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Title: These states let police take and keep your stuff even if you haven’t committed a crime
Source:
From The Trenches/VOX
URL Source: http://www.fromthetrenchesworldrepo ... avent-committed-a-crime/145435
Published: Nov 2, 2015
Author: German Lopez
Post Date: 2015-11-02 10:32:53 by Deckard
Keywords: None
Views: 6557
Comments: 15
Most states in America lets police take and keep your stuff without convicting you of a crime. These states fully allow what’s known as “civil forfeiture”: Police officers can seize someone’s property without proving the person was guilty of a crime; they just need probable cause to believe the assets are being used as part of criminal activity, typically drug trafficking. Police can then absorb the value of this property — be it cash, cars, guns, or something else — as profit, either through state programs or under a federal program known as Equitable Sharing that lets local and state police get up to 80 percent of the value of what they seize as money for their departments. So police can not only seize people’s property without proving involvement in a crime, but they have a financial incentive to do so. It’s the latter that state restrictions on civil forfeiture attempt to limit: Police should still be able to seize property as evidence. But the restrictions in some states — such as California and New Mexico — make it so, under state law, they can’t keep that property without a criminal conviction under many circumstances — and therefore won’t be able to take people’s property as easily for personal profit. A minority of states limit forfeiture in different ways. For example, in New Mexico and North Carolina, a court must convict the suspect of a crime before the same judge or jury can consider whether seized property can be absorbed by the state. In Minnesota and Montana, meanwhile, a suspect must be convicted of a crime in court before the seized property can be absorbed by the state through separate litigation in civil court. And in California, the state requires a conviction for forfeiture — but only to financial seizures worth up to $25,000; a boat, airplane, or vehicle; and any real estate. These limitations don’t entirely stop police from seizing someone’s property — cops can still do that with probable cause alone, and hold the property as evidence for trial. But the government won’t be able to absorb the property and its proceeds without convicting the suspect of a crime. This limits police seizures in two ways: It forces cops to show the suspect was actually involved in a crime after the property is seized, and it can deter future unfounded seizures for profit since police know they’ll need to prove a crime. But local and state cops in these states can still use federal law for civil forfeiture. Lee McGrath, legislative counsel for the Institute for Justice, a national nonprofit that opposes civil forfeiture, said that police in most states with restrictions on civil forfeiture can still work with federal law enforcement officials to take people’s property without charging them with a crime. Only New Mexico limits local and state police departments’ ability to work with the federal government in forfeiture cases — by requiring the value of seized property to be more than $50,000 before federal forfeiture can be used. There are other limitations in some states, too. Some state laws don’t let police agencies absorb proceeds from forfeitures into their own budgets, instead directing the funds to the general budget. Advocates say this helps remove the personal financial incentive police have to take and keep someone’s property. But there’s another loophole through the federal law: If local and state cops can work with federal law enforcement, they can still conduct forfeitures and their police departments can keep as much as 80 percent of the proceeds — regardless of what state law says. Despite the loopholes made available through the federal law, groups like the Institute for Justice have praised states for taking steps to limit civil forfeiture — a policy that has long been mired by criticisms and horror stories of police abuse. Critics have long argued that civil forfeiture allows law enforcement to essentially police for profit, since many of the proceeds from seizures can go back to police departments. People can get their property back through court challenges, but these cases can often be very expensive and take months or years. The Washington Post’s Michael Sallah, Robert O’Harrow, and Steven Rich uncovered several stories in which people were pulled over while driving with cash and had their money taken despite no proof of a crime. The suspects in these cases were only able to get their property back after lengthy, costly court battles in which they showed they weren’t guilty of anything. I’ve also covered the story of college student Charles Clarke, who was at the airport when police took his life savings of $11,000. Police said they smelled marijuana on Clarke’s bags — but they never proved the money was linked to crime, and Clarke provided documents that showed at least some of the money came from past jobs and government benefits. The Institute for Justice, which is involved in Clarke’s case, estimates that 13 different police agencies are now seeking a cut of Clarke’s money. It’s stories like Clarke’s that have driven some states to enact reforms. But the federal government and 45 states still fully allow civil forfeiture. “It’s ridiculous. I think it needs to change,” Clarke told me in June. “I don’t think the cops should be allowed to take somebody’s money if they haven’t committed any crime. We’re treating innocent people like criminals.” /cdn0.vox-cdn.com/uploads/chorus_asset/file/4210523/civil%20forfeiture%20law.png)
The limits on civil forfeiture vary from state to state — but federal law leaves a loophole
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The civil forfeiture reforms came in response to criticisms — and stories of police abuse
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#1. To: Deckard (#0)
If you live in one of those states, either move or change the law. If you don't, WTF do you care? Do you think you should be allowed to tell the citizens of another state how to live their lives? Can they tell you how to live yours? Mind your own business.
