§ 7.02 Seizure of Property

• Jurisdiction: United States

§ 7.02 Seizure of Property

[A] General Rule

In contrast to a search, which affects a person's privacy interest, a seizure of property invades a person's possessory interest in that property.⁶ Tangible⁷ property is "seized" in Fourth Amendment terms "when there is some meaningful interference with an individual's possessory interests in that property."⁸

A "seizure" occurs when a police officer exercises control over D's property by destroying it,⁹ or by removing it from D's actual or constructive possession.¹⁰ A house or office and its contents are "seized" when an officer secures the premises, i.e., prevents persons from entering or taking away or destroying personal property.¹¹ On the other hand, no "seizure" occurs when an officer merely picks up an object to look at it or moves it a small distance, because any interference with D's possessory interest in such circumstances is not "meaningful."¹²

[B] Special Issue: Installation of Electronic Devices on or in Personal Property

The installation of an electronic device on or in personal property, in order to monitor a person's movements or to intercept conversations, can raise "seizure" issues.¹³ At least in some contexts, installation of such a device is not a seizure. For example, in United States v. Karo,¹⁴ federal agents learned that K intended to obtain ether from M, a merchant, for use in the production of illegal drugs. With M's consent, the agents installed an electronic "beeper" inside an ether can that M agreed to transfer to K, so that the agents could monitor K's movements as he transported the can in an automobile.

The Court held that placement of the device in the can was not a seizure, since the container at the moment of installation did not belong to K, and thus did not invade his possessory interests in it.¹⁵ More controversially, the Court also held that no seizure occurred when the "beeper"-infested can was transferred to K by M. According to the Court, "[a]lthough the can may have contained an unknown and unwanted foreign object, it cannot be said that anyone's possessory interest was interfered with in a meaningful way."¹⁶

A different result would seem to apply if the electronic device were installed inside a person's property in a manner that meaningfully interferes with her property. For example, if the police break open the lock of a car or suitcase, thereby damaging the property, in order to install a beeper, this should constitute a seizure of the property in question.

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