The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection

U.S. Const. amend. IV (emphasis added). This Article need not confront one of the most debated issues in criminal-procedure law: the question of whether the Fourth Amendment requires warrants, operates only to require that searches be reasonable, or functions as some combination of both. See generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791, at 773-82 (2009) (analyzing these two paradigms in light of historical research); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 763-67 (1994) (using history to advocate that the Fourth Amendment requires only that searches and seizures be reasonable, not warrants); Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 573-90, 723-24 (1999) (dismissing Amar’s historical account and arguing that the Framers were primarily concerned with warrantless searches and seizures). This Article posits that whichever paradigm one adopts, interferences with effects require greater constitutional protection than courts have required to date. Depending on which paradigm one subscribes to, either warrants should be required or a more limited set of warrantless searches and seizures should be deemed reasonable.

Property, Black’s Law Dictionary (10th ed. 2014). I use “personal property,” “objects,” and “items” interchangeably throughout this Article.

There is at least some limited guidance regarding searches and seizures of effects inside the home, such as Horton v. California, 496 U.S. 128, 136-37 (1990), and searches and seizures of effects in the custody of the person, such as United States v. Place, 462 U.S. 696, 716 (1983).

For space reasons, this Article is primarily concerned with searches of otherwise “innocent” effects that may result in seizures—in other words, it assumes that probable cause to seize has been created by the search, rather than the nature of the item itself (for example, obvious drug paraphernalia or clothing with blood on it in plain view). Accordingly, I use “search law” to discuss the modern law that applies to these sorts of objects, but I use “search and seizure” when describing the historical circumstances that gave rise to the Fourth Amendment and the holdings of cases that apply to both search and seizure. I also use “search and [subsequent/resulting] seizure” to remind the reader of this Article’s limitation to “innocent” effects where appropriate.

See Katz v. United States, 389 U.S. 347, 352-53 (1967) (rejecting the notion that physical penetration into a protected area is required to show a Fourth Amendment search); Warden v. Hayden, 387 U.S. 294, 303-07 (1967) (rejecting indications from earlier cases “that property interests control the right of the Government to search and seize”). Recent scholarship has called the validity of the trespass story into doubt, at least on the real property side. See generally Orin S. Kerr, The Curious History of Fourth Amendment Searches, 2012 Sup. Ct. Rev. 67, 69 (suggesting that Hayden and contemporary cases overemphasized the role of trespass in prior case law). The “superior interest” approach to personal property has more historical credibility. See Gouled v. United States, 255 U.S. 298, 308-09 (1921); Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 133-34 (1937). As observed in Hayden, property analyses were especially important because aggrieved individuals requested remedial writs for wrongs to personal property, rather than exclusion of the evidence, as Fourth Amendment relief. Hayden, 387 U.S. at 307-08; see also Adams v. New York, 192 U.S. 585, 595-98 (1904) (noting that evidence obtained in violation of the Fourth Amendment need not be excluded if the evidence is otherwise competent).

389 U.S. at 360-62 (Harlan, J., concurring); see also Hayden, 387 U.S. at 294, 301 (providing that privacy protection is the main goal of the Amendment). “[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). A Fourth Amendment seizure occurs when there is “some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Despite appearances from this latter test, privacy may also play a role in the law of seizure: the owner of a seized good may nevertheless lack standing to challenge the search and resulting seizure if he or she lacks “a legitimate expectation of privacy in the area searched.” Rawlings v. Kentucky, 448 U.S. 98, 104 (1980) (citation omitted); see id. at 116-19 (Marshall, J., dissenting); Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978); Lavan v. City of Los Angeles, 693 F.3d 1022, 1037-39 (9th Cir. 2012) (Callahan, J., dissenting); United States v. Bushay, 859 F. Supp. 2d 1335, 1352-53, 1365-67 (N.D. Ga. 2012); State v. Alston, 440 A.2d 1311, 1319 (N.J. 1981)See generally Albert W. Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 16-17 (1983) (overviewing and criticizing the Supreme Court’s narrowing of Fourth Amendment standing to challenge searches and seizures to areas in which individuals have expectations of privacy); Eulis Simien, Jr., The Interrelationship of the Scope of the Fourth Amendment and Standing To Object to Unreasonable Searches, 41 Ark. L. Rev. 487 (1988) (same). The viability of this line of cases is in some doubt. The Court mentioned in Soldal v. Cook County, 506 U.S. 56, 65-66 (1992), that, notwithstanding the lack of a privacy interest in the area searched, plain-view seizures can be challenged in the absence of probable cause. Multiple courts of appeals have thus held that the absence of a reasonable expectation of privacy in some area will not foreclose challenges to seizures from that area. See, e.g., Miranda v. City of Cornelius, 429 F.3d 858, 862 n.2 (9th Cir. 2005); United States v. Paige, 136 F.3d 1012, 1021 (5th Cir. 1998); Lenz v. Winburn, 51 F.3d 1540, 1550 n.10 (11th Cir. 1995); Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994). This Article does not delve into this standing debate in seizure law, instead assuming that the owner (or perhaps, possessor) of property has standing to challenge a search and resulting seizure and examining how courts have and should assess whether Fourth Amendment interests have been violated.

See Katz, 389 U.S. at 351.

See Mancusi v. DeForte, 392 U.S. 364, 369-70 (1968).

This Article should not be read to question protection for the house. It is beyond dispute that, as many scholars and courts have noted, the home enjoys a special status under the Fourth Amendment. Put simply, this Article suggests that protection for items found outside of the home should be strengthened—not that existing paradigms for the home should be weakened. See United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972). See generally Davies, supra note 1, at 590-91, 601-09, 603 n.142 (describing intrusions into the home as the primary problem to which the Amendment was directed).

Although I use the term “public space” for convenience, whenever used in this Article, this term includes spaces to which officers have lawful access (but others may not): open fields outside the curtilage of the home, spaces owned or controlled by third parties, and so on.

There has been little work on effects separate from the rest of the Constitution. Thomas Davies gives the most comprehensive account of some of the constitutional history of the word in two of his articles, though his work focuses broadly on the meaning of the search and seizure provisions of the U.S. Constitution and state constitutions. See Thomas Y. Davies, Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of “Due Process of Law,” 77 Miss. L.J. 1, 87-172 (2007); Davies, supra note 1, at 706-15.

This Article should not be read to argue that the historical evidence mandates a particular change to Fourth Amendment doctrine or as an endorsement of originalism more broadly. Although the use of history in Fourth Amendment law is not without its critics, it remains that the Court views history as a persuasive source of authority. See, e.g., United States v. Jones, 132 S. Ct. 945, 949 (2012); Wyoming v. Houghton, 526 U.S. 295, 300-01 (1999). Whether one prefers to decide Fourth Amendment rules by examining common law search and seizure doctrine in the eighteenth century, by a softer purposive originalism, or by ahistorical reasoning from precedent, this Article marshals evidence for the conclusion that effects merit both more consideration and greater protection. For considerations of the use of history in answering Fourth Amendment questions, see Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 660 (2013); Tracey Maclin, Let Sleeping Dogs Lie: Why the Supreme Court Should Leave Fourth Amendment History Unabridged, 82 B.U. L. Rev. 895, 895-97 (2002); and David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1741-43 (2000). See generally Steven Douglas Smith et al., The New and Old Originalism: A Discussion (Univ. of San Diego Legal Studies Research Paper Series, Working Paper No. 15-178, 2015), http://ssrn.com/abstract=2562531 [http://perma.cc/CF5D-YWVJ] (discussing different approaches to using Founding-era history in originalist methodology).

Others have advanced similar arguments that Founding-era grievances were deeply connected to tort law. See, e.g., Amar, supra note 1, at 785-86; John C.P. Goldberg, Tort Law at the Founding, 39 Fla. St. U. L. Rev. 85, 90-92, 104-05 (2011).

Apart from a recent account of personal property, see Barlow Burke, Personal Property in a Nutshell (3d ed. 2003), most American personal property work dates from the early twentieth century, see, e.g., Harry A. Bigelow, Cases and Other Materials on the Law of Personal Property (1917); Ray Andrews Brown, A Treatise on the Law of Personal Property (2d ed. 1955); Thomas Armitage Larremore, A Selection of Cases on Personal Property (1928); Readings on Personal Property (William T. Fryer ed., 3d ed. 1938). Many modern casebooks devote only a few pages to it. See, e.g., John E. Cribbet et al., Property: Cases and Materials 103-40 (9th ed. 2008); Jesse Dukeminier et al., Property 15, 104, 113-18, 125-44 (8th ed. 2014); Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 224-26, 234-42, 434-49, 518-31 (2d ed. 2012); Joseph William Singer et al., Property Law: Rules, Policies, and Practices 18, 136-41, 150-58 (6th ed. 2014). By way of contrast, William Blackstone devoted well over a hundred pages to defining interests in chattels—let alone interferences with them. 2 William Blackstone, Commentaries *384-520.

It has been difficult to find borrowing between criminal law and personal-property theory. A few articles on the Fourth Amendment have invoked property theorist Margaret Jane Radin’s concept of personhood in Property and Personhood, 34 Stan. L. Rev. 957 (1982), though for purposes other than discussing personal property. See generally Christian M. Halliburton, How Privacy Killed Katz: A Tale of Cognitive Freedom and the Property of Personhood as Fourth Amendment Norm, 42 Akron L. Rev. 803 (2009) (invoking concepts of personhood to argue for greater protections for cognitive information); Arianna Kennedy Kelly, The Costs of the Fourth Amendment: Home Searches and Takings Law, 28 Miss. C. L. Rev. 1 (2009) (discussing personhood to suggest that compensation should be awarded for the harms inherent in a residential search).

Despite the Court’s attempt to reduce the relevance of property to Fourth Amendment analyses since Katz, most courts continue to use real-property concepts—most notably, the right to exclude—to define the “reasonable expectations of privacy” protected by the Fourth Amendment. See, e.g., Minnesota v. Carter, 525 U.S. 83, 88 (1998); see also Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 Wake Forest L. Rev. 307, 316-20 (1998) (noting the importance of physical intrusions in determining whether Fourth Amendment rights were violated); Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 809-10 (2004) (describing the persistence of “real property concepts” in Fourth Amendment doctrine). Accordingly, using personal-property concepts to give content to “privacy” is not as controversial a suggestion as it might seem.

See, e.g., United States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir. 1980) (“[W]hatever expectation of privacy attends a closed but unsecured ‘effect’ generally is diminished where the ‘effect’ itself is placed in an area totally without the protection of the Fourth Amendment such as in an open field.”); State v. Flynn, 360 N.W.2d 762, 765 (Iowa 1985) (“[T]he place where seized property is located may be so exposed as to negate any reasonable expectation of privacy.”); State v. Scheetz, 950 P.2d 722, 726 (Mont. 1997) (“[W]hen a person leaves the privacy of his home and exposes himself and his effects to the public and its independent powers of perception, it is clear that he cannot expect to preserve the same degree of privacy for himself or his affairs as he could expect at home.”).

See Alschuler, supra note 6, at 17 n.40 (observing that “the word privacy is extraordinarily flexible”); Jack Wade Nowlin, The Warren Court’s House Built on Sand: From Security in Persons, Houses, Papers, and Effects to Mere Reasonableness in Fourth Amendment Doctrine, 81 Miss. L.J. 1017, 1051 (2012) (“[T]he Court could slowly reorient the Warren Court’s broad ‘reasonable expectation of privacy’ frame back towards a traditional concern for the protection of Fourth Amendment interests specifically enumerated in the text—as ‘liberally’ construed in light of their common-law origins.”); David Alan Sklansky, Too Much Information: How Not To Think About Privacy and the Fourth Amendment, 102 Calif. L. Rev. 1069, 1106 (2014) (suggesting that privacy should carry connotations of dignity, sovereignty, and security).

Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L.J. 357, 359 (2001); see also 1 Jeremy Bentham, The Theory of Legislation 109-13 (Richard Hildreth trans., Thoemmes Press 2004) (1890) (suggesting a linkage between property and security because both protect future expectations).

Cf. United States v. Jones, 132 S. Ct. 945, 950 n.3 (2012) (arguing that an eighteenth-century constable who hid in a stage coach would be conducting a search regardless of whether he sought to overhear conversations or to learn the coaches’ destinations).

