The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

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As we keep more and more personal data on our phones, iPhone and Android devices now have some of the most advanced encryption technology in existence to keep that information safe from prying eyes. The easiest way around that, of course, is for someone to gain access to your phone.

This week, a federal court decided that police officers can make you unlock your phone, even by physically forcing you to press your thumb against it.

In November 2021, Jeremy Payne was pulled over by two California Highway Patrol (CHP) officers over his car's window tinting. When asked, Payne admitted that he was on parole, which the officers confirmed. After finding Payne's cellphone in the car, officers unlocked it by forcibly pressing his thumb against it as he sat handcuffed. (The officers claimed in their arrest report that Payne "reluctantly unlocked the cell phone" when asked, which Payne disputed; the government later accepted in court "that defendant's thumbprint was compelled.")

The officers searched through Payne's camera roll and found a video taken the same day, which appeared to show "several bags of blue pills (suspected to be fentanyl)." After checking the phone's map and finding what they suspected to be a home address, the officers drove there and used Payne's keys to enter and search the residence. Inside, they  found and seized more than 800 pills.

Payne was indicted for possession with intent to distribute fentanyl and cocaine.

In a motion to suppress, Payne's attorneys argued that by forcing him to unlock his phone, the officers "compelled a testimonial communication," violating both the Fourth Amendment's protection against unreasonable search and seizure and the Fifth Amendment's guarantee against self-incrimination. Even though the provisions of his parole required him to surrender any electronic devices and passcodes, "failure to comply could result in 'arrest pending further investigation' or confiscation of the device pending investigation," not the use of force to make him open the phone.

The district court denied the motion to suppress, and Payne pleaded guilty. In November 2022, he was sentenced to 12 years in prison. Notably, Payne had only served three years for the crime for which he was on parole—assault with a deadly weapon on a peace officer.

Payne appealed the denial of the motion to suppress. This week, in an opinion authored by Judge Richard Tallman, the U.S. Court of Appeals for the 9th Circuit ruled against Payne.

Searches "incident to arrest" are an accepted part of Fourth Amendment precedent. Further, Tallman wrote that as a parolee, Payne has "a significantly diminished expectation of privacy," and even though the conditions of his parole did not require him to "provide a biometric identifier," the distinction was insufficient to support throwing out the search altogether.

But Tallman went a step further in the Fifth Amendment analysis: "We hold that the compelled use of Payne's thumb to unlock his phone (which he had already identified
for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking," he wrote. "The act itself merely provided CHP with access to a source of potential information."

From a practical standpoint, this is chilling. First of all, the Supreme Court ruled in 2016 that police needed a warrant before drawing a suspect's blood.

And one can argue that fingerprinting a suspect as they're arrested is part and parcel with establishing their identity. Nearly half of U.S. states require people to identify themselves to police if asked.

But forcibly gaining access to someone's phone provides more than just their identity—it's a window into their entire lives. Even cursory access to someone's phone can turn up travel history, banking information, and call and text logs—a treasure trove of potentially incriminating information, all of which would otherwise require a warrant.

When they drafted the Fourth Amendment, the Founders drew on the history of "writs of assistance," general warrants used by British authorities in the American colonies that allowed government agents to enter homes at will and look for anything disallowed. As a result, the Fourth Amendment requires search warrants based on probable cause and signed by a judge.

Tallman does note the peculiar circumstances of the case: "Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device." But, he adds, "the outcome…may have been different had [the officer] required Payne to independently select the finger that he placed on the phone" instead of forcibly mashing Payne's thumb into it himself.

The post Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone appeared first on Reason.com.

Pennsylvania police officers have reached a settlement with a woman who says she underwent an unnecessary and humiliating strip-search after she was pulled over for a minor traffic violation. 

According to a lawsuit filed in 2021, Holly Elish was traveling through Bentlyville, Pennsylvania, on her way home from work when she was pulled over by local police officer Brian Rousseau.

When Rousseau pulled Elish over, he quickly asked for consent to search her vehicle, which Elish denied. According to the lawsuit, Rousseau responded that "he had the right to search her vehicle." Soon after, a second police officer arrived on the scene. The two men again asked to search Elish's vehicle, telling her that even more officers would soon arrive.

"Fearing for her safety and knowing that the police did not have justification to search her vehicle yet were insistent and intimidating in attempting to do so, Ms. Elish allowed the vehicle search to occur under duress and coercion," the complaint states.

The officers searched Elish's car but found no sign of drugs, illegal weapons, or other contraband. However, that wasn't enough for the officers to let Elish go. A female police officer—unnamed in the suit—had arrived on the scene, and after having a brief conversation with the other officers began to strip-search Elish.

The officer "began the strip search by physically and visually inspecting Ms. Elish's breasts," according to the complaint. Elish then had "to remove her pants and underwear to her ankles and 'squat' to the ground, during which she bent down to the ground with one knee and performed a visual cavity inspection."

The complaint further states that the female police officer "began to put gloves on her hands stating to Ms. Elish, 'I'm sorry. This is the worst part of my job.'" However, the suit states that, just before physically searching Elish, she asked her "Do you know why they want me to do this?" Elish responded that she didn't know and that she was "simply on her way home from work to pick up her child."

Following this interaction, the female officer refused to search Elish. She was eventually allowed to leave, though Rousseau did later write Elish a citation for driving five miles per hour over the speed limit. That citation was dropped, though, when Rousseau failed to appear at the hearing.

Elish filed a lawsuit against the two male officers in November 2021. After a more than three-year legal battle, including a civil trial, a settlement was reached in the case, though the exact terms of the settlement have not yet been revealed.

"This warrantless search culminated in a minor traffic violation for driving five miles per hour over the posted speed limit, for which Ms. Elish was subsequently found not guilty," the complaint read. "As a direct and proximate cause of this search, Ms. Elish suffered mental anguish, embarrassment, and [humiliation]."

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