Herb Titus was a featured speaker on May 2, 2014 at the 8th Annual Conference on Eminent Domain held at Tides Inn, Irvington, Virginia on May 1 and 2. Consistent with the theme of this year’s conference – Charting New Territory — Herb’s topic was “Can a 4th Amendment Search and Seizure Become a 5th Amendment Taking?”
Drawing on the work of the firm featuring its amicus brief in United States v.Jones decided by the Supreme Court in 2012 Titus called attention to the recent resurgence of the original property principles undergirding the 4th Amendment. Since Jones, the Supreme Court has given notice that Fourth Amendment claims are no longer to be balanced away by judges under the relativistic test of a reasonable expectation of privacy. Rather, the right to be free from unreasonable searches and seizures will be governed by fixed principles of property, the government being required to demonstrate a superior interest in the property at stake. Reviewing two recent cases in which innocent persons were being deprived of exclusive possession of their property, Titus charted a path whereby property owners would receive more complete protection of their property rights only by invocation of both a property-based 4th Amendment and the private property takings clause of the 5th Amendment.