City of Los Angeles, California, et al. v. Lamya Brewster

A circuit split has developed over the meaning of “seizure” in the Fourth Amendment and whether it only refers to the actual seizure of personal property, i.e. the taking of possession, or if it also extends to the continued retention of property already lawfully seized. Most of the circuit courts have concluded that the Fourth Amendment, by its own express terms, only applies to the actual seizure of property, and that, once lawfully seized, due process governs the continued possession and the timing and process for the property’s return. The Ninth Circuit has instead extended the definition of “seizure” to refer to the entire period of possession, so that property is effectively being re-seized every moment it is in the continued possession of a public entity, requiring the continued reassertion of Fourth Amendment grounds for each successive “seizure.” The question presented is: Assuming that property is lawfully seized by a public entity in compliance with Fourth Amendment requirements, what constitutional standard applies for the continued possession of the property and for the timing and process of returning the property?