The Yale Law Journal

Sixth and Ninth Circuits cite Vol. 125 Article

Tracy Nelson
09 Sep 2018

In Morgan v. Fairfield County, the Sixth Circuit considered whether police surrounding a home prior to a "knock and talk" constituted a search under the Fourth Amendment. No. 17-4027, 2018 WL 4228432 (6th Cir. Sept. 6, 2018). The Court concluded that while the police "entered the constitutionally protected area around [the] home without a warrant and without satisfying any of the narrow exceptions to the warrant requirement," the state of the Sixth Circuit's Fourth Amendment jurisprudence at the time of the search did not prohibit this act. Id. at *8. Judge Thapar, concurring in part and dissenting in part, cited Maureen E. Brady's The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection, 125 Yale L.J. 946, 991 (2016) to demonstrate the analysis of the "contours of constitutionally-protected zones" that would be necessary if the county's policy constituted a search. 2018 WL 4228432, at *14. However, Judge Thapar concluded that due to Supreme Court precedent, the county's policy did not constitute a search and no such analysis was necessary. Brady's Article argues that personal property in public space should receive greater constitutional protection than it often receives. It provides historical background for the Fourth Amendment to support this assertion and advances a contextualized framework in which Fourth Amendment interests should be considered.

In Mendez v. County of Los Angeles, the Ninth Circuit considered whether an unlawful entry was the proximate cause of the plaintiff's injury. 897 F.3d 1067 (9th Cir. 2018). This case arose out of  § 1983 claims brought by a man who was shot during a warrantless search of a wooden shack. Judge Gould also cited Brady's Article to acknowledge historical indications that "the point of the Fourth Amendment's prohibition against trespass into homes was in part to prevent damage done by the trespassers." Id. at 1077