The Still-Emerging Law of Stuff

Don’t mess with people’s stuff. It’s a casual expression of common sense that also reflects foundational property law. Secure property rights give people independence. Real property law makes our homes our castles. And, as Benjamin Constant articulated, the development of property rights in movables emancipated the peon.

Imagine not having personal property rights. Cops and criminals alike could loot passersby with impunity. That doesn’t sit right. So don’t mess with people’s stuff!

Easier said than done. The demands we place on law enforcement press them to get into people’s stuff as much as they can. In the modern era, an open issue is the extent to which digital items are people’s stuff. The better view is that they often are, I think, but getting full recognition of that is an ongoing challenge.

Via Twenty20

A recent reminder of the law of stuff comes from a case in the Ninth Circuit Court of Appeals. Snitko v. United States was a case brought by holders of safe-deposit boxes. Their boxes had been caught up in an investigation of the firm storing the boxes for them, and their boxes had been opened, inventoried, and examined as evidence. The government sought forfeiture of some of the contents.

The appeals court ruled that going into the safe-deposit boxes was not a proper “inventory search”—an exception to the Fourth Amendment’s warrant requirement for cases when law enforcement necessarily takes possession of people’s stuff. According to Supreme Court precedent, an inventory search is appropriate to protect an owner’s property while it is in police custody; to fend off claims of lost, stolen, or vandalized property; and to protect the police from dangerous items.

The Snitko inventories didn’t do much to protect the property owners. The examination given to the boxes’ contents had all the hallmarks of an investigatory search. And in this case, the policy for conducting inventory searches (having a policy should help validate a search) had a curious similarity to investigative searches.

There was a similar similarity in a Supreme Court case from 2014 called Riley v. California. Law enforcement officers had pulled over and arrested a young man bristling with indicia of gang membership. Arresting him properly and seizing his phone pursuant to that arrest, they proceeded to look through the phone to see what they could learn.

The government argued that this was an acceptable search of a container found on an arrestee’s person. Container searches are allowed under a couple of precedents. My favorite is United States v. Robinson, because the operative facts—discovery of heroin capsules in a cigarette pack—occurred at Eighth and C Streets, NE, in Washington, DC, just steps from my house on Capitol Hill. (That was in 1973, and the neighborhood is quite a bit different, but I still conceal my heroin carefully when walking to Eastern Market.)

In Riley, the Supreme Court rejected applying Robinson and similar cases to phones, which hold a tremendous amount and variety of data. The quantum of “stuff” is vastly greater than the tangible items that might be found in a crumpled package taken from one’s front pocket.

Notably, the Court treated digital stuff as Fourth Amendment stuff. Applying the container doctrine to phones, the Court wrote, “would in effect give ‘police officers unbridled discretion to rummage at will among a person’s private effects.’” Did you catch that? The contents of phones are effects.

So, Snitko reminds us that people can put their stuff in the possession of others and still retain their property rights. We have Supreme Court law finding that digital stuff is real stuff—property. What happens when the two come together?

Justice Neil Gorsuch talked about that in Carpenter v. United States, which dealt with our cell phone location information in the hands of telecommunications providers.

Ever hand a private document to a friend to be returned? Toss your keys to a valet at a restaurant? Ask your neighbor to look after your dog while you travel? . . . Entrusting your stuff to others is a bailment. A bailment is the “delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose.”

Property law, specifically bailment, may preserve Fourth Amendment rights in stuff we entrust to others.

To maintain people’s independence in the modern, digital era, courts are finding that old rules giving government agents access to tangible things don’t necessarily apply to digital stuff. Old rules protecting property rights do apply to digital stuff. It’s progress.

While they’re at it, the courts might revisit the rules applying to tangible stuff. Why should there be inventory searches of cars when we have modern technologies like security tape? Sealing up cars can obviate the privacy problems with automobile inventory searches in all but the rarest of cases.