Three days after issuing its initial opinion, the Sixth Circuit Court of Appeals amended its opinion to clarify that while the practice of chalking tires is a search under the Fourth Amendment and the City failed to meet its burden of showing that an exception to the warrant requirement applies, chalking is not necessarily unlawful. The new conclusion issued by the court instead reads: Taking the allegations in Taylor's complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court's decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement—the exception and the motor-vehicle exception—do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.Taylor, No. 17-2126 (Amended) at 10. Thus, while the court reversed the District Court's order, dismissing the case on the pleadings and remanding it for further proceedings, it left the ultimate issue of the constitutionality of chalking undecided.