See generally Heidi Reamer Anderson, Plotting Privacy as Intimacy, 46 Ind. L. Rev. 311 (2013) (suggesting both bodily intimacy and spatial intimacy should be used to construct Fourth Amendment protection); Andrew Guthrie Ferguson, Personal Curtilage: Fourth Amendment Security in Public, 55 Wm. & Mary L. Rev. 1283, 1290 (suggesting the idea of “personal curtilage” because traditional physical boundaries “no longer guarantee privacy protection”); Simien, supra note 6, at 492-97 (criticizing the proposition that defendants lack standing to challenge a search unless their “legitimate expectations of privacy” in an area have been violated); Stephanie M. Stern, The Inviolate Home: Housing Exceptionalism in the Fourth Amendment, 95 Cornell L. Rev. 905 (2010) (suggesting that residential property is overprotected and other interests are underprotected as a result of “spatial” notions of privacy).

Some existing work has previously suggested that territorial privacy unfairly impacts the effects of the homeless, but this work has not considered its impact for other individuals’ property. See, e.g., Gregory Townsend, Cardboard Castles: The Fourth Amendment’s Protection of the Homeless’s Makeshift Shelters in Public Areas, 35 Cal. W. L. Rev. 223, 242 (1999); Kevin Bundy, Note, “Officer, Where’s My Stuff?” The Constitutional Implications of a De Facto Property Disability for Homeless People, 1 Hastings Race & Poverty L.J. 57, 59-60 (2003).

See Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 516 (2007) (describing “positive law” as one commonly accepted approach to Fourth Amendment questions of reasonableness); see also sources cited supra note 12 (discussing the Court’s acceptance of history as persuasive authority in Fourth Amendment jurisprudence).

132 S. Ct. at 948.

Id. at 949.

Id. at 951 n.5.

134 S. Ct. 2473, 2491 (2014).

Id. (noting that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house” because a “phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is” (emphasis omitted)).

Debra Cassens Weiss, Does Fourth Amendment Protect Computer Data? Scalia Says It’s a Really Good Question, A.B.A. J., (Mar. 24, 2014, 1:06 PM), http://www.abajournal.com/news/article/asked_about_nsa_stuff_scalia_says_conversations_arent_protected_by_fourth_a [http://perma.cc/B7TV-B4EL].

Id.

It should be noted that this attempt to make the Court’s Fourth Amendment doctrine coherent is almost necessarily incomplete. Cf. Kerr, supra note 16, at 809 (“[T]rying to understand the Fourth Amendment is a bit like trying to put together a jigsaw puzzle with several incorrect pieces: no matter which way you try to assemble it, a few pieces won’t fit.”). In this Part, I do not discuss three categories of effects. Two categories are (1) effects inside the home; and (2) effects on the person. These effects receive derivative protection on account of their location, and the Court has occasionally made special rules for these sorts of items based on prudential considerations, like officer safety or when items are in plain view. See, e.g., Horton v. California, 496 U.S. 128, 136-37 (1990); United States v. Place, 462 U.S. 696, 716 (1983). The third category left out is automobiles. Although this Part references some of the holdings from the automobile cases insofar as they might be read to apply to all effects in public spaces, the rules for automobiles under the Fourth Amendment have inspired a full literature and case law of their own. See Chambers v. Maroney, 399 U.S. 42, 48-49 (1970); Lewis R. Katz, The Automobile Exception Transformed: The Rise of a Public Place Exemption to the Warrant Requirement, 36 Case W. Res. L. Rev. 375 (1985); David S. Rudstein, Belton Redux: Reevaluating Belton’s Per Se Rule Governing the Search of an Automobile Incident to an Arrest, 40 Wake Forest L. Rev. 1287 (2005); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv. L. Rev. 835 (1974). Moreover, like effects in the home or on the person, automobiles are subject to different exigency exceptions than most other effects because they are mobile. See Carroll v. United States, 267 U.S. 132, 153-54 (1925). At least right now, cell phones and beach chairs cannot be used to flee from an officer.

132 S. Ct. 945 (2012). Although Jones did concern a vehicle, it is discussed here insofar as it applies to all effects in public spaces. In other words, the fact that it was a vehicle did not seem to be of particular significance in the framework for effects outlined in the Jones decision.

Id. at 948.

Id.

Id.

See id. at 948, 950.

Id. at 949, 950 n.3, 953.

Id. at 953.

Id. at 949, 951 & n.5.

Id. at 952.

Id. at 951 n.5, 952.

Id. at 961-62 (Alito, J., concurring).

Id. at 949-50 (majority opinion) (noting that the Fourth Amendment was “tied to common-law trespass” and that “a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted,” but not discussing incorporation or selective incorporation of the law of trespass beyond that).

Id. at 961-62 (Alito, J., concurring).

Cf. Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (holding that moving a turntable inside a home even a few inches was a Fourth Amendment search).

See Gouled v. United States, 255 U.S. 298, 309 (1921); Boyd v. United States, 116 U.S. 616, 624 (1886); Ex parte Jackson, 96 U.S. 727, 732 (1877); see also Lasson, supra note 5, at 133-34 (describing the interest-balancing approach as of 1937).

See Boyd, 116 U.S. at 624 (“In the case of stolen goods, the owner from whom they were stolen is entitled to their possession; and in the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon . . . .”).

Katz v. United States, 389 U.S. 347, 353 (1967).

Warden v. Hayden, 387 U.S. 294, 304 (1967) (“The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be ‘unreasonable’ within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.”).

United States v. Jacobsen, 466 U.S. 109, 114 (1984).

United States v. Jones, 132 S. Ct. 945, 949 (2012).

United States v. Place, 462 U.S. 696, 705-06 (1983).

Oliver v. United States, 466 U.S. 170, 176 (1984); Hester v. United States, 265 U.S. 57, 59 (1924).

Oliver, 466 U.S. at 177 n.7.

433 U.S. 1, 7 (1977), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991).

Id. at 8.

Id.; see also United States v. Robinson, 414 U.S. 218, 255-56 (1973) (Marshall, J., dissenting) (suggesting that the Fourth Amendment protects a cigarette package found on a person as a container).

Chadwick, 433 U.S. at 10-11. For a fuller treatment of the container doctrine than this Article can provide, see Cynthia Lee, Package Bombs, Footlockers, and Laptops: What the Disappearing Container Doctrine Can Tell Us About the Fourth Amendment, 100 J. Crim. L. & Criminology 1403, 1414-26 (2010).

Chadwick, 433 U.S. at 11.

Robbins v. California, 453 U.S. 420, 426 (1981), overruled on other grounds by United States v. Ross, 456 U.S. 798 (1982).

Contraband in plain sight probably includes a container (like a gun case) that by its appearance can only hold evidence of the crime. Arkansas v. Sanders, 442 U.S. 753, 764 n.13 (1979), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991).

Granted, the Supreme Court has broadened its definition of “container” to mean “any object capable of holding another.” New York v. Belton, 453 U.S. 454, 460 n.4 (1981). Amending the definition of container in this way is a blunt method by which to expand protection for effects—it encompasses more of them, certainly, but it still does not take into account indicia of ownership.

Robbins, 453 U.S. at 426 (quoting Chadwick, 433 U.S. at 11).

See, e.g., United States v. Rem, 984 F.2d 806, 810 (7th Cir. 1993) (“A person may possess a privacy interest in the contents of personal luggage. However, that privacy interest can be forfeited where the person abandons the luggage.” (citations omitted)).

Abel v. United States, 362 U.S. 217, 225 (1960).

Bona Vacantia, Black’s Law Dictionary (10th ed. 2014).

Abel, 362 U.S. at 241 (“There can be nothing unlawful in the Government’s appropriation of such abandoned property.”).

486 U.S. 35, 40-42 (1988).

See Smith v. Ohio, 494 U.S. 541, 543-44 (1990) (per curiam); Rios v. United States, 364 U.S. 253, 262 n.6 (1960).

Rios, 364 U.S. at 262 n.6 (“A passenger who lets a package drop to the floor of the taxicab in which he is riding can hardly be said to have ‘abandoned’ it.”).

Smith, 494 U.S. at 543-44 (affirming the conclusion reached in State v. Smith, 544 N.E.2d 239, 246 n.6 (Ohio 1989), aff’d, Smith, 494 U.S. 541, that “a citizen who attempts to protect his private property from inspection, after throwing it on a car to respond to a police officer’s inquiry, clearly has not abandoned that property”); see also id. at 544 (Marshall, J., dissenting) (noting the belief that “summary dispositions deprive litigants of a fair opportunity to be heard on the merits and significantly increase the risk of an erroneous decision”).

United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring).

To illustrate, both the majority opinion and Justice Sotomayor’s concurrence accept that the placement of the tracking device offended the Fourth Amendment because it was placed on Jones’s wife’s car while in Jones’s possession and parked in a public parking lot, rather than placed before he took possession. Id. at 951-52 (majority opinion); id. at 955 (Sotomayor, J., concurring). But this leaves several ambiguities. The device was apparently placed on the vehicle while it was in a public parking lot, but neither the Supreme Court nor the three lower-court opinions in Jones’s case discuss the circumstances of the placement. See id. at 948 (majority opinion); United States v. Maynard, 615 F.3d 544, 555-60 (D.C. Cir. 2010), aff’d, Jones, 132 S. Ct. 945; United States v. Jones, 511 F. Supp. 2d 74, 79 (D.D.C. 2007); United States v. Jones, 451 F. Supp. 2d 71, 87-88 (D.D.C. 2006); aff’d in part, rev’d in part, Maynard, 615 F.3d 544. It is unclear what sort of lot the car was parked in, how long it had been there, whether it was locked—in other words, what about the car indicated its possession by Jones? Moreover, if it is important that the trespass occurred during Jones’s possession, what indicated that he was the possessor? Had the GPS device been placed when the car was in Jones’s wife’s possession, or after being parked by a friend, would the placement be permissible if meant to track Jones? What conferred possession on Jones—his status as most recent driver, exclusive driver, or something else? This Article does not explore this standing-related question, but instead raises it to show just how confusing the Court’s invocation of possession is, absent further explication.

I use the term “courts” rather than “jurisdictions” because some jurisdictions have taken conflicting approaches in different cases. Compare United States v. Gault, 92 F.3d 990, 991-92 (10th Cir. 1996) (finding that an officer did not search a bag when he kicked and lifted it, in part because it was “unattended” while the owner temporarily de-boarded an Amtrak train), with United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992) (suggesting that courts should give heightened Fourth Amendment protection to containers, especially when “precautions [have been] taken by the owner to manifest his subjective expectation of privacy, for example locking the container or explicitly forbidding the host to open it,” an approach that is not just locational); compare State v. Elison, 2000 MT 288, ¶ 51, 302 Mont. 228, 247, 14 P.3d 456, 470 (“[W]hen a person takes precautions to place items behind or underneath seats, in trunks or glove boxes, or uses other methods of ensuring that those items may not be accessed and viewed without permission, there is no obvious reason to believe that any privacy interest with regard to those items has been surrendered simply because those items happen to be in an automobile.”), with State v. Scheetz, 950 P.2d 722, 726 (Mont. 1997) (“[W]hen a person leaves the privacy of his home and exposes himself and his effects to the public and its independent powers of perception, it is clear that he cannot expect to preserve the same degree of privacy for himself or his affairs as he could expect at home.”).

See United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989) (finding that an individual retained privacy rights in a bag entrusted to a grocery-store clerk). This Article does not delve deeply into how the third-party doctrine impacts effects. The doctrine suggests that voluntary disclosure of information to a third party removes any reasonable expectations of privacy with respect to that information. The wisdom of the third-party doctrine is a hotly debated topic in criminal-procedure law. Compare Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) (suggesting that the third-party doctrine should be abandoned), and Stephen E. Henderson, Beyond the (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, and the Rest of Us Too, 34 Pepp. L. Rev. 975 (2007) (same), with Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009) (touting the benefits of the third-party doctrine). Further work is needed to explore the issues specific to entrusting one’s property, rather than information, to a third party. However, the analyses proposed in the latter portion of this Article may prove helpful: the context and nature of the property entrusted to another should likely be determinative. Lending one’s coat to a friend, for example, may involve consent to a different level of intrusion than giving one’s coat to a coat-check agent. See infra Part III.

