forward is this is not a cat's case this is a jones case and it's been specifically pled as a jones case and it's an interesting case i think because it's questions something that we may have seen in our everyday society for the last number of years and the question is is is that continue to be constitutional after the decision in jones the test in jones is very simple where the government physically occupies private property for the purpose of attaining information that's a search there's no dispute here at least for this record before this court because judge ludington found at least for the purposes of the member this is a twelve b six motion we're just implausibility territory here he found that there was plausibly a search at that point the law under the fourth amendment is that that is per se unreasonable if a warrant isn't obtained that's where it's that's where plaintiffs have to end at that particular point the burden shifts to the government and that's jeffers jeffers as a burden belongs to them to prove that there's an exception to the warrant requirement that can be invoked by them too and to essentially turn the unreasonable into reasonable by fitting it into an exception an exception category where i think that i mean it sounds like it's unreasonable i mean it's sort of you know  it's it's presumed to be on the reasonableness you have a warrant or an established exception applies correct i mean we would say ok it's unreasonable now they have to show otherwise well the presumption arises i think there's an reasonable in that respect that's where we stand in in the hierarchy of the analysis and then we'll reach that particular point then the government has to show there was consent or there was an exception that would apply in that respect so i think the only real question before you today and while the parties have the benefit of reading our briefs six months later after we've submitted them with clear but clear heads i think we're both somewhat kind of passing each other ships in the night and our arguments in the brief i think our analysis is very simple at this point as a twelve b six motion there's a search the burden then shifts to the government to say is there an exception or consent we don't have consent in this case clearly so the question now i mean but i'm not aware of case law that says they bear the burden in other words you wouldn't have to plead facts supporting the absence of say a particular exception if i don't again the stair case that says that what you allege is at least possible and i think we've done that we've alleged the facts that there's been no consent and we've alleged you argue that that's what shifts the burden then to the city if this is a difficult aspect to be at right now because i think what we're seeing for typically parts out of this particular court is we're having a quasi i rule fifty six motion rather than a twelve b six motion the standard for a twelve b six is merely is it plausible at all plausible that plaintiff could win on some theory and the answer here is yes because there is no specific case law that says chalk marking case you lose now that that's the purpose of what i'll go every when it's a legal question and even if there isn't a is probably six is the legal question that exist right there but again the question i think again going back to what i've stated is that the idea here is is taylor's argument as healers facts is she pled plausible in this respect we have and we've leds are facts so there's no new facts i think that's going to change what taylor's from taylor's perspective what i'm going to need the opportunity to fill a proper record be is to depose the ticket or the ticket issue or why you know what you need to find out both cups what i would need to find out what one would be of course just as a government immunity question is is it a policy or procedure of we can set that once aside quickly i think but the rain question would be is is for what purpose are you actually going in and actually marking these tickets for good that's correct but that's the one that's been raised by the defendants in this particular record and this was me we're going to give a wrong answer from the other wives well then i guess that it might not be right for our consideration that i look and that's my concern  and that's been my biggest concern with these kinds of cases that are coming out of the basically eastern district is that they're these are essentially questions that are you know you know the question at least i do twelve b six is kind of the function of the michigan's version of c eight and i know if either one of your familiar is essentially the question is this possibility is it possible that that a plaintiff could win on the theory that's being asserted here when there's no so you argue that that the district court erred this particular case is that this standard is not whether you win on the merits the question is whether you had planned a plausible claim going forward there's a difference it's a lower threshold that needs to be met i'm arguing here that here what is your plausible clyne my plausible claim is that marking these this the chalk marks violates the jones standard for fourth amendment violation because as we've pled that the marking of the chalk mark on there is a physical occupation of the mrs taylor's or miss taylor is vehicle and it was done for the purpose of gathering information which is what's the feel is needed which is sufficient under jones so the information being gathered with simply that time at which the the car was parked there the time it now is not even with that the time was parked that if the time the city official observed it's a big park there right argue it would be the i would argue similar to jones in that it's both the movements and non movements of that particular vehicle i'd guess a bottom but there's nothing that says that as soon as the car in the garage somebody chopped it it's it's the time the city  the car park and that that person i mean they chucked it then and then they measure that against some other time and it came back around a direct threat correct and here i would argue this case is just like jones except the device that they're using here mark rather than a high tech g p s tracking device and i would argue there's no difference between those two whether the device is more simplistic in the form of a mark rather than a tracking beacon affixed to the vehicle itself it's the same thing it's a it is a intrusion upon private property for to extract the information into the same information where the vehicle is parked and where it's going and that's that's to because again the parking is not only could be you could pull your car forward slightly into another parking spot for example right so it's really the same engine my estimation is the same jones case in stuff the technology that's being used here is a little less complex i mean let's say we agree that there was a search per jones you seem to read john's to think to mean that we have we should not proceed to a second question whether the search is reasonable i that's what i was talking about i think our our cases pass our units past each other with briefing in hindsight here because jones as i understand it they just didn't reach that issue i think it was waive their something right they didn't decide whether in fact we do need to go on to that second question that is correct in the fact that jones answer the question is if there was a search at that point is is at that particular point after a search has been