Abstract: The Fourth Amendment of the U.S. Constitution states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” Some circuits, like the Ninth and D.C. Circuits, have interpreted the Fourth Amendment’s reasonableness standard to apply beyond just the initial seizure of property but also to include the continued retention of the seized property. Other circuits, such as the First, Second, Sixth, Seventh, and Eleventh Circuits, have read the reasonableness standard more narrowly and interpreted this requirement to pertain only to the original seizure. Therefore, a seizure found to be initially reasonable does not become unreasonable when the state retains the seized items for a prolonged period of time. This Comment will analyze the circuit split regarding this reasonableness standard. Furthermore, this Comment will propose that the Supreme Court resolve the circuit split by adopting the standard applied by the Ninth and the D.C. Circuits, in which the application of the Fourth Amendment’s reasonableness standard is expanded to include the continued retention of seized property.
This Comment will first examine the history of the Fourth Amendment by comparing its common law origins and colonial understanding of unreasonable seizures. It will then discuss current Supreme Court Fourth Amendment jurisprudence and how it analyzes so-called “pre-existing rights.” Finally, it will discuss the circuit split in detail before explaining why the Ninth and D.C. Circuit’s opinions are most aligned with current Supreme Court jurisprudence.