See, e.g., United States v. Cortez-Dutrieville, 743 F.3d 881, 885 (3d Cir. 2014) (finding no protection for an overnight bag stored in a location the defendant had been barred by a protective order from entering); State v. Sinsel, 543 N.W.2d 457, 461 (Neb. 1996) (finding no Fourth Amendment right in a stove left in a landfill site accessible to anyone with a key when no effort was made to mark the stove as the defendant’s); People v. Weaver, 909 N.E.2d 1195, 1198 (N.Y. 2009) (“[W]hile Katz purported to deemphasize location as a determinant in judging the reach of the Fourth Amendment, the analysis it seemed to require naturally reintroduced considerations of place back into the calculus since the social reasonableness of an individual’s expectation of privacy will quite often turn upon the quality of the space inhabited or traversed, i.e., whether it is public or private space.”); State v. Cleator, 857 P.2d 306, 308 (Wash. Ct. App. 1993) (“[I]f an individual places his effects upon premises where he has no legitimate expectation of privacy . . . then he has no legitimate reasonable expectation that they will remain undisturbed upon [those] premises.” (quoting 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.3(c) (2d ed. 1987))). Several cases contain broad language that could support a locational-privacy approach, although the cases were arguably decided on other grounds. See, e.g., State v. Barrett, 401 N.W.2d 184, 189-90 (Iowa 1987) (holding that there is no reasonable expectation of privacy in personal journals inadvertently left in a restaurant, “[g]iven the public nature of the place where the journal was discovered and examined,” though search could probably have been justified by the fact that fast-food employees picked up and read the journal and reported its “evidentiary nature” to the police); Hicks v. State, 753 S.W.2d 419, 421 (Tex. Crim. App. 1988) (permitting a seizure because, among other factors, the defendant brought effects into public so “many of the items seized were open to public view from the street,” although the defendant also disclaimed ownership when asked).

Katz v. United States, 389 U.S. 347, 351 (1967); see also Cardwell v. Lewis, 417 U.S. 583, 593 (1974) (noting that because a vehicle was in “a public place where access was not meaningfully restricted,” as opposed to being examined on and seized from private property, there was no Fourth Amendment problem).

See United States v. Ramapuram, 632 F.2d 1149, 1155, 1159 (4th Cir. 1980) (“[W]hatever expectation of privacy attends a closed but unsecured ‘effect’ generally is diminished where the ‘effect’ itself is placed in an area totally without the protection of the Fourth Amendment such as in an open field.”); State v. Flynn, 360 N.W.2d 762, 765 (Iowa 1985) (“[T]he place where seized property is located may be so exposed as to negate any reasonable expectation of privacy.”); Scheetz, 950 P.2d at 726 (“[W]hen a person leaves the privacy of his home and exposes himself and his effects to the public and its independent powers of perception, it is clear that he cannot expect to preserve the same degree of privacy for himself or his affairs as he could expect at home.”). Several of these cases concern officers touching, kicking, or punching luggage a person has brought onto public transportation. E.g., Gault, 92 F.3d at 991-92; United States v. Guzman, 75 F.3d 1090, 1095 (6th Cir. 1996); State v. Quintanilla, Nos. A-99-201, A-99-202, 1999 WL 1063085, at *1-2 (Neb. Ct. App. Aug. 11, 1999). But see United States v. Nicholson, 144 F.3d 632, 639 (10th Cir. 1998) (finding that officers may not manipulate a bag any more than fellow passengers might in making space for their bags).

360 N.W.2d, at 763-64.

Id. at 763.

Id. at 764.

When Flynn returned to the club two-and-a-half hours later, the bags were gone. Id. An unidentified “private person” had found the bags and called a police officer with whom that individual was acquainted, and the officer advised the person to bring the sacks to the police station. Id. Police then listened to the cassette tapes. Id. The search in the case was actually the playing of the cassette tapes, rather than the disturbance of the bags, because of the intervention of the private individual.

Id. at 765. The removal of the sacks by a “private person” rendered that seizure outside the scope of constitutional protection, so the majority of the Flynn opinion focused on the “search” that occurred when officers listened to the cassette tapes. Id. at 768 (“The private citizen did not infringe defendant’s fourth amendment rights in seizing the materials. This is because the amendment protects only against governmental action. The police officers, however, went beyond the citizen’s seizure when they listened to the tapes.”).

E.g., Oliver v. United States, 466 U.S. 170, 174 (1984) (discussing the “two marihuana patches fenced with chicken wire” visible to officers in an open field); Hester v. United States, 265 U.S. 57, 58 (1924) (noting that a bottle and broken jug discarded in an open field contained “easily recognizable” moonshine whiskey).

Flynn, 360 N.W.2d at 765. A dissenting opinion disagreed with this analysis, holding that under the circumstances, any person would expect that his objects would remain private, regardless of their accessibility to a subset of the public. Id. at 767-68 (McCormick, J., dissenting) (“The fact that the place he chose for temporary storage of the two sacks turned out not to be secure does not diminish his right to expect that his interest in his property would be respected by anyone reasonably likely to be on the premises.”).

People v. Juan, 221 Cal. Rptr. 338, 339 (Ct. App. 1985).

Id. at 340.

Id.

Id. at 341.

Id. at 341-42.

Id. at 341.

It is difficult to tell how long exactly the jacket was left unattended. The men had been seen in the restaurant approximately two hours before the search, but the opinion in the case does not make clear how long the men had been absent from the table—in other words, whether it was a smoke break, or whether the jacket had been inadvertently left behind. The opinion also does not make clear how long the officers observed the jacket unattended. See id. at 340-41.

United States v. Haughn, 414 F. Supp. 37, 38, 40 (D.N.J. 1976) (finding the defendant had no expectation of privacy in a black police raincoat on top of an attaché case outside his apartment door).

People v. Loveless, 400 N.E.2d 540, 541-43 (Ill. App. Ct. 1980) (finding that an individual’s Fourth Amendment rights were not violated when an officer grabbed a jacket folded in half on a tavern table, though these rights were violated once the owner proclaimed it was his coat and the officer continued the search).

United States v. Alewelt, 532 F.2d 1165, 1168 (7th Cir. 1976) (finding no expectation of privacy in a jacket left “on a coat rack in the general working area of an outer office where he had no possessory interest,” although this case might be distinguished on the basis that fruits of a crime were visible in the pockets).

Clearly, the exposure approach and abandonment of privacy approach are closely related, which is why I group them both under locational privacy. I separate them analytically here because they derive from different lines of Court opinions—the exposure test from the language about exposure in Katz, see Katz v. United States, 389 U.S. 347, 351 (1967), and the abandonment of privacy test from the Court’s abandonment cases, see supra notes 62-71 and accompanying text. Still, they produce the same result: minimal protection for effects located in public places.

See supra notes 65-67 and accompanying text.

See, e.g., United States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004); United States v. Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990); United States v. Brown, 663 F.2d 229, 232 (D.C. Cir. 1981); City of St. Paul v. Vaughn, 237 N.W.2d 365, 370 (Minn. 1975); State v. Dupree, 462 S.E.2d 279, 281 (S.C. 1995).

209 S.E.2d 665, 665-66 (Ga. Ct. App. 1974).

Id. at 666.

Id. at 667 (emphasis omitted).

Id. at 669 (Deen, J., dissenting).

Id. at 667 (majority opinion).

See People v. Anderson, 246 N.E.2d 508, 509 (N.Y. 1969) (holding that a Fourth Amendment search of a tin box was illegal where the officer “picked up the box so soon after it had been dropped that it is impossible to determine whether or not the defendant, if given the opportunity, would have picked up the box himself”).

State v. Kealey, 907 P.2d 319, 321-24 (Wash. Ct. App. 1995); cf. State v. Hamilton, 2003 MT 71, ¶¶ 6-10, 34, 314 Mont. 507, 510-11, 516, 67 P.3d 871, 873, 876 (using a similar analysis to find that the search of a zipper pouch of a lost wallet violated the protection against unreasonable searches in the Montana State Constitution).

Kealey, 907 P.2d at 326. Adding to the complexity of this fact pattern, one of the clerks had actually hidden the purse and lied about having seen it when the owner was looking for it. Id. at 321-22.

Id. at 326. The court ultimately found that because the contraband would have been discovered during a search for identification, there was no Fourth Amendment violation. Id. at 326-27. But see Hamilton, 2003 MT ¶¶ 30, 41-48, 314 Mont. at 515, 518-20, 67 P.3d at 876, 878-79 (noting in a case decided under the Montana State Constitution that an individual “did not intentionally or knowingly expose her wallet to the public,” so “her right to exclude others from the contents of her wallet remained intact” where the search went beyond the scope necessary to identify the owner of lost property).

See Hamilton, 2003 MT ¶¶ 41-48, 314 Mont. at 518-20, 67 P.3d at 878-79; Kealey, 907 P.2d at 323-24.

United States v. Jones, 132 S. Ct. 945, 950 (2012).

Katz v. United States, 389 U.S. 347, 350 (1967).

Id. at 351.

Id. at 351-52.

Westlaw Next, http://www.next.westlaw.com [http://perma.cc/4ZYM-8FDK]. On the jurisdiction dropdown, select “All States” and “All Federal” and click “Save”; then search for “advanced: ‘knowingly exposes #to the public, even #in his own home #or office, is not a subject #of Fourth Amendment protection’ % ‘what he seeks #to preserve #as private.’”

Id. On the jurisdiction dropdown, select “All States” and “All Federal” and click “Save”; then search for “advanced: ‘seeks #to preserve #as private, even #in #an area accessible #to the public, may #be constitutionally protected.’ % ‘What a person knowingly exposes #to the public.’”

In the early twentieth century, state courts mostly made criminal-procedure law by examining searches and seizures under state constitutions. For most of their histories, many state constitutions protected “effects” like the Federal Constitution. Cal. Const. art. I, § 13; Colo. Const. art. II, § 7; Ga. Const. art. I, § 1, para. 13; Idaho Const. art. I, § 17; Ind. Const. art. 1, § 11; Iowa Const. art. I, § 8; La. Const. art. I, § 5; Minn. Const. art. I, § 10; Mo. Const. art. I, § 15; Mont. Const. art. II, § 11; Neb. Const. art. I, § 7; Nev. Const. art. I, § 18; N.J. Const. art. I, § 7; N.D. Const. art. I, § 8; Or. Const. art. I, § 9; S.D. Const. art. VI, § 11; Utah Const. art. I, § 14; W. Va. Const. art. III, § 6; Wis. Const. art. I, § 11; Wyo. Const. art. I, § 4. Three states originally used “possessions” but subsequently adopted “effects.” Compare Ark. Const. of 1836, art. II, § 9, and Fla. Const. of 1838, art I, § 7, and S.C. Const. of 1868, art. I, § 22, with Ark. Const. art. II, § 15, and Fla. Const. art. I, § 12, and S.C. Const. art. I, § 10. Arizona and Washington have used “private affairs” since adopting their constitutions. Ariz. Const. art. II, § 8; Wash. Const. art. I, § 7. Hawaii, New Mexico, and Oklahoma all used “effects” later on into the twentieth century, when their respective constitutions were adopted; Alaska used both “other property” and “effects.” Alaska Const. art. 1, § 1.14; Haw. Const. art. I, § 7; N.M. Const. art. II, § 10; Okla. Const. art. II, § 30. New York lacked a constitutional search and seizure provision until 1938 but used “effects” at that point. N.Y. Const. art. I, § 12 (amended 1938); see People v. Richter’s Jewelers, Inc., 51 N.E.2d 690, 693 (N.Y. 1943). Most of the remaining state constitutions protected “possessions” instead of “effects.” Ala. Const. art. I, § 5; Conn. Const. art. I, § 7; Del. Const. art. I, § 6; Ky. Const. § 10; Me. Const. art. I, § 5; Mass. Const. pt. 1, art. XIV; Mich. Const. art. I, § 11; Miss. Const. art. III, § 23; N.H. Const. pt. I, art. XIX; Ohio Const. art. I, § 14; Pa. Const. art. I, § 8; R.I. Const. art. I, § 6; Tenn. Const. art. I, § 7; Tex. Const. art. I, § 9; Vt. Const. ch. 1, art. XI. Illinois briefly changed from “possessions” to “effects” but reverted to “possessions.” Compare Ill. Const. of 1818, art. VIII, § 7, with Ill. Const. of 1870, art. II, § 6, and Ill. Const. art. I, § 6. One commentator has argued that “possessions” is broader than “effects.” See Neil C. McCabe, State Constitutions and the “Open Fields” Doctrine: A Historical-Definitional Analysis of the Scope of Protection Against Warrantless Searches of “Possessions,” 13 Vt. L. Rev. 179, 195-96 (1988). Several courts have rejected that position. See, e.g., State v. Davis, 929 A.2d 278, 295-97 (Conn. 2007); Brent v. Commonwealth, 240 S.W. 45, 47 (Ky. 1922); People v. Smith, 360 N.W.2d 841, 848-50 (Mich. 1984). But see Falkner v. State, 98 So. 691, 692-93 (Miss. 1924); State v. Kirchoff, 587 A.2d 988, 991-92 (Vt. 1991); Search and Seizure—Open Fields—Expectation of Privacy, 34 Crim. L. Rep. (BNA) 4088-89 (Nov. 16, 1983) (recounting the oral argument in an open-fields case, Maine v. Thornton, 466 U.S. 170 (1984), where Justice Marshall stated that he “[didn’t] agree [that ‘effects’ meant personal effects]; the Constitution doesn’t say that. I think the term includes real property”).

