koz.


…our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.

The facts are disturbingly simple: Police snuck onto Pineda-Moreno’s property in the dead of night and attached A GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance. The panel holds that none of this implicates the Fourth Amendment, even though the government concedes that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device. The panel twice errs in very significant and dangerous ways.
1. The opinion assumes that Pineda-Moreno’s driveway was part of his home’s curtilage, yet concludes that Pineda-Moreno had no reasonable expectation of privacy there. Curtilage is a quaint word most people are not familiar with; even among judges and lawyer, the word is seldom well understood. Yet, it stands for a very important concept because it rounds out the constitutional protections accorded an individual when he is at home.

Curtilage comes to us by way of Middle English and traces it’s roots to the Old French courtillage, roughly meaning court or little yard. In modern times it has come to mean those portions of a homeowner’s property so closely associated with the home as to be considered part of it. The walkway leading from the street to the house is probably part of the curtilage, and the stairs from the walkway to the porch almost certainly are, as is the porch where grandma sits and rocks most afternoons and watches strangers pass by. The attached garage on the side of the house is part of the curtilage, and so is the detached shed where dad keeps his shop equipment and mom her gardening tools-----so long as it’s not too far from the house itself. The front lawn is part of the curtilage, and the driveway and the backyard-----if it’s not too big, and is properly separated from the open fields beyond the house.
Whether some portion of property-----the porch, the stairs, the shed, the yard, the chicken coop----is part of the curtilage is sometimes a disputed question. But once it is determined that something is part of the curtilage, it’s entitled to precisely the same Fourth Amendment protections as the home itself. How do we know? Because the Supreme Court has said so repeatedly.

OK, everyone repeat after me.  Unless you have a warrant get the hell off of my curtilage.

By tracking and recording the movements of millions of individuals the government can use computers to detect patterns and develop suspicions. It can also learn a great deal about us because where we go says much about who we are. Are Winston and Julia’s cell phones together near a hotel a bit too often? Was Syme’s OnStar near an STD clinic? Were Jones, Aaronson and Rutherford at that protest outside the White House? The FBI need no longer deploy agents to infiltrate groups it considers subversive; it can figure out where the groups hold meetings and ask the phone company for a list of cell phones near those locations.
*****
I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of de`ja` vu. This case, if any deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

*****
And then there is Judge Reinhardt:
REINHARDT, Circuit Judge, dissenting from the denial of rehearing en banc:
I concur in Chief Judge Kozinski’s dissent.
I have served on this court for nearly three decades. I regret that over that time the courts have gradually but deliberately reduced the protections of the Fourth Amendment to the point at which it scarcely resembles the robust guarantor of our constitutional rights we knew when I joined the bench....
These decisions have curtailed the “right of the people to be secure…against unreasonable searches and seizures” not only in our homes and surrounding curtilage, but also in our vehicles, computers, telephones, and bodies-----all the way down to our bodily fluids and DNA.
Today’s decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come.
I dissent.
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http://en.wikipedia.org/wiki/Nineteen_Eighty-Four#Doublethink
http://www.time.com/time/nation/article/0,8599,2013150,00.html
http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/08-30385.pdf
http://www.legalaffairs.org/issues/January-February-2004/feature_bazelon_janfeb04.msp
http://en.wikipedia.org/wiki/Alex_Kozinski