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A recent case has people wondering if, how, and when police officers can use their property, including their house, to stage law enforcement operations.

A Henderson, NV family claimed officers violated the Third Amendment ("[n]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner") by occupying their homes to investigate a domestic dispute at a neighbor's house. A federal court found that, while officers may have committed some other constitutional violations, the amendment didn't apply because the officers were not soldiers.

So is there any limit to when the police can use your property as a base of operations?

No Third Amendment Protection

The District Court in Nevada dismissed the families' Third Amendment claims because it did not consider municipal police officers as soldiers:

I hold that a municipal police officer is not a soldier for purposes of the Third Amendment. This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment. Because I hold that municipal officers are not soldiers for the purposes of this question, I need not reach the question of whether the occupation at issue in this case constitutes quartering, though I suspect it would not.

Therefore, it seems likely that the police would have significant leeway in setting up a base of operations on a citizen's private property. It's generally agreed upon that officers may set up speed traps on private property, including driveways, to monitor public highways.

Fourth or Fifth Amendment Protection?

The Fourth Amendment prohibits "unreasonable searches and seizures," a may cover officers occupying private property. Weather officers' presence on private property is unreasonable would likely come down to the property owner's "reasonable expectation of privacy." This determination that could depend on whether officers are inside an owner's home, which carries a higher privacy expectation, or outside where the expectation of privacy is lessened.

The Fifth Amendment's Eminent Domain Clause bars the government from taking personal property for public use without "just compensation." Although courts have expanded the definition of a taking to beyond the forced sale of a home, it remains to be seen whether police officers temporarily occupying private property would apply under the amendment.

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Can the Police Occupy My Property?

Aaron Hernandez Murder Trial Dy 31 Pt 6 "Option Of The Fifth Amendment"
March 24, 2015 Tonya refused to speak before the Grand Jury on Aaron #39;s.

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Aaron Hernandez Murder Trial Dy 31 Pt 6 "Option Of The Fifth Amendment" - Video

By Eric Levenson @ejleven

Boston.com Staff | 03.27.15 | 9:20 AM

Shayanna Jenkins, Aaron Hernandezs fiance, is expected to be called to testify in Hernandezs murder trial on Friday.

Jenkins has been granted immunity by the prosecution, which means she can testify without fear of incriminating herself and she does not have the right to plead the Fifth Amendment.

Surveillance video previously seen in court showed Jenkins carrying a black trash bag from Hernandezs house and placing it in the trunk of a car she borrowed from her sister. Prosecutors have said the gun used to kill Odin Lloyd was in that bag, which has not been found.

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Aaron Hernandezs Fiance Testifies in Murder Trial

LEOMINSTER -- A city man suspected of driving under the influence reportedly attempted to invoke the Fifth Amendment when being questioned by a police officer during a traffic stop Saturday.

Andres F. Romero, 25, of 47 Princeton St., Apt. 300, was pulled over on suspicion of speeding on Route 12 northbound at 2:50 a.m. According to a police report, Romero smelled of alcohol, and his speech was slurred.

When the officer who pulled Romero over asked if he had been drinking, Romero did not respond for 15 to 20 seconds. The officer repeated the question, and another 15 to 20 seconds passed without a response from Romero, according to the police report.

When the officer asked for a third time, Romero mumbled: "I'm gonna take the Fifth on that." The officer asked what the Fifth was, and Romero said it was something he had learned in school.

The officer also asked Romero what his level of education is.

"Mount Wachusett," Romero answered, according to the police report.

"Oh, you went to college?" the officer asked.

"No, the Mount. Mount Wachusett Community College," Romero said.

The officer informed Romero that the Mount is a college.

"No, Monty Tech. I went to Monty Tech," Romero said.

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Police: OUI suspect unsure of what school he went to

I am part of a group of constitutional and property law scholars who have filed an amicus brief in, Horne v. Dept. of Agriculture, an important Supreme Court case that will determine whether a federal program that forces owners to turn over large quantities of raisins to the government creates a taking that requires compensation under the Fifth Amendment. The brief is available here.

The Ninth Circuit court of appeals rejected the owners claim in large part because it concluded that the just compensation requirement of the Takings Clause affords less protection to personal [property] such as the raisins, than to real property (real property is the legal term for property in land).

Our brief points out what should have been obvious from the start: the text, history, and original meaning of the Takings Clause Fifth Amendment does not distinguish between real and personal property. The text specifically references private property generally, and is not limited to any particular type of property right. Nor does it indicate that one type is given less protection than another. Moreover, as we note, the desire to protect personal property against government requisitions was one of the main reasons why the Takings Clause and similar provisions in state constitutions were adopted in the first place. Modern Supreme Court precedent also makes clear that personal property is protected against uncompensated seizure, no less than real property.

The federal government also claims that there is no taking because the owners of the raisins benefit from the program that mandates their seizure. The purpose of the program is to artifically reduce the supply of raisins on the market, thereby creating a cartel that benefits producers. We point out that such benefits might reduce the amount of compensation the government owes. But it does not change the fact that a taking has occurred. Otherwise, the government could avoid paying full compensation in numerous other cases where property is taken by the state for purposes that might benefit the owners in some way. For example, if part of a coastal property is used by the government to build a military base, the owner may derive some benefit from the construction, because his remaining land may be more secure against attack. But that does not mean no taking has occurred, or that he is not entitled to full market value compensation.

The other signers include prominent academic experts on constitutional property rights, including my James Ely (Vanderbilt, author of The Guardian of Every Other Right: A Constitutional History of Property Rights), Nicole Garnett (Notre Dame), and my George Mason University colleague Adam Mossoff, among others.

Horne is one of the rare cases that that has gone to the Supreme Court twice. In 2013, the Court unanimously rejected the federal governments claim that the property owners should not even be allowed to present their Takings Clause argument in federal court without first paying some $483,000 in fines and pursuing various likely futile administrative remedies.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."

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Volokh Conspiracy: Constitutional and property law scholars amicus brief in Horne v. Dept. of Agriculture the raisin ...