A World of Distrust

Abstract

In District of Columbia v. Wesby, the Supreme Court recently considered whether a prudent officer had probable cause to make warrantless arrests at a festive house party. While reactions from scholars of criminal law are beginning to emerge, this Essay is the first to conceive of the decision through the lens of property theory. In this regard, the Essay offers two principal claims. First, on interpretive grounds, it contends that Wesby generated a de facto reallocation of property interests by abolishing both (a) the right held by the general public to access without fear of arrest those properties to which they reasonably believe they are welcome, and (b) the correlative duty of titleholders to respect reasonably mistaken access until the mistake is revealed. Second, on normative grounds, it questions the justificatory nature of this shift from an allocation that vindicates trust one person has placed in another to an allocation that allows someone else to violate that trust. The Essay concludes that perceiving Wesby as a dispute over property interests not only will deepen the developing assessments of the decision by scholars of criminal law, but, more broadly, prompt reflection on matters across the property spectrum as to the oft-concealed implications that allocative choices regarding property interests bring to bear on our ability to trust one another in the marketplace and in myriad social settings.