The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection, which is forthcoming in the Yale Law Journal.
Along with “persons, houses, and papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” Historically, “effects” have received less attention than the rest of the categories in the Fourth Amendment. However, in the last three years, Supreme Court opinions on Fourth Amendment searches have reintroduced the word “effects” in opinions without a definition of the word, an understanding of its history, or a clear approach to "effects" under the Fourth Amendment.
In the absence of a coherent approach to searches of “effects,” many lower courts apply the standard Fourth Amendment test for a search to personal property: 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 lack expectations of privacy in personal property that is unattended in public space (say, a jacket left on a restaurant’s coat rack). The privacy standard was intended to broaden the scope of the Amendment’s protection beyond real property formulas, but lower courts have used real property concepts of privacy to narrow protection for personal property. This is both historically and theoretically unsound.
This Article argues that personal property in public space should be given greater constitutional protection by providing a history and theory of “effects.” A historical account of personal property from the Founding onward demonstrates a constitutional commitment to protecting personal property because of the privacy and security interests inherent in ownership and possession. If Fourth Amendment jurisprudence were instead informed by this constitutional commitment to personal property, courts would determine Fourth Amendment interests in an effect in public space by reference to its nature and context — factors personal property law already uses to ascertain the interests of a person in a thing. Using guidance from personal property law, this Article proposes a framework for identifying protected effects based on their qualities and environment and restoring them to the constitutional significance they deserve.