The Yale Law Journal

VOLUME
125
2015-2016
NUMBER
4
February 2016
796-1149
Article

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

Maureen E. Brady

abstract. In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Recent Supreme Court opinions on Fourth Amendment searches reintroduced the word “effects,” and yet they did so without a definition of the word, an understanding of its history, or a clear doctrinal theory.

In the absence of a coherent approach to “effects,” many lower courts apply the standard Fourth Amendment test: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location. These courts hold that individuals have no expectations of privacy in personal property that is unattended in public space.

This Article argues that personal property in public space should receive greater constitutional protection than is provided by these cases, because of the privacy and security interests inherent in ownership and possession. The history surrounding the Fourth Amendment provides evidence that the protection against unreasonable searches and seizures was connected to the law prohibiting interferences with another’s possession of personal property, including dispossession, damage, or unwanted handling. To restore this connection, this Article uses guidance from personal-property law to propose a framework for identifying Fourth Amendment interests in effects based on their qualities and environment. This intervention would grant effects the constitutional protection they deserve.

author.Yale University, Ph.D. in Law expected 2016. I owe thanks to Becca Crootof, Thomas Davies, Bob Ellickson, Daniel Markovits, Robert Post, Claire Priest, Carol Rose, Sarah Seo, Reva Siegel, and members of the Yale Ph.D. in Law cohorts for helpful comments and conversations. I am especially thankful for Jack Brady and Portia Pedro, who patiently read and criticized early drafts, and for John Nann and Alison Burke of the Lillian Goldman Law Library at Yale Law School, who provided assistance with sources. Finally, I am deeply indebted to the editors of the Yale Law Journal, especially Meg Braun, Mike Clemente, Lucas Croslow, and Clark Hildabrand. I thank them for putting this Article in far better shape than they found it. All errors are my own.

 


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 booth7 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 or 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 from 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 search.26 However, because Jones did not define “effects,” the role of personal property interests remains unclear. Will “trespasses” to any item in which a person asserts a property interest trigger Fourth Amendment protection, and if not, what are the parameters for determining whether an effect is protected? In a second recent case, Riley v. California, the Court determined that law enforcement officers’ search of an arrestee’s cell phone was illegal, in part because cloud storage raises “the possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee.”27 But instead of looking at the cell phone as personal property, the Courtcompared the phone to a house to define its owner’s expectations.28 These cases indicate a desperate need for some guidance as to the interaction of privacy and personal property in the Fourth Amendment calculus.

Additionally, recent events indicate that the Supreme Court has not yet given the final word on effects. At a lecture at Brooklyn Law School, Justice Scalia hummed excitedly when a student asked whether computer data would be considered an “effect” under the Fourth Amendment.29 “I better not answer that,” he said. “That’s something that may well come up. It’s a really good question.”30 Put simply, it is not a matter of if there will come a Supreme Court case about the meaning of and protection for effects; it is a matter of when.

This Article proceeds in three parts. Part I sets forth a modern history of effects. It begins by summarizing the current state of effects doctrine. The Supreme Court has provided some guidance in this area, but because of its partial treatment of the issue, lower courts have had the freedom to develop their own approaches. Lower courts have generally splintered into two factions: many use the location of an item to determine Fourth Amendment interests, while some define Fourth Amendment interests using multiple factors including, though not limited to, an effect’s location. Part II describes the history of effects at the Founding. It briefly recounts the constitutional history of the word and describes the concerns relating to personal property that motivated the Framers to include this particular protection in the Fourth Amendment. It concludes that the Amendment was intended to protect possession as well as the privacy and security interests inherent in ownership and control over one’s personal items. Part III proposes a new approach designed to protect the values and interests associated with personal-property ownership, values that should be encompassed by the Fourth Amendment. Courts should recognize “effects” by reference to existing rules and understandings from property law, and they should define “reasonable expectations of privacy” by examining various qualitative and contextual signals. Though further work is needed to examine what government conduct is a search and when exigencies make intrusions reasonable, this Article provides the necessary first steps toward a new and coherent approach to personal property under the Fourth Amendment.

I. existing approaches to effects

This Part reviews and critiques the three existing approaches to effects. Section I.A seeks to untangle the Supreme Court’s limited case law on effects in public spaces.31 The Court’s conflicting pronouncements have freed lower courts to expound on the appropriate rules for personal property. Section I.B and Section I.C identify the two approaches lower courts use in the absence of clear guidance: the locational-privacy approach, in which courts rely primarily on the object’s location to define Fourth Amendment interests, and the contextual-privacy approach, in which courts use a variety of factors to define Fourth Amendment interests in an effect.

A. The Limited Life of Effects in the Supreme Court

Until the last few years, effects had received little sustained attention from the Supreme Court. That all changed in 2012, when United States v. Jones reintroduced effects into the Supreme Court canon.32 This Section uses Jones, the Court’s first opinion to engage with “effects” as constitutional text, as a jumping-off point. It then identifies three lingering infirmities in Jones: the case fails to explain (1) what sorts of actions count as “trespasses” to effects; (2) what counts as an “effect”; and (3) how the trespass test squares with two earlier Fourth Amendment doctrines—the container doctrine and abandonment doctrine—that provided some limited rules for effects before Jones. In particular, both the container and abandonment doctrines indicate that a trespass to an effect to obtain information has not always been sufficient to trigger Fourth Amendment protection.

The facts of Jones are as follows. The FBI and D.C. police suspected Antoine Jones of drug trafficking.33 They obtained a warrant authorizing them to install an electronic tracking device on a Jeep Grand Cherokee belonging to Jones’s wife, provided that it was installed within ten days and in the District of Columbia. Acting outside the terms of the warrant (in Maryland and on the eleventh day), the agents placed a GPS tracking device on the vehicle’s undercarriage while it was in a public parking lot. For the next four weeks, the agents tracked Jones’s location as he drove and parked, and the government subsequently sought to use that information to prosecute Jones for drug crimes.34

The government defended its placement of the GPS device on the exterior of the car on the basis that it had attached the device when the car was in a public parking lot and monitored Jones’s travel on public roads, and that thus there was no privacy violation.35 But the Court did not discuss the significance of the fact that these acts occurred in public spaces. Instead it held that the placement of the device to obtain information caused the Fourth Amendment violation.36 The Court observed that the vehicle was undoubtedly an “effect” within the scope of the Fourth Amendment and held that a search occurred when the government “physically occupied private property for the purpose of obtaining information”—when it “trespass[ed]” on an “effect.”37

The Court explained two key parts of this holding. First, the Court held that the Fourth Amendment “must provide at a minimum the degree of protection it afforded when it was adopted.”38 In the Court’s view, a physical occupation of personal property to obtain information—a trespass on an effect—qualified under this test.39 Second, the Court stated that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”40 Thus, Jones simultaneously stands for the propositions that Katz’s invocations of privacydid not replace protections against trespasses to property and that “[a] trespass on ‘houses’ or ‘effects’” is a Fourth Amendment search if the goal of the trespass is to obtain information.41

The Jones holding is cryptic. From all appearances, the Jones per se rule—that a trespass on an effect to obtain information is a search—attempts to clarify the muddle of rules that previously governed effects. But the Jones per se rule offers little hope for a clearer doctrine of effects in the future. Despite the apparent simplicity of the trespass test, Jones provides more questions than answers about the application of the Fourth Amendment to personal property. And, it interacts in curious and contradictory ways with the precedent it endeavors to supplement.