established the case law and i'm going to read a search is per se unreasonable unless the government establishes a specifically established and well delineated exception at that point the government then has the obligation to argue that they've got that they have this other with basis for being  exempted from the warrant requirements ok i mean strict and the straightforward i think a straight four and then if the government succeeds in making that argument then it changes the per se unreasonableness into a reasonable search and that's the i think as i'd say it but at the time it was an unpublished decision it has since turned into a published decision and i'd like to give the court the cite it's to fifty f stop third at ninety nine and i think the court would be well versed to look at this particular decision because i think judge a frick down in louisiana properly delineated the relative burdens going forward between a a catch cats based search analysis versus a  search and by conducting the same exact analysis i'm giving to you is there a surge if yes then we go on whether the government can can meet overcome it's the presumption don't want us to do is just some sort of balancing per the second step of the cat's analysis is that we're here essentially yes essentially yes that you want sort of you know a cat us to look at more categorical exceptions and either they apply or they don't and that's exactly what justice scalia said in jones in makes  easy cases easy it was his exact language and i think that's what we have here and i know judges in talking about this case and also in briefing this case and looking at this i know i'm asking for a landslide type shift in thinking of how we look at the deem that reasonable that second step of the reasonableness of society is no longer present in the jones test anymore that all goes to whether there's a search though that's correct and on this record right now we have a search that has not been challenged on appeal here by your pleadings reached the questions whether the city has a practice of chalking any vehicles within you know certain kinds of parking spots or as opposed to whether your client was somehow targeted by the particular officer here we're not we're not alleging any specific animists i guess would be the word i would use the mike that the parking official was gunning for my particular you allege that it's a regular practice regular practice yes and  my client if i may my client works at a local newspaper downtown of course it's spaces are not enough of them and gets tickets but i thought you said earlier that one of the reasons you needed to move forward is that you needed to do discovery and everything to see wh was basically up in practice or promethea practice doing this well i need that because i need to be able to prove that there's that which i know and that which i can prove to make a court record at this point right now i don't have a court record sufficient for that that's  discovery would provide but i can allegedly sense enough of a practice that we have fifteen instances year of where these sorts of things are happening i know it's red but real quick and i know you really haven't addressed this issue in your briefs either party or the but what about the administrative search exception do you have any thoughts on that i mean you know it starts you are drunk you know checkpoints they are seizures pretty similar to searches and it leads to a balancing test which would probably be a scary thing for say potentially yes i mean i don't want to concede anything obviously in that respect but the but the problem here is the burden as i believe it she sits with the government to raise the ministry of search as the exception to the per se unreasonable as they haven't raised that so if they want to raise that on remand that's something they may want to raise as a defense of this particular case but again i go back to where we kind of started all this this is a twelve b six motion and the government in their briefing at least raised the specter of an implied license argument what do you say in response or about their assertion of an implied license i don't think that's relevant here because the  implied license goes to whether there was a trespass and the judge on this record already determined that there was a search for trespass he actually found a trespass had occurred the government here has not cross appealed or challenge that and their own separate appeal so for purposes of this case as it comes to for you a search has occurred and that's the record that exist i think at this point right now the government hasn't met their overwhelming specifically in the language is very clear to you  officer reference and point of pleadings i think the issue here frankly is is really narrow and i think based on the briefing that that the  the issue is really does the appellant read too much into jones and as we've indicated i think that the appellant does the issue in jones as iran or alluded to was not whether or not the search that occurred by placing a g p s tracker under eight criminal suspects or believe it was the suspect white's vehicle it was reasonable or not that is the step and second step of the inquiry and that's all we're talking about here the issue in jones was whether or not it was a search at all you do you agree it's a search here i agree if it is a search your honor for purposes of a straight answer this appeal yes because if we're talking about  song i guess you would say confusion post jones as to whether or not this kind of goes to the beans case whether or not a search is you agree with counsel that this issue can see that it is a search the really this not apply here where we are in this case well i think you can read jar deane's two ways your honor i think you can beans in the context of saying that if something is licensed it is a it and it is a search it is reasonable i also think you can you can read jardins as saying if something is implicitly licensed as a quote unquote habit primary the primary argument here is that the search is reasonable and in judge couplet you raise the administrative search exception we brought that up in our briefing before the district court in the district court did indicate in its opinion in order that while the administrative search exceptional may apply here and took some stock into that it found that the community care taking exception fit this case she really consenting to the search after say her third parking ticket well isn't that just a total fiction i don't think i would agree with you that there is no consent to the search an expressman taylor license missed it if if we're putting it in that context yes your honor then i suppose the license i guess argument here is not as strong and doesn't follow word or track as much with the facts of this case i mean the district court did not rely on that theory and sort of just mentioned it but i didn't really see the holding is that so your understanding that is correct your honor and i think what the district court indicated is that based upon the parties positions in the briefing and even the complainer the first amended complaint that was submitted by the plaintiff it was a in the district court's words and i'm paraphrasing here a close call as to whether or not this is law this conduct is licensed of tracking with and following jardins what i don't see your argument in your brief and this is for purposes of just figuring out what we have to address in this case i don't really see an actual argument that there was some