Ash v. Commonwealth, 236 S.W. 1032, 1033 (Ky. 1922).

Id. at 1034.

Id. at 1035.

Id. at 1034.

See, e.g., Youman v. Commonwealth, 224 S.W. 860, 863 (Ky. 1920); State v. George, 231 P. 683, 689 (Wyo. 1924) (discussing sheep seized from public land). Two factors make examples from early case law somewhat difficult to find. First, as now, many early cases on effects in public spaces concerned the legality of seizing plainly visible contraband. See, e.g., United States v. Lee, 274 U.S. 559, 563 (1927); Brent, 240 S.W. at 47; Ratzell v. State, 228 P. 166, 167 (Okla. Crim. App. 1924); McClannan v. Chaplain, 116 S.E. 495, 499 (Va. 1923). Second, because there was no exclusionary rule, the courts did not need to determine whether many searches or seizures were illegal because it would make no difference: the court would not exclude the fruits of the illegal act. See, e.g., Williams v. State, 28 S.E. 624, 625 (Ga. 1897) (noting that, even assuming the search of a woman’s apron was illegal, evidence found therein would not be inadmissible); Gindrat v. People, 27 N.E. 1085, 1087-88 (Ill. 1891) (finding that a warrantless search of an apartment and valise and seizure of imitation jewelry did not render the evidence inadmissible).

Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012); Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992).

See United States v. Ruckman, 806 F.2d 1471, 1472 (10th Cir. 1986) (finding no Fourth Amendment violation where officers “clean[ed] out” a cave and found harmful devices); United States v. Jackson, 585 F.2d 653, 658 (4th Cir. 1978) (“It is also analogous to the situation in which an ‘individual places his effects upon premises where he has no legitimate expectation of privacy (for example, in an abandoned shack or as a trespasser upon another’s property)’; in such a case, ‘he has no legitimate reasonable expectation that they will remain undisturbed upon these premises’ and consequently has no standing or right to contest a search.” (quoting Melvin Gutterman, “A Person Aggrieved”: Standing To Suppress Illegally Seized Evidence in Transition, 23 Emory L.J. 111, 119 (1974))); Amezquita v. Hernandez-Colon, 518 F.2d 8, 13 (1st Cir. 1975) (finding no Fourth Amendment violation where officers sought to bulldoze a squatter community living on public land); State v. Cleator, 857 P.2d 306, 307 (Wash. Ct. App. 1993) (finding no Fourth Amendment violation in the search of a tent on city property). But see United States v. Sandoval, 200 F.3d 659, 660 (9th Cir. 2000) (finding that an individual had a reasonable expectation of privacy in a closed tent among vegetation on public land); State v. Mooney, 588 A.2d 145, 151 (Conn. 1991) (finding that an individual had a reasonable expectation in closed containers left under a highway abutment).

Pottinger, 810 F. Supp. at 1571.

Id. at 1584.

See Allinder v. Ohio, 808 F.2d 1180, 1186 (6th Cir. 1987) (finding that commercial beehives located in an open field were clearly owned and unabandoned); United States v. Boswell, 347 A.2d 270, 274-75 (D.C. 1975) (finding that a defendant retained an expectation of privacy in a blanket-covered television left outside while he stepped into a laundromat to make a phone call); Jones v. State, 648 So. 2d 669, 675 (Fla. 1994) (examining the search and seizure of effects in a hospital room); People v. Payton, 741 N.E.2d 302, 306 (Ill. App. Ct. 2000) (holding that officers violated the Fourth Amendment by searching a grill outside a curtilage); State v. Philbrick, 436 A.2d 844, 855 (Me. 1981) (noting that “the knapsack’s location is the only fact which, if considered in isolation, might suggest that the defendant abandoned it,” and the fact that an injured individual buckled up the bag and left it on the side of a road to hitch a ride and retrieve it later outweighed that fact); State v. Desimone, 2005 WI Ct. App. 233U (finding that a defendant did not relinquish her expectation of privacy in her property when she “placed her cigarettes, wallet and keys inside a mailbox so that the items would not get wet and because she was afraid of lightning”); 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.3(d) (4th ed. 2004) (“Assessment of a defendant’s privacy expectation vis-a-vis the item may also be aided by considering if he dealt with that item in a fashion which reflects an effort on his part to maintain privacy.”); cf. United States v. Mancini, 8 F.3d 104, 110 (1st Cir. 1993) (protecting the interests of a mayor in documents in city hall where the mayor “took steps to assure that no one would have access to his files without his prior authorization,” and “belongings were clearly labeled and were segregated from other items in the secured archive attic,” though the items might be considered papers rather than effects); United States v. Delgado, 903 F.2d 1495, 1502 (11th Cir. 1990) (suggesting that the search of a shirt found in a warehouse, had it been challenged in trial court, might have raised a Fourth Amendment issue). In addition to these decisions interpreting the Fourth Amendment of the U.S. Constitution, several state courts have used a contextual-privacy approach in interpreting analogous state-constitutional provisions. See State v. Joyce, 639 A.2d 1007, 1013-15, 1014 n.13 (Conn. 1994) (finding under a state constitutional search and seizure provision that the clothing of a burn victim stripped by paramedics could not be searched while in police safekeeping); State v. Westover, 666 A.2d 1344, 1349 (N.H. 1995) (finding that the circumstances weighed in favor of an individual retaining his expectation of privacy in a sweatshirt he tossed on the ground outside a convenience store).

2002 ND 189, ¶ 2, 653 N.W.2d 688, 690.

Id. ¶ 2, 653 N.W.2d at 690.

Id. ¶ 9, 653 N.W.2d at 692.

Id. ¶¶ 7-15, 653 N.W.2d at 691-93.

A.2d 1385, 1387 (Md. 1979).

Id.

Id. at 1387-88.

Id. at 1390.

Id.

State v. Rounds, 698 P.2d 71, 73 (Or. Ct. App. 1985) (en banc). At first, the Oregon courts viewed this inquiry as separate from any inquiry into privacy. See id. Subsequent cases have suggested that the “trespass to unabandoned effects” inquiry and the inquiry into privacy are the same. See, e.g., State v. Belcher, 749 P.2d 591, 593 (Or. Ct. App.) (en banc) (“Stated differently, in the constitutional context we are concerned with whether the owner has ‘abandoned’ his right of privacy in the property so that its inspection presents no question of a search with constitutional implications.” (citations omitted)), aff’d, 759 P.2d 1096 (Or. 1988). For Oregon cases achieving different results applying the same contextual approach, compare State v. Kendall, 24 P.3d 914, 917 (Or. Ct. App. 2001), which found a Fourth Amendment violation when officers searched a bicycle, property “common for a person to leave . . . outdoors[] unattended” on private property, with Belcher, 749 P.2d at 593, which found that a defendant had abandoned his privacy interest in a bag after fleeing police and leaving his pack “in a public place.” It should be noted that although some language in these cases indicates that the court examines whether an individual has abandoned privacy interests, Oregon has interpreted that more contextually and expansively than the abandonment of privacy approaches limned supra Section I.B.

Rounds, 698 P.2d at 72 (footnote omitted).

Id. at 73.

State v. Westover, 666 A.2d 1344, 1348-49 (N.H. 1995).

776 A.2d 700, 705 (Md. Ct. Spec. App. 2001).

Id. at 703.

Id. at 710-11.

Id. at 713.

Id. at 703.

Id. at 704.

Id. at 714.

A few jurisdictions have adopted a sort of “totality-of-the-circumstances approach to determine whether a defendant has an actual or subjective expectation of privacy in the object of a search.” State v. Ross, 49 S.W.3d 833, 841 (Tenn. 2001); see also United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir. Unit A July 1981) (enumerating a variety of factors to be considered when evaluating a defendant’s possessory interest). The seven factors in this test focus primarily on the location: “(1) [whether the defendant owns the property seized]; (2) whether the defendant has a possessory interest in the thing seized; (3) whether the defendant has a possessory interest in the place searched; (4) whether he has the right to exclude others from that place; (5) whether he has exhibited a subjective expectation that the place would remain free from governmental invasion; (6) whether he took normal precautions to maintain his privacy; and (7) whether he was legitimately on the premises.” Ross, 49 S.W.3d at 841 (alterations in original) (quoting Haydel, 649 F.2d at 1154-55). Apart from these, only Maryland has laid out the contextual factors it considers: “[W]e have evaluated the location of the property and assessed whether the area is secured. We have also assessed how long the property remained in the location prior to the search and the condition of the property at the time of the search. In addition, we have considered whether the owner requested a third party to watch or protect the property. Finally, we have considered whether the owner disclaimed or failed to claim the property when questioned by police.” Stanberry v. State, 684 A.2d 823, 829-30 (Md. 1996) (citations omitted).

693 F.3d 1022, 1024 (9th Cir. 2012).

Id. at 1023-24.

Id. at 1034 (Callahan, J., dissenting).

Id. at 1033.

Cf. id. at 1034 n.1 (“The majority opinion focuses on the interests of the homeless in Skid Row who leave their property unattended and does not acknowledge the interests of the other people in Skid Row—homeless or otherwise—who must navigate a veritable maze of biohazards and trash as they go about their daily business. Certainly, the City is charged with protecting the health and safety of individuals who comply with the law but are forced to live in the unsanitary and unsafe conditions created by other residents.”).

Early cases often declared that contraband items could not be constitutional effects, given that the legislature had outlawed their possession, but offered little guidance otherwise. See Glennon v. Britton, 40 N.E. 594, 597 (Ill. 1895) (“Certain articles or things customarily regarded as property, when lawfully acquired and used for a lawful purpose, may, by proper statutory enactment, cease to be so treated, and become liable to seizure, forfeiture, and destruction, if they or their use is deemed pernicious, or dangerous to the public welfare.”); Hastings v. Haug, 48 N.W. 294, 295-96 (Mich. 1891) (suggesting that most possessions must be particularly described in the warrant authorizing search and seizure, but not when objects of search and seizure are “tools and machines used in counterfeiting, or for counterfeit coin, or for obscene books”). But see Herman v. State, 8 Ind. 545, 557-60 (1855) (using the constitutional provision against unreasonable searches and seizures of effects to hold that “the legislature cannot prohibit the manufacture and sale, for use as a beverage, of ale, porter, [and] beer”).

Cullen v. State, 832 S.W.2d 788, 794 (Tex. App. 1992) (quoting United States v. Jacobsen, 466 U.S. 109, 114 (1984)).

Though it found that animals were not considered property in 1791, the Fourth Circuit found that they were sufficiently property-like to merit protection. See Altman v. City of High Point, 330 F.3d 194, 201, 203 (4th Cir. 2003). Including the Fourth Circuit, seven federal courts of appeals have held that pets are “effects” within the meaning of the Amendment. See Carroll v. Cty. of Monroe, 712 F.3d 649, 649 (2d Cir. 2013) (per curiam); Maldonado v. Fontanes, 568 F.3d 263, 270 (1st Cir. 2009); Villo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008); Brown v. Muhlenberg Twp., 269 F.3d 205, 209-10 (3d Cir. 2001); Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994); Lesher v. Reed, 12 F.3d 148, 150 (8th Cir. 1994).

These more famous episodes generally cluster into three groups. First, in England, courts first began criticizing invasive searches targeted to editors of critical publications in decisions like Wilkes v. Wood (1763) 98 Eng. Rep. 489; 489 C.P. 1763, and Entick v. Carrington (1765) 95 Eng. Rep. 807; 807 KB 1765. At the same time, Americans were enduring and protesting the widespread use of general writs to search homes and warehouses for smuggled goods. 2 Legal Papers of John Adams 123-34 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965); Paxton’s Case, in Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, Between 1761 and 1772, at 51 (Boston, Little, Brown & Co. 1865); see Lasson, supra note 5, at 55-63. Finally, in 1767, Parliament further catalyzed these concerns by reauthorizing the use of general warrants in the colonies, generating conflicts that continued all the way to the Declaration of Independence. Davies, supra note 1, at 566.

But see Davies, supra note 11, at 87-172; Davies, supra note 1, at 706-15.

See, e.g., Silverman v. United States, 365 U.S. 505, 511 (1961) (“The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”); Boyd v. United States, 116 U.S. 616, 624-31 (1886) (discussing important Founding-era history of searches and seizures of papers); see also Chimel v. California, 395 U.S. 752, 760-61 (1969) (“[T]he Amendment’s proscription of ‘unreasonable searches and seizures’ must be read in light of ‘the history that gave rise to the words’—a history of ‘abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution.’” (quoting United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting))).

