Searches and Seizures of the Unhoused

Searches and Seizures of the Unhoused

This Article provides the first comprehensive critique of the structural inadequacies present in nearly every aspect of Fourth Amendment juris prudence for the unhoused. Privacy conceptions excluding what one know ingly, if involuntarily, exposes to the public erases any meaningful privacy protections for the unsheltered and unhoused. Protections from unwarranted entries into the home apply with lesser force when that home is erected ille gally on public property and thus is itself evidence of the crime. Searches incident to arrest subject many unhoused persons to suspicionless searches of their entire lives, far beyond the limited purposes of such searches. Malleable conceptions of probable cause and reasonable suspicion sweep in dispropor tionate swaths of the unhoused, as police interpret behavior indicative of mental distress or addiction as suspicious criminal activity. Violent encamp ment removal tactics do not constitute Fourth Amendment “ seizures, ” as the word’s definition excludes police violence designed to disperse people from an area. And increasingly common psychiatric hold procedures often fall within the amorphous “ special needs ” exception to the Fourth Amendment, if they fall within the Amendment’s reach at all.

In addition to cataloguing these comprehensive privacy and liberty failures, this Article articulates an independent Fourth Amendment right to human dignity, grounded in the purpose and meaning of the Amendment. In so doing, this right to dignity informs a reframing of Fourth Amendment rights to privacy and bodily integrity, supported by the logical framework of recent Supreme Court cases about electronic data. This reframing protects a zone of privacy for involuntarily exposed intimacies and singular sensitive spaces like makeshift dwellings, as well as a right to bodily integrity that includes freedom from violent dispersal techniques. This dignity-based reframing, while salient for the unhoused, has broader implications for all of society and its relationship to the Fourth Amendment.

These issues require urgent attention. The United States recorded its largest ever unhoused population in 2024. Acute affordable housing shortages and climate-fueled natural disasters have exacerbated a decades-long unaddressed humanitarian crisis, straining resources in cities and rural areas alike. In response, state and local governments have pivoted to a more punitive approach to houselessness. Draconian “ anti-camping ” ordinances subject houseless people to fines or arrests while police destroy their property in encampment “ sweeps, ” disconnecting the unhoused from critical social structures. Quality-of-life laws criminalize basic biological functions in public. New York, California, and other states have expanded the reach of involuntary civil commitment procedures, forcibly hospitalizing and medicating people who are not at serious risk of harm in an effort to “ get them off the streets. ” And the Supreme Court’s decision in City of Grants Pass v. Johnson has acted as an accelerant; over one hundred cities passed new antihouselessness laws in the first six months after the decision. Police crackdowns on the unhoused have become more common and visible, largely exempt from the restraints of the one constitutional provision designed to constrain such conduct: the Fourth Amendment.

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