Amicus Curiae Brief — Florida v. White

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| FER 10 1909

No. 98-223 ? ;

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Ceninsseeicanenuinesiniesmesss.

In The

Supreme Court of the Hnited States

October Term, 1998

.

STATE OF FLORIDA,

Petitioner,

TYVESSEL TYVORUS WHITE,

Respondent.

.

On Writ Of Certiorari

To The Supreme Court Of Florida

¢

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

S

RicHarD J. TRopERMAN*

1325 Fourth Ave., Suite 1200

Seattle, WA 98101-2509

(206) 343-1111

Lisa B. KeEMLER

108 N. Alfred Street

Alexandria, VA 22314

(703) 684-8000

"Counsel of Record for

Amicus Curiae National Association

of Criminal Defense Lawyers

[Additional Counsel Listed On Inside Cover]

Epwarps, Simmons & OLIVER

Westey MacNer OLIver

1501 Sixteenth Avenue South

Nashville, TN 37212-2095

(615) 292-9280

Ho.tLtaNp & KNIGHT

Tom BisHop

50 N. Laura Street

Jacksonville, FL 32202

(904) 798-7305

BEST AVAILABLE COPY|

QUESTION PRESENTED

Does the United States Constitution require law

enforcement officers to obtain a judicially authorized warrant

before they may seize a motor vehicle which they have

probable cause to believe is subject to forfeiture under state

law?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........... i

pe PPE ete eT ae 8 ii

po RP ee iv

URES GIS COU FUER oc ecw rc oreeseeen 2

gs ae ee ee 3

RESO b.6% ba ceed eee abet merous cee 4

I. THE PROTECTION OF PRIVATE PROPERTY

RIGHTS IS CENTRAL TO OUR HERITAGE. ........ 4

Il. THE DECISION OF THE FLORIDA

SUPREME COURT IS NOT IN CONFLICT

WITH PRIOR DECISIONS OF THIS COURT. ....... 5

Ill. NO RECOGNIZED EXCEPTION TO THE

WARRANT REQUIREMENT EXISTED WHICH

WOULD JUSTIFY THE WARRANTLESS

GES Oe DOUG ca wamedecachetocedas 7

NP Pore ie Pet er re ee 8

eS a ee ee renee 9

C. The Seizure Infringed on Respondent's

Sey GE. 5's 4 ows 8 Cate ab ek ee ae ll

IV. WHERE THE GOVERNMENT SEIZES PROPERTY

NOT TO PRESERVE EVIDENCE OF WRONG-

DOING, BUT TO ASSERT OWNERSHIP AND

CONTROL OVER THE PROPERTY ITSELF, THE

GOVERNMENT MUST ALSO COMPLY WITH THE

DUE PROCESS CLAUSES OF THE FIFTH AND

FOURTEENTH AMENDMENTS. ............. 12

A. The Reasonableness of the Warrantless

Seizure in this Case Must be Assessed in

Light of the Post-Seizure Procedures

Available and the Government's Direct

Pecuniary Interest in the Outcome of the

DE ns © Dee w dwt 6 ahd te v0.0 ©. 13

1. The post-seizure procedures

ee ee ee 14

2. The government has a direct

pecuniary interest inthe outcome .... 16

EE. Sits in 5 60.0 ea 4d Oe ob a eS ON 21

TABLE OF AUTHORITIES

Cases: Page

Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149,

oe RT re ee ne ee ee 11

Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801,

OF ee ee ae at 10

Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974)....... 5,6

Carroll v. United States, 267 U.S. 132,

45 S.Ct. 200, GD L.Bd.2d $43 (1925)... ee ees 5, 6

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975,

ee a S's ones o SEW ble ele ee ob oe ee 8

Chicago, Burlington & Quincy R.R. v. Chicago,

166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897) ........... 5

Connecticut v. Doehr, 501 U.S. 1 , 111 S.Ct. 2015,

Sap Gee OD s wb n0'4S pd Oe eee o wee tuka 16, 18

Coolidge v. New Hampsire, 403 U.S. 443,

ete 6m TR eee 7,8

Cooper v. California, 386 U.S. 58, 87 S.Ct. 788,

SY Une PE dn ls eae’ cd okie O~ kee ke 7

Florida v. White, 710 So.2d 949 (1998) ...............5.. 9

Frazee v. IRS, 947 F.2d 448 (10th Cir. 1991)... .......... 15

Gerstein v. Pugh, 450 U.S. 103, 95 S.Ct. 854,

SP Gee en ~ 5 eid'a'a S knie ahe WAG RRs oka den ale 13

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680,

Se? es OE 0 6 oa aby d 60a de eee 17

iv

Cases (Continued):