When the colonies declared independence, twelve of the fourteen earliest states adopted new constitutions; this included Vermont, which was not formally recognized by other colonies, but considered itself an independent republic. Rhode Island and Connecticut continued to operate under their colonial charters, though Connecticut did adopt a “constitutional ordinance” in 1776. Eight of these new constitutions included declarations of rights. See Davies, supra note 11, at 89. Georgia, New Jersey, and South Carolina did not have declarations of rights, and the constitutions made no mention of searches or seizures. See Ga. Const. of 1777; N.J. Const. of 1776; S.C. Const. of 1776. New York adopted a constitution, but no declaration of rights until 1787. The New York constitution also did not contain a search and seizure provision. See N.Y. Const. of 1777; Neil H. Cogan, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins para. 10.1.3.6.c, at 353 (1997). Some of these constitutions did include a broad paraphrase of the Magna Carta prohibition on deprivations of property except according to the “law of the land.” See Davies, supra note 11, at 108-12. The four earliest state constitutions provided no enumerated protection for personal property. Maryland, North Carolina, Delaware, and Virginia had constitutional provisions broadly proscribing deprivation or destruction of property during unlawful searches and seizures, but the constitutions did not specifically refer to “effects,” “possessions,” or personal property. Del. Const. of 1776, § 17; Md. Const. of 1776, art. XXI-XXII; N.C. Const. of 1776, art. XII; Va. Const. of 1776, § 10. The due process coverage in these clauses may have protected possessions, of course.

Pa. Const. of 1776, art. X (emphasis added).

Vt. Const. of 1777, ch. I, art. XI.

Mass. Const. of 1780, pt. 1, art. XIV, reprinted in 1 The Perpetual Laws of the Commonwealth of Massachusetts 21 (Boston, I. Thomas & E.T. Andrews 1801) (“Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.”); N.H. Const. of 1784, art XIX (“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”). These state provisions actually had an analogue in an unexpected place: the very earliest legal codes in the American colonies, coming from Massachusetts, New Haven (a distinct colony at the time), and Connecticut. Each of these colonies provided that “no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same. . . .” The Liberties Of the Massachusets Collonie in New England (1641), reprinted in 7 Old South Leaflets 261, 261 (Boston, Dirs. of the Old S. Work n.d.); see also J. Hammond Trumbull, The True-Blue Laws of Connecticut and New Haven and the False Blue Laws Forged by Peters 61-62, 190 (Hartford, Am. Publ’g Co. 1876) (containing the provisions used by Connecticut and New Haven). While these Massachusetts, New Haven, and Connecticut provisions are generally linked to the history of the Due Process Clause and Takings Clause of the Fifth Amendment, the Fourth and Fifth Amendments are demonstrably related. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 80 (1998) (“There is . . . a conspicuous connection between the Fourth Amendment’s limitations on ‘seizures’ of ‘houses’ and ‘effects’ and the Fifth’s restrictions on ‘takings’ of ‘private property.’”).

Proposal of Maryland Minority, Apr. 26, 1788, reprinted in Cogan, supra note 158, para. 6.1.2.1, at 232.

Proposal of Massachusetts Minority, Feb. 6, 1788, reprinted in Cogan, supra note 158, para. 6.1.2.2, at 232-33.

Proposal of Pennsylvania Minority, Dec. 12, 1787, reprinted in Cogan, supra note 158, para. 6.1.2.5, at 233.

Proposal of New York, July 26, 1788, reprinted in Cogan, supra note 158, para. 6.1.2.3, at 233.

Proposal of North Carolina, Aug. 1, 1788, reprinted in Cogan, supra note 158, para. 6.1.2.4, at 233.

Proposal of Virginia, June 27, 1788, reprinted in Cogan, supra note 158, para. 6.1.2.6, at 233.

See generally The Comm’n on the Bicentennial of the U.S. Constitution, The Bill of Rights and Beyond 6-16 (1991) (discussing the history of and the debate over the Bill of Rights); Daniel A. Farber & Suzanna Sherry, A History of the American Constitution 221-45 (1990) (same).

1 Joseph Gales, Annals of Congress 452 (Washington, Gales & Seaton 1834) (emphasis added).

House Committee of Eleven Report, July 28, 1789, reprinted in Cogan, supra note 158, para. 6.1.1.2, at 223-24.

Id. The Fourth Amendment might be read to forbid only seizures of effects, and not searches of effects, because the latter part of the Amendment provides that warrants must “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Nevertheless, the Supreme Court has long held that “[t]he Fourth Amendment protects ‘effects’ as well as people from unreasonable searches and seizures,” United States v. Place, 462 U.S. 696, 716 (1983), and there are a few historical reasons to support that interpretation. At a minimum, houses are not the outer limit of “places” that can be searched. And searches of persons were well known at the time the Amendment was drafted, even though the latter part of the Amendment references only “seizures” of persons (and things). Second, state constitutions provided many other constructions that more clearly proscribed “searches” of physical spaces and “seizures” of objects, but those were not chosen. For example, the Maryland Constitution provided “[t]hat all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive . . . .” Md. Const. of 1776, art. XXIII. On the other hand, it should be noted that a few contemporary sources placed a comma in their report of the proposed federal amendments, indicating something closer to the Maryland formulation. A Pennsylvania newspaper, for example, reported the Amendment as follows: “[T]hat every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property . . . .” American Intelligence, Indep. Gazetteer, July 10, 1788, at 1. This suggests a different understanding, but it may have been a misinterpretation or misprint on the part of the reporter.

See 1 Gales, supra note 169, at 783. Further congressional consideration did change “person” to “persons” and reinserted the phrase “against unreasonable searches and seizures” after “effects.” See Cogan, supra note 158, at 224-25 (citing the debates and correspondence that led to these changes).

No. 6, Fed. Farmer, Dec. 25, 1787, reprinted in 2 The Complete Anti-Federalist 256, 262 (Herbert J. Storing & Murray Dry eds., 1981).

E.g., Letter IV, Fed. Farmer, Oct. 12, 1787, reprinted in 2 The Complete Anti-Federalist, supra note 173, at 245, 249 (describing the desired “freedom from hasty and unreasonable search warrants . . . for searching and seizing men’s papers, property, and persons”); see also 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 532 (Washington, Elliot 2d ed. 1836) (recording an argument by Patrick Henry, during Virginia’s ratification debates, that “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”); Brutus, No. 2, N.Y.J., Nov. 1, 1787, reprinted in 13 Merrill Jensen et al., The Documentary History of the Ratification of the Constitution 527 (1976); Centinel, No. 1, Indep. Gazetteer (Philadelphia), Oct. 5, 1787, reprinted in Jensen, supra, at 329 (“Your present frame of government [in Pennsylvania], secures you to a right to hold yourselves, houses, papers and possessions free from search and seizure . . . . [W]hether your papers, your persons and your property are to be held sacred and free from general warrants, you are now to determine.”); Centinel, No. 2, Freeman’s J. (Philadelphia), Oct. 24, 1787, reprinted in Jensen, supra, at 466-67 (“[T]he people have a right to hold themselves, their houses, papers and possessions free from search or seizure . . . .”).

Davies, supra note 1, at 708-09; see Altman v. City of High Point, 330 F.3d 194, 201 (4th Cir. 2003) (“The effect of that change is clear however; it narrowed the scope of the amendment.”).

1 Noah Webster, An American Dictionary of the English Language (New York, S. Converse 1828); accord 1 John Ash, Effect, The New and Complete Dictionary of the English Language (London, Edward & Charles Dilly 1775) (defining “effect” in the plural as “goods; chattels”); N. Bailey, Effects, An Universal Etymological English Dictionary (Edward Harwood ed., London, J.F. & C. Rivington et al. 25th ed. 1790) (defining “effects” as the “Goods of a Merchant, Tradesman, &c.”); James Barclay, Effect, A Complete and Universal English Dictionary (London, J.F. & C. Rivington et al. 1792) (defining “effect” in the plural as “goods, furniture, or moveables”); Thomas Dyche & William Pardon, Effects, A New General English Dictionary (London, Catherine & Richard Ware 11th ed. 1760) (defining “effects” as the “goods or moveables of a merchant, tradesman, gentleman, &c.”); 1 Samuel Johnson, Effect, A Dictionary of the English Language (London, J.F. & C. Rivington et al. 10th ed. 1792) (defining “effect” as “goods, moveables”); William Perry, Effects, The Royal Standard English Dictionary (Isaiah Thomas ed., Worcester 1788) (defining “effects” as “goods, moveables, possessions”); 1 Thomas Sheridan, Effect, A Complete Dictionary of the English Language (London, Charles Dilly 3d ed. 1790) (defining “effect” in the plural as “goods, moveables”); John Walker, Effect, A Critical Pronouncing Dictionary and Expositor of the English Language (London, G.G.J. Robinson, J. Robinson & T. Cadell 1791) (defining “effects” in the plural as “goods, moveables”). For further information on Founding-era dictionaries, see Gregory E. Maggs, A Concise Guide To Using Dictionaries from the Founding Era To Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358 (2014).

Webster, supra note 176, at 641 (emphasis added).

See, e.g., 1 Richard Burn & John Burn, A New Law Dictionary 17, 19, 88, 435 (London, A. Strahan & W. Woodfall 1792) (declaring, for example, that administration of a wife’s “goods and chattels” should be granted after her death to her husband, and “the husband’s effects, to the widow”); 1 T. Cunningham, Attachment, Bankruptcy, A New and Complete Law-Dictionary, or, General Abridgment of the Law (London, S. Crowder & J. Coote 1764) (noting that attachment shall be granted for court officers guilty of corrupt practices, including giving a defendant “notice to remove his person or effects, in order to prevent the service of any writ” and declaring that the effects of the bankrupt person shall be delivered to the assignees); Giles Jacob, Bankrupt, A New Law-Dictionary (The Savoy [London], Henry Lintot 6th ed. 1750) (noting that the Commissioners should assign “the Bankrupt’s Effects” to those chosen by creditors); Thomas Potts, A Compendious Law Dictionary 52, 192, 219, 39 (London, T. Ostell 1803) (advising, for example, that a bankrupt person must “disclose and discover all his estate and effects, real and personal”).

1 Cunningham, supra note 178 (quoting in the definition for champarry the earlier directive of the Lord Commissioners providing rules for transfers and custody of “sum[s] of money, tallies, orders, bonds, deposites, securities, and other effects”).

2 id. (quoting the definitions for inn and rob).

E.g., Declaration of the Cause and Necessity of Taking Up Arms, July 6, 1775, reprinted in U.S. Cong., Documents Illustrative of the Formation of the Union of the American States, H.R. Doc. No. 69-398, at 10 (1st Sess. 1927); Boston, Bos. Gazette, Oct. 18, 1748, at 1; Copy of a Letter from General Gage to the Earl of Hillsborough, Bos. Gazette, Jan. 23, 1769, at 6; see also Thomas Y. Davies, Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in “Due Process of Law”—“Fourth Amendment Reasonableness” Is Only A Modern, Destructive, Judicial Myth, 43 Tex. Tech. L. Rev. 51, 104 n.261 (2010) (providing additional citations to Founding-era uses of effects).

Chimel v. California, 395 U.S. 752, 760-61 (1969) (quoting United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)).

Madison consulted contemporary newspapers, pamphlets, and court cases, as well as constitutional convention debates. Fisher Ames, Letter to Thomas Dwight, reprinted in Creating the Bill of Rights 247 (Helen E. Veit et al. eds., 1991) (“Mr. Madison has introduced his long expected Amendments. They are the fruit of much labour and research. He has hunted up all the grievances and complaints of newspapers—all the articles of Conventions—and the small talk of their debates.”).

See To the Farmers and Planters of Maryland, Md. J., Apr. 1, 1788, reprinted in 5 The Complete Anti-Federalist, supra note 173, at 74, 75 (“Nay, they often search the clothes, petticoats and pockets of ladies or gentlemen (particularly when they are coming from on board an East India ship), and if they find any the least article that you cannot prove the duty to be paid on, seize it and carry it away with them; who are the very scum and refuse of mankind, who value not their oaths, and will break them for a shilling.”).

See 3 Elliot, supra note 174, at 448-49 (recording an argument by Patrick Henry, during Virginia’s ratification debates, that without a bill of rights, tax collectors “may . . . search, ransack, and measure, every thing you eat, drink, and wear.”).