Yeah - sure. If you don't, WTF do you care? Law Enforcement: Traveling From Anywhere To Anywhere Is Suspicious Behavior Keep cheering for tyranny and robbery by armed road pirates - you know, the cops who in your statist mind can do no wrong. Effing fascist prick. In a Cop Culture, the Bill of Rights Doesn’t Amount to Much Yeah, and you keep telling everyone how to live their lives -- you officious prick.
Yeah - guess what? The people who travel through those states are the ones most affected by these money-grabbing scams. I have every right to complain about cops stealing my money when I travel through any of these United States. You're fucking unbelievable - you pontificate about how this law is only used against drug dealers when in fact it snares innocent victims along the way. But hey - to you, they must be guilty of something, right paulsen? Otherwise the cops wouldn't take their money. And to top it off, you appear to be against any reform to the current system. What a fucking piece of work you are. You are probably the most submissive little State worshiping weasel I have ever encountered on the internet, and it's freedom-hating petty wanna-be tyrant assholes like you who have enabled the current police state. Piss off and die. In a Cop Culture, the Bill of Rights Doesn’t Amount to Much Their state. Their rules, motherf**ker. Stop your whining, ya little baby.
Lengthy article I saw while visiting the library today in newsprint. You or hondolt might be interested. I'd ping GI, but I only want to disrupt this thread one time here. http://www.theguardian.com/us-ne...ual-assault-investigation
Here I shall help:
Hey! I didn't ping you. p.s. That's hilarious BTW.
The number is unquestionably an undercount because it represents only those officers whose licenses to work in law enforcement were revoked, and not all states take such action. California and – with several of the nation’s largest law enforcement agencies – offered no records because they have no statewide system to decertify officers for misconduct. Yes, some claim that they're "retired". Do you think you should be allowed to tell the citizens of another state how to live their lives? Can they tell you how to live yours? Their state. Their rules, motherf**ker. ---- misterwhite Their state. Their rules, Your fascistic vision.
motherf**ker, misterwhite claims: -- Under our Constitution, citizens of those States don't have to move, they can petition the federal courts for a redress of their grievances. According to our Constitution, we are all due equal treatment under the law. -- WTF do you fight that truth? People of ALL STATES originally agreed to live under the same basic constitutional rules. --- WTF do you think that agreement has been thrown out? All of us are obligated to protect and defend the Constitution of the United States, and live under it as our supreme law. ---- WTF do you think you're exempt?
Historically, asset forfeiture law comes from Admirably law that predates the revolutionary war, and was adopted by the first congress. In more recent times, the application of asset forfeiture was expanded as a tool to be used to combat drug dealers. Of course, when a hammer of a tool is given to the government for one reason, the government has the hammer other targets. It is a civil proceeding. It does not rely upon the guilt of the owner, or upon any criminal conviction. http://www.fear.org/history/Greek_History_of_Forf_England_ColonialAmerica.html In 1844, the Supreme Court, under Justice Story, upheld forfeiture of the ship's cargo in U. S. v. Brig Malek Adhel despite the fully established innocence of the shipowner [Gilmore and Black, 1975:592]. Customs duties provided no less than 70% to 80% of federal revenues during this period, creating an underlying rationale for the court decisions to uphold in rem seizures [Reed and Gill, 1987:66]. The Supreme Court continues to this day to uphold the civil nature of admiralty law, for example, allowing seamen and dock workers to file in rem suits against unseaworthy vessels that have injured them [Baer, 1979:34-36]. https://supreme.justia.com/cases/federal/us/25/1/case.html The Palmyra, 25 US 1 (12 Wheat 1) (1827) The Palmyra 25 U.S. (12 Wheat.) 1 APPEAL FROM THE CIRCUIT COURT OF SOUTH CAROLINA [...] 25 U. S. 7 MR. JUSTICE STORY delivered the opinion of the Court. [...] 25 U. S. 14 [...] Now whatever may be said as to the looseness and generality and consequent insufficiency of the latter clauses of this allegation, the former specifying the Coquette and Jeune Eugenie (upon which alone the proofs mainly rely for condemnation) have, in our opinion, reasonable and sufficient certainty. It was not necessary to state in detail the particular acts constituting the piratical aggression, search, depredation, restraint, or seizure. The general words of the statute are sufficiently descriptive of the nature of the offense, and the particular acts are matters proper in the proofs. We may, then, dismiss this part of the objection. The other point of objection is of a far more important and difficult nature. It is well known that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the Crown. The forfeiture did not, strictly speaking, attach in rem, but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement that no right to the goods and chattels of the felon could be acquired by the Crown by the mere commission of the offense, but the right attached only by the conviction of the offender. The necessary result was that in every case where the Crown sought to recover such goods and chattels, it was indispensable to establish its right by producing the record of the judgment of conviction. In the contemplation of the common law, the offender's right was not devested until the conviction. But this doctrine never was applied to seizures and forfeitures created by statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing, and this whether the offense be malum prohibitum or malum in se. The same principle applies to proceedings in rem on seizures in the admiralty. Many cases exist where the forfeiture for acts done attaches solely in rem and there is no accompanying penalty in personam. Many cases exist where there is both a forfeiture in rem and a personal penalty. 