Solicitude for Property in the Fourth Amendment: Correcting a History of Misconstruction

On August 9, 2024, in Asinor v. District of Columbia, the U.S. Court of Appeals for the D.C. Circuit held that the Fourth Amendment requires that law enforcement’s retention of an arrestee’s property seized pursuant to a lawful arrest be reasonable. In doing so, the D.C. Circuit rejected the seizure-excludes-retention approach adopted by five sister circuits in favor of the seizure-includes-retention approach. Unlike the seizure-excludes-retention approach, the seizure-includes-retention approach treats a property seizure as a continuing event that requires the government’s retention to be reasonable beyond the initial act of dispossession. This Comment argues that the seizure-excludes-retention approach is unconstitutional. It urges the U.S. Supreme Court to resolve this circuit split by adopting Asinor’s seizure-includes-retention approach, which aligns with the Framers’ intent, the Court’s precedent, and the Fourth Amendment’s plain text. This Comment further argues that the Asinor approach could be strengthened by recognizing that retention falls within the Court’s definition of seizure.