Cuddihy, supra note 1, at 422.

See The Rights of the Colonists, a List of Violations of Rights and a Letter of Correspondence, 28 October 1772, reprinted in 2 The Writings of Samuel Adams 350, 361 (Harry Alonzo Cushing ed., 1906) [hereinafter Boston Town Meeting of 1772]; To the Farmers and Planters of Maryland, supra note 184, at 75. The famous case of Entick v. Carrington also referred to officers breaking “open the boxes, chests, drawers, &c.” (1765) 95 Eng. Rep. 807, 807; 807 KB 1765. Repositories could also be found on the person—like satchels, cases, and other items for carrying valuables—though I have not found specific reference to searches of those items in this period.

Notably, slaves were a peculiar class of effects subject to search and seizure outside the home with nearly no criticism. There is little doubt that slaves were considered “effects” in the eighteenth century. See Advertisements, Wkly. Newsl. (Boston), May 2, 1728, at 2 (referring to an individual absconding with “Four Negro’s [sic], and sundry other effects”); Congress, Fed. Republican & Com. Gazette (Philadelphia), June 22, 1809, at 1 (referring to “slaves and other effects”); On Wednesday, City Gazette S.C. (Charleston), Apr. 10, 1788, at 1 (referring to “[b]etween forty and fifty Negroes, and sundry other effects”); Portsmouth, May 25, Pa. Gazette, Aug. 10, 1758, at 3 (referring to “Gold, Slaves, and other Effects”). Slave patrols had a long history in British law in the colonies, though these patrols had different degrees of authorization to enter different places and to undertake different scopes of search. See Cuddihy, supra note 1, at 218-27, 559-61, 625-26. The patrol did, however, exercise a judicial function in deciding where and what to search, and regulations requiring multiple officers acted as somewhat of a limitation on this unchecked power. See State v. Hailey, 28 N.C. (6 Ired.) 11, 12-13 (1845); Richardson v. Salter, 4 N.C. (68 Taylor) 505, 506-07 (1817); Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868, at 108 (2006). Nevertheless, I have found no instances where a master claimed that a slave had been wrongfully searched or seized while the slave was out in public. Later state cases held that in the absence of patrol legislation, entries into slave houses could be protested by masters. See, e.g., Thompson v. State, 25 Ala. 41, 45 (1854).

Akhil Amar has suggested that “effects” included ships, although there is not much clear evidence either way. See Amar, supra note 1, at 766-67. I have found only one source that indicates that usage. 2 Cunningham, supra note 178 (quoting the definition of outlawry: “A. who was a foreign merchant and never in England was outlawed at the suit of B. in an action on several promises for goods sold and delivered; and upon a special capias utlagatum a ship and other effects belonging to A. were seized, as forfeited upon this outlawry . . . .”).

Many commentators have used ship searches to advance their broader theories about the propriety of warrantless search. See Amar, supra note 1, at 766-67 (arguing that the common warrantless search of ships provides proof that the Fourth Amendment requires only generalized reasonableness); Davies, supra note 1, at 605-06 (“In late eighteenth-century thought, ships were neither ‘houses, papers, and effects [or possessions]’ nor ‘places.’ They were ships.”); see also Carroll v. United States, 267 U.S. 132, 150-53 (1925) (analogizing automobiles to ships in giving them lesser Fourth Amendment protection than the house). But see Cuddihy, supra note 1, at 757-58 (suggesting that “ship seizures” were not uniquely unprotected, but instead that probable cause had already been created for warrantless searches in the law of admiralty courts); contra Davies, supra note 181, at 93 n.207 (refuting William Cuddihy’s attempt to connect jurisdictional assignments regarding ship seizures to the scope of Fourth Amendment protections). Cuddihy has also suggested that ships may have been special either because of their mobility or because the concentration of crewmen rendered privacy impossible. Cuddihy, supra note 1, at 767-68.

But see Davies, supra note 1, at 604 (suggesting that it is difficult to determine whether contemporary objections to ship seizures were really commentaries on seizure or merely objections to corrupt customs officers).

Spanish Injustice and Barbarity, Va. Gazette (Williamsburg), Nov. 5, 1751, at 1.

Journal of the Times, Boston, March 9, 288 New London Gazette, May 19, 1769; Journal of the Times, Boston, May 20, 1 Essex Gazette 52, July 25, 1769, at 207.

Journal of the Times, Boston, May 20, supra note 193, at 207.

See Samuel Chase, Objections to the New Government: General, reprinted in 1 The Complete Anti-Federalist, supra note 173, at 85, 85; Essay of a Democratic Federalist, Pa. Herald, Oct. 17, 1787, reprinted in 3 The Complete Anti-Federalist, supra note 173, at 58, 61 (“[S]uppose the excise or revenue officers (as we find in Ward’s case)—that a constable, having a warrant to search for stolen goods, pulled down the clothes of a bed in which there was a woman, and searched under her shift—suppose, I say, that they commit similar, or greater indignities . . . .”).

Ward’s Case (Aug. 1636), in John Clayton, Reports and Pleas of Assizes at York 44 (Dublin, S. Powell 1741).

Id.

Elliot, supra note 174, at 58.

William Henry Drayton, A Letter from Freeman of South-Carolina to the Deputies of North-America Assembled in the High Court of Congress at Philadelphia 10 (Charleston, Peter Timothy 1774) (emphasis omitted).

Elliot, supra note 174, at 588.

Boston Town Meeting of 1772, supra note 187, at 361-63; see also id. at 350-74. The famous case Entick v. Carrington also referred to officers “break[ing] open doors, locks, boxes, and to seize a man and all his books, &c.” (1765) 95 Eng. Rep. 807, 807; 807 KB 1765.

Elliot, supra note 174, at 448-49; see also To the Farmers and Planters of Maryland, supra note 184, at 75 (“The excise officers have power to break open your doors, chests, trunks, desks, boxes, and rummage your houses from bottom to top.”).

See Drayton, supra note 199, at 10; see also To the Farmers and Planters of Maryland, supra note 184.

Elliot, supra note 174, at 588 (“[A]ny man may be seized, any property may be taken, in the most arbitrary manner . . . .”).

Compare Drayton, supra note 199, at 10 (describing the power of an officer to “take and carry away, whatever he shall in his pleasure deem uncustomed goods”), and Father of Candor, A Letter Concerning Libels, Warrants, the Seizure of Papers, and Sureties for the Peace of Behavior (London, J. Almon 5th ed. 1765) (noting that officers could “forcibly carry away [one’s] scrutores,” or desks), and Boston Town Meeting of 1772, supra note 187, at 361 (describing officers who “ransack men’s houses, destroy their securities, [and] carry off their property”), with Britano Americus, To the Commons of Great Britain, &c., Bos. Evening Post, Sept. 28, 1767, at 1 (comparing officers of the British Government to “thieves who care only for the bag and what is put therein”).

John Hancock, The Twelve United Colonies, by Their Delegates in Congress, to the Inhabitants of Great Britain, Story & Humphreys’s Pa. Mercury, July 14, 1775, at 2, 4.

Id. at 2.

See Restatement (Second) of Torts §§ 217, 222A (Am. Law Inst. 1965); Simon Douglas, Liability for Wrongful Interferences with Chattels 52-55 (2011); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 14, at 85-86 (5th ed. 1984) (discussing the history of trespass to chattels); William L. Prosser, The Nature of Conversion, 42 Cornell L.Q. 168, 169 (1957) (discussing the origins of conversion).

See 3 Blackstone, supra note 14, at *144-45. Though the most helpful discussion of the writs for wrongs against chattels are in the private-law section, similar actions existed against the king’s agents. See id. at *256.

Id. at *152.

(1765) 95 Eng. Rep. 807, 818; 807 KB 1765. Although Lord Camden gave an example of trespass on real property after this sentence, other aspects of this paragraph concerned the sacredness of personal property: it was only subject to abridgment in limited circumstances, like distresses, executions, and forfeitures. Id. (“The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good.”). Distresses, in particular, were the “taking of a personal chattel out of possession of the wrongdoer into the custody of the party injured . . . .” 3 Blackstone, supra note 14, at *6.

3 Blackstone, supra note 14, at *153. Notably, modern law is now somewhat more strict regarding the level of interference required to rise to the level of a trespass to a chattel. See Restatement (Second) of Torts § 218 cmt. e, h (Am. Law Inst. 1965). This Article does not answer the question of whether courts should use an originalist definition of trespass or the modern law of trespass to chattels, see infra Section III.C, but this is yet another area where the law of effects needs attention and refinement.

See 3 Blackstone, supra note 14, at *151-53.

1 id. at *297-98.

See 1 id. at *290-98 (providing special rules for “royal fish,” “shipwrecks,” “treasure-trove,” “waifs,” and “estrays”).

2 id. at *9 (“So if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will seize it to his own use. But if he hides it privately in the earth, or other secret place, and it is discovered, the finder acquires no property therein . . . .”). But see 1 id. at *295-96 (providing special rules for treasure, which reverted to the crown).

2 id. at *9.

3 id. at *145.

2 id. at *385.

See supra notes 213-217 and accompanying text.

See supra note 157 and accompanying text. The history of protections for personal property has quite recently made it into the Court’s Fifth Amendment Takings jurisprudence. See Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2426-28 (2015).

There is a potential counterargument to a similar use of history for effects. Effects, unlike persons or houses themselves, often constitute the bulk of the evidence against criminal defendants. Before the rise of the exclusionary rule, it may have been relatively costless at the system level to recognize officers’ interferences with personal property as constitutional violations, since the remedy would be a civil action against the officer. See Amar, supra note 1, at 785-86. In contrast, with the entrenchment of the exclusionary rule, it may seem costly and disproportionate at a system level to throw out evidence that establishes guilt on the basis of an officer searching the pocket of an unattended coat. Judges often distort doctrine to avoid letting the guilty go free on this sort of technicality. See generally id. at 793-800 (pointing out the costliness and backward reasoning behind the exclusionary rule more broadly). This difference in remedy between the Founding and today may suggest that history is a less persuasive guide as to how we should treat effects. I disagree. Without weighing in on the wisdom of the exclusionary rule, I take the position that denying constitutional rights on the basis of an undesirable remedy throws the baby out with the bathwater. If the remedy is wrong for effects, it should be changed for effects, rather than denying the existence of a protected right.

See, e.g., Katz v. United States, 389 U.S. 347, 350 (1967) (noting that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all”); Griswold v. Connecticut, 381 U.S. 479, 509 (1965) (Black, J., dissenting) (“The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth.”).

See supra Section I.B (describing how privacy in personal property is often determined by reference to the property’s location alone).

See supra notes 201-219 and accompanying text.

United States v. Jones, 132 S. Ct. 945, 951 n.5 (2012).

This analysis is particularly designed for effects in public space. As explained already, see supra note 31 and accompanying text, effects located in the home and on the person have derivative protection and some limited case law. Additionally, the reader should be reminded here that the concept of “privacy” may be flexible enough to cover all the interests associated with chattel ownership that a search and resulting seizure might disrupt—but so might a “trespass to effects” test. Accordingly, this Part discusses a property-based approach that would be consistent with either existing line of precedent and that protects the constitutional values with which the Framers were concerned.

I use the term “owner” here even though a person might be able to claim Fourth Amendment rights in something he or she possesses only temporarily. See Jones, 132 S. Ct. at 949 n.2 (suggesting that although the defendant was not the “owner [of the searched vehicle] he had at least the property rights of a bailee” and declining to “consider the Fourth Amendment significance of Jones’s status” because the government had not raised the issue of standing); see also Ex parte Jackson, 96 U.S. 727, 728, 732 (1877) (finding that the sender retained Fourth Amendment rights against the search of a mailing sent to a third party while the mailing was in custody of the postal service, without inquiring into the ownership of the mailing and its contents). Requiring someone to be the owner of a chattel rather than a possessor seems unnecessarily formal, particularly in light of longstanding rules on real property finding formal ownership unnecessary to confer standing to challenge a search. Cf. Minnesota v. Olson, 495 U.S. 91, 100 (1990) (observing that an overnight guest in an apartment had a reasonable expectation of privacy in the apartment even though it was not his “home”).

See 3 LaFave, supra note 125, §§ 5-6 (covering, respectively, “Seizure and Search of Persons and Personal Effects” and “Entry and Search of Premises”). Papers, like effects, have a relatively undeveloped line of case law, but much scholarship exists to clarify and expound on the law that does exist. See, e.g., Craig M. Bradley, Constitutional Protection for Private Papers, 16 Harv. C.R.-C.L. L. Rev. 461 (1981); Donald A. Dripps, “Dearest Property”: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure, 103 J. Crim. L. & Criminology 49 (2013); Nowlin, supra note 18, at 1046-51; Eric Schnapper, Unreasonable Searches and Seizures of Papers, 71 Va. L. Rev. 869 (1985).