25 U. S. 15 But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of and wholly unaffected by any criminal proceeding in personam. This doctrine is deduced from a fair interpretation of the legislative intention apparent upon its enactments. Both in England and America, the jurisdiction over proceedings in rem is usually vested in different courts from those exercising criminal jurisdiction. If the argument at the bar were well founded, there could never be a judgment of condemnation pronounced against any vessel coming within the prohibitions of the acts on which the present libel is founded, for there is no act of Congress which provides for the personal punishment of offender, who commit "any piratical aggression, search, restraint, depredation or seizure" within the meaning of those acts. Such a construction of the enactments, which goes wholly to defeat their operation and violates their plain import, is utterly inadmissible. In the judgment of this Court, no personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature.
-------------------------------------------------- Do you consider this 'tool' to be a constitutional application? Where is this power given to government in the wording of the Constitution?
The Federal courts have considered it to be the law since the Framing. The Federal courts have upheld it as constitutional. As you are not actually interested in my opinion, I will leave you with the opinions of the courts. https://supreme.justia.com/cases/federal/us/491/600/case.html United States v. Monsanto, 491 U.S. 600 (1989) United States v. Monsanto No. 88-454 Argued March 21, 1989 Decided June 22, 1989 491 U.S. 600 Syllabus Respondent, who allegedly directed a large-scale heroin distribution enterprise, was indicted for alleged violations of racketeering laws, creation of a continuing criminal enterprise, and tax and firearm offenses. The indictment also alleged that respondent had accumulated three specified assets as a result of his narcotics trafficking, which were subject to forfeiture under the Comprehensive Forfeiture Act of 1984, 21 U.S.C. § 853. After the indictment was unsealed, the District Court granted the Government's ex parte motion under § 853(e)(1)(A) for a restraining order freezing the assets pending trial. Respondent, raising various statutory arguments and claiming that the order interfered with his Sixth Amendment right to counsel of his choice, moved to vacate the order to permit him to use frozen assets to retain an attorney. He also sought a declaration that if the assets were used to pay attorney's fees, § 853(c)'s third-party transfer provision would not be used to reclaim such payments if respondent was convicted and his assets forfeited. The District Court denied the motion. However, the Court of Appeals ultimately ordered that the restraining order be modified to permit the restrained assets to be used to pay attorney's fees. Held: 1. There is no exemption from § 853's forfeiture or pretrial restraining order provisions for assets that a defendant wishes to use to retain an attorney. Pp. 491 U. S. 606-614. (a) Section 853's language is plain and unambiguous. Congress could not have chosen stronger words to express its intent that forfeiture be mandatory than § 853(a)'s language that upon conviction a person "shall forfeit . . . any property" and that the sentencing court "shall order" a forfeiture. Likewise, the statute provides a broad definition of property which does not even hint at the idea that assets used for attorney's fees are not included. Every Court of Appeals that has finally passed on this argument has agreed with this view. Neither the Act's legislative history nor legislators' post-enactment statements support respondent's argument that an exception should be created because the statute does not expressly include property to be used for attorney's fees, or because Congress simply did not consider the prospect that forfeiture Page 491 U. S. 601 would reach such property. To the contrary, in the Victims of Crime Act -- which requires forfeiture of a convicted defendant's collateral profits derived from his crimes and which was enacted simultaneously with the statute in question -- Congress adopted expressly the precise exemption from forfeiture which respondent is seeking to have implied in § 853. Moreover, respondent's admonition that courts should construe statutes to avoid decision as to their constitutionality is not license for the judiciary to rewrite statutory language. Pp. 491 U. S. 606-611. (b) Respondent's reading of § 853(e)(1)(A) -- which provides that a district court "may enter a restraining order or injunction . . . or take any other action to preserve the availability of property . . . for forfeiture" -- misapprehends the nature of § 853 by giving a district court equitable discretion to determine whether to exempt assets from pretrial restraint and by concluding that, if such assets are used for attorney's fees, they may not subsequently be seized for forfeiture to the Government under § 853(c). Section 853(e)(1)(A) plainly is aimed at implementing § 853(a)'s commands, and cannot sensibly be construed to give the district court discretion to permit the dissipation of the very property it requires be forfeited upon conviction, since this would nullify § 853(a)'s strong language, as well as § 853(c)'s powerful "relation-back" provision. Pp. 491 U. S. 611-614. 