Horton v. California, 496 U.S. 128, 110 S.Ct. 2301,

ee ED A Oe Bho Ws ba bGo bok ek oo ee 10

Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605,

Oe EE oe wlan ba bn eee cb as aseeerel 11

Industrias Cardoen, Lid. v. United States, 983 F.2d 49

OR gn > bh oe Oa ebb ese es 6) oe ees < 15

Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367,

I ot a cn hc oo COR 5e So cbl's aid kwe> 15

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,

hk da did Oa bo wise bw.p b:e-4 6 oye 4k 7

Lynch v. Household Finance Corp., 405 U.S. 538,

SP ees SEU PE EPSP CEOUED Seco te ei iceder 4, 18

Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893,

Ce UE ob -be-edies 0 deeb b 0 6% 0 6% 17, 19

Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408,

Oe es Thies cad el weds obs sites Se. 7

One 1958 Plymouth Sedan v. Pennsylvania,

380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965)........ 10

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371,

ee I oo de, i a Ga iis 4g on bee 60s 4s 10

Riverside County v. McLaughlin, 500 U.S. 44,

111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ................ 14

Shaw v. United States, 891 F.2d 602 (6th Cir. 1989) ........ 15

United States v. $8,850 in United States Currency,

461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) ....... 15

United States v. Castro, 883 F.2d 1018 (11th Cir. 1989) ...... 15

v

United States v. Elias, 921 F.2d 870 (9th Cir. 1990) ........ 15

United States v. James Daniel Good Real Property,

510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). 4, 12, 13, 16

United States v. Lasanta, 978 F.2d 1300

oo Peri reer ere rt ere eee Te 7

United States v. One 1987 Jeep Wrangler, 972 F.2d 472

| Re Ty rat ere tee Py 6 Fe Oe 15

United States v. Price, 914 F.2d 1507 (D.C. Cir. 1990) ...... 15

United States v. Watson, 423 U.S. 411, 96 S.Ct. 820,

GD Ena CD dé ho keh cosh det’ ates Bebe di 13

Constitution, Statutes, Regulations and Rules:

Pes Ges GD nS a cae ew Wete dvbes 0 bskoe passim

Se EET PET ETEL LETS ee passim

A EE ch wa dae dcvaee Paodane sabeet eevee 14

Be PNET hee cho 0 6u6 0 d.0 o4 db ONS RA Lees 2, 14

oe ee ES 6 5 ob ao. 400 bet hee) Dekeeaee 2

Be Wee EE 6 Acs 000 hee sah we ws we bbs oe ke 15

Fe Se, EEE ce cvccescdndeectdwbever 14

PCIE 0 ok So 5. 0 ob ee bb vie te Cee APECEe 14

— pA, , fF ll PECL TS Creer 1

Miscellaneous:

James W. Ely, Jr., THE GUARDIAN OF EVERY OTHER RIGHT:

THE CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS (1992) .... 4

Leonard L. Levy, ORIGINALANTENT AND THE FRAMERS’

CO EE 5.5 s ng Rd Chae oe CAs Seek checkbox 5

John Locke, THE SECOND TREATISE ON CIVIL GOVERNMENT .... 4

N. Lassen, THE HISTORY AND DEVELOPMENT OF THE

FOURTH AMENDMENT TO THE UNITED STATES

8, I ee a eee) ee See ore ae 13

vi

ee

ee

No. 98-223

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

STATE OF FLORIDA, Petitioner,

Vv.

TYVESSEL TYVORUS WHITE, Respondent.

On Writ of Certiorari to

the Supreme Court of Florida

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

This amicus curiae brief is submitted by on behalf of

Respondent, Tyvessel Tyvorus White. By letters filed with

the Clerk of the Court, Petitioner and Respondent have

consented to the filing of this brief.'

' As required by Rule 37.6 of this Court, amicus curiae submits

the following: no party other than amicus curiae and its counsel

authored this brief in whole or in part; no person or entity, other than

amicus curiae, its members, or its counsel, have made monetary

contribution to the preparation or submission of this brief.

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense

Lawyers (NACDL) is a non-profit corporation with a

membership of more than 10,000 attorneys and 28,000

affiliate members in 50 states. The American Bar

Association recognizes NACDL as an affiliate organization

and awards it full representation in its House of Delegates.

