Mark Pulliam Jul. 14, 2016, 11:58am


This column first appeared July 14 on Library of Law and Liberty.

The seizure by the state of assets connected to crime is a controversial subject. Asset forfeiture’s proponents—mainly law-enforcement agencies—view it as essential to fighting crime (especially the drug trade), because it deprives wrongdoers of the fruits of their illicit activities. Civil libertarians worry about the lack of due process for criminal defendants and the danger of official abuse of this crime-fighting tool.

“Civil” asset forfeiture—seizing property without a criminal conviction—raises yet more qualms. Many constitutional conservatives are concerned about the confiscation of assets (often cash) belonging to third parties, sometimes innocent third parties, without procedural protections. Forfeited assets account for a significant percentage of the budget of some rural law-enforcement agencies, highlighting the potential for untoward economic incentives—sometimes dubbed “policing for profit.”

A recent appellate decision in Texas, State of Texas v. One (1) 2004 Lincoln Navigator, has stirred the pot. Unfortunately, many who are upset about this case have conflated the policy aspect, that is, asset-forfeiture legislation, with the merits of the legal arguments considered by the Texas Supreme Court. The unanimous decision, and the outcry it raised from Republican activists in the Lone Star State (who tend to lean toward the Tea Party brand of conservatism), present a good opportunity to explore the issue.

On the evening of November 3, 2010, troopers from the Texas Department of Public Safety, acting on a tip regarding an upcoming drug deal from a confidential informant they had never previously used, staked out a pool hall in Corpus Christi. The troopers observed a white Lincoln Navigator with shiny rims driven by a Latino male enter the parking lot and park next to the pool hall, where a drug transaction arranged by the confidential informant was to occur.

The vehicle, location, and driver all matched the informant’s tip, down to the shiny rims. The informant, who accompanied the troopers to the pool hall, identified the driver, Miguel Herrera, as the drug dealer with whom he had arranged the sale. The informant reported that Herrera usually carried a weapon. As one of the troopers approached the Navigator, he observed Herrera make a “quick motion down towards the floorboard.” When Herrera was patted down and the driver’s area searched, the troopers found a handgun in the center console. Herrera, a convicted felon, was taken into custody for illegal possession of a firearm. When the Navigator (owned by Herrera) was searched a second time, troopers discovered cocaine, pills, and a second loaded magazine for the gun.

Because of the bifurcated nature of Texas’s appellate system—the state has a court of last resort for criminal cases, and a separate court of last resort for civil cases—the record of this case only concerns the asset-forfeiture issue, not the criminal charges. Nonetheless, it appears that the trial court ruled in both the criminal case and the separate (civil) asset-forfeiture proceeding that the troopers had not established that the informant’s tip was reliable. Accordingly, in the trial court’s view, the initial (warrantless) search in the pool hall parking lot was not supported by probable cause and was therefore illegal. The evidence discovered in the subsequent inventory search was likewise ruled inadmissible.

The state appealed the trial court’s ruling to the 13th Court of Appeals, which affirmed the ruling below. The state then sought review by the Texas Supreme Court, which, due to its civil-only jurisdiction, only considered the asset-forfeiture issue. (The Texas Court of Criminal Appeals has ultimate jurisdiction in criminal cases.)

Texas has an asset-forfeiture statute, codified in Chapter 59 of the Code of Criminal Procedure, that permits the state to obtain property by forfeiture, following a civil proceeding in which the state carries the burden of proof (albeit by a “preponderance of the evidence”), if the property qualifies as “contraband.” “Contraband” is defined as (among other things) any property “used or intended to be used in the commission” of enumerated crimes, including the sale of drugs. What makes One (1) 2004 Lincoln Navigator interesting is whether the exclusionary rule should apply to civil asset-forfeiture proceedings. The question had never been decided by the Texas Supreme Court prior to this case.

Although the state supreme court unanimously reversed the decision by the 13th Court of Appeals—and remanded the case for “further proceedings,” taking the excluded evidence into account—four justices joined a concurring opinion written by Justice John Devine.

Justice Devine and his colleagues reached this result by holding that the troopers had reasonable suspicion for the initial search, which led to the subsequent inventory search revealing the drugs. In other words, the “contraband” (in the form of the Lincoln Navigator) was subject to forfeiture because the search was valid and the underlying evidence was not subject to exclusion.