2. The restraining order did not violate respondent's right to counsel of choice as protected by the Sixth Amendment or the Due Process Clause of the Fifth Amendment. For the reasons stated in Caplin & Drysdale, Chartered v. United States, post p. 491 U. S. 617, neither the Fifth nor the Sixth Amendment requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay the defendant's legal fees. Moreover, a defendant's assets may be frozen before conviction based on a finding of probable cause to believe the assets are forfeitable. See, e.g., United States v. $8,850, 461 U. S. 555; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663. Indeed, concluding that the Government could not restrain such property would be odd considering that, under appropriate circumstances, the Government may restrain persons accused of a serious offense on a probable cause finding. See United States v. Salerno, 481 U. S. 739. Pp. 491 U. S. 614-616. 852 F.2d 1400, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 491 U. S. 635. Page 491 U. S. 602 JUSTICE WHITE delivered the opinion of the Court. The questions presented here are whether the federal drug forfeiture statute authorizes a district court to enter a pretrial order freezing assets in a defendant's possession, even where the defendant seeks to use those assets to pay an attorney; if so, we must decide whether such an order is permissible under the Constitution. We answer both of these questions in the affirmative. [...] https://supreme.justia.com/cases/federal/us/491/617/case.html Caplin & Drysdale v. United States, 491 U.S. 617 (1989) Caplin & Drysdale, Chartered v. United States No. 87-1729 Argued March 21, 1989 Decided June 22, 1989 491 U.S. 617 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus Christopher Reckmeyer was charged with running a massive drug importation and distribution scheme alleged to be a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. Relying on a portion of the CCE statute that authorizes forfeiture to the Government of property acquired as a result of drug law violations, § 853, the indictment sought forfeiture of specified assets in Reckmeyer's possession. The District Court, acting pursuant to § 853(e)(1)(A), entered a restraining order forbidding Reckmeyer from transferring any of the potentially forfeitable assets. Nonetheless, he transferred $25,000 to petitioner, a law firm, for preindictment legal services. Petitioner continued to represent Reckmeyer after his indictment. Reckmeyer moved to modify the District Court's order to permit him to use some of the restrained assets to pay petitioner's fees and to exempt such assets from postconviction forfeiture. However, before the court ruled on his motion, Reckmeyer entered a plea agreement with the Government in which, inter alia, he agreed to forfeit all of the specified assets. The court then denied Reckmeyer's motion and, subsequently, entered an order forfeiting virtually all of his assets to the Government. Petitioner -- arguing that assets used to pay an attorney are exempt from forfeiture under § 853 and, if they are not, that the statute's failure to provide such an exemption renders it unconstitutional -- filed a petition under § 853(n) seeking an adjudication of its third-party interest in the forfeited assets. The District Court granted the relief sought. However, the Court of Appeals reversed, finding that the statute acknowledged no exception to its forfeiture requirement, and that the statutory scheme is constitutional. Held: 1. For the reasons stated in United States v. Monsanto, ante, at 491 U. S. 611-614, whatever discretion § 853(e) does provide district court judges to refuse to issue pretrial restraining orders on potentially forfeitable assets, it does not grant them equitable discretion to allow a defendant to withhold assets to pay bona fide attorney's fees. Nor does the exercise of judges' § 853(e) discretion "immunize" nonrestrained assets used for attorney's fees from subsequent forfeiture under § 853(c), which provides for recapture of forfeitable assets transferred to third parties. Pp. 491 U. S. 622-623. Page 491 U. S. 618 2. The forfeiture statute does not impermissibly burden a defendant's Sixth Amendment right to retain counsel of his choice. A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice. Such money, though in his possession, is not rightfully his. Petitioner's contention that, since the Government's claim to forfeitable assets rests on a penal statute that is merely a mechanism for preventing fraudulent conveyances of the assets, and is not a device for determining true title to property, the burden the statute places on a defendant's rights greatly outweighs the Government's interest in forfeiture is unsound. Section 853(c) reflects the application of the long-recognized and lawful practice of vesting title to any forfeitable assets in the hands of the Government at the time of the criminal act giving rise to forfeiture. Moreover, there is a strong governmental interest in obtaining full recovery of the assets, since the assets are deposited in a fund that supports law enforcement efforts, since the statute allows property to be recovered by its rightful owners, and since a major purpose behind forfeiture provisions such as the CCE's is to lessen the economic power of organized crime and drug enterprises, including the use of such power to retain private counsel. Pp. 491 U. S. 624-633. 