Last fall, I had the privilege of becoming the Michael A. Doyle ’62 and Bunny Winter Distinguished Visiting Professor at Yale Law School. As part of that appointment, I recently gave a talk on a topic that was the subject of a draft of my most recent (yet to be published) article: What happens to Fourth Amendment protections when property is transferred? Three simple examples from recent cases will give you an idea of the problem:
- Police arrested a man carrying a backpack. For their own safety, the officers first removed the backpack and placed it twenty feet away. They returned to the back park and conducted a search later. The Fourth Amendment permits a warrantless search of an arrested person’s property, but not a search outside that person’s direct control. Does the police placing the backpack outside of their immediate area of control mean the government can no longer search for it?
- Police hoped to arrest a suspect at the home, but they lacked the warrant needed to enter the home to make an arrest. From an outside position, officers pointed a gun at the suspect inside and ordered him to leave the house. The man complied with the order and left the home and was arrested outside. Need a search warrant?
- The Fourth Amendment’s protection of the international order is weak. Officials seized suspects’ computers at the border, but they lacked the expertise to search them there. Officials took the computer hundreds of miles inland to computer forensics experts, who searched for it there. Does the search follow the weak search rules at the border or the strong search rules inland?
The lecture “Search, Grab and Move” is as follows, with a very friendly introduction by Dean Heather Gerken:
I plan to complete a draft of this article over the summer and publish it when available. In the meantime, comments on the lecture version are very welcome.