NACDL was founded in 1958 to promote study and research

in the field of criminal law; to disseminate and advance

knowledge of the law in the area of criminal practice; and to

encourage the integrity, independence, and expertise of

defense lawyers in criminal cases. One of NACDL’s

objectives is to ensure that statutes are construed and applied

in accordance with the Constitution.

NACDL has long been troubled by the expanding use

of civil forfeiture proceedings in our criminal justice system.

We have deep concerns about the fairness of some of these

laws and the aggressive way they are used by state and

federal prosecutors to inflict punishment and deprive

individuals (including innocent persons) of significant

property interests, often without any of the constitutional and

procedural protections generally accorded to either criminal

or civil defendants.

The Florida statute at issue in this case provides that

property used in violation of the Florida Contraband Act

may be seized and forfeited. The statute does not require

that such seizures be made pursuant to a warrant. The

parallel federal civil forfeiture statute, 21 U.S.C. §881,

expressly authorizes the seizure of property without prior

judicial process “when the Attorney General has probable

cause to believe that the property is subject to civil forfeiture

under this subchapter." 21 U.S.C. §881(b)(4). We agree

with the Supreme Court of Florida below, and those

decisions of several federal courts of appeals, which hold

that there is no "forfeiture seizure" exception to the Fourth

Amendment warrant requirement. NACDL advocates this

position to preserve the right of the people to be free from

unreasonable searches and seizures. Thus, NACDL has a

vital interest in the outcome of this case, and urges the Court

to affirm the decision below.

SUMMARY OF ARGUMENT

Subject to only a few specifically established

exceptions, seizures conducted outside the judicial process

are per se unreasonable. There is no "forfeiture exception"

to the warrant requirement. There were no exigencies

requiring prompt action, and neither the automobile

exception nor the plain view exception can justify the

warrantless seizure in this case. The seizure of Respondent’s

automobile clearly infringed on his privacy interest as well

as his possessory interest in the vehicle.

Moreover, the Fourth Amendment does not provide

the sole measure of constitutional protection to property

owners in forfeiture cases. Where the government seizes

property not to preserve evidence of wrongdoing, but to

assert ownership and control over the property, the

government must also comply with the Due Process Clauses

of the Fifth and Fourteenth Amendments.

lyzing the reasonableness of the seizure in light

of the post-seizure procedures available and the Govern-

ment’s direct pecuniary interest in the outcome of forfeiture

proceedings leads to but one conclusion: the seizure in this

case was constitutionally impermissible.

ARGUMENT

I. THE PROTECTION OF PRIVATE PROPERTY

RIGHTS IS CENTRAL TO OUR HERITAGE.

A brief review of the importance of property rights

in our society is indispensable to a resolution of the issues

before the Court.

Throughout the history of western democratic

societies, the importance of private property as a

"concomitant to liberty" has been widely recognized. See,

John Locke, THE SECOND TREATISE ON CIVIL

GOVERNMENT, $¢ 123-42.2 Indeed, this Court has

recognized that “a fundamental interdependence exists

between the personal right to liberty and the personal right

in property. Neither could have meaning without the other."

Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92

S.Ct. 1113, 31 L.Ed.2d 424 (1972). Likewise, as recently

observed by this Court, "[i]ndividual freedom finds tangible

expression in property rights." United States v. James

Daniel Good Real Property, 510 U.S. 43, 61, 114 S.Ct.

492, 505, 126 L.Ed.2d 490 (1993).

> The Founders understood that private property was a fundamental

aspect of personal liberty and, moreover, a major goal of the Revolution

itself. In the Declaration of Independence, Jefferson, borrowing from

John Locke, asserted that the goals of the nation were “life, liberty, and

the pursuit of happiness.” Locke's language, of course, had been “life,

liberty, and property.” Jefferson rightly understood that property was a

part of both liberty and the fundamental happiness of the people. The

demand for a Bill of Rights naturally included the demand for the

protection of property, which the Founders regarded as “the guardian of

every other right.” James W. Ely, Jr., THE GUARDIAN OF EVERY

OTHER RIGHT: THE CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS

(1992).

The nature and quality of a citizen’s freedom and

security relates directly to his or her ability to own property

and to be secure from governmental intrusion therein. “[I]n

a free government almost all other rights would become

worthless if the government possessed power over the private

fortune of every citizen." Chicago, Burlington & Quincy

R.R. v. Chicago, 166 U.S. 226, 236, 17 S.Ct. 581, 41

L.Ed. 979 (1897); Leonard W. Levy, ORIGINAL INTENT AND

THE FRAMERS’ CONSTITUTION, 276-77 (1988).

