The lost "effects" of the Fourth Amendment: giving personal property due protection.

• Author: Brady, Maureen E.
• Position: Introduction into II. The Founding Era History of Effects, p. 946-981

ARTICLE CONTENTS INTRODUCTION I. EXISTING APPROACHES TO EFFECTS A. The Limited Life of Effects in the Supreme Court B. The Locational-Privacy Approach in Lower Courts C. The Contextual-Privacy Approach in Lower Courts II. THE FOUNDING-ERA HISTORY OF EFFECTS A. The Constitutional History of Effects B. Threats to Personal Property in Founding-Era Sources C. Constitutional Values in the History of Effects III. TOWARD A PROPERTY-BASED APPROACH TO EFFECTS A. How Courts Should Recognize Effects 1. The Relationship Between Effects and Other Protected Categories 2. How To Identify Effects B. Distinguishing Protected and Unprotected Effects C. Unanswered Questions: Searches and Exigencies CONCLUSION INTRODUCTION

Personal property has long been overlooked in Fourth Amendment jurisprudence. The Constitution expressly protects "the right of the people to be secure in their ... effects" from unreasonable searches, but--unlike its companion categories "persons, houses, [and] papers" (1)--the Fourth Amendment rules for searches of effects are comparatively underdeveloped. To be fair, personal property is often treated as a residual category even in property law: Black's Law Dictionary defines real property to include land and anything constructed on it, while personal property is defined as "[a]ny movable or intangible thing that is subject to ownership and not classified as real property." (2) The Fourth Amendment canon, which also ascribes an inferior status to effects, is equally ambiguous in its treatment of them. When an individual's personal property is not located inside her home or pocket, (3) current search law provides few metrics for establishing whether the property is entitled to Fourth Amendment protection. (4) Yet individuals bring and keep all sorts of personal property outside their homes: a dog tied to a parking meter while its owner visits a store, a carefully stacked sleeping bag in a homeless encampment, or towels and chairs placed on the sand during a beach walk. The factors that determine an individual's rights to keep these objects free from interference are at best unclear and at worst incoherent.

Property analyses were once quite relevant to search law. Prior to the 1960s, the Supreme Court required individuals either to demonstrate a superior property interest in the papers or items searched and seized or to prove that the government had trespassed on real property, before Fourth Amendment relief could be considered. (5) Then, in Katz v. United States, as Justice Harlan noted in his concurrence, the Court replaced these property standards with a new test: a person could claim protection from government actions that violated his or her "reasonable expectations of privacy" in the object of the search or the area from which the item was seized. (6) Redefining the Fourth Amendment to protect privacy instead of property allowed individuals to challenge, among other things, the government's recording of conversations in a public phone booth and intrusions into office file cabinets. (8) In short, it expanded Fourth Amendment protections to places in which individuals had privacy interests, but no property interests.

Yet the expansion in privacy protections was accompanied by a contraction in the protection afforded to personal property. While the home remains the pinnacle of Fourth Amendment protection under both the property and privacy paradigms, (9) personal property is often subject to narrow protections that treat the location of the personal property as dispositive of an individual's reasonable expectation of privacy with respect to it. In many courts, if the owner has physical custody of the property or an expectation of privacy in the area where it is located, then the property is protected by the Fourth Amendment. Conversely, if the owner has neither physical custody of the property nor an expectation of privacy in the area in which it is located, then the personal property is without protection from examination and seizure.