The five-justice majority, in an opinion written by Justice Jeff Brown, reached the same result by holding that, even if the search was illegal, the exclusionary rule doesn’t apply to civil asset-forfeiture cases.

The majority’s reasoning has rankled court-watchers who reject asset forfeiture on policy grounds. Do these conservative critics have a point? Can property legitimately be “seized” as contraband if it was discovered in an illegal search?

Although it seems counter-intuitive, the answer appears to be “yes.” The reason is twofold.

First, the U.S. Supreme Court has steadily backpedaled from applying the exclusionary rule to criminal asset forfeitures since its application in One 1958 Plymouth Sedan v. Pennsylvania, a 1965 decision written by Justice Arthur Goldberg at the height of the Warren Court’s activism. As the majority opinion in One (1) 2004 Lincoln Navigator persuasively explains, the exclusion of illegally obtained evidence is a judicially-created remedy designed the safeguard the Fourth Amendment, not a personal constitutional right.

Moreover, the rationale for the exclusionary rule—“the criminal is to go free because the constable has blundered,” in Justice Benjamin Cardozo’s famous formulation—doesn’t apply in the civil context, as the Supreme Court has recognized numerous times since 1965, declining to exclude evidence in parole-revocation hearings, civil deportation hearings, civil tax cases, and grand jury proceedings. The Supreme Court has made it clear that civil in rem forfeiture is not considered to be punishment of the wrongdoer for his criminal offense.

Second, the relevant policies are embodied in legislation, not common law rules. Forfeiture of contraband in Texas is expressly authorized by statute. The Texas legislature created a civil asset-forfeiture scheme that authorizes the seizure of property without a warrant pursuant to “a lawful arrest, lawful search, or lawful search incident to an arrest.” Code of Criminal Procedure, article 59.03(b)(4). The statute does not forbid seizure of property obtained in an illegal search. As a matter of state law, the exclusionary rule has been codified in article 38.23(a) to apply in criminal cases.

Critics of asset forfeiture generally, or of the use of illegally discovered evidence in civil forfeiture proceedings, should not expect the Texas Supreme Court to legislate from the bench by ignoring or rewriting laws it doesn’t like. Consistent with their limited judicial role, the justices ruling in One (1) 2004 Lincoln Navigator faithfully followed the applicable law, and correctly declined to make new law.

To be sure, citizens are right to be vigilant when it comes to action by government without criminal due process protections. Abuses have been well-documented. Many reforms have been suggested, including the abolition of civil asset forfeiture; raising the burden of proof to more than “preponderance of the evidence”; protecting the rights of innocent third parties (such as vehicle owners and lien holders); allowing prevailing defendants to recover their attorneys’ fees; not allowing forfeited assets to directly benefit the law-enforcement agency responsible for the seizure; tightening up the definition of “contraband” and “proceeds” subject to forfeiture; and imposing greater reporting obligations to enhance transparency.

According to critics, the asset-forfeiture statute in Texas is one of the worst compared to other states. These reform proposals strike me as good ideas, and I also think that revising the statutory exclusionary rule to apply to civil asset-forfeiture proceedings ought to be under discussion in Texas. But these are matters for the legislature, not the Texas Supreme Court. In my view, the court reached the right result.

Still interesting to consider is whether, taking policy out of the equation, the majority’s approach is more consistent with judicial restraint, or whether Justice Devine’s concurring opinion is. Recall that the Texas Supreme Court has no jurisdiction in criminal cases. Writing separately, Justice Don Willett (recently in the news as one of Donald Trump’s potential candidates for the U.S. Supreme Court) offered several prudential reasons why he joined Justice Brown’s majority opinion.

Justice Willett wrote that ruling on the legality of the search would intrude into the purview of the Court of Criminal Appeals; that considering the exclusionary rule inapplicable to civil asset-forfeiture proceedings eliminates uncertainty, and streamlines those proceeding in the future by obviating any inquiry into the reasonableness of the search; and that, unless and until the legislature changes the law, “we dutifully take existing law as we find it.”

That is precisely how courts are supposed to function in a free society. Critics of One (1) 2004 Lincoln Navigator (or asset forfeiture generally) should address their arguments to the Texas legislature.

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