First, Jones failed to define what constitutes a “trespass” to an effect, besides acknowledging that a physical invasion qualified. This shortcoming was pointed out by the four Justices concurring in the judgment,42 but not in the majority’s reasoning.43 Should lower courts apply a Founding-era conception of trespass? The common-law doctrine of trespass to chattels? Or some state’s positive law of chattel ownership and trespass?44 What level of interference rises to the level of a trespass?45 The majority opinion is unclear.

Furthermore, even in the pre-Katz era there was no “common-law trespassory test” for personal property. Rather, the rules for personal property required courts to balance the competing property interests of the individual with the government’s interest in the item. This interest-balancing rule developed in a series of cases on searches of papers and objects in the mail.46 The Court found that an individual’s Fourth Amendment interests are weak when his property interests are weak, thus distinguishing searches of affirmatively forbidden property—stolen goods, contraband, and illegal imports—from searches of other property.47 The government’s ability to search or seize items depended on the government’s successful assertion of an interest that was superior to the individual’s interest in possession. Of course, in the same Term that the Court held that proving a Fourth Amendment search did not require a physical trespass onto real property,48 the Court expressly abandoned this interest-balancing approach to effects.49 But because the trespass test has never existed, at least for personal property, it is even more unclear what principles provide content for the “trespass” portion of the Court’s test in Jones.

Second, Jones did not provide a definition of “effects.” This is especially concerning because the Court has been cagey about this definition before. Though the Supreme Court has devoted significant effort to refining the rest of its search and seizure rules, no Supreme Court decision has ever clarified what makes something an “effect.” A few cases noted that some things—a parcel,50 a vehicle,51 luggage52—are undisputedly effects, and two cases declared that “open fields” are not.53 In a footnote in one of these cases, the Court held that “[t]he Framers would have understood the term ‘effects’ to be limited to personal, rather than real, property.”54 But apart from that curt equation of effects and personal property, the cases—including Jones—shed little light on how to identify whether the subject of a search is an effect so that an analysis particular to that classification can begin.

The final, and most serious, problem with the per se rule is that Jones did not clarify whether all effects are protected if trespassed upon to obtain information, or if only some subset of effects is. In other words, assuming there has been a “trespass” to obtain information, it is unclear whether the status of something as personal property is sufficient to invoke the Fourth Amendment, or whether personal property gains and loses protection by reference to some other factors. This problem comes into sharp focus when two strands of the Court’s past case law are considered: the container doctrine and the abandonment doctrine.

The cases on the container doctrine indicate that, in the past, the Court has relied upon facts other than the existence of a physical invasion and a property interest to define Fourth Amendment protections—though it has never explained this analysis systematically. In United States v. Chadwick, for example, the Supreme Court took up the government’s contention that, after Katz, “only homes, offices, and private communications”—high privacy zones—“implicate interests which lie at the core of the Fourth Amendment” and therefore require warrants.55 The Supreme Court firmly rejected that idea, holding that “there is no evidence at all that [the Framers] intended to exclude from protection of the [Warrant] Clause all searches occurring outside the home.”56 The Supreme Court found that a footlocker was protected, remarking that the Fourth Amendment “draws no distinctions among ‘persons, houses, papers, and effects’ in safeguarding against unreasonable searches and seizures.”57

However, despite this broad language describing the importance of protecting effects outside the home, the Chadwick Court took an odd turn: it treated the presence of a container as especially significant.58 The Court observed: “No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause.”59 This comparison is perplexing. It does not matter whether an individual locks his doors—the home is protected whether or not they are locked. Yet the Court holds that once inside something, “a diary and a dishpan” get the same level of constitutional protection.60 Of course, police cannot be expected to ignore evidence of contraband in plain sight, so in that regard, containers obscure what might otherwise be visible contraband from view.61 But, putting aside contraband, why should other, innocent objects receive lesser protection than objects that are, or are in, containers?62 If putting an item in a container “manifest[s] an expectation that the contents would remain free from public examination,”63 why are other actions insufficient to manifest privacy expectations? Why should officers be free to search something that, because of its nature or circumstances, is likely owned but left in the open—say, a pair of muddy shoes left outside the apartment door—while placing the same item in a paper bag entitles it to Fourth Amendment protections? And if, as Jones suggests, all trespasses to property to obtain information are Fourth Amendment searches, why does the presence of a container matter at all?

The Court’s rulings on abandonment doctrine also indicate that not all trespasses on personal property to obtain information are Fourth Amendment violations. In keeping with that principle, the Seventh Circuit has held that effects in public spaces (including those in containers) can lose their constitutional protection if deemed “abandoned.”64 The contours of abandonment, however, are imprecise. The earliest abandonment case concerned the recovery of incriminating evidence from the trash can in a vacated hotel room.65 The Court held that the items were “bona vacantia”—a property term meaning “unowned”66—and denied the defendant’s Fourth Amendment claim on that ground.67 Since that first case, the most extensive treatment came in California v. Greenwood,in which the Court held that a person could not claim Fourth Amendment rights in curbside trash—though the majority never used the word “abandon.”68

Apart from these two decisions, the Court has only held that effects were not abandoned in two other cases.69 In both cases, the Court ruled without extensive analysis. In one, the Court held that an individual did not abandon a package dropped on the floor of a taxicab in which he was a passenger.70 In the other, the Court issued a per curiam opinion affirming the Ohio Supreme Court’s conclusion in a footnote that an individual did not abandon a grocery bag tossed onto a car hood at an officer’s request.71 In other words, apart from two cases on garbage, the Court has not indicated what should factor into a determination that an item is abandoned or not. And Jones offers little additional help. Abandonment doctrine makes clear that something besides a trespass to obtain information and a property interest is required to prove a Fourth Amendment violation when an effect is the object of the search, but Jones does not explain what additional analysis is required.

The focus of the Jones Court on a trespass-based analysis does not follow from the cases decided under the container doctrine and the abandonment doctrine: if a trespass to an effect to obtain information typically or even automatically constitutes a Fourth Amendment search, why did past cases from the Court rely so strongly on signals of privacy inherent in containers or signals of nonuse indicated by abandonment? Perhaps the answer lies in the concurring opinion of Justice Sotomayor in Jones: “privacy expectations [are] inherent in items of property that people possess or control”—in other words, if the property is possessed, then the possessor has an expectation of privacy.72 But both the majority opinion and Justice Sotomayor’s concurrence fail to address how courts should determine possession for Fourth Amendment purposes.73

The Supreme Court’s doctrine of effects thus provides few clear guidelines: effects are without protection if abandoned (whatever that means), effects in containers might be protected, and the location might or might not factor into the Fourth Amendment analysis of constitutional protection for personal items. It remains unclear what “effects” means and whether trespasses to all or only some subset of personal property are searches. The uncertainty both before and after Jones has given lower courts considerable latitude to shape their own views on how effects in public space are treated. The following Sections explain the approaches that have developed in that void.

B. The Locational-Privacy Approach in Lower Courts

In the absence of clear guidance from the Supreme Court, many lower courts have decided that an owner’s Fourth Amendment rights in an object turn on the item’s location. If the owner cannot exclude others from the space where the item is located, norms or signals indicating that the item should remain untouched are likely ineffective.74 This Section overviews this “locational privacy” approach to effects. It demonstrates that, under this approach, an individual generally has a protectable interest only when the effects are on the person or in the home, or, somewhat more broadly, if they have been lawfully entrusted to a third party.75 Conversely, an individual lacks Fourth Amendment rights when an item is outside the home or curtilage, in a place he has no right to access, or in an area to which the public has unfettered access. Lower courts have typically arrived at this interpretation in one of two ways: (1) by holding that bringing and leaving something in public exposes it to view and manipulation by others; or (2) by narrowly interpreting abandonment, providing very limited protection to objects still in the constructive possession of the owner but not within the owner’s immediate control. I refer to these two versions of the locational-privacy approach respectively as the “exposure” test and the “abandonment of privacy” test.

