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The Moving Property Problem in Fourth Amendment Law

Introduction

Imagine you are carrying a bag that the police want to search. The Fourth Amendment rules for searching your bag depend on where it is. If the bag is inside your home, the government needs a warrant to enter the home and search it.1 1.See Silverman v. United States, 365 U.S. 505, 512 (1961) (holding that physical entry requires a warrant). The Supreme Court first expressly so held in Agnello v. United States, 269 U.S. 20, 31–33 (1925), although the point had “always been assumed.” Id. at 32.Show More If the bag is in your car, however, probable cause is enough, and no warrant is needed.2 2.See California v. Acevedo, 500 U.S. 565, 579–80 (1991) (holding that a search of property placed in a car requires probable cause but not a warrant).Show More If the police arrest you while you’re carrying the bag, they can search the bag without any cause.3 3.See United States v. Robinson, 414 U.S. 218, 236 (1973) (allowing the search of property on a person based on lawful arrest alone without requiring additional cause).Show More If the bag is more than a few feet from you at the time of your arrest, however, the government needs a warrant again.4 4.See Chimel v. California, 395 U.S. 752, 763 (1969) (holding that a search incident to arrest only extends to the area of immediate control around the person arrested).Show More As these examples suggest, Fourth Amendment protection is fundamentally place-based. The government’s search power depends on where items to be searched are located.

The place-based nature of Fourth Amendment rules raises a question: If property is moved to a new place, does moving the property change its constitutional protection? In other words, are search and seizure protections fixed using an item’s prior location, or do those protections vary when the item is brought somewhere new? This question comes up often in Fourth Amendment cases. Consider a few examples drawn from recent decisions:

An officer orders a passenger out of a car during a traffic stop. The passenger exits, taking her purse with her. Searching a purse outside a car requires a warrant, but searching a purse inside a car does not. Is a warrant needed to search the purse after the passenger has removed it from the car?5 5.See State v. Lang, 942 N.W.2d 388, 400 (Neb. 2020), discussed in Section I.B.Show More

The federal government has broad power to search at the border. Border agents seize a suspect’s computer at the border, but they lack the expertise to search it. Agents bring the computer to a forensics expert, located hundreds of miles from the border, who searches it at his office. Does the forensic expert’s search count as a border search?6 6.See United States v. Cotterman, 709 F.3d 952, 961–62 (9th Cir. 2013) (en banc), discussed in Section I.D.Show More

Officers want to arrest a suspect at his home, but they lack the warrant needed to enter the home to arrest him inside. From their position outside, officers point their guns at the suspect inside and order him to leave his house. He complies with the order, and officers arrest him outside. Was a warrant needed?7 7.See United States v. Maez, 872 F.2d 1444, 1450–51 (10th Cir. 1989), discussed in Section I.C.Show More

Police arrest a man wearing a fanny pack. For their own safety, officers remove the fanny pack and place it twenty feet away. The Fourth Amendment permits a warrantless search of property on the person incident to his arrest, but it does not allow a search of property more than a few feet away. Can the police still search the fanny pack without a warrant?8 8.See, e.g., Jean v. State, 369 So. 3d 1235, 1237–38 (Fla. Dist. Ct. App. 2023). This scenario is discussed in Section I.B.Show More

Investigators have a warrant to search a house, but they lack the cause needed to detain and interrogate a particular suspect who lives there. They know, however, that Fourth Amendment law allows the government to detain anyone present when a warrant is executed. Hoping to interrogate the suspect, investigators contact the suspect and pretend that his house has been robbed and that he should come home to assess the damage. When the man arrives, officers detain and interrogate him. Was this lawful?9 9.See United States v. Ramirez, 976 F.3d 946, 949–50 (9th Cir. 2020), discussed in Section I.C.Show More

The driver of a car consents to its search. An officer orders everyone out of the car, and a passenger takes her purse with her. The officer orders the passenger to put her purse back in the car so it can be searched. Case law allows the government to search anything in the car with the driver’s consent but requires a warrant to search a purse outside the car. Can officers search the purse?10 10.See State v. Boyd, 64 P.3d 419, 427 (Kan. 2003), discussed in Section I.C.Show More

In each of these cases, something or someone was moved from one place governed by one rule to a new place governed by a different rule. Sometimes the government moved the relevant thing or person. Sometimes a private party did. And sometimes the government caused the private party to move it. Each case raises the same question: Does moving the item to a new place change its constitutional protection?

I call this the moving property problem.11 11.By the phrase “moving property,” I mean anything that can be moved and that can later be searched, whether or not it counts as property in a technical legal sense. In most cases, the moving property will be containers such as bags, purses, briefcases, and fanny packs. In some cases, the item moved is a person, who is moved away from their containers or who is moved to a different location and then searched. I consider all of these examples of the moving property problem.The label “moving property problem” might call to mind the automobile exception to the warrant requirement, under which searching a car does not require a warrant in part because cars are readily movable. See, e.g., California v. Carney, 471 U.S. 386, 390–91 (1985). My concern in this Article is not with whether property should receive different protection because it can move, however, but whether protections should change when items are moved from a place governed by one rule to a place governed by a different rule. Some moving property cases involve the automobile exception, as property is readily placed into or taken out of cars. But the moving property problem is about the clash of rules between two places—akin to a conflict of law problem—not the rules of any one place.Show More Despite how often it surfaces, neither courts nor scholars have recognized it.12 12.My research has uncovered no prior articles on the moving property problem. The most relevant scholarship appears to be several articles on one specific application—whether and when officers can make warrantless doorway arrests by moving arrestees out of the home. There is a narrow literature on that question. See, e.g., Jack E. Call, The Constitutionality of Warrantless Doorway Arrests, 19 Miss. Coll. L. Rev. 333, 334–36 (1999) (discussing the cases); Steven B. Dow, “Step Outside, Please”: Warrantless Doorway Arrests and the Problem of Constructive Entry, 45 New Eng. L. Rev. 7, 18–23 (2010) (same). See generally 3 Wayne R. LaFave, Search and Seizure § 6.1(e) (6th ed. 2020) (“Location of the arrestee: ‘at,’ ‘on’ and past the threshold.”). For a discussion of the relevant cases, see infra Section I.C.Show More The moving property problem is particularly rich because the ex ante incentives are obvious. Government agents want to expand their search power, just as targets of searches want that authority narrowed.13 13.The two sides are not equal in the likelihood that they intend to use the Fourth Amendment’s rules to their advantage. The police are trained in the rules, and the cases show them intentionally seeking to manipulate the rules in their favor. In contrast, few individuals will have the knowledge and foresight to know and use the rules.Show More If Fourth Amendment case law allows it, the police will move property or suspects to a place where officers have greater power to search—and then search under the relaxed rules of the new place. On the flip side, private parties who know the law may want to move their property to a place where their privacy rights are greatest—impeding investigations, if they can, by triggering the more restrictive rules of the new location. Ex post litigation incentives are clear, too. Each side has reason to argue that the other’s moving of property works in reverse. When a suspect happens to move his property to a place where rights are weaker, the government will argue that rules of the new location apply. And defendants will make the mirror-image argument when police move property to a place where rights are stronger.14 14.See infra Part I.Show More

This Article offers a comprehensive study of the moving property problem in Fourth Amendment law. It has two goals, one descriptive and one normative. The descriptive goal is to show that a large set of cases, not previously linked, all raise this common dynamic. Cataloging the many moving property cases reveals a taxonomy with variations on a theme.15 15.See infra Part I.Show More It also shows that Supreme Court decisions rarely answer how to resolve moving property questions. In the absence of high court guidance, lower courts have struggled for answers. They have treated each case in isolation, and they have often disagreed on the correct approach. The lower court disagreement results from a failure to see and appreciate the moving property problem.

