Thread by @OrinKerr

I'm not sure I agree with this new 5th Circuit case (per Duncan, J.) allowing the seizure of a trailer that was homemade and therefore lacked a VIN. Quick thread.
ca5.uscourts.gov/opinions/unpub…

The opinion case starts with the premise that Texas state law permits a trailer to be seized when the VIN has been removed. But here, the VIN hadn't been removed: it was a homemade trailer, which never was assigned a VIN.

That makes no difference, CA5 says, b/c Tex state law still requires that each trailer has a VIN -- the DMV assigns one if it didn't come with it. So the trailer could still be seized because it lacked a VIN.

But I'm a little bit lost here. Step back. It's irrelevant to the 4th Amendment what Texas statutory law authorizes. The seizure required probable cause (PC) of a crime. What's the crime?

When the VIN has been altered or removed, as in the York case, the PC can be based on the Texas statute on tampering with IDs, Penal Code § 31.11. codes.findlaw.com/tx/penal-code/…

But even under that statute, there's an affirmative defense: If you're the owner of the property, or have the owner's consent, you're not liable. It's really a stolen goods statute.
codes.findlaw.com/tx/penal-code/…

Here, the seized trailer was the guy's own home-made trailer. In light of that, I don't get the crime he was supposed to have been committing. The DMV will assign a VIN to trailers that didn't get one, but I don't see in the code where using the trailer w/o a VIN is a crime.

But maybe I'm just missing it? Totally possible, as I'm not familiar with the code, but I'm not sure. /end