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Title: The DEA seized her father’s life savings at an airport without alleging any crime occurred, lawsuit says
Source: The Seattle Times
URL Source: https://www.seattletimes.com/nation ... y-crime-occurred-lawsuit-says/
Published: Jan 17, 2020
Author: Justin Jouvenal (The Washington Post)
Post Date: 2020-01-17 10:11:03 by misterwhite
Keywords: None
Views: 8555
Comments: 78

Every dollar Terry Rolin had saved over a lifetime was stacked in a large Tupperware container: $82,373. At 79, he was aging and worried about keeping so much cash on hand, his daughter said, so during one of her visits he asked her to open a joint bank account.

Rebecca Brown was catching a flight home from the Pittsburgh airport early the next day and said she didn’t have time to stop at a bank. She confirmed on a government website that it’s legal to carry any amount of cash on a domestic flight and tucked the money in her carry-on.

But just minutes before departure in late August, a Drug Enforcement Administration agent met her at the busy gate and questioned her about the cash, which showed up on a security scan. He insisted Brown put Rolin on the phone to confirm her story. Brown said Rolin, who is suffering mental decline, was unable to verify some details.

“He just handed me the phone and said, ‘Your stories don’t match,’ ” Brown recalled the agent saying. ” ‘We’re seizing the cash.’ “

Brown said she was never told she or her father were under suspicion of committing any crime and neither has been charged with anything. A search of her bag turned up no drugs or other contraband. Neither she or her father appear to have criminal records that might raise suspicions.

Brown and Rolin filed a federal, class-action lawsuit Wednesday against the DEA, Transportation Security Administration and agency officials, claiming the agencies violate the Constitution’s ban on unlawful search and seizures by taking cash from travelers without probable cause. The lawsuit claims the only criteria the DEA has for seizing cash is if it finds amounts greater than $5,000.

The lawsuit, filed in federal court in Pennsylvania, seeks the return of Rolin’s money and an injunction against the practice.

Both the DEA and TSA declined to comment on the lawsuit’s allegations.

“We can’t comment on ongoing litigation,” said Katherine Pfaff, a DEA spokeswoman.

“As a matter of policy, TSA does not comment on pending litigation,” TSA spokeswoman Jenny Burke wrote in an email.

Brown said the loss of the savings has prevented Rolin from getting treatment for painful tooth decay and gum disease and kept the family from fixing up his pick-up truck, which is his only means of transportation. Rolin is living on retirement benefits from a job as a railroad engineer.

Brown said her grandparents kept their savings in cash because they lived through the bank runs of the Great Depression, and her father adopted the habit.

“I get they are trying to quash drug distribution, but this is a blatant overreach,” Brown said. “This is a working person, a taxpaying citizen of the United States trying to take care of her elderly parent, and they took the money.”

Dan Alban, a senior attorney for the Virginia-based Institute for Justice, which filed the lawsuit on behalf of Brown and Rolin, said the family’s story is not unique.

“This is something that we know is happening all across the United States,” Alban said. “We’ve been contacted by people who have been traveling to buy used cars or buy equipment for their business and had their cash seized.”

The DEA made more than 8,850 seizures worth $539 million in 2017, according to the latest agency statistics for a full year. A 2016 USA Today investigation found DEA agents seized at least $209 million in cash from travelers at the nation’s 15 busiest airports over the previous decade.

Federal law gives the DEA and other law enforcement agencies power to seize cash and property linked to drug and criminal activity, a process known as civil asset forfeiture.

The agencies say it is an important tool to undermine the financial viability of criminal networks, deprive organizations of illicit proceeds and confiscate property like cars and houses that might be used to carry out or harbor crime.

But the practice has come under increased scrutiny in recent years. Critics argue local police departments and federal agencies have used asset forfeiture as a cash cow to fatten budgets. In the DEA’s case, the agency feeds seized assets into a Justice Department fund that disburses the money to agencies and victims of crime.