The second goal of this Article is to offer a normative framework for solving the moving property problem. It has two steps. The first step is to recognize why Fourth Amendment rules are spatially based in the first place. The Fourth Amendment’s text, history, and case law seek to protect particular spaces in particular ways.16 16.See infra Section II.A.Show More The rules recognize how different interests compete differently in different areas. This understanding prompts an initial answer to moving property problems. To decide whether movement changes the level of protection, courts should answer whether the movement aligns with the justifications for the Fourth Amendment’s location-based rules. Courts must look doctrine-by-doctrine, focusing on the reasons for the space-based rules in play and the role of movement in supporting or defeating those reasons.17 17.See infra Section II.B.Show More

The second step is realizing that some moving property cases raise two questions instead of one. When the government causes movement, either directly or by creating pressures on private parties to act, a second question must also be considered: Was the government-induced movement itself illegal, apart from the subsequent search? Government agents can be endlessly creative in devising new ways to get property to places where government search powers are greatest.18 18.Cf. Johnson v. United States, 333 U.S. 10, 14 (1948) (Jackson, J.) (noting that the Fourth Amendment generally requires that “those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime”).Show More In many of these cases, the legal limits in moving property cases should come not from the legal rule for searching at the old or new place but from recognizing the illegality of steps taken to trigger the movement itself.19 19.See infra Section II.E.Show More

The Article proceeds in two parts. Part I offers a taxonomy of existing cases. It lays out the four basic kinds of moving property cases, explaining the scenarios and surveying how courts have so far resolved them. Part II proposes answers, developing a framework for solving the moving property problem and providing rules that courts can adopt to address them.

  1.  See Silverman v. United States, 365 U.S. 505, 512 (1961) (holding that physical entry requires a warrant). The Supreme Court first expressly so held in Agnello v. United States, 269 U.S. 20, 31–33 (1925), although the point had “always been assumed.” Id. at 32. ↑
  2.  See California v. Acevedo, 500 U.S. 565, 579–80 (1991) (holding that a search of property placed in a car requires probable cause but not a warrant). ↑
  3.  See United States v. Robinson, 414 U.S. 218, 236 (1973) (allowing the search of property on a person based on lawful arrest alone without requiring additional cause). ↑
  4.  See Chimel v. California, 395 U.S. 752, 763 (1969) (holding that a search incident to arrest only extends to the area of immediate control around the person arrested). ↑
  5.  See State v. Lang, 942 N.W.2d 388, 400 (Neb. 2020), discussed in Section I.B. ↑
  6.  See United States v. Cotterman, 709 F.3d 952, 961–62 (9th Cir. 2013) (en banc), discussed in Section I.D. ↑
  7.  See United States v. Maez, 872 F.2d 1444, 1450–51 (10th Cir. 1989), discussed in Section I.C. ↑
  8.  See, e.g., Jean v. State, 369 So. 3d 1235, 1237–38 (Fla. Dist. Ct. App. 2023). This scenario is discussed in Section I.B. ↑
  9.  See United States v. Ramirez, 976 F.3d 946, 949–50 (9th Cir. 2020), discussed in Section I.C. ↑
  10.  See State v. Boyd, 64 P.3d 419, 427 (Kan. 2003), discussed in Section I.C. ↑
  11.  By the phrase “moving property,” I mean anything that can be moved and that can later be searched, whether or not it counts as property in a technical legal sense. In most cases, the moving property will be containers such as bags, purses, briefcases, and fanny packs. In some cases, the item moved is a person, who is moved away from their containers or who is moved to a different location and then searched. I consider all of these examples of the moving property problem.