Courts following an exposure-based locational-privacy approach have read Supreme Court opinions to distinguish between “public space” and “private space.”76 Katz held that “[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.”77 These courts have suggested that bringing and leaving personal property in public space sufficiently “exposes” it to others to destroy Fourth Amendment protections.78 A person simply cannot expect the same level of privacy with respect to his or her personal goods when they are outside protected spaces like the home.

Courts adopting an exposure test have distinguished between public and private space even in circumstances where the owner of an item has taken considerable steps to shield it from view or manipulation. The Iowa case of State v. Flynn is instructive. James Flynn was suspected of violating gambling laws, and his home was under police surveillance.79 Aware of this surveillance, the defendant decided to relocate two paper sacks containing “thirty-three cassette tapes, two notebooks, two sheets of paper with names and numbers, and a ledger book” to a locker at his private golf club.80 When Flynn arrived and tried to get into the club, his key did not work, so he “temporarily placed the two sacks containing the records beneath a tarpaulin which was covering a pile of peat moss used for golf course maintenance” while he left to find the right key.81 In ruling that officers did not violate Flynn’s reasonable expectation of privacy by subsequently obtaining the bags and listening to the cassette tapes,82 the court stated that “the location of property seized by authorities may be of critical importance in determining whether the search and seizure were lawful.”83 The Flynn court held that Fourth Amendment protection is different depending on whether an item is found in something more like an “open field” or more like a “private residence.”84 Of course, the contraband at issue in the Supreme Court’s past “open fields” cases was apparent to officers without them having to disturb the item. The Flynn court did not explain why that was irrelevant, instead interpreting those cases to mean that “it matters where a person places the items which later are the subject of a search and seizure.”85

Courts have also distinguished between private and public space in other cases where there is no apparent intent to hide but also no anticipation of inspection. In People v. Juan, for example, an anonymous informant reported that two diners at a restaurant were discussing a robbery and using the victim’s credit cards.86 Officers arrived at the restaurant and spotted a brown jacket draped over a chair at one of the tables; the victim’s passport was on the floor under the chair.87 They searched the jacket pockets and found the victim’s credit cards. The police officers then replaced the jacket and waited in another area for the table’s occupants to return.88 The court rejected the defendant’s challenge to the search, finding that “an article of clothing in a public place” was not entitled to protection.89 “By leaving his jacket unattended in the restaurant, [the defendant] exposed it to the public[,] and he cannot assert that he possessed a reasonable expectation of privacy in the pockets of his jacket.”90 The court surmised that a person who leaves a jacket over a chair probablywants a “Good Samaritan” to examine its pockets and try to return the jacket to its owner.91 For these reasons, the defendant was not entitled to exclusion of the fruits of the search. While the court treated this as obvious, there is cause for skepticism. Leaving one’s jacket over a chair in a restaurant is common social practice, and there is little reason to believe the circumstances would lead anyone else to look through it.92 Yet several other courts have reached similar conclusions to deny Fourth Amendment protection for clothing left outside apartment doors,93 folded on tables at a bar,94 and on office coat racks.95

Courts following the other form of the locational-privacy approach—the abandonment of privacy test—have relied on expansive notions of abandonment to leave objects in public space with limited protection.96 Despite invocations of property law, specifically bona vacantia, in the Supreme Court’s earliest case on abandonment,97 many courts have since decided that property-law abandonment and Fourth Amendment abandonment are unrelated.98 Under these rulings, a person may retain a property interest, even one that is or should be apparent to others, but might nevertheless “abandon” expectations of privacy if the location is accessible to officers and other third parties. Though achieved in a different way, these courts have reached the same results as courts that treat “public” and “private” space differently: the location of the effect is the sole or dominant factor in determining whether an individual has “abandoned” his or her privacy expectations and thus relinquished any claim to Fourth Amendment protection.

Some courts have thus found items to be abandoned for Fourth Amendment purposes even when most would likely agree that they remained in the constructive possession of their owners. For example, in Anderson v. State, a couple was fishing, and park rangers observed the man walk about seventy-five feet away, stash something under a rock on a beach, and then return to the fishing spot.99 When the man failed to produce a fishing license on request, one officer walked to the rock, found a margarine container underneath, and opened it to find marijuana.100 The Georgia Court of Appeals found the container was not entitled to Fourth Amendment protection. By placing it under a rock and walking away, the court reasoned, the defendant had “reliev[ed] himself of its possession” or, in other words, abandoned it.101 This characterization of abandonment provoked a rebuke from the dissenting judge, who observed: “If I put my shirt, shoes, or wallet on a public beach and walk into the water, or walk 75 feet down the beach, I do not give the world leave to search my pockets or my purse.”102 Nevertheless, the majority agreed that the defendant’s leaving the item unattended left it “out of his possession” and thus negated his Fourth Amendment rights.103

Although locational privacy can function like a bright-line rule dividing protected and unprotected property, some courts following locational-privacy approaches have nevertheless recognized protections in public space for objects that are not closed containers under two circumstances. First, if an individual is only out of contact with the property for an extremely short time—a few seconds—then the person may retain his Fourth Amendment rights.104 Second, at least two courts applying a locational-privacy analysis have struggled to evaluate constitutional search and seizure protections when the owner did not intend to leave the property unattended—when it has been lost and given to officers for safekeeping.105 In one case, for example, the Washington Court of Appeals held that a criminal defendant retained an expectation of privacy in her zipped purse inadvertently lost at a shoe store.106 The court held that the defendant remained “in constructive possession” of the item while mislaid and thus retained her Fourth Amendment rights in the purse, although her protected expectation of privacy was “diminished to the extent that the finder would probably search the purse for identification.”107 The reasoning behind these rulings seems to be that when personal property has been inadvertently misplaced, there has been no willful “exposure” to the public or intentional abandonment of privacy.108 Accordingly, the personal property itself remains a protected area in those limited circumstances.

Whatever form they take, these locational-privacy approaches should be eliminated. At a minimum, it is possible that the holding in Jones already undermines many of them. The government’s main justification for its placement of the GPS device on Jones’s wife’s car was the fact that it was done in a public parking lot and his travel was monitored on public roads.109 Yet the “trespass to effects” approach makes clear that Fourth Amendment protection does not rise or fall solely based on the publicness of the location. Instead, invasion of a personal-property interest to obtain information may be enough, regardless of where that property is located.

Even if Jones does not directly undermine locational-privacy approaches, these approaches should be eliminated because they are inconsistent with the cases that gave rise to privacy-based notions of the Fourth Amendment in the first place. Locational-privacy approaches rely on an incomplete reading of Katz. First, Katz itself held 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.”110 Second, Katz has often been read to proscribe protection for information exposed to others: “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”111 But Katz also provided that “what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”112 Though the “invited exposure” holding of Katz has endured, this second sentence—the “discouraged intrusion” holding—has received much less attention.As of November 14, 2015, the first sentence has been quoted in isolation in 481 federal and state cases.113 The second has been quoted in isolation in just eighty.114 The locational-privacy approach reflects this ignorance. It fails to recognize individuals’ attempts to discourage intrusion into personal property through signals and actions, and it gives little credence to the reasonable expectations individuals have about the likelihood of intrusion.