A 2017 review by the Justice Department inspector general found only 44 of 100 seizures by the DEA were related to an ongoing investigation or resulted in a new investigation, arrest or prosecution. Most of the seizures occurred at transportation facilities like airports or bus stations.

The Supreme Court limited the power of local state agencies to seize property in an important ruling last year.

The DEA seized her father’s life savings at an airport without alleging any crime occurred, lawsuit says

Brown said she initially encountered issues when going through the TSA security checkpoint at Pittsburgh International Airport on Aug. 26. Brown was flying to Boston, where she lives outside the city.

A TSA screener noticed the cash in Brown’s carry-on during a scan and pulled her aside for questioning, Brown said. The screener asked what the money was for, photocopied her ID and travel documents and held her luggage until a Pennsylvania state trooper arrived. The lawsuit claims the TSA exceeded its authority in holding Brown’s bag.

Brown said she repeated the explanation that the money was her father’s life savings to the trooper and then retold it to his superior.

Finally, she said she was allowed to proceed to the gate, where she was met by the DEA agent.

Brown said it was humiliating to be questioned by the agent in front of other travelers at the gate. When he seized the money, she said he put it into a plastic bag and told her someone would be in touch with her.

Brown said she stumbled onto her flight in shock as the doors were closing. She didn’t have time to fully explain to her father what had happened before takeoff, and he left seven frantic messages while they were in flight. In October, she received a notice that the DEA planned to permanently seize the cash, citing its authority to make such moves to combat crime.

“I was shaking the entire time,” Brown said of the flight. “I was embarrassed. I was afraid.”

– – –

The Washington Post’s Alice Crites contributed to this report.

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Begin Trace Mode for Comment # 40.

#1. To: All (#0)

Brown said the loss of the savings has prevented Rolin from getting treatment for painful tooth decay and gum disease and kept the family from fixing up his pick-up truck

Ummm, he had $82,373 in cash and could have done those things any time.

But no. Let's give the cash to this dimwit daughter so she can fly home with it and open a joint bank account in another city.

misterwhite  posted on  2020-01-17   10:16:44 ET  Reply   Untrace   Trace   Private Reply  


#3. To: misterwhite (#1)

Ummm, he had $82,373 in cash and could have done those things any time.

But no. Let's give the cash to this dimwit daughter so she can fly home with it and open a joint bank account in another city.

Ummm, those things could not have been done because they took his money. How do you know his truck was broke before they took his money? Oh you don't.

How do you know when he got his toothache?

They need to prove he committed a crime to get the money before they go taking it. In a just society they would do that. Meaning you support tyranny and injustice.

Why do you hate innocent until proven guilty?

You support the government saying you are guilty now prove your innocence. Why do you support thieves?

A K A Stone  posted on  2020-01-17   11:02:16 ET  Reply   Untrace   Trace   Private Reply  


#4. To: A K A Stone, misterwhite (#3) (Edited)

Why do you support thieves?

Bad parenting?

Did his mother not teach him as a child that stealing from others is wrong.

Perhaps she tried, but he laughed at her, stuck his fingers in his ears, and ran off to hide.

watchman  posted on  2020-01-17   11:19:28 ET  Reply   Untrace   Trace   Private Reply  


#5. To: watchman (#4)

Bad parenting?

Did his mother not teach him as a child that stealing from others is wrong.

Perhaps she tried, but he laughed at her, stuck his fingers in his ears, and ran off to hide.

That isn't the case. Misterwhite isn't a thief. I doubt he would ever steal. My opinion is misterwhte thinks it is drug money and they made it illegitimately. So he wants it seized.

It may be drug money but I honestly doubt it. If it is they should have to prove their case before seizing it. That is my take and opinion.

A K A Stone  posted on  2020-01-17   11:56:20 ET  Reply   Untrace   Trace   Private Reply  


#26. To: A K A Stone (#5)

My opinion is misterwhte thinks it is drug money and they made it illegitimately. So he wants it seized.

What does every Federal Reserve Note have printed on it?

"This note is legal tender...". Not illegal tender, *legal* tender.