    The label “moving property problem” might call to mind the automobile exception to the warrant requirement, under which searching a car does not require a warrant in part because cars are readily movable. See, e.g., California v. Carney, 471 U.S. 386, 390–91 (1985). My concern in this Article is not with whether property should receive different protection because it can move, however, but whether protections should change when items are moved from a place governed by one rule to a place governed by a different rule. Some moving property cases involve the automobile exception, as property is readily placed into or taken out of cars. But the moving property problem is about the clash of rules between two places—akin to a conflict of law problem—not the rules of any one place. ↑

  12.  My research has uncovered no prior articles on the moving property problem. The most relevant scholarship appears to be several articles on one specific application—whether and when officers can make warrantless doorway arrests by moving arrestees out of the home. There is a narrow literature on that question. See, e.g., Jack E. Call, The Constitutionality of Warrantless Doorway Arrests, 19 Miss. Coll. L. Rev. 333, 334–36 (1999) (discussing the cases); Steven B. Dow, “Step Outside, Please”: Warrantless Doorway Arrests and the Problem of Constructive Entry, 45 New Eng. L. Rev. 7, 18–23 (2010) (same). See generally 3 Wayne R. LaFave, Search and Seizure § 6.1(e) (6th ed. 2020) (“Location of the arrestee: ‘at,’ ‘on’ and past the threshold.”). For a discussion of the relevant cases, see infra Section I.C. ↑
  13.  The two sides are not equal in the likelihood that they intend to use the Fourth Amendment’s rules to their advantage. The police are trained in the rules, and the cases show them intentionally seeking to manipulate the rules in their favor. In contrast, few individuals will have the knowledge and foresight to know and use the rules. ↑
  14.  See infra Part I. ↑
  15.  See infra Part I. ↑
  16.  See infra Section II.A. ↑
  17.  See infra Section II.B. ↑
  18.  Cf. Johnson v. United States, 333 U.S. 10, 14 (1948) (Jackson, J.) (noting that the Fourth Amendment generally requires that “those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime”). ↑

  19.  See infra Section II.E. ↑

Schauer’s Free Speech Comparativism

Introduction

It is a great honour to make this contribution about Frederick Schauer. I am especially pleased that I can give voice to the many Australian scholars who had the pleasure of meeting and working with him and those who were influenced by his work.

Fred was a frequent visitor to Australia, where he was well known and widely admired. I first came across him at the Australian National University in the late 1990s at the beginning of my career. It will surprise no one to know that he was memorably generous and straightforward. He had a way of being kind to junior scholars that consisted simply in taking them seriously. Years later, I invited him to co-teach a freedom of speech seminar with me at Melbourne Law School, and after to join me as an editor of Oxford Handbook of Freedom of Speech (2021) together. Both experiences were career highlights.

For the purposes of this tribute, I want to offer a reflection on two of the most important essays he wrote on freedom of speech for a comparative audience: The Exceptional First Amendment1 1.Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29(Michael Ignatieff ed., 2005).Show More and Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture.2 2.Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49(Georg Nolte ed., 2005).Show More Both were published in 2005 and offer a prediction on the development of freedom of expression in the United States and elsewhere that is worth revisiting after twenty years.

In the first piece, Schauer revisited the well-known claim that First Amendment law is exceptional for the strong protection it provides to freedom of speech. Even in this well-travelled field, Schauer offered an insightfully detailed account, swiftly moving through a range of ideas, well beyond the conventional account. But perhaps the most important idea in the essay lies in introduction of a second dimension: “methodological exceptionalism.”3 3.Schauer, supra note 1, at 53.Show More American free speech adjudication is characterised by “a formal and sharply demarcated two-step process” and other rule-like doctrines.4 4.Id.Show More By contrast, in most other constitutional democracies the inquiry is a “less formal and more open-ended question of whether a restriction is reasonable, necessary in a democratic society, or, most commonly, proportional in light of the importance of the restriction and the extent of the free expression interest that is restricted.”5 5.Id. at 53–54.Show More

The second essay developed the argument advanced in the first, but it went further to draw firm links between American substantive and methodological exceptionalism. The argument in this essay goes somewhat against the grain of the first, concluding that the “rulified” nature of First Amendment law, because of its deep roots in American constitutional culture, was unlikely to change.6 6.See Schauer, supra note 2, at 63–67.Show More

Before going on to consider their arguments in more detail, let me pause to reflect on how they illustrate some of the distinctive virtues of Fred Schauer’s scholarship. They combine an eye for doctrinal detail, powerful jurisprudential insights about the relationship between doctrinal structures and their underlying reasons, and a deep appreciation of the significance of legal and political culture.