3. The forfeiture statute does not upset the balance of power between the Government and the accused in a manner contrary to the Due Process Clause of the Fifth Amendment. The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because, in some cases, prosecutors may abuse the processes available to them. Such due process claims are cognizable only in specific cases of prosecutorial misconduct, which has not been alleged here. Pp. 491 U. S. 633-635. 837 F.2d 637, affirmed. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 491 U. S. 635. Page 491 U. S. 619 JUSTICE WHITE delivered the opinion of the Court. We are called on to determine whether the federal drug forfeiture statute includes an exemption for assets that a defendant wishes to use to pay an attorney who conducted his defense in the criminal case where forfeiture was sought. Because we determine that no such exemption exists, we must decide whether that statute, so interpreted, is consistent with the Fifth and Sixth Amendments. We hold that it is. https://supreme.justia.com/cases/federal/us/516/442/case.html Syllabus BENNIS v. MICHIGAN CERTIORARI TO THE SUPREME COURT OF MICHIGAN No. 94-8729. Argued November 29, 1995-Decided March 4,1996 Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. In declaring the automobile forfeit as a public nuisance under Michigan's statutory abatement scheme, the trial court permitted no offset for petitioner's interest, notwithstanding her lack of knowledge of her husband's activity. The Michigan Court of Appeals reversed, but was in turn reversed by the State Supreme Court, which concluded, inter alia, that Michigan's failure to provide an innocent-owner defense was without federal constitutional consequence under this Court's decisions. Held: The forfeiture order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment. Pp. 446-453. (a) Michigan's abatement scheme has not deprived petitioner of her interest in the forfeited car without due process. Her claim that she was entitled to contest the abatement by showing that she did not know that her husband would use the car to violate state law is defeated by a long and unbroken line of cases in which this Court has held that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use. See, e. g., Van Oster v. Kansas, 272 U. S. 465,467-468, and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 668, 683; Foucha v. Louisiana, 504 U. S. 71, 80, and Austin v. United States, 509 U. S. 602, 617-618, distinguished. These cases are too firmly fixed in the country's punitive and remedial jurisprudence to be now displaced. Cf. J. W Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 511. pp.446-452. (b) Michigan's abatement scheme has not taken petitioner's property for public use without compensation. Because the forfeiture proceeding did not violate the Fourteenth Amendment, her property in the automobile was transferred by virtue of that proceeding to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain. See, e. g., United States v. Fuller, 409 U. S. 488, 492. Pp. 452-453. 447 Mich. 719, 527 N. W. 2d 483, affirmed. [443] REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., post, p. 453, and GINSBURG, J., post, p. 457, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER and BREYER, JJ., joined, post, p. 458. KENNEDY, J., filed a dissenting opinion, post, p. 472. Stefan B. Herpel argued the cause and filed briefs for petitioner. Larry L. Roberts argued the cause for respondent. With him on the brief were John D. O'Hair and George E. Ward. Richard H. Seamon argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.* CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. [...] Petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain. United States v. Fuller, [453] 409 U. S. 488, 492 (1973); see United States v. Rands, 389 U. S. 121, 125 (1967). At bottom, petitioner's claims depend on an argument that the Michigan forfeiture statute is unfair because it relieves prosecutors from the burden of separating co-owners who are complicit in the wrongful use of property from innocent co-owners. This argument, in the abstract, has considerable appeal, as we acknowledged in Goldsmith-Grant, 254 U. S., at 510. Its force is reduced in the instant case, however, by the Michigan Supreme Court's confirmation of the trial court's remedial discretion, see supra, at 446, and petitioner's recognition that Michigan may forfeit her and her husband's car whether or not she is entitled to an offset for her interest in it, Tr. of Oral Arg. 7, 9. We conclude today, as we concluded 75 years ago, that the cases authorizing actions of the kind at issue are "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." Goldsmith-Grant, supra, at 511. The State here sought to deter illegal activity that contributes to neighborhood deterioration and unsafe