Policing and Public Transportation (2022)

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28 TCRP LRD 58 In sum, it appears that there is significant judicial precedent for the proposition that individuals, such as the homeless, who leave property in a public space, not only have not abandoned their property, but also continue to have a possessory inter- est in their property, aside from any privacy rights, discussed in the next subsection, that they also continue to have in their belongings. B. Right to Privacy in Personal Property under the Fourth Amendment In Lavan, supra, the Ninth Circuit held that “‘[t]he Fourth Amendment protects against unreasonable interferences in property interests regardless of whether there is an invasion of privacy.’”378 In Pottinger, supra, the court held that the plain- tiffs do “have a legitimate expectation of privacy in their per- sonal property….”379 Thus, there is some judicial precedent for the proposition that the Fourth Amendment protects a person’s right to privacy in personal property, including unabandoned personal property.380 If challenged in a legal action, a public authority may have to show that the possessor of personal property intended to aban- don his or her property that the police seized without a warrant. Of course, both federal and state constitutional law may be im- plicated when a person’s property is seized. For example, State v. Pippin381 involved a warrantless search and seizure of a con- trolled substance in a homeless person’s tent. The Washington Court of Appeals held that, although the Fourth Amendment protects a person’s right to privacy, the Washington Constitu- tion, art. 1, § 7, affords even more protection.382 Under art. 1, § 7, “[i]nstead of examining whether an individual’s expectation of privacy is reasonable, ‘the focus is whether the private affairs of an individual have been unreasonably violated.’”383 The court in Pippin held that homeless persons have privacy rights in their tents and shelters that are established on public property and used for habitation, rights that are protected from unreasonable searches as a matter of state constitutional law. Furthermore, neither the “[t]he temporary nature of Pippin’s tent,” nor the absence of permission to camp at Pippin’s location, undermined or diminished his privacy interests.384 In a criminal case, People v. Kelly,385 the defendant moved to suppress physical evidence, which he left in a paper bag in a covered wall space, that police officers seized. A New York ap- pellate court stated that the question of “whether a suspect has 378 Lavan, 693 F.3d at 1028-1029 (citation omitted) (emphasis supplied). 379 Pottinger, 810 F. Supp. at 1572. 380 State v. Pippin, 200 Wn. App. 826, 403 P.3d 907 (Wash. Ct. App. 2017). 381 200 Wn. App. 826, 403 P.3d 907 (Wash. Ct. App. 2017). 382 Id., 200 Wn. App. at 834, 403 P.3d at 912. 383 Id. (citations omitted) (some internal quotation marks omitted). 384 Id., 200 Wn. App. at 842, 843-844, 403 P.3d at 915, 916 (footnote omitted). 385 172 A.D.2d 458, 568 N.Y.S.2d 804 (N.Y. App. Div., 1st Dept. 1991), aff’d, 79 N.Y.2d 899, 590 N.E.2d 246, 581 N.Y.S.2d 661 (1992). unabandoned property.”363 The applicable “constitutional stan- dard is whether there was ‘some meaningful interference’ with Plaintiffs’ possessory interest in the property.”364 Relying on Supreme Court precedent, the Ninth Circuit held that “‘[t]he Fourth Amendment protects against unreasonable interferenc- es in property interests regardless of whether there is an invasion of privacy.’”365 Significantly, the appeals court held that a home- less plaintiff ’s “[v]iolation of a City ordinance does not vitiate the Fourth Amendment’s protection of one’s property.”366 As the Supreme Court held in Fuentes v. Shevin,367 “‘[a]ny significant taking of property by the State is within the purview of the Due Process Clause.’”368 The Ninth Circuit also rejected the city’s argument that “no process is required” before the city gathered and permanently disposed of the appellees’ personal property.369 The appeals court held that the city must “provide procedural protections before permanently depriving Appellees of their possessions.”370 The court affirmed the district court’s grant of an injunction. Similar to the Lavan case, in Pottinger v. Miami,371 supra, the plaintiffs’ class action alleged that the City of Miami “has a cus- tom, practice and policy of arresting, harassing and otherwise interfering with homeless people for engaging in basic activi- ties of daily life—including sleeping and eating—in the public places where they are forced to live.”372 The plaintiffs’ action averred that the city “routinely seizes and destroys their prop- erty and has failed to follow its own inventory procedures re- garding the seized personal property of homeless arrestees and homeless persons in general.”373 In awarding injunctive relief to the plaintiffs, the court found, inter alia, that “the alleged arrests and unreasonable seizures of their property were not random, isolated acts.”374 The city was liable for its actions, because the plaintiffs’ property rights are protected by the Fourth Amendment.375 In addition, the city’s seizure and destruction of the plaintiffs’ personal property vio- lated the Fifth Amendment, which prohibits the taking of pri- vate property for public use without just compensation.376 Of interest is the court’s statement that the taking satisfied the Fifth Amendment’s public-use requirement, regardless of whether the city used the property that it took.377 363 Id. at 1027-1028. 364 Id. at 1028 (footnote omitted). 365 Id. at 1028-1029 (citation omitted) (emphasis supplied). 366 Id. at 1029. 367 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed.2d 556 (1972). 368 Lavan, 693 F.3d at 1031 (quoting Fuentes, 407 U.S. at 86, 92 S. Ct. 1983, 32 L. Ed.2d 556 (1972)). 369 Id. 370 Id. at 1032 (citations omitted). 371 810 F. Supp. 1551 (S.D. Fla. 1992). 372 Id. at 1554. 373 Id. 374 Id. at 1561. 375 Id. at 1570. 376 Id. at 1570, N. 30. 377 Id. at 1570.