Policing and Public Transportation (2022)

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TCRP LRD 58 29 [for which] the government as an entity is responsible under § 1983.’”392 In Pottinger, supra, the plaintiffs alleged that the City of Miami “has a pattern and practice of seizing and destroying their personal property or forcing them to abandon it at arrest sites in violation of the Fourth, Fifth and Fourteenth Amendments.”393 The court found “that the arrests and confiscations of property were pursuant to a City policy and that City officials were aware of such a policy toward the homeless.”394 The court held that the “plaintiffs’ property rights are protected by the fourth amend- ment [sic] and that the City is liable on this count.”395 In Lavan, supra, the court also held that the City of Los Angeles “is required to provide procedural protections before permanently depriving Appellees of their possessions.”396 The city “violates the Due Process Clause of the Fourteenth Amend- ment when it prescribes and enforces forfeitures of property ‘[w]ithout underlying [statutory] authority and competent pro- cedural protections,’” and “‘individuals must receive notice and an opportunity to be heard before the Government deprives them of property.’”397 Some states or local governments have established proce- dures to safeguard and inventory personal property belonging to the homeless. For example, the Oregon statute, discussed in Section IX.A, supra, which applies to a local government that clears a homeless campsite, requires, in part: (3) Except as provided in subsection (9) of this section, at least 72 hours before removing homeless individuals from an established camping site, law enforcement officials shall post a written notice, in English and Spanish, at all entrances to the camping site to the extent that the entrances can reasonably be identified.398 … (5) (a) All personal property at the camping site that remains unclaimed after removal shall be given to a law enforcement official, a local agency that delivers social services to homeless individuals, an out- reach worker, a local agency official or a person authorized to issue a citation described in subsection (10) of this section, whether notice is required under subsection (3) of this section or not. (b) The unclaimed personal property must be stored: 392 Pottinger, 810 F. Supp. at 1561 (quoting Monell, 436 U.S. at 694). 393 Id. at 1570 (emphasis supplied). 394 Id. at 1570, N 29. 395 Id. at 1570 (footnote omitted). 396 Lavan, 693 F.3d at 1032 (citations omitted) (emphasis supplied). 397 Id. (quoting Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003) and United States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S. Ct. 492, 126 L. Ed.2d 490 (1993) (some internal quotation marks omitted)). 398 Emphasis supplied. Regarding the written notice, ORS § 203.079(6) provides that, at a minimum, the notice must state: (a) Where unclaimed personal property will be stored; (b) A phone number that individuals may call to find out where the property will be stored; or (c) If a permanent storage location has not yet been deter- mined, the address and phone number of an agency that will have the information when available. abandoned personal property and thus relinquished his expec- tation of privacy therein[] turns on intent” and “whether the People’s proof was sufficient to establish an unequivocal intent to abandon the property [that was] seized.”386 The court found that the defendant’s actions in placing personal property in a wall where it was found and walking away a short distance were “in- sufficient to constitute abandonment.”387 Because “privacy is a constitutionally protected right, it is the People’s burden to over- come the presumption against its waiver.”388 The court affirmed the trial court’s decision that granted the defendant’s motion to suppress the physical evidence. However, in Patton v. State,389 the Supreme Court of Delaware decided that the defendant had abandoned his property, a back- pack. The defendant had been found guilty of a firearms viola- tion. The issue on appeal was whether the Family Court prop- erly denied his motion to suppress evidence, which the police found in his backpack and for which the police did not secure a search warrant. The State argued that a warrant was not re- quired, because the backpack was left in plain view or had been abandoned. The court held that the test is whether, based on the totality of the circumstances, “Patton objectively abandoned the backpack.”390 Unlike the courts in Lavan and Pottinger, supra, which held that the Fourth Amendment protects a person from unreason- able interference in his or her personal property, regardless of a person’s right to privacy, the court in Patton decided that, on the ground of privacy, Patton had abandoned his backpack. “When someone leaves personal property in plain sight, in a busy place, and departs the area, that person has no reasonable expectation of privacy in the abandoned personal property.”391 The court affirmed the Family Court’s denial of the defendant’s motion to suppress evidence. C. Due Process Requirements of the Fourth Amendment that Apply to the Seizure and/or Disposal of Personal Property The question addressed in this subjection is whether a public transportation authority, amenable to suit under § 1983, must provide some measure of constitutional due process before tak- ing and/or disposing of personal property, such as the personal property of homeless persons. As discussed in Section III. A. of the digest, “[a] local government may be liable under 42 U.S.C. § 1983 when ‘execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury 386 Id., 172 A.D.2d at 458, 568 N.Y.S.2d at 805 (citation omitted) (emphasis supplied). 387 Id., 172 A.D.2d at 458-459, 568 N.Y.S.2d at 805 (citation omitted). 388 Id. (citation omitted). 389 2019 Del. LEXIS 220, at *1, 2, 210 A.3d 687 (Del. 2019). 390 Id. (footnote omitted). 391 Id. (footnote omitted).