Il. THE DECISION OF THE FLORIDA SUPREME

COURT IS NOT IN CONFLICT WITH PRIOR

DECISIONS OF THE COURT.

Petitioner argues that the Florida Supreme Court’s

decision conflicts with Carroll v. United States, 267 U.S.

132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), Calero-Toledo vv.

Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080,

40 L.Ed.2d 452 (1974), and Cooper v. California, 386 U.S.

58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).* This argument

ignores critical factual and legal distinctions between these

cases and the case at bar.

The Court’s decision in Carroll reviewed the action

of law enforcement officers in stopping and searching a

vehicle suspected to be carrying contraband. Carroll set the

bar for probable cause to search in such circumstances. The

Court compared automobiles with vessels, and held that they

could be searched without warrants. But Carroll did not

consider the issue presented here: Whether in the absence

> The question presented in Florida's petition for writ of certiorari

was "[W]hether the decision of the Florida Supreme Court . . . conflicts

with decisions of the Court in Carroll v. United States, Calero-Toledo v.

Pearson Yacht Leasing, and Cooper v. California. . .”

5

of exigent circumstances the warrantless seizure of an

automobile for civil forfeiture is constitutionally permissible.

Carroll addressed only the constitutional requirements for

stopping and searching a vehicle believed to be carrying

contraband. Although Carroll is a bedrock case for the stop

and search of an automobile and the requisite probable cause

for those actions, it provides no guidance for the analysis of

the validity of the seizure of a vehicle for civil forfeiture.

Calero-Toledo is similarly distinguishable. That

decision addressed the due process considerations of seizure

without prior notice or hearing under a Puerto Rican

forfeiture statute. The Court held that due process was not

offended under such circumstances because of the movable

nature of the yacht.* Jd. at 2089, 2090. Calero-Toledo

specifically left open "the question whether the Fourth

Amendment warrant or probable-cause requirements are

applicable to seizures under the Puerto Rican statutes." Jd.

at 2090 at n. 14.

Nor does the Florida Supreme Court’s decision

conflict with this Court’s decision in Cooper, where the

Court considered the admissibility of contraband seized from

a vehicle which police had impounded upon the defendant’s

arrest. /d. at 789. The Court in that case reviewed only the

validity of an inventory search conducted after the

impoundment of the vehicle. Cooper did not consider the

validity of the seizure itself and, in fact, assumed that the

* Central to the Court's analysis was the fact that a yacht was the

“sort [of property] that could be removed to another jurisdiction,

destroyed or concealed, if advance warning of the confiscation were

given.” Calero-Toledo, supra, 416 U.S. at 679. Of course, those

concerns simply do not arise from the issuance of an ex parte judicial

warrant.

seizure was lawful for purposes of the opinion. /d. at 791.

Thus, Cooper did not address the heart of the appeal at bar,

the lawfulness of a seizure for civil forfeiture.

Moreover, Cooper is factually distinguishable from

the instant case. Cooper emphasized that the police officers

who seized Cooper’s car were required to do so under a

California statute, and that the seizure was made in order to

preserve the automobile for evidence. /d. at 791. In the

instant case, however, the officers were not required to seize

the automobile. They did so either to facilitate the forfeiture

or, perhaps, to allow them to search the vehicle without

concern for the probable cause requirements of the Fourth

Amendment. Such a circumstance was not addressed in

Cooper.

Ill. NO RECOGNIZED EXCEPTION TO THE WARRANT

REQUIREMENT EXISTED WHICH WOULD JUSTIFY

THE WARRANTLESS SEIZURE IN THIS CASE.

Subject to only a few specifically established

exceptions, searches and seizures conducted outside the

judicial process, without the prior approval of a judge or

magistrate, are per se unreasonable. Mincey v. Arizona, 437

U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Karz v.

United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

L.Ed.2d. 575, (1967). “The exceptions are ‘jealously and

carefully drawn,’ and there must be ‘a showing by those

who seek exemption . . . that the exigencies of the situation

make the course imperative.’ [T]he burden is on those

seeking the exemption to show the need for it” (Citations

omitted). Coolidge v. New Hampshire, 403 U.S. 443, 455,

91 S.Ct 2022, 29 L.Ed.2d 564 (1971). There is no

"forfeiture exception" to the warrant requirement. United

States v. Lasanta, 978 F.2d 1300, 1305 (2nd Cir. 1992).