C. The Contextual-Privacy Approach in Lower Courts

Instead of using locational privacy to assess effects in public space, other courts have looked at the overall environment of the item to determine the scope of Fourth Amendment protection. These courts ask whether the circumstances of the item should indicate a person’s intention and expectation that the item would remain private. In these courts, signals of possession and other norms may overcome the lack of privacy in the object’s location. The location of an item is one factor to be considered, but it is not dispositive. As this Section explains, these approaches tend to provide greater protection to property in public space, but courts have been remarkably vague about what set of factors actually determine protection.

A contextual-privacy approach to effects was first suggested by early cases taking up state constitutional search provisions.115 In Ash v. Commonwealth, a Kentucky case, the defendant’s suitcase was searched and seized while he was in a train station and had left it unaccompanied in the waiting room. Liquor was found inside.116 The court determined that items “cannot be [unreasonably] seized or searched in defendant’s absence any more than his premises may be so searched.”117 The Kentucky court summed up rights in possessions outside the home succinctly: “The interpretation given to our constitutional provision extends the same sacred protection to one’s ‘papers and possessions’ as it does to his person or his houses, and it will indeed be a sad day when misguided innovators may succeed in destroying it.”118 Given that the suitcase had been unattended for only fifteen minutes and had been left under a bench, the court held that the defendant “constructive[ly] possess[ed]” the suitcase at the time it was taken.119 Other early cases also suggested that the location of a “possession” or effect was relevant to, but not determinative of, the officer’s ability to search and then seize it.120

More recent decisions have similarly examined factors other than an object’s location to construct a person’s Fourth Amendment rights and expectations with respect to some personal property. Two cases have taken up the issue in examining the legality of ordinances requiring officers to search, seize, or destroy the property of homeless individuals.121 Unsurprisingly, under locational-privacy approaches, the homeless fare extremely poorly; officers have broad authority to search, seize, and destroy any personal property of the homeless left in public space.122 In contrast, under contextual-privacy approaches, courts have found that the property of the homeless may not be searched or destroyed because the nature and circumstances of that personal property should indicate to observers that the property has not been abandoned. For example, in a class-action lawsuit brought by homeless individuals in Miami, the District Court for the Southern District of Florida considered the characteristics and context of the property that officers were examining and seizing during “clean ups”:

As this court previously found, property belonging to homeless individuals is reasonably identifiable by its appearance and its organization in a particular area. Typical possessions of homeless individuals include bedrolls, blankets, clothing, toiletry items, food and identification, and are usually contained in a plastic bag, cardboard box, suitcase or some other type of container. In addition, homeless individuals often arrange their property in a manner that suggests ownership, for example, by placing their belongings against a tree or other object or by covering them with a pillow or blanket. Such characteristics make the property of homeless persons reasonably distinguishable from truly abandoned property, such as paper refuse or other items scattered throughout areas where plaintiffs reside.123

The court accordingly enjoined police from “destroying property which it knows or reasonably should know belongs to homeless individuals,” requiring the police to “consider factors such as the nature and appearance of the items” and whether the property is “arranged in a manner suggesting ownership.”124

Even when the owner of property is not homeless, the character of the property and space as well as the duration of separation of owner from property are key to contextual-privacy analyses, not merely whether the space is public or not. In other cases, courts have looked to the overall context in which officers have encountered items to define the scope of Fourth Amendment protection.125 In State v. Dunn, for example, officers breaking up a loud party came across a jacket lying on the side of the driveway.126 One officer picked up the jacket, searched the pockets, and found marijuana.127 The officers did not check to see if anyone inside owned it.128 The North Dakota Supreme Court concluded that, though the jacket was located next to a driveway and was lawfully accessible to the officers, the object’s proximity to a house full of people, its relationship to cars in the driveway, and the officers’ failure to inquire as to the jacket’s ownership rendered the search of the pockets a violation of the owner’s legitimate expectation of privacy.129

Likewise, in the Maryland case of Morton v. State, the defendant was suspected of robbery and under surveillance by officers as he played basketball in a public recreational facility.130 During an unlawful arrest, an officer took the jacket and plastic bag that the defendant had been carrying from the side of the court, searched them, and found a handgun and marijuana.131 The government argued, and the trial court accepted, that the defendant had “abandoned” his expectation of privacy in these items because they were not in the defendant’s “control.”132 The Maryland Court of Appeals rejected this reasoning, observing that “[p]ersons who avail themselves of the facilities at a public recreation center and place their belongings on the sidelines of a basketball court do not, without more, forfeit the legitimate expectation that those belongings will remain undisturbed.”133 This makes sense in light of the space (a recreational facility) and the property (a jacket and a bag, the sorts of objects people generally leave along the sideline during recreational activity). People leave their belongings unattended while they are playing ball and do not expect that others will rifle through them. The court took notice of that expectation.134

Intriguingly, at least two jurisdictions have characterized their contextual-privacy approaches as “trespass to effects” tests, albeit in interpreting state constitutional search provisions. The Oregon courts were the first to hold that a “physical trespass to a personal effect” that has not been abandoned could suffice to prove a violation of state constitutional search protections.135 In the seminal case, the “[d]efendant went to his grandfather’s home, tried the doors and, finding no one home, left his backpack leaning against a woodpile in the carport” for fifteen minutes.136 In the interim, a neighbor reported seeing a suspicious person, and officers searched the backpack and found drugs inside a cigarette box. Because the duration was short, the property was a cigarette box inside luggage, and the location was a private driveway, the court found that the property was not abandoned, and that this “trespass” violated the defendant’s constitutional rights.137 New Hampshire followed suit in a case about a sweatshirt left outside a convenience store, and held that when circumstances indicate that the property is not abandoned, a trespass to an effect alone triggers a constitutional violation.138

Despite appearances from the cases cited in this Section, the contextual approach does not always recognize protections for property in public spaces. In Powell v. State, another Maryland case, the defendant placed a small paper bag “gingerly and gently” on a curb, then backed away a few steps and stood still.139 Shortly thereafter, he was apprehended and the bag was searched, revealing glass jugs of cocaine.140 The court looked at a number of the same factors as the court of appeals had in Morton v. State.141 The property here was a brown paper bag. “In contrast to items such as a purse, clothing, jewelry, a suitcase, a backpack, a briefcase, a wallet, or other obviously personal or valuable items, the only reasonable inference is that the brown, softball-sized bag, from its appearance and location, resembled discarded trash.”142 It was left in a fairly vulnerable space: on a curb in an urban area.143 On the other hand, the defendant was nearby, he claimed at trial that he had not intended to abandon the bag, it was not left for long, and he placed it carefully on the ground.144 However, for the Powell court, this was not enough to overcome the factors weighing in favor of a determination that he had abandoned his expectation of privacy with respect to that property.145

These contextual-privacy approaches taken by some lower courts are thus more inclusive of personal property and take into account both efforts to preserve privacy and prevailing norms, but they suffer from other flaws. Importantly, most courts have not systematically laid out the factors that should be considered in constructing an individual’s reasonable expectations of privacy with respect to items.146 Accordingly, the contextual-privacy approach is vulnerable to the criticism that it is indeterminate and risks overbreadth. An example from the case law may illustrate. In Lavan v. City of Los Angeles, the court evaluated whether an ordinance permitting cleanups of Skid Row violated the residents’ Fourth and Fourteenth Amendment rights, but without any metrics for discerning protected property from unprotected property.147 The majority held that unattended personal property was protected from search and seizure when left on public sidewalks,148 so that the owners could “get food, shower, use the bathroom, obtain medical care and other private and government services, and go to work.”149 Though the majority admirably protected a vulnerable population from government destruction of their goods,150 experience suggests that there may be significant differences between an individual’s privacy and property interests in items left alone momentarily and items left unattended for hours or days on a sidewalk during a workday. Moreover, different kinds of interests are at stake depending on whether the property is a hypodermic needle, sweaters in a shopping cart, or a personal lockbox.151 The Ninth Circuit opinion contains no standards for officers and city legislators to use in drafting or enforcing a constitutionally permissible cleanup ordinance.

