A federal court has ruled that the Fourth Amendment protects individuals from having their seized property held indefinitely following an arrest.

Police have increasingly used laws allowing for the seizure of property at the time of an arrest as justification for holding on to such property indefinitely. Individuals traveling with cash, electronics, or other valuables have effectively lost ownership of them simply as a result of being arrested—regardless of whether they were found guilty or innocent of any alleged crime, in some cases absent any charges at all.

In a case that made its way to United States Court of Appeals for the District of Columbia Circuit, Circuit Judges Gregory G. Katsas and Karen L. Henderson, as well as Senior Circuit Judge Harry T. Edwards, acknowledged that police are entitled to seize property in the course of an arrest.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. Amend. IV. Under settled law, a seizure of personal effects incident to a lawful arrest is reasonable.

The judges then addressed whether the Fourth Amendment’s protections also applied to the length of time police could hold seized property.

This case presents the question whether the Fourth Amendment requires that any continued retention of such personal property—even after release of the arrested individuals—must also be reasonable. We hold that it does.

The Cases In Question

The judges then went on to highlight what has become an all-too common refrain, namely police continuing to hold on to seized property for months or years after seizure, despite no charges being filed.

In Cameron v. District of Columbia, five plaintiffs allege that they were among some 40 individuals arrested in a protest on August 13, 2020. Upon arresting them, the Metropolitan Police Department seized their personal effects, including their cell phones. The plaintiffs were quickly released, and the MPD neither pressed charges nor sought warrants to search or continue to possess the phones. Despite many phone calls and emails to the MPD and the U.S. Attorney’s Office, the plaintiffs were unable to get their phones back.

After more than a year of trying to have their property returned, the plaintiffs sued the District in federal court, a case that was ultimately dismissed. The soonest the plaintiffs were able to recover their phones was after 285 days. Others were able to do so after 312 days, and some more than a year and two months after they were arrested.

In yet another cited case, which was also dismissed by the district court, a journalist was arrested for photographing the protests. Like the original plaintiffs, hi was not charged, yet his cell phone was kept for nearly a year.

The judges again separate the validity of the initial arrest and seizure, versus the length of time the property remained in police custody.

All agree that the MPD’s arrest of the plaintiffs was reasonable under the Fourth Amendment. And it is blackletter aw that, during an arrest, police may seize personal property held by the arrestee without a warrant….So the District’s initial seizure of the plaintiffs’ effects did not violate the Fourth Amendment.

The question before us is whether the Fourth Amendment has anything to say about the many months in which the MPD allegedly continued to hold the plaintiffs’ effects with no legitimate investigatory or protective purpose. The District answers no. It contends that the Fourth Amendment governs the government’s taking of possession of an individual’s personal property, but not the government’s continued possession of the property.

We disagree. When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable. We reach this conclusion based on the Fourth Amendment’s text and history, as well as modern Supreme Court precedents regarding the constitutionally permissible duration of seizures, whether of property or persons.

Supreme Court Precedent

Throughout their decision, the D.C. Circuit judges relied heavily on a 1984 decision by the Supreme Court in United States v. Jacobsen.

In United States v. Jacobsen, 466 U.S. 109 (1984), the government seized white powder, tested it, and determined that it was cocaine. Id. at 111. The Court had no trouble holding that the initial seizure was lawful because it was supported by probable cause. Id. at 120–22. But the Court was not finished; it also analyzed whether the field test was reasonable, because “a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment’s prohibition on ‘unreasonable seizures.’” Id. at 124. The Court further explained that a seizure could become “unreasonable because its length unduly intruded upon constitutionally protected interests.”

The judges make the case that the seizure crossed into similar territory because of the length of time the MPD retained the plaintiffs’ phones, as well as the harm the plaintiffs suffered as a result.

These principles govern this case. The MPD’s initial seizure of the plaintiffs’ effects was lawful because it was incident to their arrests. Such seizures are reasonable to protect the safety of arresting officers and to prevent any destruction of evidence. See Riley, 573 U.S. at 381–85. But here, the plaintiffs allege that the government continued to possess their property for many months after it lacked any legitimate interest in protecting officers or investigating possible criminal behavior. And after the government’s legitimate interests dissipated, harm to the plaintiffs continued to accrue: It is one thing not to have access to a cell phone while spending a night in jail. It is quite another not to have access to it for the following year. Some plaintiffs allege that they had to replace their phones, a significant financial harm. And some allege that they lost access to important information like passwords, photographs, and contact information for friends and family. So the plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property

Historical Context

The Judges also go into a lengthy analysis of whether the Fourth Amendment protection against “unreasonable searches and seizures” applies only to the moment of seizure—in which case the original district court’s decision was correct—or if it applies to the entire time a person’s property remains seized.

While the Fourth Amendment does not explicitly spell out which scenario is meant, the court was able to apply historical context in their decision.

History helps resolve this semantic ambiguity. Because the Fourth Amendment codified a “pre-existing right,” District of Columbia v. Heller, 554 U.S. 570, 592 (2008), it “must be read in light of” its history, Chimel v. California, 395 U.S. 752, 760–61 (1969). And history favors the plaintiffs. As explained below, the Fourth Amendment protects possessory interests against government infringement in the same way that Founding-era common law protected possessory interests against private infringement. And the common law authorized actions for damages and recovery of property that was lawfully taken, but then unlawfully possessed. History thus indicates that the government’s continued possession of the plaintiffs’ property must be reasonable.

The Fourth Amendment grew out of Antifederalist criticism of the original Constitution. Patrick Henry opposed ratification in part because “any man may be seized, any property may be taken, in the most arbitrary manner, without any evidence or reason.” 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 588 (Jonathan Elliott ed., 1891). This criticism was especially salient to the many who considered the Crown’s seizures of personal property to be among the grievances justifying the Revolutionary War—with some colonists comparing British officers to “thieves” or lamenting that they would “take and carry away” their property without cause.

Taking that historical context into account, the court came to the conclusion that the Fourth Amendment must apply to the length of the seizure.

In other words, the common law recognized that property interests are impaired not only at the instant when an owner loses possession, but also for as long as the owner cannot get the property back. And it provided remedies for wrongful interference with possessory rights regardless of whether the interference became wrongful at the moment of the initial seizure or only later. This history indicates that the Fourth Amendment governs the MPD’s continued retention, as well as its taking possession, of the plaintiffs’ property.

Mixed Legal Precedent

Despite the well-reasoned explanation, the D.C. Circuit is someone unique in its decision. In a concurring opinion, Judge Henderson acknowledged that five other circuit courts―the First, Second, Sixth, Seventh and Eleventh—have arrived at different decisions. As Judge Henderson points out, however, the other courts failed to take into account the Supreme Court precedent.

Granted, we should hesitate before rejecting a robust consensus from our sister circuits but here, I believe, their reasoning lacks the power to persuade because they fail to discuss the key Supreme Court precedent, United States v. Jacobsen, 466 U.S. 109 (1984).

The D.C. Circuit’s decision will likely have a profound impact on police seizures moving forward, providing citizens a level of protection imagined by the Founding Fathers.

The decision comes on the heels of two other decisions strengthening citizens’ rights, one that ruled ruled the Fourth Amendment applies at the US border, and the other ruling that geofence warrants are “categorically prohibited by the Fourth Amendment.”