If the US doesn't want cash on the street, it should stop issuing it. Period.

Pinguinite  posted on  2020-01-18   19:29:30 ET  Reply   Untrace   Trace   Private Reply  


#33. To: Pinguinite, A K A Stone, misterwhite (#26)

In which the possession of legal tender is deemed to be all the evidence required of a crime. Ergo, possession of some arbitrary amount of cash is, de facto considered a crime all. by. itself.

FALSE PREMISE AND FALSE CONCLUSION.

Civil asset forfeiture finds the claim to ownership is invalid.

Based solely on the fact that a person possesses some arbitrary amount of cash, at which point the acquiring of said cash is deemed to be invalid until the possessor provides some arbitrary support that deems it validly gained. Essentially depriving the person of any presumption of innocence.

FALSE PREMISE AND FALSE CONCLUSION.

This absolutely is a circumvention of the plain meaning of the 4th amendment.

FALSE CONJECTURE BASED OF FALSE PREMISES.

And before you start citing court cases, I'll say I don't give a freak about any federal court opinions (yes, opinions) that say taking away people's property without proving a crime was committed is okay and part of what the founder's intended when they added the 4th amendment to the Constitution. It's plainly not.

FALSE PREMISE.

The founders certainly never intended with the 4th to suggest that people could be secure in their effects but that the gov could seize those effects anyway on the personal whim of one of their employees.

FALSE PREMISE AND FALSE CONCLUSION.

I'll say again, if the gov will consider having cash to be evidence of a crime, then its issuance should be ceased.

FALSE PREMISE.

- - - - - - - - - -

Forfeiture law in America predates the United States. Following the adoption of the Constitution and the government created thereby, the first Legislature passed the first Federal forfeiture law.

The below article is dated, but generally informative on the topic of asset forfeiture.

I will let The Federalist Society respond to your conception of civil asset forfeiture law and procedures. I would note that the instant Brown and Rolin Complaint is not a response to a notice of civil asset forfeiture, but a challenge to the constitutionality of the statute, which I shall address seperately.

https://fedsoc.org/commentary/publications/forfeiture-is-reasonable-and-it-works

Forfeiture is Reasonable, and It Works

Criminal Law & Procedure Practice Group Newsletter - Volume 1, Issue 2, Spring 1997

Stefan D. Cassella
May 1 1997
The Federalist Society

Asset forfeiture has become one of the most powerful and important tools that federal law enforcement can employ against all manner of criminals and criminal organizations -- from drug dealers to terrorists to white collar criminals who prey on the vulnerable for financial gain. Derived from the ancient practice of forfeiting vessels and contraband in Customs and Admiralty cases, forfeiture statutes are now found throughout the federal criminal code.

Why do forfeiture?

Federal law enforcement agencies use the forfeiture laws for a variety of reasons, both time-honored and new. Like the statutes the First Congress enacted in 1789, the modern laws allow the government to seize contraband — property that is simply unlawful to possess, like illegal drugs, unregistered machine guns, pornographic materials, smuggled goods and counterfeit money.

Forfeiture is also used to abate nuisances and to take the instrumentalities of crime out of circulation. For example, if drug dealers are using a "crack house" to sell drugs to children as they pass by on the way to school, the building is a danger to the health and safety of the neighborhood. Under the forfeiture laws, we can shut it down. If a boat or truck is being used to smuggle illegal aliens across the border, we can forfeit the vessel or vehicle to prevent its use time and again for the same purpose. The same is true for an airplane used to fly cocaine from Peru into Southern California, or a printing press used to mint phony $100 bills.

The government also uses forfeiture to take the profit out of crime, and to return property to victims. No one has the right to retain the money gained from bribery, extortion, illegal gambling, or drug dealing. With the forfeiture laws, we can separate the criminal from his profits — and any property traceable to it — thus removing the incentive others may have to commit similar crimes tomorrow. And if the crime is one that has victims — like carjacking or fraud — we can use the forfeiture laws to recover the property and restore it to the owners far more effectively than the restitution statutes permit.

