The Volokh Conspiracy
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"The Moving Property Problem in Fourth Amendment Law"
A new draft article, now posted.
I recently posted to SSRN a new draft article, The Moving Property Problem in Fourth Amendment Law, forthcoming in the Virginia Law Review. Here's the abstract:
The Fourth Amendment's ban on unreasonable searches and seizures has been interpreted by the Supreme Court to require many location-specific rules. There are different rules for searching homes, cars, spaces near people, and at the border. The Fourth Amendment's place-based rules create a puzzle: What rules apply when property is moved from one place to another? Can the police expand their search powers by grabbing a person's property and moving it to a new place where protections are weaker? And can suspects impede investigations by moving their property to new places where protections are stronger?
This is the moving property problem of Fourth Amendment law. This Article identifies the moving property problem, shows that it is a recurring issue, and offers a framework for solving it. It links a range of cases that have not been linked before, and it shows how courts have often divided when faced with facts involving moving property. It then develops a two-part framework for how courts should solve moving property cases. First, courts should ask whether the movement is consistent with the rationales for the place-based rules of the starting and ending places. Second, courts should ask whether the movement itself was lawful, which should depend on whether the movement violated the Fourth Amendment or was the result of government coercion.
Comments welcome, as always.