Relatedly, courts following contextual-privacy approaches still lack any way of identifying an “effect.” A few lower courts have tried a variety of unsatisfying approaches.152 The Texas Court of Appeals has analyzed whether dirt in a truck bed was an effect by examining the truck owner’s privacy interest in it, describing “constitutionally protected effects as those ‘in which the public at large has a legitimate expectation of privacy.’”153 The Fourth Circuit adopted a different approach in analyzing whether a pet dog was an “effect”: it asked whether a pet constituted an effect in 1791.154 It is unclear which court, if either, is on the right track. The contextual-privacy approach, in short, suffers from lack of clarity in nearly every jurisdiction that has followed it. There are few clear definitions, tests, or steps for courts to follow in deciding how to approach an effect search.

***

We are thus left with three unsatisfactory ways of determining what effects are and how to separate protected ones from unprotected ones. The Jones per se rule and other Supreme Court cases offer little guidance on either question. The locational-privacy approach is based on flawed doctrine and may have been abrogated by Jones. And contextual privacy provides more protection for effects, but fails to provide principled standards for distinguishing protected effects from unprotected ones, let alone guidance for police officers and legislators to structure their behavior.

To address this legal void, this Article turns to history to examine why effects were specifically included in the constitutional text and what values this protection for personal property historically served. Until Jones, effects received little treatment in the case law. Unlike houses, persons, and papers, the circumstances of their inclusion in the Constitution have been forgotten. But as the next Part reveals, harms to effects were a critical part of the arguments that individuals needed greater protection from unrestrained searches and seizures—and not just because they might have been located in protected space.

II. the founding-era history of effects

Historians and legal scholars have generally paid little attention to the role of personal items in the controversies over British searches and subsequent seizures that led to the passage of the Fourth Amendment. Instead, they have focused on more famous episodes involving egregious searches of papers and houses.155 While these episodes were surely the primary impetus for the constitutional guarantees regulating searches and seizures, a history focusing on the objects of these searches illuminates a different set of currents. The inclusion of effects in the Constitution was not an afterthought. Instead, both constitutional history and contemporary sources indicate that transgressions to personal property were important motivations for constitutional protection from search and seizure. These invasions caused harms to the privacy and security of individuals distinct from, but on par with, the harms caused by incursions on persons, papers, and houses. Personal property was important because of the property values at stake, which existed separately from privacy or property interests in the effect’s location, and the constitutional protection against search and seizure was connected to the law of wrongs against personal property more generally. The failure of the Supreme Court to ground its protection for effects in constitutional history accordingly gives us a body of precedent from courts at all levels that privileges locational information, not the rights in rem that the Amendment was intended to protect.

A. The Constitutional History of Effects

Effects wound their way into the constitutional text through the Bill of Rights, but the textual history surrounding the inclusion of the word “effects” has rarely been discussed.156 This Section accordingly reviews the textual history of effects, beginning with the state constitutional protections that predated the federal Constitution, proceeding through the proposals from state ratifying conventions, and concluding with the revisions at the federal level that led to the protection for effects as it now stands. Though this Article does not take the position that this history is determinative of the scope of protection, the Court has found the history behind Fourth Amendment protections persuasive in fashioning rules for persons and houses.157 Thus, this Article tells the story behind “effects” to marshal historical support for broader protections of personal property, in addition to the functional and doctrinal support for such an intervention.

The Framers used the word “effects” in the Fourth Amendment with guidance from state-level sources. Four state constitutional provisions preceding the Bill of Rights included specific protections for personal property. The first state constitution to reference possessions came from Pennsylvania.158 It provided “[t]hat the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure.”159 Vermont adopted this section—embodying the houses-papers-possessions construct—verbatim,160 and both Massachusetts and New Hampshire used very similar formulas.161 In addition to these four state constitutional provisions, members of state ratifying conventions from six states recommended that the Federal Constitution include specific protection for personal property. The minority share of members from Maryland,162 Massachusetts,163 and Pennsylvania164 and the majority share of members from New York,165 North Carolina,166 and Virginia167 each suggested that the Constitution include provisions guaranteeing freemen the right to be secure in their “property” or “possessions” from unreasonable searches and seizures.

From the state proposals, these propositions for protection of items made their way into the federal Constitution through the Bill of Rights. The history of the passage of the Bill of Rights is well-trodden territory.168 It suffices to say here that the Constitution as ratified by several states did not originally include the Bill of Rights, though “Anti-Federalists” in other states—fearful of a powerful centralized federal government—were able to hold up ratification until conciliatory amendments were on the table, including one covering search and seizure. James Madison’s proposal on June 8, 1789, for what eventually became the Fourth Amendment, tracked the proposals made by the six aforementioned state ratifying conventions, as well as the extant provisions of the four state constitutions. Madison proposed that “[t]he rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated . . . .169

The Committee of Eleven—a committee made up of a delegate from each state that had already ratified the Constitution—reviewed this proposal, struck “their other property,” and replaced it with the word “effects.”170 This left the Fourth Amendment in substantially its present form: “The right of the people to be secure in their person, houses, papers and effects, shall not be violated . . . .”171 From the Committee of Eleven on, no further proposals were made to change the personal-property phrasing of the Amendment before the Bill of Rights was ultimately adopted.172

The selection of the term “effects” is curious. No state constitution included the word, nor did any of the proposals from state-convention members. Indeed, the first and only source to use the word before its inclusion in the Federal Constitution was the anti-Federalist publication Federal Farmer, which included the phrase in a letter printed in 1787:

The following, I think, will be allowed to be unalienable or fundamental rights in the United States: . . . No man is held to answer a crime charged upon him till it be substantially described to him; and he is subject to no unreasonable searches or seizures of his person, papers or effects . . . .173

Apart from the Constitution itself, no other source before or after this letter used the word “effects” in this context. Indeed, a far greater number of anti-Federalist commentators used either “possessions” or “property” as parallels to “persons” and “papers” around the same time.174

Though no record of the reason for the change from “property” to “effects” in the Committee of Eleven exists, later readers generally agree that the consequence was to narrow the Amendment’s coverage.175 While “other property” could have encompassed other real property, dictionaries from the period indicate that “effects” was synonymous with personal property: possessions other than buildings and land. Each of the ordinary dictionaries cited by the modern Court as authority for the original meaning of the Constitution defines “effects” to mean chattels or possessions. Noah Webster’s 1828 dictionary defines “effects” as “goods; movables; personal estate”176 and provides the following example sentence: “The people escaped from the town with their effects.”177 Apart from ordinary dictionaries, early legal dictionaries also shed light on the meaning and types of effects.178 In some dictionaries, effects include money and other forms of commercial paper.179 Though the term was most commonly associated with bankruptcy or inheritance, it was not exclusively a term of art for those contexts. Eighteenth-century sources discuss the duty of innkeepers to keep guests’ “goods and effects” safe and the rights of robbed persons to prove which “money, goods or effects” had been taken.180 These and other early sources indicate that the term “effects” meant “personal property” in common and colloquial usage.181

B. Threats to Personal Property in Founding-Era Sources

Although the Supreme Court has held that “the Amendment’s proscription of ‘unreasonable searches and seizures’ must be read in light of ‘the history that gave rise to the words,’”182 that history has remained obscure for effects. As it turns out, personal property featured quite prominently in Founding-era grievances against the British and, later, in calls to support constitutional restrictions on federal power. This history demonstrates that effects were specifically included in the constitutional text because of the harms to privacy and dignity that could be incurred by their inspection, but also because of the risk of mishandling or damage generally associated with interferences with personal property.