streets. The Bennis automobile, it is conceded, facilitated and was used in criminal activity. Both the trial court and the Michigan Supreme Court followed our longstanding practice, and the judgment of the Supreme Court of Michigan is therefore Affirmed. https://supreme.justia.com/cases/federal/us/571/12-464/ _________________ No. 12–464 _________________ KERRI L. KALEY, et vir, PETITIONERS v. UNITED STATES on writ of certiorari to the united states court of appeals for the eleventh circuit [February 25, 2014] Justice Kagan delivered the opinion of the Court. A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989) , we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer. In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding. [...] We granted certiorari in light of the Circuit split on the question presented, 568 U. S. ___ (2013), and we now affirm the Eleventh Circuit. II This Court has twice considered claims, similar to the Kaleys’, that the Fifth Amendment’s right to due process and the Sixth Amendment’s right to counsel constrain the way the federal forfeiture statute applies to assets needed to retain an attorney. See Caplin & Drysdale, 491 U. S. 617 ; Monsanto, 491 U. S. 600 . We begin with those rulings not as mere background, but as something much more. On the single day the Court decided both those cases, it cast the die on this one too. In Caplin & Drysdale, we considered whether the Fifth and Sixth Amendments exempt from forfeiture money that a convicted defendant has agreed to pay his attorney. See 491 U. S., at 623–635. We conceded a factual premise of the constitutional claim made in the case: Sometimes “a defendant will be unable to retain the attorney of his choice,” if he cannot use forfeitable assets. Id., at 625. Still, we held, the defendant’s claim was “untenable.” Id., at 626. “A defendant has no Sixth Amendment right to spend another person’s money” for legal fees—even if that is the only way to hire a preferred lawyer. Ibid. Consider, we submitted, the example of a “robbery suspect” who wishes to “use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended.” Ibid. That money is “not rightfully his.” Ibid. Accordingly, we concluded, the Government does not violate the Constitution if, pursuant to the forfeiture statute, “it seizes the robbery proceeds and refuses to permit the defendant to use them” to pay for his lawyer. Ibid. And then, we confirmed in Monsanto what our “robbery suspect” hypothetical indicated: Even prior to conviction (or trial)—when the presumption of innocence still applies—the Government could constitutionally use §853(e) to freeze assets of an indicted defendant “based on a find-ing of probable cause to believe that the property will ultimately be proved forfeitable.” 491 U. S., at 615. In Monsanto, too, the defendant wanted to use the property at issue to pay a lawyer, and maintained that the Fifth and Sixth Amendments entitled him to do so. We dis-agreed. We first noted that the Government may sometimes “restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense.” Id., at 615–616. Given that power, we could find “no constitutional infirmity in §853(e)’s authorization of a similar restraint on [the defendant’s] property” in order to protect “the community’s interest” in recovering “ill-gotten gains.” Id., at 616. Nor did the defendant’s interest in retaining a lawyer with the disputed assets change the equation. Relying on Caplin & Drysdale, we reasoned: “[I]f the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial.” Ibid. So again: With probable cause, a freeze is valid. The Kaleys little dispute that proposition; their argument is instead about who should have the last word as to probable cause. A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution (or alternatively put, that the prosecution is not “baseless,” as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries. This Court has often recognized the grand jury’s singular role in finding the probable cause necessary to initiate a prosecution for a serious crime. See, e.g., Costello v. United States, 350 U. S. 359, 362 (1956) . “[A]n indictment ‘fair upon its face,’ and returned by a ‘properly constituted grand jury,’ ” we have explained, “conclusively determines the existence of probable cause” to believe the defendant perpetrated the offense alleged. Gerstein v. Pugh, 420 U. S. 103 , n. 19 (1975) (quoting Ex parte United States, 287 U. S. 241, 250 (1932) ). And “conclusively” has meant, case in and case out, just that. We have found no “authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof.” Costello, 350 U. S., at 362–363 (quoting United States v. Reed, 27 F. Cas. 727, 738 (No. 16,134) (CC NDNY 1852) (Nelson, J.)). To the contrary, “the whole history of the grand jury institution” demonstrates that “a challenge to the reliability or competence of the evidence” supporting a grand jury’s finding of probable cause “will not be heard.” United States v. Williams, 504 U. S. 36, 54 (1992) (quoting Costello, 350 U. S., at 364, and Bank of Nova Scotia v. United States, 487 U. S. 250, 261 (1988) ). The grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime. And that inviolable grand jury finding, we have decided, may do more than commence a criminal proceeding (with all the economic, reputational, and personal harm that entails); the determination may also serve the purpose of immediately depriving the accused of her freedom. If the person charged is not yet in custody, an indictment triggers “issuance of an arrest warrant without further inquiry” into the case’s strength. Gerstein, 420 U. S., at 117, n. 19; see Kalina v. Fletcher, 522 U. S. 118, 129 (1997) . Alternatively, if the person was arrested without a warrant, an indictment eliminates her Fourth Amendment right to a prompt judicial assessment of probable cause to support any detention. See Gerstein, 420 U. S., at 114, 117, n. 19. In either situation, this Court—relying on the grand jury’s “historical role of protecting individuals from unjust persecution”—has “let [that body’s] judgment substitute for that of a neutral and detached magistrate.” Ibid. The grand jury, all on its own, may effect a pre-trial restraint on a person’s liberty by finding probable cause to support a criminal charge.