House searches without warrants are presumptively unreasonable, outside a narrow set of circumstances. See Kyllo v. United States, 533 U.S. 27, 40 (2001) (“That line [at the entrance of the home], we think, must be not only firm but also bright—which requires clear specification of those methods of surveillance that require a warrant.”); Payton v. United States, 445 U.S. 573, 586 (1980) (“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971))). If the objective of the search or seizure is determined to be a person, the inquiry proceeds from that categorization to questions about whether the police conduct really constituted a seizure or search. See United States v. Mendenhall, 446 U.S. 544, 552 (1980) (considering “[t]he distinction between an intrusion amounting to a ‘seizure’ of [a] person and an encounter that intrudes upon no constitutionally protected interest”). Finally, if no warrant was issued, courts determine whether the search or seizure was reasonable. See Sibron v. New York, 392 U.S. 40, 64 (1968) (“[A] police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.”).

When an effect has secondary protection, courts have generally provided specialized rules for analyzing the possible intrusion on two Fourth Amendment categories. See, e.g., Horton v. California, 496 U.S. 128, 136-37 (1990) (discussing effects located inside the home); United States v. Place, 462 U.S. 696, 716 (1983) (discussing effects located on the person).

Papers are arguably not as easily identifiable as persons and houses, and papers also have a less clear line of Fourth Amendment inquiry compared to those two categories. See supra note 229 and accompanying text. Scholars have argued that papers are the most important category of effects in the Fourth Amendment and that they should be subject to heightened protection beyond other effects. See Akhil Reed Amar, America’s Lived Constitution, 120 Yale L.J. 1734, 1772 n.89 (2011); Dripps, supra note 229, at 102-05. Many or all papers might be effects, but not vice versa. Any litigant whose papers were searched would probably be best served claiming protection under both words because of this overlap. There is some evidence to suggest that papers in public spaces have fared as poorly as other effects—a subject for another article. See State v. Russ, 767 N.W.2d 629, 632 (Wis. Ct. App. 2009) (finding no expectation of privacy in affidavits sitting on a bench outside a small-claims courtroom). In that regard, treating papers as effects may at least help some papers achieve greater protection in the short term.

See supra Part II (discussing the Founding-era history of effects).

This is not to say that the categories encompass the exclusive realm of protection; the Fourth Amendment may well protect noneffects—like telephone booth conversations—but noneffects should not proceed under the same analysis. Amar has suggested that the conversations in Katz are “effects.” Amar, supra note 1, at 803. I do not think this suggestion fits with the history or plain meaning of that term, but as explained here, that should not necessarily mean that the conversations are without protection.

134 S. Ct. 2473, 2480-81 (2014).

The idea that data is an effect is a highly contested position, and one that this Article cannot hope to resolve in its final Part. The factors laid out at the end of this Section might help formulate future arguments about whether data is an effect. See also Andrew Guthrie Ferguson, The Internet of Things and the Fourth Amendment of Effects, 104 Calif. L. Rev. (forthcoming 2016) (manuscript at 36-37, 41-42, 69-71) (on file with author) (discussing some of the conceptual difficulties associated with deciding whether digital data is an “effect,” and suggesting a “virtual curtilage theory” to protect data associated with personal property).

Riley, 134 S. Ct. at 2491. It is difficult to tell from the Riley opinion whether the Court considered the data a “paper” or an “effect.” See id. at 2489, 2493 (comparing a cell phone to a “purse,” “wallet,” “camera[],” and “video player[],” and comparing data to “slip[s] of paper,” “video tapes,” “photo albums,” and an “address book”).

Altman v. City of High Point, 330 F.3d 194, 202 (4th Cir. 2003).

Cf. United States v. Jones, 132 S. Ct. 945, 950 n.3 (2012) (discussing the analogy between a constable concealing himself in a coach in the eighteenth century and twenty-first-century GPS tracking); id. at 958 (Alito, J., concurring in the judgment) (same).

See 2 Blackstone, supra note 14, at *428 (noting how chattels affixed to property pass with the land).

An additional strike against this approach is the weak historical ability of untrained judges. See Jack N. Rakove, Fidelity Through History (or to It), 65 Fordham L. Rev. 1587, 1588 (1997) (“[T]here is good historical evidence that jurists rarely make good historians, and that a theory of interpretation which requires judges to master the ambiguities of history demands a measure of faith that we, as citizens and scholars alike, should be reluctant to profess.”).

See Michael Clemente, Note, A Reassessment of Common Law Protections for “Idiots,” 124 Yale L.J. 2746, 2748 (2015) (noting how the Eighth Amendment prohibition on “cruel and unusual punishment” covers both punishments considered cruel and unusual in the eighteenth century and those now considered cruel and unusual according to “evolving standards of decency” (citation omitted)); cf. District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” (citations omitted)).

Justice Alito suggested that the Court’s holding in Jones about “effects” would cause the Fourth Amendment protection to vary from state to state. Jones, 132 S. Ct. at 961-62 (Alito, J., concurring in the judgment).

See Stop the Beach Renourishment, Inc. v. Fla. Dep’t. of Envtl. Prot., 560 U.S. 702, 715 (2010); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029-30 (1992); Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”). But see Amar, supra note 161, at 80 (“There is . . . a conspicuous connection between the Fourth Amendment’s limitations on ‘seizures’ of ‘houses’ and ‘effects’ and the Fifth’s restrictions on ‘takings’ of ‘private property.’ In both cases, state law typically defines the property rights given constitutional protection against federal officials.”).

Cf. Tom W. Bell, “Property” in the Constitution: The View from the Third Amendment, 20 Wm. & Mary Bill Rts. J. 1243, 1265-66 (2012) (discussing the general preference to interpret the Constitution according to plain meanings rather than technical legal meanings of words in the context of the multiple technical legal meanings given to “property” in various amendments).

Here, I am imagining the government remotely searching property from a state other than the one where the property is located.

Minnesota v. Carter, 525 U.S. 83, 88 (1998).

2 Blackstone, supra note 14, at *389 (defining possessed chattel property as carrying the “right, and also the occupation, of any movable chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default”); see Merrill & Smith, supra note 14, at 365; Jedediah Purdy, The Meaning of Property 16-17 (2010); Jeremy Waldron, The Right to Private Property 49-50 (1988); Edward Gluck, Possession of “Lost” Goods, in Readings on Personal Property, supra note 14, at 351, 353; A.M. Honoré, Ownership, in Oxford Essays in Jurisprudence 107, 108-10 (A.G. Guest ed., 1961); cf. Robert C. Ellickson, Property in Land, 102 Yale L.J. 1315, 1362-63 (1993) (defining a “Blackstonian bundle” of property rights in land by the rights to exclude, use, and transfer).

See Thomas W. Merrill & Henry E. Smith, The Oxford Introductions to U.S. Law: Property 8-11 (2010).

Cf. John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1816 (2008) (criticizing the prohibition in Eighth Amendment jurisprudence of punishments that are “cruel and unusual” according to “evolving standards of decency” because the evolving standards test is vague and does not clarify whether or how the court should divine what those standards are).

See id. at 1751-52 (discussing the problems associated with courts attempting to assess what “standards of decency” apply to punishments).

Notably, even some things that are not ordinarily property—say, animal excrement—can become personal property through circumstances indicating intent to use, transfer, or exclude others from it. See Haslem v. Lockwood, 37 Conn. 500, 506-07 (1871) (organizing manure into piles along the side of the highway made it into plaintiff’s personal property, making defendant’s subsequent removal of it unlawful).

See J.E. Penner, The Idea of Property in Law 83-84 (1997) (noting that “[c]onventions about what types of things are generally owned will determine which things are objects of the duty in rem and those which are not. For example, we take all cars and houses we come across to be owned, though not most pigeons”).

United States v. Jones, 132 S. Ct. 945, 951 (2012); Oliver v. United States, 466 U.S. 170, 176-77 (1984).

See Tracey v. State, 152 So. 3d 504, 524 & n.15 (Fla. 2014).

See, e.g., State v. Reldan, 495 A.2d 76, 82 (N.J. 1985).

Ferguson v. City of Charleston, 532 U.S. 67, 92 (2001) (Scalia, J., dissenting). But see Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 617 n.4 (1989) (“Taking a blood or urine sample might also be characterized as a Fourth Amendment seizure, since it may be viewed as a meaningful interference with the employee’s possessory interest in his bodily fluids.”).

In the urine case, for example, the Court held that a woman submitting urine for diagnostic testing might reasonably expect that “tests will not be shared with nonmedical personnel without her consent.” Ferguson, 532 U.S. at 78.

See supra Section I.B. Paradoxically, courts might determine the third jacket was lost if a bystander picked it up and brought it to the police station, which might limit the permissible scope of search (but would permit some search for identification, presumably). See supra text accompanying notes 107-108.

See supra Section I.C.

See supra Section I.A.

Stanberry v. State, 684 A.2d 823, 829-30 (Md. 1996) (describing the multifactor test and citing as support Owens v. State, 589 A.2d 59, 66 (Md. 1991), Faulkner v. State, 564 A.2d 785, 789-90 (Md. 1989), Morton v. State, 397 A.2d 1385, 1390 (Md. 1979), and Duncan v. State, 378 A.2d 1108, 1118-19 (Md. 1977)).

See id.

Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143-44 (1978)).

United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring).

Compare Possession, Black’s Law Dictionary (10th ed. 2014) (disambiguating multiple different kinds of possession and referring to possession as a form of right), with Effects, id. (defining “effects” as “[m]ovable property; goods”).

Possession, id.

Instead of using this long-developed body of existing positive law, lower courts have used an ahistorical and otherwise nonexistent abandonment of privacy approach in developing the contours of abandonment for Fourth Amendment purposes. See supra Section I.B (discussing the “abandonment of privacy” test). To be fair, the law of property abandonment can have some arcane distinctions. Historically, the law distinguished between items in possession and items that had been (1) lost; (2) mislaid (intentionally placed by the owner, but forgotten); or (3) abandoned. The distinction between lost and mislaid property is not particularly helpful for Fourth Amendment analyses; it was used to determine whether the finder of a good could lawfully take it, or whether it should be in the custody of the owner of the premises on which the good was found. In other words, the distinction between lost and mislaid property acts to mitigate claims between two subsequent possible possessors—not the original owner and a subsequent interferer, which is the relevant analysis for Fourth Amendment purposes. See John V. Orth, What’s Wrong with the Law of Finders & How To Fix It, 4 Green Bag 2d 391, 397 (2001) (criticizing the lost/mislaid distinction). Another caveat must be made here. I discuss general principles of the common law of abandonment. At least one state has done away with the common law of abandonment by statute. Compare N.Y. Pers. Prop. Law § 251(3) (McKinney 2015) (presuming abandoned property to be lost for six months after finding) with Mont. Code Ann. §§ 70-5-101 to -107 (2013) (retaining a category of “abandoned property” but treating lost and mislaid property the same). For the same reasons that I think the approach to recognizing an effect need not be state specific, I do not think the approach to abandonment need be; the common-law principles are commonsense. See supra Section III.A.

Cf. Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring) (noting the Fourth Amendment’s “longstanding protection for privacy expectations inherent in items of property that people possess or control”).

See, e.g., United States v. Brown, 663 F.2d 229, 232 (D.C. Cir. 1981) (distinguishing between property abandonment and Fourth Amendment abandonment because property abandonment allegedly requires voluntary, intentional, and unconditional relinquishment of the interest in the property, while the Fourth Amendment requires only abandonment of the privacy interest); City of St. Paul v. Vaughn, 237 N.W.2d 365, 370-71 (Minn. 1975) (same); State v. Dupree, 462 S.E.2d 279, 281 (S.C. 1995) (same).

See, e.g., United States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004); Vaughn, 237 N.W.2d at 370.

See 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property §§ 55, 58 (2005); Worsham v. State, 120 S.W. 439, 443-44 (Tex. Crim. App. 1909) (reviewing a jury instruction to find from the circumstances that the owner of a check abandoned it). Note that this was not a Fourth Amendment (or state constitutional) case; the defendant claimed the affirmative defense that the property had been abandoned, so his picking it up was not conversion. See also Cribbet et al., supra note 14, at 112 (observing that “it is likely that intent to abandon was inferred from the facts” in front of the court in Eads v. Brazelton, 22 Ark. 499 (1861)).

