Protecting Property Left by the Homeless on the Sidewalk

Posted by on Sep 11, 2012 in Updates

Does the Constitution protect the property of homeless people who leave such property in public areas while they perform tasks such as eating and showering? The answer is yes, according to the Ninth Circuit.

Judge Wardlaw, writing for the court in Lavan v City of Los Angeles, ruled that the 4th and 14th Amendments protects property of the homeless left on the street from seizure and immediate destruction, despite the fact that a city ordinance prohibits individuals from leaving property upon any parkway or sidewalk. The court argued that the City, as well as the dissent’s, argument that the 4th Amendment did not protect the plaintiff’s property because they had no reasonable expectation of privacy in leaving their property on the street was incorrect. Rather, the court argued that in the case of a seizure, as opposed to a search, the plaintiffs “need not show a reasonable expectation of privacy to enjoy the protection of the Fourth Amendment.” Interestingly, the court argued that the recent Supreme Court decision United States v Jones indicated that the reasonable expectation of privacy is not required for Fourth Amendment protection. Making it easier for the city to rule for the homeless, a Ninth Circuit decision from 2005 had held ““[t]he Fourth Amendment protects against unreasonable interferences in property interests regardless of whether there is an invasion of privacy.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005).

Judge Callahan dissented, arguing that a reasonable expectation of privacy was required in this case in order for the plaintiffs to enjoy protection from the Fourth Amendment. She quoted Jones:
“We have embodied that preservation of past rights in our very definition of ‘reasonable expectation of privacy’ which we have said to be an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’”
The dissent then reasoned that it was not reasonable to expect privacy when leaving property in a public area, particularly given that a city ordinance made it illegal to do so.

One can see why the majority argued so vigorously that a reasonable expectation of privacy is not necessary to enjoy Fourth Amendment protection in this case. After all, it would be ludicrous to expect privacy when leaving possessions in a public space.

Although the court’s argument is plausible, one wonders if the Ninth Circuit would have ruled that the Fourth Amendment bars the city from destroying an umbrella that a wealthy individual left unabandoned on the sidewalk. Such a result would feel counterintuitive.

Lastly, a point to look for in future cases: Given the panel’s disagreement over Jones, it will be interesting to see how other circuits interpret what Jones says about the reasonable expectation of privacy, and if they come to different conclusions than the Lavan court.
Read the full opinion here: