Oyoma Asinor and Bryan Dozier v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2023 Decided August 9, 2024
No. 22-7129
OYOMA ASINOR AND B RYAN DOZIER ,
APPELLANTS
v.
DISTRICT OF C OLUMBIA , ET AL.,
APPELLEES
Consolidated with 22-7130
Appeals from the United States District Court
for the District of Columbia
(No. 1:21-cv-02158)
(No. 1:21-cv-02908)
Michael Perloff argued the cause for appellants. With him
on the briefs were Kristin L. McGough, Scott Michelman,
Arthur B. Spitzer, Tara L. Reinhart, and Jeffrey L. Light.
Thomas K. Clancy was on the brief for amici curiae
Morgan Cloud and Thomas K. Clancy in support of appellants.

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Zoé E. Friedland and Hanna Perry were on the brief for
amicus curiae The Public Defender Service for the District of
Columbia in support of appellants.
Amir H. Ali was on the brief for amici curiae The Roderick
and Solange MacArthur Justice Center, et al. in support of
appellants.
Marcella Coburn, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Brian L.
Schwalb, Attorney General, Caroline S. Van Zile, Solicitor
General, Ashwin P. Phatak, Principal Deputy Solicitor
General, and Carl J. Schifferle, Deputy Solicitor General.
Before: HENDERSON and KATSAS , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court by Circuit Judge KATSAS .
Concurring opinion filed by Circuit Judge HENDERSON .
KATSAS , Circuit Judge: The Fourth Amendment provides
that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. Amend. IV. Under
settled law, a seizure of personal effects incident to a lawful
arrest is reasonable. This case presents the question whether
the Fourth Amendment requires that any continued retention of
such personal property—even after release of the arrested
individuals—must also be reasonable. We hold that it does.

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I
The appellants in these consolidated appeals allege that the
District of Columbia, after arresting and releasing them without
charges, for months or years refused to return their personal
property seized incident to the arrests. On review of dismissal
orders, we assume that these allegations are true. City of
Harper Woods Emps.’ Ret. Sys. v. Oliver, 589 F.3d 1292, 1298
(D.C. Cir. 2009).
In Cameron v. District of Columbia, five plaintiffs allege
that they were among some 40 individuals arrested in a protest
on August 13, 2020. Upon arresting them, the Metropolitan
Police Department seized their personal effects, including their
cell phones. The plaintiffs were quickly released, and the MPD
neither pressed charges nor sought warrants to search or
continue to possess the phones. Despite many phone calls and
emails to the MPD and the U.S. Attorney’s Office, the
plaintiffs were unable to get their phones back.
The plaintiffs then invoked D.C. Rule of Criminal
Procedure 41(g), which allows a person aggrieved by “the
deprivation of property” to “move for the property’s return.”
At first, the plaintiffs filed a Rule 41(g) motion in criminal
cases pending in the D.C. Superior Court against other
individuals arrested on August 13. The Deputy Clerk of that
court instructed the plaintiffs to refile their motion in a new,
standalone case. After they did so, the District returned the
phones of two plaintiffs—285 and 312 days after their arrests.
In November 2021, the five plaintiffs sued the District in
federal court. They alleged claims under the Fourth and Fifth
Amendments and common-law conversion, and they sought
damages and an injunction ordering the return of their property
still held by the MPD. They also sought to represent classes of

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August 13 arrestees whose property was not returned within a
reasonable amount of time. The District eventually returned
the other plaintiffs’ phones, more than a year and two months
after their arrests.
The district court dismissed the complaint. It reasoned that
the plaintiffs had failed to state a Fourth Amendment claim
because the initial seizure of their property was reasonable and
because any challenge to its continued retention was governed
exclusively by the Fifth Amendment. On the Fifth Amendment
claim, the court held that Rule 41(g) gave the plaintiffs
adequate process to recover their property. And having
dismissed the constitutional claims, the court declined to
exercise supplemental jurisdiction over the conversion claim
and denied the motion for class certification as moot.
In Asinor v. District of Columbia, a journalist alleges that
he was arrested while photographing an August 31, 2020
protest. When arresting him, the MPD seized his cell phone,
camera, and other effects. The journalist was released the same
day and informed that he would not face charges. Despite
repeated requests, he was unable to retrieve his property for
nearly a year. He sued and raised Fourth Amendment, Fifth
Amendment, and D.C.-law claims.
The district court dismissed the constitutional claims based
on its reasoning in Cameron. And it declined to exercise
supplemental jurisdiction over the other claims.
The plaintiffs in both cases appealed.
II
All agree that the MPD’s arrest of the plaintiffs was
reasonable under the Fourth Amendment. And it is blackletter

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law that, during an arrest, police may seize personal property
held by the arrestee without a warrant. Riley v. California, 573
U.S. 373, 384 (2014). So the District’s initial seizure of the
plaintiffs’ effects did not violate the Fourth Amendment.
The question before us is whether the Fourth Amendment
has anything to say about the many months in which the MPD
allegedly continued to hold the plaintiffs’ effects with no
legitimate investigatory or protective purpose. The District
answers no. It contends that the Fourth Amendment governs
the government’s taking of possession of an individual’s
personal property, but not the government’s continued
possession of the property.
We disagree. When the government seizes property
incident to a lawful arrest, the Fourth Amendment requires that
any continued possession of the property must be reasonable.
We reach this conclusion based on the Fourth Amendment’s
text and history, as well as modern Supreme Court precedents
regarding the constitutionally permissible duration of seizures,
whether of property or persons.
A
The Fourth Amendment promises that “[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated.” U.S. Const. Amend. IV. If the right to be “secure”
against “unreasonable … seizures” speaks only to the initial
moment when the government takes possession of property—
that is, the initial moment of seizure—then the District wins.
But if this guarantee is instead concerned with the entire
duration of the government’s possession of the property—that
is, the entire period during which the property has been
seized—then the plaintiffs win.

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The bare text of the Fourth Amendment does not answer
this question definitively. Founding-era definitions of the word
“seizure” are consistent with both readings. The 1773 edition
of Johnson’s Dictionary defined the word seizure to include
both “the act of taking forcible possession” and “gripe;
possession.” 2 S. Johnson, “Seizure,” A Dictionary of the
English Language (1773). In turn, it defined “gripe” as a noun
meaning “grasp” or “hold.” 1 S. Johnson, “Gripe,” supra.
These definitions suggest that the word “seizure” encompassed
both the act of taking possession and continuing possession
over time. In other words, when the Fourth Amendment was
proposed and ratified, a “seizure” referred to both the act of
taking possession and the ongoing state of having taken
possession. But a narrower understanding, limited to the
moment of taking possession, was also definitionally possible.
In this respect, the meaning of “seizure” was ambiguous in the
late eighteenth century, as it is today.
History helps resolve this semantic ambiguity. Because
the Fourth Amendment codified a “pre-existing right,” District
of Columbia v. Heller, 554 U.S. 570, 592 (2008), it “must be
read in light of” its history, Chimel v. California, 395 U.S. 752,
760–61 (1969). And history favors the plaintiffs. As explained
below, the Fourth Amendment protects possessory interests
against government infringement in the same way that
Founding-era common law protected possessory interests
against private infringement. And the common law authorized
actions for damages and recovery of property that was lawfully
taken, but then unlawfully possessed. History thus indicates
that the government’s continued possession of the plaintiffs’
property must be reasonable.
The Fourth Amendment grew out of Antifederalist
criticism of the original Constitution. Patrick Henry opposed

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ratification in part because “any man may be seized, any
property may be taken, in the most arbitrary manner, without
any evidence or reason.” 3 Debates in the Several State
Conventions on the Adoption of the Federal Constitution 588
(Jonathan Elliott ed., 1891). This criticism was especially
salient to the many who considered the Crown’s seizures of
personal property to be among the grievances justifying the
Revolutionary War—with some colonists comparing British
officers to “thieves” or lamenting that they would “take and
carry away” their property without cause. See Brady, The Lost
“Effects” of the Fourth Amendment: Giving Personal Property
Due Protection, 125 Yale L. J. 946, 987–94, 991 & n.205
(2016) (cleaned up).
Consistent with this history, Fourth Amendment
jurisprudence “reflects [the Amendment’s] close connection to
property.” United States v. Jones, 565 U.S. 400, 405 (2012).
The standards for identifying Fourth Amendment violations
have been “tied to common-law trespass,” and the Amendment
has been “understood to embody a particular concern for
government trespass upon the areas (‘persons, houses, papers,
and effects’) it enumerates.” Id. at 405–07.1 So, to determine
whether a particular action violates the Fourth Amendment, we
must consider “whether the action was regarded as an unlawful
search or seizure under the common law when the Amendment
was framed.” Wyoming v. Houghton, 526 U.S. 295, 299
1 The Court later supplemented this “property-based approach”
by holding that the Fourth Amendment also protects a person’s
“reasonable expectation of privacy.” Jones, 565 U.S. at 405–06
(quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring)). But “the Katz reasonable-expectation-of-privacy test
has been added to, not substituted for, the common-law trespassory
test.” Id. at 409.

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(1999); see California v. Hodari D., 499 U.S. 621, 626 n.2
(1991). To be sure, not every government trespass upon the
persons or effects protected by the Fourth Amendment is a
“search” or “seizure.” Jones, 565 U.S. at 408 n.5. A search
requires “an attempt to find something or to obtain
information,” and a seizure requires “some meaningful
interference with an individual’s possessory interests in …
property.” Id. But when one of these elements exists and there
is a violation of private property rights, the Fourth Amendment
applies. For example, in Jones, the government’s placement of
a GPS tracker on a suspect’s car was a Fourth Amendment
search because (1) the government attempted to find
information, and (2) the act of placing an object on someone
else’s property would have been a trespass under founding-era
common law. See id. at 407–08, 408 n.5. By the same logic,
there is a Fourth Amendment seizure if the government (1)
meaningfully interferes with possessory interests in property in
a way that (2) would have been understood to be an actionable
property tort at common law.2
The plaintiffs’ allegations satisfy both prongs of this test.
The MPD meaningfully interfered with their possessory
interests both by taking possession of their property and by
keeping it. The ongoing meaningful interference is self-
evident; for as long as the MPD had control of the property, the
plaintiffs could not possess it at all. And prolonged,
unauthorized possession of a person’s property would have
2 Jones dealt with a search, not a seizure, and it discussed only
the common law of trespass, not other remedies for interference with
property like replevin, detinue, and trover. See generally Ames,
History of Trover, 11 Harv. L. Rev. 374 (1897–1898). But Jones’s
reasoning was not about the specific connection between trespass
law and a “search”—it is about the broader relationship between the
Fourth Amendment’s protections and common-law property rights.