Finally, forfeiture undeniably provides both a deterrent against crime and as a measure of punishment for the criminal. Many criminals fear the loss of their vacation homes, fancy cars, businesses and bloated bank accounts far more than the prospect of a jail sentence. In fact, in many cases, prosecution and incarceration are not needed to achieve the ends of justice. Not every criminal act must be answered with the slam of the jail cell door. Sometimes, return of the property to the victim and forfeiture of the means by which the crime was committed will suffice to ensure that the community is compensated and protected and the criminal is punished.

The parade of horribles

The expansion of forfeiture into all of these areas has, of course, been controversial. When laws that were designed to seize pirate ships from privateers are applied, over the course of a decade, to the seizure of homes, cars, businesses and bank accounts, there are a lot of issues to sort out. How do we protect innocent property owners? What procedures afford due process? When does forfeiture go too far, in violation of the Excessive Fines Clause of the Eighth Amendment? The ten forfeiture cases that the Supreme Court has had on its docket in the past five terms are part of this sorting out process. There are certain to be more; and Congress will need to pass legislation to fill in many of the loopholes.

An informed debate on these issues is welcome. The debate is not informed, however, if it is muddled by the misconceptions and plain old-fashioned misstatements that seem to pop up in every article critical of asset forfeiture. Roger Pilon's article, containing the usual parade of horribles, is a good example.

Once again we are told that forfeiture is based on an absurd legal "fiction" that the property is guilty of the crime, which implies that property can be forfeited without proof that a crime was committed by a real live person. We're told that the government can seize property "almost at will," i.e. without due process, and that innocent people find the process so unfair that they walk away from their property without filing claims. And we're told that even when they do file claims, innocent owners just don't have any rights. Let's see if we can't inject a little truth and understanding into the debate on these points.

The legal "fiction"

There are three types of forfeiture under federal law: administrative forfeiture, civil judicial forfeiture, and criminal forfeiture. An administrative forfeiture is essentially a default proceeding. It occurs when property is seized and no one files a claim contesting the forfeiture. By definition, all administrative forfeitures are uncontested. Between 80 (eighty) and 85 (eighty-five) percent of all forfeitures handled by the Department of Justice fall into this category.

If someone does file a claim to the property, the government has a choice (assuming Congress has provided both options by statute). It can file a civil complaint against the property in district court, thus commencing a civil judicial forfeiture; or it can include a forfeiture count in the indictment in a criminal case, which sets the stage for a criminal forfeiture. In 1995, the Justice Department began aggressively training criminal prosecutors in the use of the forfeiture laws, so that now more than half of all contested forfeitures are criminal forfeitures.

Just because a forfeiture is handled administratively or civilly, of course, doesn't mean that there isn't a related criminal case. In all forfeiture cases there must be proof that a crime was committed by someone. In fact, in more than eighty percent of all forfeitures, including administrative and civil forfeitures, there is a parallel arrest and/or criminal prosecution. There wouldn't have been such a wail and cry about forfeiture constituting a violation of the Double Jeopardy Clause a few years ago if that weren't so. (Between the Ninth Circuit's decision in United States v. $405,089.23 in 1994 and the Supreme Court's decision putting the double jeopardy issue to rest in United States v. Ursery, thousands of federal prisoners filed post-conviction actions alleging that their criminal conviction and the civil forfeiture of their property constituted double jeopardy.)

The legal "fiction" that the property is "guilty" of the crime is simply a shorthand for the way a civil forfeiture case is styled: United States v. $405,089.23, United States v. 92 Buena Vista Ave., and so forth. In legal parlance, the property in such a case is the "defendant." But property doesn't commit crimes; people do. If there isn't proof that a person committed a crime, there is no forfeiture. If our normally verbose legal system styled its civil forfeiture cases to set forth the full legal theory, this would be obvious. The above cases, for example, might have been called United States v. $405,089.23 in Proceeds Earned by Charles Arlt From Selling Methamphetamine; or United States v. A Residence at 92 Buena Vista Ave. Purchased with Drug Proceeds that Joseph Brenna, a Drug Dealer, Gave to His Girlfriend.