[6] The same result follows when, as here, an infringement on the defendant’s property depends on a showing of probable cause that she committed a crime. If judicial review of the grand jury’s probable cause determination is not warranted (as we have so often held) to put a defendant on trial or place her in custody, then neither is it needed to freeze her property. The grand jury that is good enough—reliable enough, protective enough—to inflict those other grave consequences through its probable cause findings must needs be adequate to impose this one too. Indeed, Monsanto already noted the absence of any reason to hold property seizures to different rules: As described earlier, the Court partly based its adoption of the probable cause standard on the incongruity of subjecting an asset freeze to any stricter requirements than apply to an arrest or ensuing detention. See supra, at 6; 491 U. S., at 615 (“[I]t would be odd to conclude that the Government may not restrain property” on the showing often sufficient to “restrain persons”). By similar token, the probable cause standard, once selected, should work no differently for the single purpose of freezing assets than for all others.[7] So the longstanding, unvarying rule of criminal procedure we have just described applies here as well: The grand jury’s determination is conclusive. And indeed, the alternative rule the Kaleys seek would have strange and destructive consequences. The Kaleys here demand a do-over, except with a different referee. They wish a judge to decide anew the exact question the grand jury has already answered—whether there is probable cause to think the Kaleys committed the crimes charged. But suppose the judge performed that task and came to the opposite conclusion. Two inconsistent findings would then govern different aspects of one criminal proceeding: Probable cause would exist to bring the Kaleys to trial (and, if otherwise appropriate, hold them in prison), but not to restrain their property. And assuming the prosecutor continued to press the charges,[8] the same judge who found probable cause lacking would preside over a trial premised on its presence. That legal dissonance, if sustainable at all, could not but undermine the criminal justice system’s integrity—and especially the grand jury’s integral, constitutionally prescribed role. For in this new world, every prosecution involving a pre-trial asset freeze would potentially pit the judge against the grand jury as to the case’s foundational issue.[9] The Kaleys counter (as does the dissent, post, at 7) that apparently inconsistent findings are not really so, because the prosecutor could have presented scantier evidence to the judge than he previously offered the grand jury. Suppose, for example, that at the judicial hearing the prosecutor put on only “one witness instead of all five”; then, the Kaleys maintain, the judge’s decision of no probable cause would mean only that “the Government did not satisfy its burden[ ] on that one day in time.” Tr. of Oral Arg. 12, 18; see Reply Brief 11–12. But we do not think that hypothetical solves the problem. As an initial matter, it does not foreclose a different fact pattern: A judge could hear the exact same evidence as the grand jury, yet respond to it differently, thus rendering what even the Kaleys must concede is a contradictory finding. And when the Kaleys’ hypothetical is true, just what does it show? Consider that the prosecutor in their example has left home some of the witnesses he took to the grand jury—presumably because, as we later discuss, he does not yet wish to reveal their identities or likely testimony. See infra, at 14–15. The judge’s ruling of no probable cause therefore would not mean that the grand jury was wrong: As the Kaleys concede, the grand jury could have heard more than enough evidence to find probable cause that they committed the crimes charged. The Kaleys would win at the later hearing despite, not because of, the case’s true merits. And we would then see still less reason for a judge to topple the grand jury’s (better supported) finding of probable cause.[10] Our reasoning so far is straightforward. We held in Monsanto that the probable cause standard governs the pre-trial seizure of forfeitable assets, even when they are needed to hire a lawyer. And we have repeatedly affirmed a corollary of that standard: A defendant has no right to judicial review of a grand jury's determination of probable cause to think a defendant committed a crime. In combination, those settled propositions signal defeat for the Kaleys because, in contesting the seizure of their property, they seek only to relitigate such a grand jury finding. [...]
