Volokh: Do Fourth Amendment Protections Change When Property Is Moved?

Volokh: Do Fourth Amendment Protections Change When Property Is Moved? by Orin Kerr:

This past fall, I had the pleasure of being the Michael A. Doyle ’62 and Bunny Winter Distinguished Visiting Professor at Yale Law School.  As part of that appointment, I recently delivered a lecture on a topic that is the subject of my most recent (as-yet-unavailable) draft article: What happens to Fourth Amendment protection when property is moved?  Three quick examples from recent cases give you a flavor of the problem:

Officers arrest a man who is carrying a backpack. For their own safety, officers initially remove the backpack, place it twenty feet away.  They return to the backpark and search it later. The Fourth Amendment permits a warrantless search of property on the person incident to his arrest, but it does not allow a search outside the person’s area of immediate control.  Did the officers’ placing the backpack outside the area of immediate control mean the government could no longer search it?

Officers want to arrest a suspect at home, but they lack the arrest warrant needed to enter the home to make the arrest. From their position outside, officers point their guns at the suspect inside and order him to exit the house. The man complies with the order, leaves his house, and he is arrested outside. Was a warrant needed?

Fourth Amendment protections are weak at the international border. Officials seize a suspect’s computer at the border, but they lack the expertise to search it there. Officials bring the computer a few hundred miles inland to a computer forensics expert who searches the computer there. Is the search governed by the weak rules of searches at the border or the strong rules of searches inland?

The lecture, “Searching, Seizing, and Moving,” is available below, preceded by an overly kind introduction by Dean Heather Gerken: …

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