In short, forfeiture is a way of reaching the property involved in a crime, but the focus is on the crime, without which there can be no forfeiture.

Why do civil forfeiture?

If all forfeitures involve the commission of a crime, and the vast majority involve an arrest or prosecution, why does the government use civil forfeiture at all? It is not, as many contend, because it is necessarily easier. To the contrary, the easiest way to forfeit a criminal defendant's property in many cases is not to file a separate civil action, but to present the forfeiture issue to the same jury that just convicted the defendant in the criminal case. But sometimes, criminal forfeiture isn't available or doesn't make sense.

Take the administrative forfeiture cases for example. There is no point in including a criminal forfeiture count in an indictment and presenting the issue to a jury if the defendant is not going to contest the forfeiture. If a defendant facing criminal conviction for drug trafficking thinks it pointless to contest the forfeiture of the cash seized from him as drug proceeds at the time of his arrest, it is equally pointless to clutter the indictment with a forfeiture count when administrative forfeiture will answer.

What about the contested forfeitures that are done civilly? The reasons for this are many. First, while there are over 100 civil forfeiture statutes, there are relatively few criminal forfeiture statutes. Drug proceeds can be forfeited either civilly or criminally, for example, but firearms, gambling proceeds, vehicles used to smuggle illegal aliens, and counterfeiting paraphernalia can only be forfeited civilly. See 28 U.S.C. §2461(a). This is a problem Congress needs to fix.

Second, criminal forfeiture requires a federal conviction for the crime giving rise to the forfeiture. If the defendant is dead or is a fugitive, there can be no prosecution and therefore no criminal forfeiture. If the defendant was prosecuted in a State case, the federal forfeiture has to be civil, because there is no federal prosecution for the criminal offense. And if the defendant is prosecuted for one crime, but the property was involved in a related but separate crime, the forfeiture has to be civil, because the criminal forfeiture is limited to the offense of conviction. For example, drug proceeds seized from a defendant at the time of his arrest must be forfeited civilly if the defendant is charged with possession of drugs with intent to distribute, because such money was necessarily the proceeds of an earlier drug deal, not the one for which the defendant is actually prosecuted.

Third, and perhaps most important, criminal forfeiture is limited to the property of the defendant. If the defendant uses someone else's property to commit the crime, criminal forfeiture accomplishes nothing. Only civil forfeiture will reach the property. For example, if a drug dealer uses an airplane to smuggle drugs into California, the government has an interest in seizing and forfeiting the plane. But suppose the only person arrested and prosecuted is the pilot. If he owns the plane outright, criminal forfeiture is the way to go. But if the plane is owned by a corporation, or a third-party in South America, or by the pilot jointly with his spouse, criminal forfeiture is pointless.

The same is true if we want to forfeit a crack house. We can prosecute the tenants in the building until the cows come home, but we will never be able to forfeit the building criminally if the tenants don't own it. If the building belongs to a slumlord who allowed his property to be turned into a crack house, we need civil forfeiture to shut it down.

Due Process

Whatever the reasons why civil forfeiture is essential to federal law enforcement, it goes without saying that the process must be fair. All property owners — whether they be criminal defendants or third parties — are entitled to due process of law. Mr. Pilon contends that due process is lacking. He says that the government can seize property "almost at will," that officials can "seize property, real or personal, without notice or hearing," and that innocent parties find the system so daunting that they abandon their property without filing a claim. On all points, he is greatly mistaken.