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been actionable at common law even if the initial taking had
been lawful. William Blackstone, “whose works constituted
the preeminent authority on English law for the founding
generation,” Alden v. Maine, 527 U.S. 706, 715 (1999), directly
addressed this question. He described “the amotion or
deprivation of … possession” as an injury to the “rights of
personal property in possession” that was “divisible into two
branches; the unjust and unlawful taking them away; and the
unjust detaining them, though the original taking might be
lawful.” 3 W. Blackstone, Commentaries on the Laws of
England 145 (1768). He further elaborated that “deprivation of
possession may also be by an unjust detainer of another’s
goods, though the original taking was lawful”—providing as
one example a person who refused to return a borrowed horse.
Id. at 150–51 (cleaned up). And he then set forth the different
remedies available to recover the property and get damages for
its wrongful detention, stating that the plaintiff “shall recover
damages only for the detention and not for the caption, because
the original taking was lawful.” Id. at 151–52.
In other words, the common law recognized that property
interests are impaired not only at the instant when an owner
loses possession, but also for as long as the owner cannot get
the property back. And it provided remedies for wrongful
interference with possessory rights regardless of whether the
interference became wrongful at the moment of the initial
seizure or only later. This history indicates that the Fourth
Amendment governs the MPD’s continued retention, as well as
its taking possession, of the plaintiffs’ property.
B
Modern caselaw confirms that the Fourth Amendment
governs what happens after the government initially seizes

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property. In United States v. Jacobsen, 466 U.S. 109 (1984),
the government seized white powder, tested it, and determined
that it was cocaine. Id. at 111. The Court had no trouble
holding that the initial seizure was lawful because it was
supported by probable cause. Id. at 120–22. But the Court was
not finished; it also analyzed whether the field test was
reasonable, because “a seizure lawful at its inception can
nevertheless violate the Fourth Amendment because its manner
of execution unreasonably infringes possessory interests
protected by the Fourth Amendment’s prohibition on
‘unreasonable seizures.’” Id. at 124. The Court further
explained that a seizure could become “unreasonable because
its length unduly intruded upon constitutionally protected
interests.” Id. at 124 n.25.
These principles govern this case. The MPD’s initial
seizure of the plaintiffs’ effects was lawful because it was
incident to their arrests. Such seizures are reasonable to protect
the safety of arresting officers and to prevent any destruction
of evidence. See Riley, 573 U.S. at 381–85. But here, the
plaintiffs allege that the government continued to possess their
property for many months after it lacked any legitimate interest
in protecting officers or investigating possible criminal
behavior. And after the government’s legitimate interests
dissipated, harm to the plaintiffs continued to accrue: It is one
thing not to have access to a cell phone while spending a night
in jail. It is quite another not to have access to it for the
following year. Some plaintiffs allege that they had to replace
their phones, a significant financial harm. And some allege that
they lost access to important information like passwords,
photographs, and contact information for friends and family.
So 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.

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The District contends that Jacobsen merely applied United
States v. Place, 462 U.S. 696 (1983). And it argues that Place
dealt not with the question whether a seizure lawfully carried
out can later become unlawful, but with the question whether
probable cause or reasonable suspicion was the necessary
standard for justifying a seizure that involved retaining a
traveler’s suspicious luggage for 90 minutes. See id. at 707–
10. But regardless of Place, Jacobsen announced and applied
the rule set forth above, in a case presenting no question about
when an initial seizure could be justified based only on
reasonable suspicion. Moreover, a majority of Justices have
reiterated that Jacobsen and Place set forth a general rule
regarding the permissible duration of full-fledged seizures. See
Segura v. United States, 468 U.S. 796, 812 (1984) (plurality
opinion) (“Of course, a seizure reasonable at its inception
because based upon probable cause may become unreasonable
as a result of its duration or for other reasons.”); id. at 823
(Stevens, J., dissenting) (“Even a seizure reasonable at its
inception can become unreasonable because of its duration.”).
The District objects that this statement of law from Segura does
not bind us because it was not joined by a majority of Justices
who concurred in the judgment. See Marks v. United States,
430 U.S. 188, 193 (1977). But the fact that six of nine Justices
expressed this view certainly suggests that Jacobsen is not
somehow limited to Place’s facts.
The District further seeks to distinguish Jacobsen because
the field test there, which destroyed a small portion of the
seized cocaine, led to a permanent deprivation of the relevant
property interests, while this case has no comparable intrusion.
True enough, the plaintiffs do not allege that the MPD has
destroyed or physically damaged their property. But Jacobsen
cannot fairly be limited to cases involving destruction of
property. The Court stated unequivocally that a seizure’s

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“length” and “manner of execution” can make an initially
lawful seizure unlawful. Jacobsen, 466 U.S. at 124 & n.25.
This suggests a concern not only with destruction of property,
but with any change in circumstances that makes unreasonable
the government’s ongoing interference with possessory
property interests.
C
The modern caselaw on the seizure of individuals further
confirms our conclusion. When a person is seized, the Fourth
Amendment requires reasonableness not only at the moment of
arrest, but also for the seizure’s entire duration. We see no
textual, historical, or other reason to say that the Fourth
Amendment protects against the government’s prolonged
seizure of persons but not its prolonged seizure of effects.
In Manuel v. City of Joliet, 580 U.S. 357 (2017), the
Supreme Court held that after a person is arrested, the Fourth
Amendment requires any pretrial detention to remain
reasonable even after the commencement of formal legal
process. Id. at 359–60. The Court explained that the continued
detention of an individual is an ongoing “seizure”: Manuel
alleged that government officials “detained—which is to say,
‘seized’—[him] for 48 days following his arrest. And that
detention was ‘unreasonable,’ the complaint continued,
because it was based solely on false evidence, rather than
supported by probable cause.” Id. at 364 (cleaned up). And
the Fourth Amendment required continuing reasonableness
over time, Manuel argued, even after the start of formal
criminal process. See id. at 362. The Supreme Court agreed,
holding that “Manuel’s claim fits the Fourth Amendment, and
the Fourth Amendment fits Manuel’s claim, as hand in glove.”
Id. at 364.

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The same logic applies here. The plaintiffs allege that
MPD retained—which is to say, “seized”—their property for
over eight months after their arrests. And they allege that this
continued seizure was unreasonable because it served no
legitimate investigatory or protective purpose. By its terms, the
Fourth Amendment prohibits unreasonable seizures of
“persons, houses, papers, and effects,” which suggests that the
four listed terms receive analogous protection. Neither text,
grammar, nor history suggest that seizures are ongoing events
when directed at “persons” but mere snapshots when directed
at “houses, papers, and effects.”
Likewise, this Court has held that the Fourth Amendment
requires officers to release an arrestee from custody—that is,
to end their seizure of a person—if new facts dissipate the
probable cause that justified a warrantless arrest. Lin v. District
of Columbia, 47 F.4th 828, 841 (D.C. Cir. 2022). This
principle also covers the claims here. If the rationales that
justified the initial retention of the plaintiffs’ effects dissipated,
and if no new justification for retaining the effects arose, then
the Fourth Amendment obliged the MPD to return the
plaintiffs’ effects.
The District counters that Torres v. Madrid, 592 U.S. 306
(2021), distinguishes seizures of persons and effects. True
enough, Torres did hold that a person, but not an effect, is
“seized” if shot by a government official. Id. at 309, 322–23.
This distinction was based on the “unremarkable proposition
that the nature of a seizure can depend on the nature of the
object being seized.” Id. at 324. The proposition mattered
because the seizure of a person implicates the common law of
arrest, while the seizure of an effect does not. Id. at 312–13.
But while Torres thus explained why people and effects are
different in the specific context of a shooting, the District offers

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no good reason why people and effects are different with
respect to ongoing seizures in general. Moreover, even
Torres’s limited and “unremarkable” conclusion was a
contested departure from the ordinary presumption that “courts
cannot give a single word different meanings depending on the
happenstance of which object it is modifying.” Id. at 332
(Gorsuch, J., dissenting) (cleaned up). So, Torres does not
justify a categorical break between Fourth Amendment law
governing persons and its law governing effects.
More narrowly, the District argues that governments must
apply continuing force to seized persons, who would often wish
to flee, which is why Manuel recognized the need for ongoing
reasonableness of the detention. In contrast, the District
argues, there is no continuing application of force against an
inanimate object, and thus no need for its prolonged retention
to be reasonable. This argument misses the point. Of course,
the government does not use force against a cell phone, just as
it does not infringe upon the property interests of a cell phone.
But it infringes upon a person’s possessory property interests
in a cell phone. And whether the government infringes upon a
liberty or property interest, it hopes to avoid using force, but
will do so if necessary. An arrested individual will be subjected
to force if he tries to walk out of his jail cell. But so too will a
cell phone owner who tries to walk into police headquarters to
remove the phone from an evidence locker. In both instances,
the government is prepared to use force to prolong an ongoing
deprivation of liberty or property. If the Fourth Amendment
addresses the former, we see no reason why it does not also
address the latter.

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III
The District makes several counterarguments based on
caselaw, the Fifth Amendment, and assertedly dire
consequences. We find none of them convincing.
A
The District contends that Hodari D. and Torres resolve
any semantic ambiguity in the word “seizure.” According to
the District, those cases establish that “seizure” means “taking
possession” and refers to a “single act” rather than a
“continuous fact.” Torres, 592 U.S. at 312, 323; Hodari D.,
499 U.S. at 624, 625. The District argues that these statements
show that its “seizure” occurred only when the MPD took the
plaintiffs’ property into its possession—and that only that
single act must be reasonable.
We disagree. Viewed in isolation, these snippets sound
good for the District. But Hodari D. and Torres both address
what must happen for the government to effect a seizure in the
first place; neither case presents the question whether a seizure
must remain reasonable over time. Read in context, the
highlighted statements do not support the District’s position,
which is inconsistent with many other cases.
In Hodari D., the Supreme Court rejected an argument that
a suspect had been “seized” when he saw a police officer
running toward him; instead, the seizure occurred only when
the officer tackled him. 499 U.S. at 622–23, 629. The Court
reasoned that, at common law, a “seizure” required “taking
possession.” Id. at 624. But although the suspect was not
seized until the police took possession of him, that does not
make prolonged detention after the initial arrest any less of a
seizure. Then—with a cf. citation to a 19th century case about

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the seizure of a ship—the Court said that a “seizure is a single
act, and not a continuous fact” to bolster its point that, had the
suspect escaped custody, there would have been no “continuing
arrest during the period of fugitivity.” Id. at 625 (quoting
Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 471 (1874)).
But that does not mean there is no continuing seizure when the
police continue to hold a person or property in custody.
Torres is similar. As discussed above, it held that the
police had “seized” a fleeing suspect when they shot but failed
to detain her. The Court acknowledged Hodari D.’s statement
that “from the time of the founding to the present, the word
‘seizure’ has meant a ‘taking possession’” immediately before
explaining that “seizure” can also have a broader meaning that
encompasses the common law of arrest. See 592 U.S. at 312–
13 (cleaned up). And it reasoned—echoing the second portion
of Hodari D. just discussed—that “a seizure is a single act, and
not a continuous fact” to explain the line-drawing issues that
would arise if shooting a suspect did not constitute a seizure.
See id. at 323 (cleaned up). At no point did the Court suggest
that the suspect stopped being seized after she was shot—only
that she had been seized once shot. Like Hodari D., Torres
simply does not address the question whether the prohibition
on “unreasonable seizures” applies only for a single moment or
for the duration of the government’s possession.
Other cases, however, do address this question.
Blackletter Fourth Amendment law—including the caselaw
that we have already discussed—establishes that a “seizure”
has a duration. Jacobsen said that a lawful seizure may become
“unreasonable because [of] its length.” 466 U.S. at 124 n.25.
And Manuel described a prisoner as having been “detained—
which is to say, ‘seized’ … for 48 days.” 580 U.S. at 364. Still
other cases likewise have described “seizures” as reflecting an

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ongoing state. See, e.g., Rodriguez v. United States, 575 U.S.
348, 354 (2015) (noting that the “tolerable duration” of a traffic
stop depends on the “seizure’s mission” (cleaned up)); Illinois
v. Caballes, 543 U.S. 405, 407 (2005) (citing Jacobsen for the
proposition that the “initial seizure” of a traffic stop that was
“concededly lawful” could “become unlawful” if it were
“prolonged beyond the time reasonably required”); Gerstein v.
Pugh, 420 U.S. 103, 114 (1975) (holding that, even though
warrantless arrests do not always run afoul of the Fourth
Amendment, “the Fourth Amendment requires a judicial
determination of probable cause as a prerequisite to extended
restraint of liberty following arrest”).
The two lines of cases can be reconciled. Hodari D. and
Torres show that the government “takes possession” of a
person or object at a single moment in time. The other cases
show that, once the government has taken possession of a
person or object, its conduct must remain reasonable over time.
At both the moment of seizure and throughout its duration, the
government’s conduct must be reasonable—consistent with
both founding-era meanings of the word “seizure.”
B
The District acknowledges a constitutional obligation to
return the plaintiffs’ property, but it locates the duty in the Fifth
Amendment’s guarantee that no person shall be “deprived of
… property, without due process of law.” U.S. Const. Amend
V. In other words, because the Fifth Amendment protects the
plaintiffs’ ongoing possessory interests, the Fourth
Amendment does not.
But constitutional provisions do not preempt one another
like that. Indeed, the Supreme Court has already rejected the
argument that the Fourth Amendment does not apply to

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interferences with property rights just because the Fifth
Amendment does. Soldal v. Cook County, 506 U.S. 56, 70–71
(1992). The Court reasoned that “[c]ertain wrongs affect more
than a single right and, accordingly, can implicate more than
one of the Constitution’s commands.” Id. at 70. And if
“multiple violations are alleged,” we must “examine each
constitutional provision in turn.” Id. So, the question whether
this case implicates procedural due process, substantive due
process, or the Takings Clause is irrelevant to the question
whether it also implicates the Fourth Amendment.
Even if we had to pick between constitutional provisions,
we do not share the District’s confidence that the Fifth
Amendment fits the plaintiffs’ claims better than the Fourth.
The District argues that a hearing under D.C. Criminal Rule
41(g)—which allows a “person aggrieved” by a property
deprivation to “move for the property’s return”—affords
constitutionally sufficient process for the adjudication of the
plaintiffs’ claims. But even if a hearing under Rule 41(g)
provides adequate process, the question remains what
substantive law would require the District to return property
held without justification. We are reluctant to reduce this
entirely to a question of D.C. law, which would eliminate
substantive constitutional protection for the property rights at
issue. As for other portions of the Fifth Amendment, it is
unclear whether the government’s continued retention of
lawfully seized property would constitute an unconstitutional
taking. See Bennis v. Michigan, 516 U.S. 442, 452 (1996).
And we prefer guideposts from “an explicit textual source of
constitutional protection against a particular sort of
government behavior” to the more amorphous standards of
“substantive due process.” Abdelfattah v. DHS, 787 F.3d 524,
541 (D.C. Cir. 2015) (cleaned up). Here, the Fourth
Amendment is just such a textual source; it “was tailored

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explicitly for the criminal justice system” and strikes a
“balance between individual and public interests” that has
always “been thought to define the ‘process that is due’ for
seizures of persons or property in criminal cases.” Gerstein,
420 U.S. at 125 n.27. An argument that we need not consider
the Fourth Amendment because of substantive due process thus
gets things backward; instead, we need not consider
substantive due process because of the Fourth Amendment.
C
The District points to two decisions that it says reject
Fourth Amendment claims in analogous contexts: Tate v.
District of Columbia, 627 F.3d 904 (D.C. Cir. 2010), and City
of West Covina v. Perkins, 525 U.S. 234 (1999). We find both
cases distinguishable.
In Tate, we considered a Fourth Amendment challenge to
the sale of an impounded vehicle to pay two outstanding
parking tickets. 627 F.3d at 906–07. Christina Tate argued that
the sale was a disproportionate response to her tickets. Id. at
912. We rejected her Fourth Amendment claim, because the
“sale itself was not a ‘seizure’ of Tate’s vehicle which was
already in the District’s lawful possession and control.” Id. We
held that the sale was “properly subject to constitutional
challenge, if at all, under the Fifth Amendment as an unlawful
taking or a violation of due process.” Id. But in that case, the
District had assumed title to the vehicle under a “forfeiture
regime” governing abandoned property. Id. at 907–09, 912.
And once title was transferred, Tate lacked any ongoing
property interest. So, at that point, the District’s conduct
stopped being a “seizure” and became a permanent claim of
title. We held that a constitutional challenge to that claim fell
under the Fifth Amendment, not the Fourth. Id. at 908–09,

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20
911–12. But here, the District never claimed title to the
disputed property, so Tate sheds little light on this case.
City of West Covina is even farther afield. There, the Court
held that procedural due process does not require the
government “to give detailed and specific instructions or
advice to owners who seek return of property lawfully seized
but no longer needed for police investigation or criminal
prosecution.” 525 U.S. at 236. No Fourth Amendment claim
was raised or considered. And because nobody “contest[ed]
the right of the State to have seized the property in the first
instance or its ultimate obligation to return it,” the Court set
aside any question about what rules may restrict “the
substantive power of the State to take property.” Id. at 240.
This framing of the question, assuming a protected property
interest and addressing what procedural protections must
attach, simply does not address whether the Fourth
Amendment requires the government’s ongoing possession of
seized property to be substantively reasonable.3
D
Finally, the District warns of the consequences of holding
that the Fourth Amendment requires ongoing retention of
seized property to be reasonable. The District frets that such a
ruling would constitutionalize pedestrian, state-law rules about
3 The District also notes that some of our sister Circuits have
held that the Fourth Amendment does not address the reasonableness
of the government’s continuing retention of lawfully seized effects.
See, e.g., Lee v. City of Chicago, 330 F.3d 456, 460–66 (7th Cir.
2003); Fox v. Van Oosterum, 176 F.3d 342, 349–52 (6th Cir. 1999).
But the Ninth Circuit has adopted our approach. See Brewster v.
Beck, 859 F.3d 1194, 1196–98 (9th Cir. 2017). And for reasons
explained above, we find its conclusion more persuasive.

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21
how to return arrestees’ property. In Soldal, the government
likewise objected that applying the Fourth Amendment would
involve “federalizing areas of law traditionally the concern of
the States.” 506 U.S. at 71. But like the Court in Soldal, we
“think the risk is exaggerated.” Id.
The Fourth Amendment prohibits only unreasonable
seizures—which only modestly restricts the government’s
ability to continue retaining lawfully seized property. Of
course, it can reasonably retain contraband or evidence in an
ongoing criminal investigation or trial. See United States v.
Farrell, 606 F.2d 1341, 1347 (D.C. Cir. 1979). It can also seek
warrants to search seized cell phones or other personal
property. See Riley, 573 U.S. at 401. Nothing in our holding
limits the government’s ability to use seized effects for
legitimate law-enforcement purposes.
Moreover, even when there the government no longer has
a valid reason to retain lawfully seized property, we do not
suggest that it must always return the property instantaneously.
Matching a person with his effects can be difficult, as can the
logistics of storage and inventory. And the retention of
personal property is, of course, less burdensome than being
held in custody. In other words, returning seized effects will
often be more difficult for the government and less important
to the affected individuals than releasing seized persons—
which means that some delays that would be unreasonable as
to persons may be reasonable as to effects.
At the same time, the Fourth Amendment does require
continuing retention of seized property to be reasonable. And
the plaintiffs’ allegations raise serious questions about the
reasonableness of the MPD’s handling of their property for
months or years after their release from custody without

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22
charges. The district court erred in concluding that these
allegations do not implicate the Fourth Amendment.4
IV
Having resolved the Fourth Amendment claims, we turn
to the other issues in this appeal. The plaintiffs do not
challenge the dismissal of their Fifth Amendment claims. But
both sets of plaintiffs argue that the district court should
reconsider its decision not to exercise supplemental jurisdiction
over their D.C.-law claims, and the Cameron plaintiffs also
argue that the district court should reevaluate its denial of class
certification in their case.
We agree. The sole rationale that the district court offered
for declining to exercise supplemental jurisdiction was that
there were no federal claims left in the cases. And the sole
rationale for denying class certification in Cameron was that
the merits dismissals had mooted the certification issue.
Because our decision has overtaken both rationales, the district
court should reconsider whether supplemental jurisdiction and
class certification are appropriate.
4 The parties appear to agree, as do we, that the district court
misread the complaints as alleging an alternative theory that the
MPD unreasonably delayed a search of the plaintiffs’ property. The
Fourth Amendment claims here rest only on the MPD’s prolonged
retention of the property itself. Because the district court held that
the complaints stated no Fourth Amendment violation, it did not
reach the question whether the complaints adequately alleged a
municipal custom or policy under Monell v. Department of Social
Services, 436 U.S. 658 (1977). We decline to address that question
in the first instance.

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23
V
For these reasons, we reverse the dismissal of the Fourth
Amendment claims; vacate the dismissal of the D.C.-law
claims and the denial of class certification in Cameron; and
remand both cases for further proceedings consistent with this
opinion.
So ordered.

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KAREN LEC RAFT HENDERSON, Circuit Judge, concurring: I
join the majority opinion in full. The Fourth Amendment’s
protections do not cease once the government takes possession
of an individual’s property. I write separately to explain why I
believe we correctly part ways with many of our sister circuits.
Five circuits — the First, Second, Sixth, Seventh and
Eleventh — have held in precedential opinions that the Fourth
Amendment does not support a claim for the government’s
retention of legally seized property. Denault v. Ahern, 857 F.3d
76, 84 (1st Cir. 2017); Shaul v. Cherry Valley-Springfield Cent.
Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004); Fox v. Van
Oosterum, 176 F.3d 342, 351 (6th Cir. 1999); Lee v. City of
Chicago, 330 F.3d 456, 466 (7th Cir. 2003); Case v. Eslinger,
555 F.3d 1317, 1330 (11th Cir. 2009). Only the Ninth Circuit
disagrees. Brewster v. Beck, 859 F.3d 1194, 1197 (9th Cir.
2017).1 Granted, we should hesitate before rejecting a robust
consensus from our sister circuits but here, I believe, their
reasoning lacks the power to persuade because they fail to
discuss the key Supreme Court precedent, United States v.
Jacobsen, 466 U.S. 109 (1984).
To begin with, most of the contrary opinions have
considered the issue only in passing. In Denault, the plaintiffs
halfheartedly raised a continuing seizure claim but made “no
effort” to “explain why the alleged violation of their
constitutional rights sound[ed] in the Fourth Amendment.” 857
F.3d at 83. The First Circuit rejected the theory without
independent analysis because plaintiffs had “offered no reason
to disagree” with the circuits that had already rejected such a
theory. Id. at 84. The Second Circuit simply reasoned that “a
seizure claim based on the unlawful retention [of property] was
too ‘novel’ a theory to warrant Fourth Amendment protection.”
Shaul, 363 F.3d at 187 (quoting United States v. Jakobetz, 955
1 The Fourth Circuit may also agree with us. See Mom’s Inc. v.
Willman, 109 F. App’x 629, 637 (4th Cir. 2004) (unpublished).

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2
F.2d 786, 802 (2d Cir.1992)); see also Denault, 857 F.3d at 83
(noting that “the Second Circuit rejected the seizure-includes-
retention theory out of hand”). The Eleventh Circuit gave the
issue almost equally short shrift. See Casey, 555 F.3d at 1330–
31. None of these opinions discussed relevant Supreme Court
precedent or competing definitions of “seizure.”
The Sixth Circuit’s opinion in Fox and the Seventh
Circuit’s opinion in Lee are exceptions. Fox reasoned that the
Supreme Court had found a seizure of property only in “cases
where there is no debate that the challenged act is one of taking
property away from an individual and the issue is whether that
act of taking property away constitutes a meaningful
interference with possessory interests.” 176 F.3d at 351.
Because it concentrated on the moment of taking, the Fox court
concluded that “the Fourth Amendment protects an
individual’s interest in retaining possession of property but not
the interest in regaining possession of property.” Id. Lee
reached its conclusion differently. It relied on what it
considered the “temporally limited” definition of “seizure” at
the Founding, on in-circuit precedent rejecting the idea of
continuing seizures in the context of persons and the “practical
concerns” it foresaw in extending the Fourth Amendment. See
Lee, 330 F.3d at 462–65.
But Fox and Lee, thorough as they are in many respects,
focused on the wrong Supreme Court precedent. Both
discussed United States v. Place, 462 U.S. 696 (1983), without
recognizing that the Court’s later Jacobsen decision extended
Place. See Lee, 330 F.3d at 464; Fox, 176 F.3d at 351 n.6. In
Place, law enforcement took a suspicious traveler’s luggage
and held it for ninety minutes before securing a narcotics dog
to conduct a “sniff test” for drugs. Id. at 699. The Court held
that law enforcement may, as a general matter, detain property
“on the basis of less than probable cause, for the purpose of

