Last month, the U.S. Supreme Court tried again to wriggle out of a problem it created for itself more than 30 years ago. It was in 1967 that the court, in its famous decisions in Katz v. United States and Warden v. Hayden, obliterated the “property” analysis that had regulated Fourth Amendment jurisprudence for over a century.
Despite its quaintness, the property principle had rather neatly cabined police activity, permitting the seizure of only those items in which the government could claim a property interest, usually via the ancient doctrine of the deodand, which held that the instrumentalities or fruits of a crime belonged to the state and not the perpetrator. Police could search for and seize that which the government owned, even if ownership were a fiction of ancient law, and no more.
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