Seizures of property for forfeiture are governed by the same rules that govern seizure of property for evidence — the search and seizure requirements of the Fourth Amendment. See United States v. Lasanta, 978 F.2d 1300 (2d Cir. 1992). If federal agents want to seize property for forfeiture, they have to get a warrant, unless one of the recognized exceptions to the Fourth Amendment applies, like when cash is found in plain view in a vehicle that can be driven away, and there is probable cause to believe it's drug proceeds, or when property is found during a search incident to a lawful arrest. In fact, in many instances, forfeiture seizures are more limited than their evidentiary counterparts. See 18 U.S.C. §981(b)(2) (in money laundering cases, warrantless seizures are authorized during searches incident to arrest, but not in other exigent circumstances).

In real property cases, the rules are still more restrictive. In United States v. James Daniel Good Property, 114 S. Ct. 492 (1993), the Supreme Court held that real property may not be seized at all, even with a warrant based on a showing of probable cause, until the property owner has been given notice and an opportunity to be heard. In short, in real property cases, the Due Process Clause of the Fifth Amendment requires the government to give property owners more "process" than is due under the Fourth Amendment.

Moreover, seizing the property isn't the end of the process; it's only the beginning. If someone wants to contest a forfeiture he has a right to file a claim, thereby forcing the government to file a civil or criminal forfeiture action in federal court. If the case is civil, the claimant has all the rights that attend normal civil litigation, including the right to discovery and the right to a trial by jury. Finally, the forfeiture verdict must be based on a preponderance of the admissible evidence, not the probable cause evidence that was sufficient for the seizure.

Of course, any system can be improved. The Justice Department has proposed legislation to make the government carry the burden of proof in civil forfeiture cases. We also have suggested making it easier for people to file claims in forfeiture cases by extending the filing deadlines, and we have proposed a remedy for those whose property is damaged in government custody. (The Justice Department's legislative proposal and supporting testimony are published in the record of the Hearing on the Civil Asset Forfeiture Reform Act, H.R. 1916, House Committee on the Judiciary, 104th Congress, 2d Sess., Serial No. 94, July 22, 1996.) But it is preposterous to say that property owners are denied due process under current law.

The Uncontested Forfeitures

What should we make of the fact that so many forfeitures are uncontested? The critics, of course, see this as evidence that innocent property owners are walking away from their property without filing a claim because the procedures are unfair. But the opposite is far more likely. Four out of five forfeitures are uncontested because in most cases the evidence is so overwhelming that contesting the forfeiture would be pointless. A defendant charged with smuggling illegal aliens, for example, might see little advantage in contesting the forfeiture of the truck he was driving when he was arrested and the aliens were found. Remember, eighty percent of all forfeitures involve a parallel arrest or prosecution. Those are cases in which the defendant is in court anyway, has counsel, and yet most of the time does not object to the forfeiture.

Certainly, there are still due process issues to be worked out. One of the most nettlesome involves the current flood of post-conviction pleadings being filed by federal prisoners who contend that they didn't contest forfeiture actions because they didn't receive proper notice. See e.g. United States v. Clark, 84 F.3d 378 (10th Cir. 1996). Most commonly, the prisoners complain that the government sent the notice to the wrong jail or to a home address when the government knew that the person was incarcerated. Criminals have due process rights just like everyone else, so the government must find a way to provide notice of forfeiture actions to persons being held in jail. But these are hardly cases that involve innocent claimants not filing claims because the procedures are stacked against them.

Innocent Owners

In his discussion of Bennis v. Michigan, Mr. Pilon makes a persuasive argument that the Constitution does not adequately protect innocent owners in civil forfeiture cases. It is an argument, however, that has little relevance to federal forfeiture law.

Bennis, it must be remembered, was a State case. Michigan, apparently, does not provide statutory protection for innocent owners, and the Supreme Court held that no such protection is required by the Due Process Clause. Fair enough. But the fact that the Constitution doesn't protect innocent owners doesn't mean that the legislature cannot do so. In fact, Congress has included an innocent owner defense in virtually all of the most widely used federal forfeiture statutes. For example, the drug statutes, 21 U.S.C. §881(a)(4) and (7), say that neither vehicles nor real property, respectively, may be forfeited if they were used to commit a crime without the knowledge or consent of the owner.