For the remainder of this Essay, I will turn to consider how Schauer developed his claims about method and substance in free speech cases and examine his claims with a comparative analysis of two jurisdictions which allow some testing of Schauer’s claims and predictions.

  1.  Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29

    (Michael Ignatieff ed., 2005). ↑

  2.  Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49 (Georg Nolte ed., 2005). ↑
  3.  Schauer, supra note 1, at 53. ↑
  4.  Id. ↑
  5.  Id. at 53–54. ↑

  6.  See Schauer, supra note 2, at 63–67. ↑

Constitutional Acceptance in a Polarized Era

Introduction

Frederick Schauer left an indelible mark on my thinking and my life. One of the most special aspects of his work, to my mind, was his exploration of the nonconstitutional grounds of constitutional law. The idea of Fred’s that has captivated me more than any other is his concept of constitutional salience: “the often mysterious political, social, cultural, historical, psychological, rhetorical, and economic forces that influence which policy questions surface as constitutional issues and which do not.”1 1.Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafter Schauer, Boundaries of the First Amendment].Show More

Fred began his study of constitutional salience analyzing what he termed “First Amendment coverage.” He traced the boundaries of the First Amendment—that is, the line demarcating the social acts that constitute “speech” for constitutional purposes and those that do not. He observed that while the Constitution forbids abridgement of the “freedom of speech,” in practice, much, if not most, of what we might describe colloquially as “speech” is not covered by the First Amendment.2 2.Id. at 1769 (“The acts, behaviors, and restrictions not encompassed by the First Amendment at all—the events that remain wholly untouched by the First Amendment—are the ones that are simply not covered by the First Amendment.”).Show More From contracts to perjury and workplace harassment to the rules of evidence, governments at all levels regularly and pervasively regulate speech in ways that no one, lawyers and nonlawyers alike, identifies as a constitutional concern.3 3.Id. at 1783–84; Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 320–21, 325 (2018).Show More The Constitution simply does not appear. It is not salient, Fred brilliantly pointed out. Fred later extended this idea of constitutional salience to explore the nonlegal and nonconstitutional bases of constitutionalism more broadly, including what makes a constitution valid and how constitutions change.

These inquiries are extremely relevant today. We are now in a tumultuous moment in U.S. constitutionalism where polarization and the rise of populist authoritarianism have made many once-well-settled constitutional principles seem up for grabs, including core ideas of both the freedom of speech and the separation of powers—if not the persistence of U.S. constitutionalism itself.

People often ask me what it is like to teach constitutional law now, when American constitutional law, culture, and norms seem to be rapidly changing. Teaching constitutional law, I have found, feels ever more important and pressing, including to students who in other times might have little interest. Trying to theorize both the fast shift in U.S. constitutional culture towards populist authoritarianism and what it means for U.S. constitutional law—let alone what, if anything, can or should be done about any of that—has proven far more vexing. These questions prompted me to turn, as I often do, to Fred’s work for insight.

This Essay offers a first sketch of how Fred’s theories on constitutional salience, validity, and change illuminate recent shifts in U.S. constitutional law and culture. In so doing, I tie together elements of Fred’s thinking that, to my knowledge, Fred had not, and I both elaborate on and challenge aspects of his thoughts. Fred’s ideas—re-situated and extended here—help shed light on some of the most vexing questions of our current moment and, as Fred’s work so often does, reveal new paths of inquiry.

  1.  Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafter Schauer, Boundaries of the First Amendment]. ↑
  2.  Id. at 1769 (“The acts, behaviors, and restrictions not encompassed by the First Amendment at all—the events that remain wholly untouched by the First Amendment—are the ones that are simply not covered by the First Amendment.”). ↑

  3.  Id. at 1783–84; Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 320–21, 325 (2018). ↑

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