kind of we but if there's no consent how can there be a license isn't that sort of the essence of the license i think following with judge dean's and the the analogy that the district court use that is a private citizen putting a flyer or a bright were on someone's windshield in that touching the tire of a vehicle on the road in a parking space in a public roadway is no more than any other private citizen might do i always thought you just  and in the briefing i didn't really see a real treatment of the argument that you're making now so why what on what basis do you argue that this is an issue that we need to let me say no you're on it's a i guess it's not developed i mean i'm not really seen any argument oh i'll go straight to the point to your point here is that the search based upon the physical intrusion or whether we're calling  physical intrusion or a truss passed by putting a chalk mark on the tire of a vehicle parked in a public space on the roadway is reasonable and the exception that the district court followed and we raised this with the district court and it was the well well let me just step back i mean you're taking for granted that we would do a katz type balancing for reasonable ness in a case involving a physical trespass how do you get there jones doesn't say that jones doesn't say anything either way why would why would we necessarily do that as opposed to what mr allison pointed out which is no i mean jones does say you have to point to a specific exception to the warrant requirement and the taking exception it require that there be some public safety issue or some something that either it inconveniences or jeopardizes the public and if that's the case what can you point to here that would bring this case within that public caretaker exception well i think the exact reason that we have municipal parking regulations your honor is for public convenience and public safety but this was not a case where the vehicle was parked for example in front of a fire hydrant parked on the street so that was impeding traffic it was parked in a legitimate parking space where is their public public safety issue implicated well i think there is a public safety issue and i think the issue is not so much public safety although depending upon the  parking spaces in an area on a public street are taken in part because someone is parking their vehicle in that space for some sort of extended period of time that exceeds the regulation in this case that the area inside now that we're talking about is a two hour time limited parking area there is an issue in a matter of public convenience there and i think the  care taking exception applies not just to issues involving relating to public safety but also relating to public convenience and  or a comment that this is really a revenue generating regulation of parking issues so if it if it is just revenue related does it fit within the public  caretaking function i've i'm agree with your honor's that the enforcement of these parking regulations does obviously generate revenue for the city of sag and that being said as a vindicated revenue is not the only reason that we have these public parking regulations here these are authorized by michigan statute the city is vested with the power to enforce these regulations and as i indicated it is a matter of public convenience in addition to the generation of revenue which i don't dispute for a second that enforcing these parking regulations just generate revenue for the city let me be candid with you about my concern about this public care taking exception here i'm not aware of any case where that  applied in which the the government the officer first contacts approaches the the property the car for the purpose of obtaining information which of course is etc and the sort of property falls into the government's hands and has to do something with it so why why should we say that the doctrine does not apply because apparently it never has when the government's first action with respect to the property is to try to obtain information i e searching your honor i think the issue here again is that although the and i would agree with your case your where of where the first thing the government did was seek information with respect to the property and yet this caretaking exceptional is there any such case i'm not aware of such a case your honor however in the converse i guess i would indicate that i am not aware of a case or at least it wasn't cited by the parties in the briefing that i'm aware of that says just because the first contact were merely because the first contact between the government and a private citizen is for purposes of obtaining information of a search yes your honor didn't have the relevant you know in determining whether you need a warrant the first time you get a hold of the property is to search it that's different than we've got to impound this this car or we've just taken somebody into custody and now we have to go through we have to itemize their belongings because we don't want the person saying that we stole something i mean in those cases to some extent the government's forced to do something that looks like a search and we kind of give them a break on the war where if the first time the government comes to the properties to search it isn't that a pretty good reason to apply the war requirement in iran or i guess i would indicate that the warrant requirement shouldn't apply here because this is a different type of search than if we're talking about some sort of criminal conduct or we're talking about some sort of let the case i mean you seem to be harking back now to you know a cat type of case but  the case law that applies here doesn't provide that civil criminal distinction and in fact it doesn't say that it has to be for criminal purposes just the obtaining of evidence it doesn't have to be any harm done to the property it doesn't have to fit into that that the caps type of criteria the i would agree with your honor that the fourth amendment is implicated in and i'm i'm not disputing that there is a physical intrusion here for purposes of obtaining information and that post jones that constitutes search but just because the fourth amendment is implicated doesn't mean that the fourth amendment is violated you haven't found us yet an exception to bring this case with that i guess i would hearken back to what we've indicated in our briefing and what the district court agreed with that the community care taking exception applies here these are the sorts of every day government citizen contacts that occur in all over the country and i guess if i could draw an analogy here there there are or talk about a little similar circumstance as i wrap up briefly there are spatial related parking regulations all over the country as well you may not park where you must park within x amount of feet of the curb well if a government official is measuring that that distance and has to touch a tire or would you have to touch a tire case and we're at the twelve b six stage we're not we're not at the rule fifty sixty eight we've got to twelve easy i got to wait i'm pounding that as large as i can on the lectern today because this is the opportunity this is just whether we get through the pleading stage at this point we get that part i get where you go the only thing unless the court has any other questions i think the questioning of my up of my opponent here i think highlights the need for the arguments that we put forth in our briefs very well all right thank you notes up above have any questions