Mr. Pilon's claim that "hotels and apartment buildings are today forfeited when their owners are unable to prevent drug transactions in them" is just plain wrong. Even a property owner who "knows" that his property is being used for an illegal purpose is protected from forfeiture if he shows that he took all reasonable steps to prevent the activity. See United States v. 141st Street Corp., 911 F.2d 870, 877-78 (2nd Cir. 1990) (landlord who knew building was being used for drug trafficking had opportunity to show he did not consent to such use), cert. denied, 111 S. Ct. 1017 (1991); United States v. Parcel of Real Property Known as 6109 Grubb Road, 886 F.2d 618, 626 (3rd Cir. 1989) (wife who knew of husband's use of residence for drug trafficking had opportunity to show she did not consent to such use); United States v. One Parcel of Real Estate at 1012 Germantown Road, 963 F.2d 1496 (11th Cir. 1992).

For example, the owner of a residential hotel doesn't have to put a stop to drug transactions on his property; he just has to do what a reasonable owner would do to try to stop it, like call the police, evict tenants convicted of committing drug crimes on the premises, and install security devices like locks and adequate lighting. See United States v. All Right, Title and Interest (Kenmore Hotel), 77 F.3d 648 (2d Cir. 1996).

nolu chan  posted on  2020-01-19   8:49:27 ET  Reply   Untrace   Trace   Private Reply  


#35. To: nolu chan (#33)

In any debate, the person who can present their argument concisely and clearly, in the fewest words, wins.

Pinguinite  posted on  2020-01-19   9:51:50 ET  Reply   Untrace   Trace   Private Reply  


#40. To: Pinguinite (#35)

In any debate, the person who can present their argument concisely and clearly, in the fewest words, wins.

In any court, empty bullshit loses.

Fourth Amendment challenges to asset forfeiture laws have been rejected by the U.S. Supreme Court, as shown by Calero-Toledo.

Calero-Toledo v Pearson Yacht Leasing Co, 416 US 663, 676-80 (1974)

II

Appellants challenge the District Court’s holding that the appellee was denied due process of law by the omission from §2512(b), as it incorporates §1722, of provisions for preseizure notice and hearing. They argue that seizure for purposes of forfeiture is one of those “‘extraordinary situations’ that justify postponing notice and opportunity for a hearing.” Fuentes v. Shevin, 407 U. S., at 90; see Sniadach v. Family Finance Corp., 395 U. S. 337, 339 (1969); Boddie v. Connecticut, 401 U. S. 371, 378-379 (1971). We agree.12

In holding that lack of preseizure notice and hearing denied due process, the District. Court relied primarily upon our decision in Fuentes v. Shevin, supra. Fuentes involved the validity of Florida and Pennsylvania replevin statutes permitting creditors to seize goods allegedly wrongfully detained. A writ of replevin could be obtained under the Florida statute upon the creditor’s bare assertion to a. court clerk that he was entitled to the prdperty, and under the Pennsylvania statute, upon filing an affidavit fixing the value of the property, with­out alleging legal entitlement to the property. Fuentes held that the statutory procedures deprived debtors of their property without due process by failing to provide for hearings “‘at a meaningful time.’” 407 U. S., at 80.

Fuentes reaffirmed, however, that, in limited circumstances, immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally per­missible. Such circumstances are those in which

“the seizure has been directly necessary to secure an important governmental or general public inter­est. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the stand­ards of a narrowly drawn statute, that it was neces­sary and justified in the particular instance.” Id., at 91.

Thus, for example, due process is not denied when postponement of notice and hearing is necessary to pro­tect the public from contaminated food, North American Storage Co. v. Chicago, 211 U. S. 306 (1908); from a bank failure, Coffin Bros. & Co. v. Bennett, 277 U. S. 29 (1928); or from misbranded drugs, Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); or to aid the col­lection of taxes, Phillips v. Commissioner, 283 U. S. 589 (1931); or the war effort, United States v. Pfitsch, 256 U. S. 547 (1921).