Threats of government wrongs to certain categories of personal property were repeatedly invoked in the Anti-Federalist and Revolution-era sources that Madison consulted while drafting the Bill of Rights.183 Clothing was one of these categories: authors wrote about suffering searches of the clothing they carried on journeys,184 and orators gave impassioned speeches about officers “measur[ing]” “every thing you eat, drink, and wear.”185 Clothing—a necessity for civilized life—was associated with self-expression, of course, but the search of clothing could also affect one’s dignity and livelihood. For that reason, clothing had special status elsewhere in the law of personal property: several early colonial statutes exempted clothing and bedding from confiscation for the satisfaction of debts.186 Contemporary sources also decried invasions of an individual’s repositories for letters, heirlooms, and valuables, namely cabinets, closets, desks, and bureaus.187 If a man’s house was his castle, his desks and cabinets were the crown jewels.

Clothing and repositories would generally be found in the home or on the person, but a few Founding-era sources discussed the search and seizure of personal property outside the house, indicating that the colonists were likely aware that personal items were susceptible to government intrusion regardless of location.188 For example, some searches and seizures of effects located on ships provoked the ire of colonial commentators when those actions interfered with particular types of personal property.189 Admittedly, legislation authorized wide-ranging warrantless searches on ships both before and after the Founding,190 but this might be explained by the fact that most areas of ships would not contain the sorts of personal items that concerned individuals in the Founding era. Indeed, some evidence suggests that contemporaries did object to searches or seizures of items on ships that resulted in the uncovering or seizure of personal goods owned by crewmembers or intended for the crew’s use (rather than examination and seizure of items that were being imported for sale).191 Virginia newspapers covered an incident in Jamaica where Spanish customs officers accused a British ship of smuggling, tied up a sailor, “and took from him his Buttons, Buckles, and every Thing of Value, as well as his Chest of Cloaths, Moveables in the Cabin, private Papers, and others belonging to his Vessel.”192 In the 1760s, newspapers from Connecticut and Massachusetts criticized customs officers who searched ship cabins to find personal food or liquor stores meant for the ships’ crews.193 One of these papers, The Essex Gazette, wrote a critical story about customs officers seizing “several Bundles of Cloths and other Necessaries” from the crew of a whaling ship.194 In other words, though many items on ships lacked the protections associated with the home and were often subject to search without judicial scrutiny, some searches and seizures of personal goods on ships seem to have angered colonists because of the type of property searched and removed.

Inspection of personal property no doubt threatened individuals with indignities and invasions of privacy. Several agitators for a Bill of Rights invoked the traumatic search of an effect suffered in Ward’s Case,195 decided in York, England, in 1636.196 The defendant in Ward’s Case was a constable who had entered the plaintiff’s home on a general warrant to search for stolen goods and “did pull the clothes from off a woman’s Bed” and “search under her Smock.”197 This invasion of the bed and body would have been undignified and embarrassing, and Anti-Federalists used it as a potent example of the dangers of unrestrained searches of effects. A person’s effects might literally hide secrets; chests, desks, and trunks—one’s “most secret recesses”198—were likely to contain private papers, books, and other items one might not wish to share with the world. William Henry Drayton’s 1774 Letter from Freeman, a key piece of Revolutionary propaganda, lamented the fact that “a petty officer has power to cause. . . locks of any Man to be broke open, to enter his most private cabinet . . . .”199 Later, Patrick Henry argued that a Bill of Rights was necessary in part because the first Constitution failed to protect personal property from prying eyes; under it, “[e]very thing the most sacred [might] be searched and ransacked by the strong hand of power.”200

But much of the rhetoric surrounding searches and subsequent seizures of personal property described more pedestrian harms. For example, wrongful searches and seizures could result in the damaging or mishandling of goods. The Boston Town Meeting of 1772—convened to identify the rights violated by British soldiers in advance of the Revolution—criticized the authority of officers “to enter and go on board any Ship, Boat, or other Vessel . . . any house, shop, cellar, or any other place where any goods wares or merchandizes lie concealed,” only to leave “boxes chests & trunks broke open ravaged and plundered by wretches . . . . By this we are cut off from that domestick security which renders the lives of the most unhappy in some measure agreable.”201 After the Revolution was won, Anti-Federalists raised the specter that without protection from unreasonable searches and seizures, the government would be free to damage chattels in pursuit of evidence.202 And both before and after the war, the violence associated with officers smashing furniture and locks to search for chattels—trespassing on personal property—was often analogized to violence to real property, like the breaking of a door to a home.203

If unlawful searches could cause damage to property, then unlawful seizures were outright conversion and theft. Again, Patrick Henry warned that, without constitutional restraints, agents of the government might cart off property without just reason to do so.204 Anti-Federalists portrayed officers as thieves, which mirrored earlier portrayals of British customs officers, predating the Revolution.205 John Hancock, in a 1775 letter to British inhabitants published in a Philadelphia paper, described how broad customs authority had “robbed thousands of the food” naturally provided by the land and that British armies stood ready to “wrest from [citizens] their property.”206 These and other acts had rendered “property precarious.”207

Conversion and trespass to chattels are claims that sound in personal property and tort law. Both forms of action originated in the Middle Ages and continue to be in use today,208 and they were doubtless well-known at the time of the Founding.209 Blackstone wrote of multiple writs available for interferences that deprived owners of possession, unlawfully detained goods, or devalued property to its owner. For Blackstone, damages to chattels were “injuries too obvious to need explication.”210 And even small harms were actionable, as Lord Camden observed in the famous search and seizure case of Entick v. Carrington: “By the laws of England, every invasion of private property, be it ever so minute, is a trespass.”211 Damage did not even necessarily require direct physical interference with or destruction of the item; in his discussion of damages to chattels, Blackstone noted that a person would be liable for trespass to chattels if his dog worried another man’s sheep.212

Even in the eighteenth century, signals around the property—like fences, or the fact it was hidden from view—were relevant to determining whether an unlawful interference had occurred. Finders of goods could be liable if they used or possessed property that they knew or should have known was not up for grabs.213 The nature of the property might suggest it should be let alone or kept in custody. For example, valuable animals found outside fenced areas were presumed escaped, and that escape did not extinguish the property right and permit subsequent finders to take them for labor. Instead, the animals were to be returned to the lord or king for safekeeping for a full year and a day, in case the owner sought to reclaim them.214 Liability might also attach for wrongful possession if the circumstances in which the finder encountered the property suggested that the owner had not given up his interest. The law of finders was fairly complex,215 but property hidden by the owners was generally presumed owned against subsequent discovery.216 The same was true for property lost and dropped; in all these cases, there was no intent for the owner to abandon the effect, and “rather the contrary.”217