Generally, courts ask whether “the individual manifested a subjective expectation of privacy in the object” of the search and resulting seizure and “society [is] willing to recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001) (alteration in original) (quoting California v. Ciraolo, 476 U.S. 207, 211 (1986)). Although often cast as a two-part inquiry—a subjective and objective test—in reality, the Fourth Amendment inquiry often boils down to the analysis of whether the expectation of privacy is objectively reasonable based on the individual’s behavior and actions. See generally Orin S. Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations, 82 U. Chi. L. Rev. 113 (2015) (arguing that the subjective expectation of privacy test has been reframed, such that there is only one prong of the test).

Authorities are in universal agreement on the importance of the nature and circumstances of the property to the abandonment calculus. See 1 Am. Jur. 2d, supra note 272, § 58 (“Intention to abandon may be inferred from the acts and conduct of the owner and from the nature and situation of the property.”); Ralph W. Aigler, Rights of Finders, 21 Mich. L. Rev. 664, 665 (1923) (“In determining [the question of abandonment], the kind of property, the place where left, and the circumstances of the leaving are vitally important.”); Gluck, supra note 248, at 351 (explaining that the rights of finders of goods depend on both the nature of the premises and the nature of the article).

Robert C. Ellickson, The Inevitable Trend Toward Universally Recognizable Signals of Property Claims: An Essay for Carol Rose, 19 Wm. & Mary Bill Rts. J. 1015, 1025-26, 1031-32 (2011); Carol M. Rose, Response, 19 Wm. & Mary Bill Rts. J. 1057, 1058-59 (2011). See Carol M. Rose, Introduction: Property and Language, or, the Ghost of the Fifth Panel, 18 Yale J.L. & Human. (Supplement) 1, 2-3 (2006); Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73, 76-79 (1985) [hereinafter Rose, Possession as the Origin of Property].

See Rose, Possession as the Origin of Property, supra note 275, at 76-77.

There is no authority that comprehensively lays out these factors, despite universal agreement that the nature and circumstances of the property determine whether it is abandoned. Accordingly, I have examined personal-property cases for consistency across jurisdictions and consensus in scholarship, and the factors listed here appear both to be comprehensive and to occur with some frequency.

See Ray v. Flower Hosp., 439 N.E.2d 942, 944-45 (Ohio Ct. App. 1981) (finding an eyeglass case containing jewels found on top of a desk, not on the floor or strewn across the floor, to be lost-mislaid property); cf. Aigler, supra note 274, at 668 & n.21 (noting that, in discerning lost from mislaid property, various different elements of location suggest different intentions of the owner); Gluck, supra note 248, at 358 (asking whether a subway car is more like “a private parlor or a public highway” in determining whether an item is lost or mislaid). These factors would seem to obtain equally in distinguishing abandoned property from lost or mislaid property.

See Erickson v. Sinykin, 26 N.W.2d 172, 176-77 (Minn. 1947); Ray, 439 N.E.2d at 944; 1 Am. Jur. 2d, supra note 269, § 59. A number of unclaimed property statutes tie the constructive abandonment of certain types of property to the duration of time it remains unused or unclaimed. See Unif. Unclaimed Prop. Act §§ 2(a), 3 (Nat’l Conference of Comm’rs on Unif. State Laws 1995).

State v. Taylor, 27 N.J.L. 117, 122-23 (1858).

See Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 406 (Iowa 1995) (finding that the fact that “bills were carefully tied and wrapped” mitigated against finding that the property was mislaid); Elk Horn Coal Corp. v. Allen, 324 S.W.2d 829, 831 (Ky. 1959) (finding that coal waste in an “orderly pile,” even though located in a slate dump, indicated nonabandonment); see also Lior Jacob Strahilevitz, The Right To Abandon, 158 U. Pa. L. Rev. 355, 362 (2010) (noting that negative market value and negative subjective value items—like “damaged chattels”—have a high abandonment frequency).

Terry v. Lock, 37 S.W.3d 202, 208 (Ark. 2001) (finding that a box of “old, dusty currency” hidden in a motel ceiling was not abandoned); Benjamin, 534 N.W.2d at 406 (“[W]e considered the manner [in Ritz] in which the money had been secreted in deciding that it had not been abandoned.”); Ritz v. Selma United Methodist Church, 467 N.W.2d 266, 269 (Iowa 1991) (finding that “[t]he fact that [money] was buried in jars and tin cans indicates that the owner was attempting to preserve it”); Jackson v. Steinberg, 200 P.2d 376, 378 (Or. 1948) (“From the manner in which the bills in the instant case were carefully concealed beneath the paper lining of the drawer, it must be presumed that the concealment was effected intentionally and deliberately. The bills, therefore, cannot be regarded as abandoned property.”).

The same reasonableness requirement should apply to “destroyed” property. Efforts to destroy something indicate that the owner does not intend for another to assume possession of it, see Lior Jacob Strahilevitz, The Right To Destroy, 114 Yale L.J. 781, 794-95 (2005), but a defendant may nonetheless abandon incompletely destroyed property, cf. State v. Davis, 577 N.W.2d 763, 766 (Neb. Ct. App. 1998) (discussing how officers discovered during a lawful search of a home sunglasses that defendant had tried to destroy in a stove), and should thus lose Fourth Amendment rights with respect to it, just as one would lose protection for any abandoned property. The Supreme Court has lessened Fourth Amendment protection for persons during arrests because of the threat that individuals will destroy evidence, see Preston v. United States, 376 U.S. 364, 367 (1964), so it would be nonsensical to create a loophole where destroying property would actually increase one’s Fourth Amendment rights with respect to it. But see Matt Corriel, Comment, Up for Grabs: A Workable System for the Unilateral Acquisition of Chattels, 161 U. Pa. L. Rev. 807, 811-12, 824 n.61, 837-38 (2013) (“[T]he acquisition of destroyed property and of certain kinds of abandoned property is wrongful because such chattels give notice to the acquirer that they ought not to be repossessed.” ).

The Court has often recommended this sort of practical, holistic analysis over a strict bright-line test. In the context of residential searches, the Court has rejected a formal, numerical-factor test to decide whether a person has a reasonable expectation of privacy in his or her overnight accommodations, instead looking at “everyday expectations” and “social custom” to define Fourth Amendment protections. Minnesota v. Olson, 495 U.S. 91, 96-98 (1990).

See supra note 146 and accompanying text (discussing Stanberry v. State, 684 A.2d 823, 829-30 (Md. 1996)).

Strahilevitz, supra note 281, at 373.

Riley v. California, 134 S. Ct. 2473, 2491-92 (2014) (alterations in original) (quoting Michigan v. Summers, 452 U.S. 692, 705 n.19 (1981)). See generally Wayne R. LaFave, “Case-by-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 141 (arguing for “readily applicable” bright-line rules in the Fourth Amendment context). But see Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227, 230-34 (1984) (pointing out that Fourth Amendment rulings are so fact bound that it is difficult to create bright-line rules).

Orin S. Kerr, Norms of Computer Trespass, 116 Colum. L. Rev. (forthcoming 2016) (manuscript at 11), http://ssrn.com/abstract=2601707 [http://perma.cc/PM44-NQP8].

See Missouri v. McNeely, 133 S. Ct. 1552, 1561-62 (2013).

See supra notes 41-73 and accompanying text.

See supra notes 109-114 and accompanying text.

See supra notes 146-154 and accompanying text.

Smith v. Maryland, 442 U.S. 735, 740-41 (1979); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

See Minnesota v. Carter, 525 U.S. 83, 88 (1998).

See, e.g., Kyllo v. United States, 533 U.S. 27, 37, 40 (2001).

See, e.g., United States v. Place, 462 U.S. 696, 708 (1983).

See United States v. Reed, 141 F.3d 644, 647 (6th Cir. 1998); United States v. Lyons, 957 F.2d 615, 616 (8th Cir. 1992); State v. Miller, 766 S.E.2d 289, 296 (N.C. 2014).

Mason C. Clutter, Dogs, Drones, and Defendants: The Fourth Amendment in the Digital Age, 21 Geo. Mason L. Rev. 557, 557 (2014); see also Matthew R. Koerner, Note, Drones and the Fourth Amendment: Redefining Expectations of Privacy, 64 Duke L.J. 1129, 1132-33 (2015) (explaining how expectations of privacy operate in the context of drone surveillance); Andrew B. Talai, Comment, Drones and Jones: The Fourth Amendment and Police Discretion in the Digital Age, 102 Calif. L. Rev. 729, 732 (2014) (examining how drone surveillance might or might not constitute a Fourth Amendment search).

Given the vehement disagreement of four Justices on the current Court with the “trespass to effects” test, it may not be as long-lived as the privacy test from Katz has been. See United States v. Jones, 132 S. Ct. 945, 957-62 (2012) (Alito, J., concurring in the judgment). Nevertheless, the Court has cited the property rationale from Jones in subsequent cases, see Florida v. Jardines, 133 S. Ct. 1409, 1417 (2013), and lower courts have also begun applying the trespass rule, see, e.g., United States v. Dennis, No. 3:13-CR-10-TCB, 2014 WL 1908734, at *9 (N.D. Ga. May 12, 2014); People v. Gingrich, 862 N.W.2d 432, 436-37 (Mich. Ct. App. 2014); Miller, 766 S.E.2d at 296.

See Restatement (Second) of Torts § 218 (Am. Law Inst. 1965); see also Jones, 132 S. Ct. at 961-62 (Alito, J., concurring in the judgment).

See, e.g., Laurent Sacharoff, Constitutional Trespass 16 (Univ. of Ark., Research Paper No. 13-18, 2014), http://ssrn.com/abstract=2311405 [http://perma.cc/W8UQ-BUP4] (arguing that the Supreme Court in Jones “barred unconsented to physical intrusions upon property, of whatever kind”).

Some courts have used language that might permit fairly broad ID searches. See United States v. Sumlin, 909 F.2d 1218, 1219-20 (8th Cir. 1990) (finding that an officer did not violate an individual’s Fourth Amendment rights when, in searching for identification in her purse, he encountered a gun and cocaine); State v. Belcher, 759 P.2d 1096, 1097 (Or. 1988) (holding that the “police may search abandoned or lost property for identification of the owner”). Others have permitted ID searches, but require officers to stop searching immediately once identification is found or to adopt the least intrusive means of ascertaining ownership (even to avoid a search altogether if the object is not valuable). See State v. Ching, 678 P.2d 1088, 1093 (Haw. 1984); State v. Hamilton, 2003 MT 71, ¶¶ 41-48, 314 Mont. 507, 518-20, 67 P.3d 871, 878-79. This question is beginning to come up with “digital property,” too. See United States v. Wilson, 984 F. Supp. 2d 676, 684-86 (E.D. Ky. 2013) (finding that it was reasonable for officers to search a laptop for identification of its owner).

See United States v. Santana, 427 U.S. 38, 43 (1976) (“[T]here was a true ‘hot pursuit,’ . . . and thus a warrantless entry to make the arrest was justified.” (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967))).

See United States v. Va Lerie, 385 F.3d 1141, 1157 n.10 (8th Cir. 2004) (Riley, J., dissenting), vacated, 424 F.3d 694 (8th Cir. 2005) (en banc).

See California v. Acevedo, 500 U.S. 565, 580 (1991) (holding that the “police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained”); New Jersey v. T.L.O., 469 U.S. 325, 339-41 (1985) (evaluating the search of a purse in a school and holding that “[a]gainst the child’s interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds”); Hudson v. Palmer, 468 U.S. 517, 528-30 (1984) (holding that “random searches are essential to the effective security of penal institutions” and permitting warrantless searches of prisoners’ property). The Court has framed all three analyses as modifications to what is understood as “reasonable” for Fourth Amendment purposes, instead of as special rules for certain categories of effects. See Acevedo, 500 U.S. at 580 (holding that searches of containers within vehicles or of vehicles themselves are unreasonable if unsupported by probable cause); T.L.O., 469 U.S. at 339-40 (noting that “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject” to support an exception to the warrant requirement in schools and a relaxation of the probable cause standard); Hudson, 468 U.S. at 527-28 (noting that prisoners lack a reasonable expectation of privacy in property in their cells because “[d]etermining whether an expectation of privacy is ‘legitimate’ or ‘reasonable’ necessarily entails a balancing of interests”). But cf. Carroll v. United States, 267 U.S. 132, 153 (1925) (comparing movable vehicles to structures and noting that special warrant rules should apply when the object of a search is a “ship, motor boat, wagon or automobile . . . because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought”).

Katz v. United States, 389 U.S. 347, 351 (1967).

See, e.g., Kerr, supra note 16, at 809-15.

See sources cited supra note 21.