Do you consider this 'tool' to be a constitutional application?
"These states let police take and keep your stuff even if you haven’t committed a crime"
#2. To: misterwhite (#1)
If you live in one of those states, either move or change the law.
“Truth is treason in the empire of lies.” - Ron Paul
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends.
Paul Craig Roberts
#3. To: Deckard (#2)
(Edited)
"Keep cheering for tyranny and robbery by armed road pirates"
#4. To: misterwhite (#3)
Yeah, and you keep telling everyone how to live their lives
“Truth is treason in the empire of lies.” - Ron Paul
Americans who have no experience with, or knowledge of, tyranny believe that only terrorists will experience the unchecked power of the state. They will believe this until it happens to them, or their children, or their friends.
Paul Craig Roberts
#5. To: Deckard (#4)
"I have every right to complain about cops stealing my money when I travel through any of these United States."
#6. To: Deckard, hondo68 (#4)
#7. To: Fred Mertz, GrandIsland (#6)
Fred Mertz: I'd ping GI, but I only want to disrupt this thread one time here.
#8. To: buckeroo (#7)
#9. To: Fred Mertz, Deckard, yukon defense team (#6)
Investigation reveals about 1,000 police officers lost jobs over sexual misconduct
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#10. To: motherf**ker, misterwhite, Y'ALL (#5)
If you live in one of those (civil forfeiture) states, either move or change the law. If you don't, WTF do you care?
#11. To: motherf**ker, misterwhite, Y'ALL, -- two bits old 'WTF' won't-can't reply (#5)
If you live in one of those (civil forfeiture) states, either move or change the law.
If you don't, WTF do you care?
Do you think you should be allowed to tell the citizens of another state how to live their lives?
Can they tell you how to live yours?
#12. To: Deckard (#0)
The U. S. Constitution (Article 3, Section 2) established admiralty courts as federal courts largely based on civil law [Gilmore and Black, 1975:18]. The First Congress continued the practice of juryless trials for maritime violations by statutorily subjecting to in rem forfeiture vessels and cargoes that disobeyed customs laws [Reed and Gill, 1987:66]. Contraband, as well as goods imported in violation of the Embargo Acts or by piracy, continued to be automatically guilty and subject to seizure [Weiner, 1981:232]. Once the African slave trade was outlawed foreign ships that carried slaves into American waters were also subject to automatic forfeiture. In some cases the slaves were sold as property; in other cases slaves were set free and allowed to return to Africa [Noonan, 1977]. Slaves could be seized in rem as cargo, but might later be transformed into persons and freed [Jones, 1987:73]. In 1827, in the Palmyra case, Justice Story first legally defined in rem forfeitures:
It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem; but it was a part, or at least a consequence, of the judgment of conviction.... The crown's right to the goods and chattels attached only by the conviction of the offender.... But this doctrine never was applied to seizures and forfeitures, created by the statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here considered as the offender, or rather, the offense is attached primarily to the thing; and this, whether the offense be malum prohibitum or malum in se.... The practice has been... that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam [quoted in Reed and Gill, 1987:62].
U.S. Supreme Court
#13. To: nolu chan (#12)
--- the application of asset forfeiture was expanded as a tool to be used to combat drug dealers. Of course, when a hammer of a tool is given to the government for one reason, the government has the hammer other targets.
the application of asset forfeiture was expanded as a tool to be used to combat drug dealers.
Of course, when a hammer of a tool is given to the government for one reason, the government has the (power to?) hammer other targets.
#14. To: tpaine (#13)
Do you consider this 'tool' to be a constitutional application?
Where is this power given to government in the wording of the Constitution?
U.S. Supreme Court
U.S. Supreme Court
OCTOBER TERM, 1995
SUPREME COURT OF THE UNITED STATES
#15. To: nolu chan (#14)
The Federal courts have considered it to be the law since the Framing.
I'll assume then, that you consider it constitutional, despite the fact that this power is NOT enumerated. Where is this power given to government in the wording of the Constitution? The Federal courts have upheld it as constitutional.
So you approve of the federal courts making up law. Why is that? As you are not actually interested in my opinion, I will leave you with the opinions of the courts.
Questionable opinions of the courts are a dime a dozen. -- Just about what yours are worth.
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