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Civil Liability of
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Forfeiture Proceedings
A motorist was driving a vehicle he owned when a police officer pulled him over. He was arrested and charged with dealing in marijuana, resisting law enforcement, and obstruction of justice. The officer had the vehicle towed and held for forfeiture under Indiana Code 34- 24-1-1(a)(1) and 2(a)(1). The motorist then demanded the return of his vehicle per I.C. 34-24-1-3. He filed a federal class-action complaint, claiming such seizures violate the due process clause. The prosecutor’s office subsequently released the vehicle to him. The trial court certified a class and granted the motorist summary judgment, declaring I.C. 34-24-1-1(a)(1) (read in conjunction with other provisions of the chapter) unconstitutional in allowing for seizure and retention of vehicles without an opportunity for an individual to challenge pre-forfeiture deprivation. While an appeal was pending, Indiana amended the statute, arguably increasing the available process by providing for a probable cause affidavit, a motion for provisional release, and a shortened window for the prosecutor to file a forfeiture complaint. A federal appeals court remanded for consideration of the constitutionality of the amended statute, expressing no opinion regarding the constitutionality of the old or new versions of the statute, regarding mootness, or regarding the class certification. Washington v. Marion County Prosecutor, #17-2933, 916 F.3d 676 (7th Cir. 2019).
A man pled guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. Police seized a Land Rover he had purchased with money he received from an insurance policy when his father died. The state sought civil forfeiture of the vehicle, charging that it had been used to transport heroin. Observing that he had recently purchased the vehicle for more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction, the trial court denied that request. The Indiana Supreme Court reversed, but the U.S. Supreme Court vacated that ruling. It held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the states under the Fourteenth Amendment’s Due Process Clause, which incorporates and renders applicable to the states Bill of Rights protections “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.”The Excessive Fines Clause carries forward protections found in sources from the Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Excessive fines undermine other liberties, the Court stated. They can be used to retaliate against or chill the speech of political enemies. In considering whether the Fourteenth Amendment incorporates a Bill of Rights protection, the question is whether the right guaranteed—not every particular application of that right—is fundamental or deeply rooted. The Excessive Fines Clause is incorporated regardless of whether application of the Clause to civil in rem forfeitures is itself fundamental or deeply rooted. Timbs v. Indiana, #17-1091, 203 L. Ed. 2d 11, 2019 U.S. Lexis 1350, 2019 WL 691578.
A police officer claimed that he had
probable cause to seize a large amount of money found in a suspect's
possession, but a federal appeals court, upholding an award of $1 in nominal
damages and attorneys' fees against the officer for a Fourth Amendment
violation, found that the mere fact that a large amount of money was found was
insufficient to show a connection to possible drug sales. Even though the
plaintiff used two different names when he checked into a hotel, had ties to
New York City, and had a third-degree robbery criminal record, these additional
facts also did not establish probable cause to find drug trafficking, but
merely supported a brief detention of the money for further investigation, rather
than the lengthy detention that occurred. The plaintiff had presented evidence
that he currently resided in Vermont, explained why he used two names and did
not try to conceal it, and his most recent robbery conviction occurred long ago
in 1973. Diamond v. O'Connor, #08-5082, 2009 U.S. App. Lexis 21413 (Unpub. 2nd
Cir.).
The U.S. government was not entitled to the civil
forfeiture of $200,000 in funds that were allegedly the proceeds of a Los
Angeles medical marijuana distribution group. A federal court found that that
the evidence presented was the result of an illegal search and therefore should
have been suppressed. Without the suppressed evidence, there was nothing to tie
the funds to any violation of federal drug laws. "Given the government's
strong financial incentive to prevail in civil forfeiture actions, the
application of the exclusionary sanction in these cases is likely to prove
especially effective in deterring law enforcement agents from engaging in
illegal activity. Applying the exclusionary rule in forfeiture proceedings also
protects judicial integrity by ensuring that the courts do not serve as a
conduit through which the government fills its coffers at the expense of those
whose constitutional rights its agents violated." The problem with the
state warrant under which the funds had been seized, along with 209 pounds of
marijuana, 21 pounds of hashish and 12 pounds of marijuana oil was that the
judge who signed the warrant was not told that the premises operated as a
medical dispensary, and therefore might not have been in violation of
California state laws. The appeals court was particularly concerned that the
Los Angeles police, who obtained a search warrant and conducted the raid,
turning over 80% of the money to the federal government, but retaining 20% of
the funds for the local police department "might stand to profit from
unlawful activity." U.S. v. $186,416.00 in U.S. Currency, #07-56549, 2009
U.S. App. Lexis 22833 (9th. Cir.).