This Article proposes a superior framework for defining "effects" and for ascertaining an individual's Fourth Amendment rights with respect to them. This intervention would give individuals greater protection against government interference with items in spaces law-enforcement officers and other parties may lawfully access--what I term "public space." (10) Courts should interpret the Fourth Amendment's application to personal property in public space by examining contextual factors to determine both whether an item is an "effect"-whether it is personal property like a tube of lipstick or a sweater--and whether an individual remains in possession of the item and therefore renders it presumptively entitled to Fourth Amendment protection. Many courts currently apply the Amendment to personal property in an ahistorical and doctrinally unsound manner. This Article traces the doctrinal history of the Fourth Amendment to explain how many courts erroneously came to treat privacy in an item's location as a substitute for privacy and security interests in the item itself. Moreover, this Article provides a new historical account of Founding-era debates focused specifically on personal property, (11) thus reanchoring the "effects" provision in the concerns that motivated its inclusion. (12) As this account demonstrates, the protection for effects was connected to the law prohibiting interferences with another's possession of personal property, including dispossession, damage, and unwanted manipulation. This reflects the recognition that when agents of the government examine and handle personal items, they threaten the privacy, security, and dignitary interests inherent in ownership. (13)

Giving credence to the history of effects and the foundations of search law means adopting a view of Fourth Amendment rights that considers factors beyond an effect's location--factors like the nature of an item, its relationship to other items, and other ways the owner has communicated her intent with respect to it, like securing it or shielding it from view. Personal-property law already makes use of these sorts of signals in mediating between competing ownership claims, although personal-property law receives scant attention from property scholars, (14) let alone criminal-law theorists. (15) Still, if guidance from personal-property law is incorporated into Fourth Amendment analyses, (16) the law will better protect the expectations and interests that individuals have with respect to their personal property and that society recognizes as reasonable under the circumstances.

At the outset, it may be helpful to explain the relationship of this intervention to the "reasonable expectation of privacy test. This Article does not advocate abandoning privacy where effects are concerned, nor does it suggest that demonstrating a property interest is sufficient to invoke Fourth Amendment protection. Instead, it argues that many courts have taken a narrow view of privacy when it comes to personal property. (17) As a result, they have failed to protect the other ownership-based interests embodied in the Fourth Amendment's protection for effects-for example, the ability to prevent damage, theft, or unauthorized inspection and use. Privacy is a broad value, capable of covering these other interests of property ownership-if given meaningful content. (18) But by defining privacy by reference to location 01 in other artificially limited ways, many courts have offered minimal protection to personal items. Controlling access to the location of an object is only one piece of the puzzle. Indeed, property gives individuals a right to exclude others from the thing itself, not just to prevent inspection, but to forbid tampering and theft so that individuals can confidently "develop resources and plan for the future." (19) Property law can thus help redefine Fourth Amendment protections for personal items by indicating when a person can reasonably expect items to be left alone. Whether property considerations are encompassed in the "reasonable expectation of privacy" test or constitute a parallel path to Fourth Amendment protection is immaterial--the two will involve identical inquiries and achieve the same results. (20) This Article takes the position that, whether framed as a property test or a component of privacy analysis, Fourth Amendment interests in effects should be defined by reference to personal-property rules.

In critiquing the development of the Fourth Amendment rules for personal property, this Article joins existing calls to abandon interpretations of Fourth Amendment coverage that privilege territorial concepts of privacy. While other scholars have discussed how the continued use of spatial boundaries to define Fourth Amendment protection overprotects residential property and underprotects other areas where people have significant privacy interests, (21) this Article identifies personal property as an additional and overlooked casualty of spatial approaches to Fourth Amendment protection. (22) Moreover, this Article uses traditional tools--history and arguments front precedent--rather than appeals to psychology, sociology, or philosophy. For that reason, this account of the problems territorial privacy creates for personal property may advance the cause of those scholars who criticize territorial approaches, as this critique relies on sources of authority that courts are likely to find persuasive. (23)

Attention to personal property has recently increased because the word "effects" is creeping back into Supreme Court opinions. In one recent case, United States v. Jones, officers acting without a warrant installed a GPS device on a suspect's vehicle and tracked it for four weeks. (24) The Supreme Court declared it "beyond dispute that a vehicle is an 'effect' as that term is used in the [Fourth] Amendment" (25) and held that a "trespass on 'houses' or 'effects' ... to obtain information" is a...