Benjamin Nigrin | The Continued Retention of Seized Property Under the Fourth Amendment

Background

The Fourth Amendment to the U.S. Constitution protects against unreasonable seizures. U.S. Const. amend. IV. In pertinent part, the text of 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.” Id.

On August 31, 2020, Oyoma Asinor was photographing a protest near Lafayette Park in the District of Columbia when he was arrested by the Metropolitan Police Department (“MPD”). The MPD took Mr. Asinor’s cell phone, camera, and other personal items incident to the arrest but released him later that day. Mr. Asinor was never charged with any crime resulting from the arrest. Despite Mr. Asinor’s repeated requests over the following months, the MPD withheld his property for nearly a year. Finally, on August 3, 2021, he was permitted to recover his belongings.

After Mr. Asinor filed constitutional claims against the MPD, his case was combined with Cameron et al. v. District of Columbia, in which five plaintiffs, also arrested by the MPD and quickly released without being charged, were unable to recover their seized property until a year and two months after their arrest.

The United States District Court for the District of Columbia dismissed the constitutional claims in each case, reasoning that the Fourth Amendment applies only to the initial seizure of property. The court further concluded that property retention is governed by the Fifth Amendment, with Rule 41(g) of the Federal Rules of Criminal Procedure offering sufficient recourse for the plaintiffs.

Issue

Does the Fourth Amendment require that any continued retention of property seized during an arrest be reasonable?

The Split

In recent decades, courts have grappled with evolving interpretations of the rights guaranteed by the Fourth Amendment. The D.C. Circuit now joins the Ninth Circuit in interpreting the Fourth Amendment to extend its reasonableness standard beyond the initial seizure to include continued retention of property. However, the First, Second, Sixth, Seventh, and Eleventh Circuits adhere to a strict interpretation of the Fourth Amendment that does not consider the reasonableness of the retention of property, only the original seizure. Notably, all of these circuits agree that the underlying seizure of property in the cases they consider are reasonable and constitutional. This question is limited to whether the continuing possession of property legally seized is reasonable under the Fourth Amendment.

The D.C and Ninth Circuits

In Brewster v. Beck, the Ninth Circuit stated that “[t]he Fourth Amendment doesn't become irrelevant once an initial seizure has run its course.” 859 F.3d 1194, 1197 (9th Cir. 2017). The court relied on U.S. v. Jacobsen to argue that once the government’s justification for the original seizure loses its validity, the retention must end, or a new source of justification must be found. 466 U.S. 109 (1984).

In Asinor v. District of Columbia, the D.C. Circuit agreed with the Ninth Circuit’s reliance on Jacobsen. 111 F.4th 1249, 1263 (D.C. Cir. 2024). A concurrence by Judge Karen Henderson chastised the opposing circuits for failing to recognize Jacobsen for its role in extending the interpretation of the scope of reasonable seizures in United States v. Place “from its investigatory detention origin to circumstances in which a full and lawful ‘initial seizure’ had already occurred.” 462 U.S. 696 (1983) (internal quotations removed). In other words, the concurrence argued that Jacobsen had broadened the Place rule to no longer apply only to detentions of property subject to an original investigation but to all seized property regardless of temporal context.

The First, Second, Sixth, Seventh, and Eleventh Circuits

In Denault v. Ahern, the First Circuit held that the plaintiff had failed to show any basis for making a claim concerning retained property under the Fourth Amendment that was originally properly seized. 857 F.3d 76, 83 (1st Cir. 2017). The court looked to the Second, Seventh, and Sixth Circuit decisions for guidance and noted that while each had used divergent reasoning as to why the Fourth Amendment could not be stretched to cover retention, each had come to the same determination about its limitations.

The Eleventh Circuit also quickly dismissed a Fourth Amendment claim against retained property by simply noting that the officer who initially seized the property had probable cause and categorized the claim as more properly addressed by procedural due process under the Fourteenth Amendment. Case v. Eslinger, 555 F.3d 1317, 1330 (11th Cir. 2009).

The Second Circuit took a similarly curt approach in Shaul v. Cherry Valley-Springfield Center School District, also nesting the concern about property retention under the Fourteenth Amendment instead of the Fourth. 363 F.3d 177, 187 (2d Cir. 2004) (“To the extent the Constitution affords Shaul any right with respect to a government agency's retention of lawfully seized property, it would appear to be procedural due process.”).

In Fox v. Van Oosterum, the Sixth Circuit provided a more substantive refutation of Fourth Amendment applicability to the retention of properly seized property, concluding that the scope of a “seizure” as defined and utilized by the Supreme Court is limited to the initial act. 176 F.3d 342, 351 (6th Cir. 1999) (“The refusal to return the license here neither brought about an additional seizure nor changed the character of the [prior] seizure from a reasonable one to an unreasonable one because the seizure was already complete when the defendants refused to return the license.”). Thus, the court held that once a property has been seized, any argument for the unconstitutionality of its retention is undoubtedly no longer found in the Fourth Amendment.

While the Seventh Circuit recognized “the government should not, by virtue of its authority to seize, effect de facto forfeitures of property by retaining items indefinitely,” it agreed with the Sixth Circuit in Lee v. City of Chicago in that “[o]nce an individual has been meaningfully dispossessed, the seizure of the property is complete, and once justified by probable cause, that seizure is reasonable.” 330 F.3d 456, 466 (7th Cir. 2003).

Looking Forward

With so many circuits weighing in on the issue, the Supreme Court could decide this circuit split in the coming years. In most cases, the retained property is eventually returned to the plaintiff. However, now that the landscape of this split no longer looks like a consensus with a lone dissenter in the Ninth Circuit, there may also be an increased public interest in examining this issue to maintain consistency across the nation in applying the Fourth Amendment. Conversely, many jurisdictions provide other means for seeking the return of seized property, which may demote the importance of imminently addressing the issue. The Supreme Court could alternatively view the issue as redundant and immaterial to the protection of rights. It is hard to tell exactly which way the court will go, especially with rumors of Justice Thomas and Justice Alito potentially clearing the way for two new nominees during an imminent Trump administration.

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