Natl. L. Rev.: The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence

Natl. L. Rev.: The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence by Ty E. Howard [the case is posted here]:

How long can the government keep your property after lawfully seizing it? According to the D.C. Circuit in a recent decision, as long as the continued possession is still reasonable under the Fourth Amendment. This decision furthers a split among circuit courts and portends how the text, history, and tradition method might influence Fourth Amendment cases.

Asinor v. District of Columbia

Asinor v. District of Columbia, No. 22-7129, — F.4th —, 2024 WL 3733171 (D.C. Cir. Aug. 9, 2024) involved several consolidated appeals raising the question above. The facts were straightforward: After arresting and releasing plaintiffs without charges, the District of Columbia refused to return their personal property (including cell phones) for months or years. The arrests and initial property seizures were reasonable under the Fourth Amendment. The only dispute was whether the district’s retention of personal property also had to be reasonable. If the Fourth Amendment “speaks only to … the initial moment of seizure,” then the district would prevail. But if the Fourth Amendment applies to “the entire period during which the property has been seized[,]” the plaintiff-appellants would win.

Ultimately, the Asinor court unanimously held that “[w]hen the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable.”