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3
pursuing a limited course of investigation,” id. at 702,
“provided that the investigative detention is properly limited in
scope,” id. at 706. But the Court went on to hold that the seizure
at issue was unreasonable because of “[t]he length of the
detention of respondent’s luggage.” Id. at 709. As Fox and Lee
recognized, the reason that the length of the detention was
crucial in Place was the fact that law enforcement lacked
probable cause. See Lee, 330 F.3d at 464; Fox, 176 F.3d at 351
n.6. Although “some brief detentions of personal effects may
be so minimally intrusive of Fourth Amendment interests” that
they can be justified on less than probable cause, Place, 462
U.S. at 706, the Court emphasized that “the brevity of the
invasion of the individual’s Fourth Amendment interests is an
important factor in determining whether the seizure is so
minimally intrusive as to be justifiable on reasonable
suspicion,” id. at 709.
Standing alone, Place offers little rationale for finding that
the Fourth Amendment applies to the government’s retention
of lawfully seized property. The fact that investigatory
detentions made without probable cause must be of a
reasonable duration does not dictate that the Fourth
Amendment requires the same for all property seizures. But the
Court added to Place in Jacobsen, which connection neither
Fox nor Lee discussed.2 There, the government seized white
powder from a package and tested it to determine that it was
cocaine. Jacobsen, 466 U.S. at 111. The Court held the
powder’s initial seizure was supported by probable cause. Id.
at 120–22. But, critically for our purpose, the Court then turned
to the reasonability of the government’s actions after the initial
lawful seizure: “whether the additional intrusion occasioned by
the field test . . . was an unlawful ‘search’ or ‘seizure’ within
2 Jacobsen is scarcely cited across the two opinions and never
for the portion of it pertinent here.

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4
the meaning of the Fourth Amendment.” Id. at 122. The Court
explained that, under Place, “a seizure lawful at its inception
can nevertheless violate the Fourth Amendment because its
manner of execution unreasonably infringes possessory
interests protected by the Fourth Amendment’s prohibition on
‘unreasonable seizures.’” Id. at 124. In a footnote, the Court
described Place as holding that “while the initial seizure of
luggage for the purpose of subjecting it to a ‘dog sniff’ test was
reasonable, the seizure became unreasonable because its length
unduly intruded upon constitutionally protected interests.” Id.
at 124 n.25. The Court ultimately found that the field test,
which destroyed “a trace amount” of the powder, was
reasonable. Id. at 125.
I respectfully submit that our two sister circuits have failed
to recognize that Jacobsen broadened Place.3 Jacobsen applied
Place in a new context, extending it from its investigatory
detention origin to circumstances in which a full and lawful
“initial seizure” had already occurred. See id. at 124 (internal
quotation marks removed). Thus, when Jacobsen refers to
“seizure[s] lawful at [their] inception,” id., it refers not just to
the narrow class of seizures at issue in Place but to all lawful
seizures of property. Those seizures “can nevertheless violate
the Fourth Amendment” if their “manner of execution
unreasonably infringes possessory interests protected by the
Fourth Amendment[].” Id.
Nor, in my view, can a seizure’s “manner of execution” be
read as somehow distinct from its duration. True, the only time
Jacobsen refers to the “length” of a seizure is in the footnote
describing Place’s holding. See id. at 124 n.25. But that
footnote immediately follows the “manner of execution”
3 It is no coincidence that the only circuit to reach our
conclusion cited Jacobsen in support. See Beck, 859 F.3d at 1196,
1197.

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5
sentence; in context, then, the Court suggested that an
unreasonable length is one way the execution of an initially
lawful seizure can violate the Fourth Amendment. Indeed, in
one sense, the respondent’s challenge to the field test was a
challenge to the duration of the seizure: the test “destroy[ed] a
quantity of the powder” and therefore “converted what had
been only a temporary deprivation of possessory interests into
a permanent one.” Id. at 124–25. When the government
destroys property, the length of the seizure is necessarily
“permanent.” However one characterizes the field test
challenge, the bottom line is that the Supreme Court
unequivocally held that what the government does with seized
property can sometimes violate the Fourth Amendment even
though “the property ha[s] already been lawfully detained.” Id.
at 125. I believe the Fourth Amendment’s continued
applicability after the initial seizure cannot be squared with the
notion that “[o]nce th[e] act of taking the property is complete,
the seizure has ended and the Fourth Amendment no longer
applies.” Fox, 176 F.3d at 351; see also Lee, 330 F.3d at 466
(“Once an individual has been meaningfully dispossessed, the
seizure of the property is complete, and once justified by
probable cause, that seizure is reasonable. The amendment then
cannot be invoked by the dispossessed owner to regain his
property.”).4
4 As my colleagues note, see Maj. Op. 12–13, the Supreme
Court’s more recent decision in Manuel v. City of Joliet, 580 U.S.
357 (2017), lends further support to our conclusion. There, the Court
held that the Fourth Amendment applies throughout the duration of
a person’s pretrial detention. See id. at 366 (“[T]hose objecting to a
pretrial deprivation of liberty may invoke the Fourth Amendment
when (as here) that deprivation occurs after legal process
commences.”). Under the most natural reading of the Fourth
Amendment, we should give analogous protection against the seizure
of “persons” and “effects,” at least absent a well-defined historical

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6
In sum, I agree with my colleagues that Jacobsen
“govern[s] this case.” Maj. Op. at 10. And, for the reasons I
have given, I am untroubled that our holding puts us on the
minority side of a circuit split.
tradition to the contrary. See Torres v. Madrid, 592 U.S. 306, 324
(2021). To me, Manuel suggests as a corollary that Fourth
Amendment protections for property endure over time, too.

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