Blackstone observed that security of personal property against such unwanted intrusions was critical to the functioning of society. Actions for interference with chattels especially protected society’s weakest members:

For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions: and, if an acquisition of goods by either force or fraud were allowed to be sufficient title, all property would soon be confined to the most strong, or the most cunning; and the weak and simple-minded part of mankind, which is, by far, the most numerous division, could never be secure of their possessions.218

Blackstone’s words directly parallel the constitutional protection of “secur[ity],” and they nicely capture the harms associated with intrusions on personal property in the eighteenth century. Personal property gives its owner a right to exclude others from possessing, using, and interfering with the effect. It accordingly protects privacy interests with respect to the property. But personal property also permits individuals to engage in commerce, function in social life, and plan for the future. Because of this function, Blackstone wrote that, by the end of the eighteenth century, “[o]ur courts now regard a man’s personalty in a light nearly, if not quite, equal to his realty.”219 Interferences with myriad interests flowing from possession—privacy, security, and exclusivity of use and control—could be just as harmful to the individual as other unlawful searches and seizures of the body, papers, or home. This connection between property law and the foundations of search and seizure law has been obscured by the absence of a history focusing on the role of personal property in the development of the Fourth Amendment.

C. Constitutional Values in the History of Effects

To summarize the lessons from the historical record, colonial sources indicate concern for some personal property because it was property, not simply because exposure of the property threatened to reveal people’s secrets. At the time of the Founding, contemporaries of the Framers decried the exposure of items associated with self-expression, items necessary for survival, and items that contained their most valued possessions. But they also decried the risk of mishandling and damage. And unlike houses or real property, effects could be carted away by government agents. Interferences with personal property threatened privacy interests with respect to that property but also a person’s interests in continued possession and control of the unadulterated object. When the government rifled, rummaged, examined, and seized personal property, it threatened individuals’ livelihood, safety, privacy, and dignity. And if the law of interferences with chattels is any clue, the harms might be especially pronounced when the item itself, or inferences from its environment, created strong sensibilities about third parties tampering with the object.220 This is the history behind specific protections for effects in the Constitution.

In developing its case law for houses and papers, the Supreme Court has often invoked the constitutional history of the Fourth Amendment in designing modern rules for decision.221 It has not done the same for personal property, and, as a result, approaches to personal property have grown apart from the moorings that led to the inclusion of effects in the Fourth Amendment in the first place.222 Though members of the Supreme Court have occasionally observed that the Amendment is about both property and privacy,223 that message has not been uniformly received. Erasure of the property-centric vision of protections for effects has helped to produce a body of case law that rests on a thin conception of privacy with respect to personal property.224 As Part I revealed, many courts have interpreted “reasonable expectation of privacy” narrowly, finding that a person has privacy with respect to personal property only when its location is private or when the object is a container.

But all is not lost. If United States v. Jones is any indication, then the Court is adopting a version of the Fourth Amendment that takes personal property seriously. Still, Jones has left troubling questions open, and its per se rule is deceptively unhelpful and inconsistent with past rules. The key is identifying a set of factors that demarcates personal property entitled to Fourth Amendment protection from that which is unprotected. Eighteenth-century sources invoked the law of property, in discussing search and seizure, to connect privacy and security harms to wrongs to property more generally.225 The next Part accordingly turns to property law to identify factors that will provide more robust Fourth Amendment protections for these historically important interests.

III. toward a property-based approach to effects

With its cryptic instruction that trespasses to effects conducted for the purpose of obtaining information constitute Fourth Amendment violations,226 Jones left three questions unanswered: (1) what is an effect; (2) what, if anything, distinguishes protected effects from unprotected ones; and (3) what constitutes a trespass? Other Supreme Court cases and lower-court approaches provide inadequate answers to these questions for the reasons identified in Part I. In Part II, this Article turned to history to examine why effects are worthy of constitutional protection in their own right. Threats to personal property harm privacy interests as well as security and dignitary interests associated with ownership.

In the final Part, this Article proposes restructuring the current law of effects to better capture the broad Fourth Amendment interests an individual has in possession. It organizes this analysis into four parts.227 When confronted with the search and resulting seizure of an item of personal property, courts should ask: (1) is this “effect” the sort of item that someone owns; and (2) would an outside observer recognize that the item is not abandoned, or in other words, does its owner have a reasonable expectation of privacy?228 If both inquiries are answered in the affirmative, courts can proceed to examine (3) whether the challenged government behavior was a trespass in that it violated the owner’s expectations that the item would remain undisturbed in that manner; and (4) whether any exigency exceptions apply. This Part focuses on what property law can contribute to the first two questions, and it concludes by suggesting some further avenues for research on the third and fourth.

A. How Courts Should Recognize Effects

1. The Relationship Between Effects and Other Protected Categories

As an initial matter, it is important to define the relationship between effects and the other protected Fourth Amendment categories. Under current doctrine, courts employ different decisional trees depending on whether the objective of the search and subsequent seizure is a person, house, paper, or something unenumerated like a conversation. The other categories set forth in the Fourth Amendment—persons and houses in particular—each proceed from that classification down a different set of inquiries.229 None of these decision trees involve appeals to expectations of privacy to define whether the object of the search is a house or person in the first instance or whether it would have counted as a house or person at the Founding. Instead, classification of these items is performed on a common-sense basis, and the categorization directs the subsequent inquiry.230 The Supreme Court does not have a similar decision path for effects, perhaps in large part due to its failure to define “effects.” As a result, this class of objects is subject to nebulous and inconsistent rules. Clearly defining a category provides the benefit of a starting point for the subsequent analysis.

While effects will sometimes be afforded protection because they are located on a person or in a house, treating effects as a separate category will be especially useful when the item does not have these secondary protections.231 In other words, it provides a residual category that protects a broad swath of items that do not fit into the readily identifiable categories of person, house, or paper.232Treating effects as a separate category also gives them protections above and beyond the protection afforded to things that are not personal property, protections intended by the Framers but not yet recognized in Fourth Amendment doctrine.233 Take, for example, an item of clothing: the classification of clothing as an effect should lead courts to use different factors to understand reasonable expectations of privacy, to consider tampering with it differently, and to consider different operational exigencies. If the item is not an effect (or any of the other enumerated categories), then courts should approach it like the conversations in the telephone booth at issue in Katz v. United States: a common-sense privacy and exposure analysis is the correct approach.234

An effects category may also offer protection in circumstances when the analyses for searches of persons, houses, and papers do not provide clear guidance. For example, consider a variation on the fact pattern in Riley v. California, which concerned the proper scope of a search incident to a lawful arrest—specifically, whether police could search the contents of a cell phone found on defendant’s person at the time of his arrest.235 Assume for the sake of argument that the officers searching the cell phone in Riley used it to remotely access information stored on David Riley’s own hard drive. In this scenario, the officers took lawful custody of the phone during his arrest by relying on a Fourth Amendment exception to the prohibition on searches of “persons.” However, Riley could argue that the search of the cell phone went beyond a physical search of the phone (say, of the battery case) and instead became a search of another “effect”—his hard drive236—not on his person. This argument seems to reflect the reasoning behind the majority’s statement that the search in Riley was constitutionally impermissible because of “[t]he possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee.”237 In short, providing effects with their own set of protections would put them on par with the established analyses courts apply to other categories enumerated in the Fourth Amendment, and it would add protections for effects in circumstances where they may be unprotected by these other analyses.