The considerations that justified postponement of notice and hearing in those cases are present here. First, seizure under the Puerto Rican statutes serves significant governmental purposes: Seizure permits Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings,13 thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions. Second, preseizure notice and hearing might frustrate the interests served by the statutes, since the property seized — as here, a yacht — will often be of a sort that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given. And finally, unlike the situation in Fuentes, seizure is not initiated by self-interested private parties; rather, Commonwealth officials determine whether seizure is appropriate under the provisions of the Puerto Rican statutes.14 In these circumstances, we hold that this case presents an “extraordinary” situation in which postpone­ment of notice and hearing until after seizure did not deny due process.

___________________

12 Appellants also argue that the seizure did not result in any injury to appellee that constituted failure of preseizure notice and hearing a denial of due process. This is so, they contend, because the lease gave the lessees exclusive right to possession at the time of the seizure, and therefore appellee's nonpossessory interest was adequately protected by the statutory provisions for a post-seizure hearing. But the lease provides that lessees' failure, inter alia, within 15 days after notice from appellee to pay arrears of rent or use the yacht solely for legal purposes would establish a default entitling appellee to possession. Whether a default had in fact occurred between May 6, 1972, when a lessee was first accused of a narcotics violation, and the date of seizure, July 11, 1972, is not clear from the record, although it is clear that appellee did not attempt to repossess the yacht until October 19, 1972.

Since, however, our holding is that preseizure notice and hearing are not required by due process in the context of this forfeiture, we have no occasion to remand for a determination (1) whether the company had an immediate, but as yet unexercised, right to possession on the date of seizure or merely a right to collect rents, together with a reversionary interest, and (2) whether either or both of these property interests would be of sufficient significance to require that the company be given an advance opportunity to contest the seizure. Cf. Fuentes v. Shevin, 407 U. S. 67, 86-87 (1972).

13 Cf. Oumbey v. Morgan, 256 U. S. 94 (1921), cited with approval in Fuentes v. Shevin, supra, at 91 n. 23.

14 Fuentes expressly distinguished seizure under a search warrant from seizure under a writ of replevin:

"First, a search warrant is generally issued to serve a highly important governmental need — e. g., the apprehension and conviction of criminals — rather than the mere private advantage of a private party in an economic transaction. Second, a search warrant is generally issued in situations demanding prompt action. The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice. Third, the Fourth Amendment guarantees that the State will not issue search warrants merely upon the conclusory application of a private party. It guarantees that the State will not abdicate control over the issuance of warrants and that no warrant will be issued without a prior showing of probable cause." 407 U. S., at 93-94, n. 30.

We have no occasion to address the question whether the Fourth Amendment warrant or probable cause requirements are applicable to seizures under the Puerto Rican statutes.

15 No challenge is made to the District Court's determination that the form of postseizure notice satisfied due process requirements. See n. 3, supra. Notice, of course, was required to be "'reasonably calculated' to apprise [the company] of the pendency of the forfeiture proceedings." Robinson v. Hanrahan, 409 U. S. 38, 40 (1972).

More recently, challenges have been made citing the Eighth Amendment's Excessive Fines Clause. Timbs v. Indiana, S Ct 17-1091 (20 Feb 2019) slip op.

nolu chan  posted on  2020-01-19   11:24:35 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 40.

#43. To: nolu chan (#40)

Maybe you're just stating the nature of legal environment, what it is, and not what it should be.

I'm pointing out the moral wrong of taking property from people on mere suspicion of a crime without due process, creating a legal and finacial burden upon a presumed innocent person to prove the negative of non-guilt. In no way would I agree that the founder's envisioned civil asset forfeiture as compatible with the 4th Amendment. You are free to suggest the current legal environment of the USA, particularly in regards to taking property without having to prove any criminal wrongdoing, is exactly what they envisioned and intended. If so, go for it.

On the other hand, if you are content to be a walking case law library lacking any moral compass by which to morally judge right and wrong, fine. That is something on which we can agree.

Pinguinite  posted on  2020-01-19 14:32:17 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 40.

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