The New York City
Police Department was ruled to have violated the property rights of an auto
finance company without due process of law by proceeding with a forfeiture
proceeding concerning a vehicle seized for suspected use in criminal activity
without providing the finance company with notice and an opportunity to be
heard in the proceeding. The auto finance company allegedly had a valid
security interest in the vehicle. Additionally, a delay by the city in going
forward with the forfeiture proceeding deprived the plaintiff of property,
since the value of the vehicle decreases over time. Ford Motor Credit Co. v.
NYC Police Dept., No. 06-4600, 2007 U.S. App. Lexis 22607 (2nd Cir.).
A city ordinance providing
for the forfeiture to the city of a car used to commit criminal actions
prohibited by state law, such as solicitation of prostitution or acquiring
controlled substances, was preempted by existing state statutes on the subject
of forfeiture of vehicles, and void under a provision of the California state
constitution. O'Connell v. City of Stockton, No. S135160, 2007 Cal. Lexis 7879.
In proceeding challenging attempted forfeiture of
paintings seized in the course of criminal prosecution, the government, rather
than the owner had the burden of proof and the failure of the U.S. government to
provide written notice of the seizure within 60 days required it to return the
paintings, under the provisions of 18 U.S.C. Sec. 983(a)(1)(F). Saro v. U.S.,
No. 04-14308, 173 Fed. Appx. 760 (11th Cir. 2006). [N/R]
Despite claims by owner of vehicles seized for
forfeiture that criminal investigator told him that the release of the vehicles
would be conditioned on his agreement to testify falsely against others in a
criminal investigation, the owner did not show any deprivation of a due process
right. There was no evidence that the investigator had any power over the
continuation or dismissal of the forfeiture action or that he actually
communicated with those pursuing forfeiture of the vehicles. Wrench Transp.
Services, Inc. v. Bradley, No. 04-1772, 136 Fed. Appx. 521 (3rd Cir. 2005).
[N/R]
California city's ordinance allowing the seizure
of cars used to solicit prostitution or carry out drug transactions, was
violative of due process by failing to provide for a reasonably prompt
post-seizure hearing on the probable merits of the city's forfeiture case.
O'Connell v. City of Stockton, No. C044400, 2005 Cal. App. Lexis 639;128 Cal.
App. 4th 831. ). [2005 LR Jun]
Federal appeals court upholds constitutionality
of Detroit anti-vice operation involving the use of undercover female police
officers posing as prostitutes in high-crime areas to make arrests for
soliciting prostitution and seize vehicles driven or utilized by males,
imposing forfeiture if applicable fees and fines were not subsequently Ross v.
Duggan , No. 02-1987, 2004 U.S. App. Lexis 28049 (6th Cir. 2004), recommended
for full publication, 2005. [2005 LR May]
Police officer was justified in seizing
arrestee's truck and currency under Tennessee forfeiture statute based on
motorist's apparent possession of prescription drugs which were not his, which
the officer could believe the suspect intended to resell. Pinnix v. Pollock,
No. 03-1150, 338 F. Supp. 2d 885 (W.D. Tenn. 2004). [N/R]
A motion to vacate on the basis of bad faith and
misconduct a prior settlement and voluntary dismissal of the plaintiff's claim
against the Missouri Highway Patrol for the alleged improper seizure and
retention of cash found in his vehicle during an arrest for a drug offense had
to be brought within a one-year statute of limitations for motions founded in
fraud. The plaintiff's three-year delay in bringing the motion was not
reasonable, so that the motion was properly denied. Middleton v. McDonald, No.
03-3179, 388 F.3d 614 (8th Cir. 2004). [N/R]
Car owner whose vehicle was seized and subject to
forfeiture proceedings after another person driving it was arrested for
attempting to purchase marijuana could not pursue federal civil rights lawsuit
asserting that the forfeiture was a violation of due process while the state
forfeiture proceeding's direct appeal process was not yet complete. Loch v.
Watkins, No. 01-1598, 337 F.3d 574 (6th Cir. 2003). [N/R]
[N/R] Forfeiture of defendant's vehicle
was not defective because it was held by city police and not physically
"delivered" to the sheriff; purpose of custody by the sheriff is to
provide proper notice, which was done in this case. People v. Adams,
#2-99-0134, 2001 Ill. App. LEXIS ---- (2nd Dist. 2001).
329:72 An arrestee's failure to challenge a
forfeiture proceeding concerning $11,000 he gathered to use for bail money
precluded him from asserting, in a Federal Tort Claims Act lawsuit, that he had
a property interest in the money at the time he claimed it was "illegally
seized." Bazuaye v. U.S., 41 F.Supp. 2d 19 (D.D.C. 1999).
307:105 Patrolman had basis to subject $10,050 in
cash to sniff by drug detecting dog when motorist's story concerning source of
funds was immediately contradicted by his mother at the scene of his valid stop
and arrest for speeding; officer acted reasonably in turning money over to DEA
for further proceedings when fellow officer stated that dog alerted to the
cash. Conrod v. Davis, 120 F.3d 92 (8th Cir. 1997).