2. How To Identify Effects

If one accepts that effects should be treated as a distinct category, the challenge lies in determining what constitutes an effect. One approach would be to examine whether the object was the sort of thing that would have been considered an effect in 1791, and this analysis has been followed by at least one court.238 But this methodology is unnecessarily formal and will lead to bizarre historical and definitional line drawing, a task for which courts are ill-suited. It may be easy to accept that modern automobiles are evolutions of the Founding-era coach.239 But what about a toaster oven? Would the Framers consider that to be more like an oven (often affixed to the home and thus considered real property in the eighteenth century),240 the wood used to heat it, or something else? This sort of analogical reasoning will rarely lead to determinate results in close cases.241 Additionally, such a formalistic approach is inconsistent with the Court’s preferred way of interpreting constitutional terms.242 Instead, the Court generally looks to the Founding-era meaning and fills it with modern content, rather than using Founding-era facts to set the outer limits of constitutional protection. Effects meant, and means, “personal property.” There is no reason to think that the Fourth Amendment protects only the clear descendants of effects that were in existence in the late eighteenth century.

A second approach would be to look at the positive law of some individual state to see whether it actually qualifies as personal property under a specific state’s law.243 But this approach is also unnecessarily formal. Property entitlements are defined by the law of each state; each state’s law accordingly gives content to the term “property” in the Fifth and Fourteenth Amendments.244 The Fourth Amendment, on the other hand, uses “houses” and “effects,” words with their own plain meanings independent of technical law.245 Requiring courts to first determine whether something is an effect according to some extant state law also leads to vexing secondary choice of law questions: should the personal-property interest be determined by the law of the state where the property is located, where the government action takes place,246 where the owner is domiciled, or something else? These problems can be avoided by a more flexible inquiry into whether reasonable minds would consider the item personal property, using personal-property concepts rather than strictly applying a given state’s rules. Instead of artificially looking to the law of the state where the individual is domiciled or the personal property is located, courts should use a holistic approach.

The most cogent holistic approach would be to determine whether the object is reasonably recognizable as personal property. Such a test would fit the Supreme Court’s directive that Fourth Amendment law is constructed by the “concepts” and “understandings” that derive from social life and myriad state laws,247 and it would reanchor Fourth Amendment protection to its roots in personal-property law. Since at least the late eighteenth century, chattel property has generally been marked by three features: (1) the ability to exclude others, (2) the ability to transfer the object, and (3) control over its use.248 We routinely recognize these rights, and our corresponding duties to keep out, when we come into contact with something that is personal property. An amalgam of law and lived social experience informs our understanding of whether the items we encounter are property—that is, whether we should avoid taking or interfering with something that another has rights to use, transfer, and control.249 True, such an approach may be somewhat vague. If judges are not required to rely on existing positive law or a stricter set of factors to declare that something is property, then they might manipulate the doctrine to arrive at results about an object’s status as an effect in ways that do not comport with generally shared attitudes and beliefs.250 But judges are members of the public and share the same duties toward another’s property as the rest of us. Unlike standards that require courts to assess changing public opinion or consensus—a task to which they may be rather poorly suited251—judges routinely encounter things that may or may not be property and must adapt their behavior accordingly. There is no reason to suspect they are any less capable of assessing what counts as property than the average legislator or person on the street.

Courts and officers should approach the question of whether something is an effect by examining the legal and social identifiers surrounding the sort of object encountered. Does it belong to a category of items that people generally can use, transfer, and control, and if not, do other circumstances indicate that someone intends to use, transfer, or control it?252 Do positive state laws affirmatively forbid its ownership? Or is it generally unowned by private individuals, like water in the ocean or plants in a public park? Each of these questions is a way of asking whether the item is in a class of items generally understood as personal property.253 This approach descriptively matches the limited assessments the Court has already made about what is or is not an effect: most states and people would recognize that open fields are not chattel property, while automobiles and suitcases are.254

Luggage, clothing, notebooks, and cell phones are the sorts of objects that a holistic approach would ordinarily consider property.255 From that categorization, courts should distinguish protected property from unprotected property with guidance from personal-property law (the approach this Article advocates in the next Section). On the other hand, states and individuals generally do not recognize personal property rights in dirt256 and urine.257 Those things should ordinarily not be considered Fourth Amendment effects, so personal-property rules need not determine how courts analyze searches and resulting seizures of them. The fact that something is not an effect does not mean that it should have no Fourth Amendment protection; instead, those expectations must come from a source other than property law and normative property understandings.258 Declaring something an “effect” simply sets it down a different path to determining constitutional protection. The next step on that path is assessing whether the effect remains within the coverage of the Fourth Amendment, or whether the owner’s actions and the property’s circumstances place it outside the Amendment’s scope.

B. Distinguishing Protected and Unprotected Effects

Imagine a jacket—something that is undoubtedly an effect under the analysis in Section III.A. First, imagine that jacket is on a coat hook at a restaurant, while its wearer is dining inside, or perhaps, has stepped outside to take a phone call. Next, imagine that same jacket covering belongings in a shopping cart parked outside a church in Los Angeles’s Skid Row. Finally, imagine that the jacket is folded on a curb in an urban area. In all circumstances, the jacket has remained untouched for thirty minutes.

The existing pathways to protection—the Jones rule that trespasses to effects constitute searches, the locational-privacy approach that treats an effect’s location as paramount, and the contextual-privacy approach that takes into account a nebulous array of facts about the property’s context—would each arrive at different results in examining the three jackets. Under a locational-privacy approach, all three items have been “exposed to the public”—anyone might tamper with them—so officers would probably be justified in searching them.259 Under a contextual-privacy approach, the first would probably be protected, but the other two might or might not—depending on whatever collection of factors those courts decided to use that day.260 The Jones per se rule might find that any search or removal of all three of these jackets would constitute a “trespass to an effect” to obtain information—unless, of course, the placement of the folded jacket on the curb somehow rendered it “trash.”261

Opinions that have not been widely followed suggest there is another way. Maryland, which follows a contextual approach, is the only state that has adopted a coherent set of factors to evaluate what makes an effect constitutionally protected: the location of the property, whether the area is secured or not, how long it has remained in its place, and the condition of the property all factor into this analysis.262 The provenance of this test appears to be a series of the Maryland Court of Appeals’ earlier Fourth Amendment opinions.263 Applying that analysis to the jackets yields a more nuanced examination of the privacy and security interests at stake: those factors weigh in favor of protecting the jacket in the first scenario above (the one on the coat hook), arguably weigh in favor of protecting the jacket in the second scenario (the location is public but in Skid Row, where public storage is common), and probably weigh against protecting the third (though the condition of the jacket is perhaps good: it is unsecured and on an urban curb). The Maryland factors are helpful, but unmoored from positive law: Fourth Amendment rules are supposed to “ha[ve] a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”264 Perhaps Justice Sotomayor was contemplating something like the Maryland factors when, in her concurrence in Jones, she suggested that the Court has provided “longstanding protection for privacy expectations inherent in items of property that people possess or control.”265 But, regrettably, her statement does not explain what factors indicate “possession” or “control.”

Here, personal-property law can offer guidance. Possession, unlike effects, has a legal meaning that supplements its ordinary one.266 It is defined as “the