It is uncontested that Respondent’s vehicle was seized

without a warrant. Petitioner also concedes that the seizure

was not incident to Respondent’s arrest. Moreover, the

Court below found that there were no exigent circumstances

justifying the need for prompt action. Indeed, the alleged

act giving rise to the forfeiture had occurred more than two

months prior to the seizure, and at the time the vehicle was

seized, it was lawfully parked and locked, and Respondent

had already been arrested and the keys found in his pocket.

Nevertheless, Petitioner relies on an expansive and strained

reading of prior decisions of this Court, which are clearly

inapposite, to defend the unlawful seizure.

A. The "Automobile Exception" Does Not Apply.

The thrust of Petitioner’s argument is that the so-

called automobile exception justifies the warrantless seizure

in this case. However, the automobile exception is not a

blanket exception for all vehicles at all times. "The word

‘automobile’ is not a talisman in whose presence the Fourth

Amendment fades away and disappears." Coolidge, supra,

403 U.S. at 461-62. Rather, the exception finds its

underpinnings in the inherent mobility of automobiles. The

Court summarized the exception in Chambers v. Maroney,

399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):

In enforcing the Fourth Amendment's

prohibition against unreasonable searches and

seizures, the Court has insisted upon probable

Cause as a minimum requirement for a reason-

able search permitted by the Constitution. As

a general rule, it has also required the

judgment of a magistrate on the probable

cause issue and the issuance of a warrant

before a search is made. Only in exigent

circumstances will the judgment of the police

as to probable cause serve as a sufficient

authorization for a search. Carroll, supra,

holds a search warrant unnecessary where

there is probable cause to search an

automobile stopped on the highway; the car is

movable, the occupants are alerted, and the

car's contents may never be found again if a

warrant must be obtained. Hence, an

immediate search is _ constitutionally

permissible.

Id., 399 U.S. at 51 (emphasis supplied).

In the case at bar, the Supreme Court of Florida

found that there were no exigent circumstances. “[T]he

absence of probable cause to believe contraband was in the

vehicle combined with an obvious lack of any other exigent

circumstances renders the automobile exception inapplicable

here ... There was simply no concern presented here that

an Opportunity to seize the vehicle would be missed because

of the mobility of the vehicle." Florida v. White, 710 So.2d

949, 953. That determination is amply supported by the

record, and should not be disturbed.

B. The "Plain View" Exception Does not Apply.

The United States and the States Attorney Generals

attempt to support the warrantless seizure based on the plain

view exception. However, that doctrine applies only to

contraband and evidence of a crime, and is clearly

inapplicable to the facts at bar.

What all of this Court’s plain view cases have in

common, and what is missing in this case, is that the

—

property seized was either “contraband” or “incriminating

evidence." Horton v. California, 496 U.S. 128, 110 S.Ct.

2301, 110 L.Ed.2d 112 (1990) is instructive on this point.°

Focusing on the nature of the property to be seized, the

Court observed that “not only must the item be in plain

view; its incriminating character must also be ‘immediately

apparent.”" Jd., 496 at 136 (citing Coolidge, supra, 403

U.S. at 466). See also, Payton v. New York, 445 U.S. 573,

586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (it is "well

settled that objects such as weapons or contraband found in

a public place may be seized -by the police without a

warrant") (emphasis supplied).

Recognizing the obvious limitations of the plain view

doctrine, Petitioner attempts to characterize Respondent's

vehicle as contraband. But that cramped view has been

previously rejected by this Court. As the Court observed in

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693,

699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965): "[T]here

is nothing even remotely criminal in possessing an

automobile." More recently, in Austin v. United States, 509

U.S. 602, 621, 113 S.Ct. 2801, 2811, 125 L.Ed.2d 488

(1993), referring to a vehicle seized for forfeiture because it

had been used to facilitate a drug transaction, the Court

observed: "[T]he government’s attempt to characterize th[is]

propert[y] as ‘instrument[]’ of the drug trade must meet the

same fate as Pennsylvania's effort to characterize the 1958

Plymouth sedan as contraband."

5 The specific question addressed by the Court in Horton was

"[Wyhether the warrantless seizure of evidence of a crime in plain view

is prohibited by the Fourth Amendment if the discovery of the evidence

was not inadvertent.” 496 U.S. at 128 (emphasis supplied).

10

The United States persists in trying to squeeze within

the confines of the plain view doctrine by shrewdly utilizing

the description "susceptible to seizure" interchangeably with

"incriminating nature of the item" or “evidence of a crime."

See, e.g., Brief of United States at 18 ("The automobile’s

susceptibility to seizure was ‘immediately apparent’ within

the meaning of this Court’s decisions"). But Respondent's

vehicle was not seized because it was evidence of a crime

(clearly it was not); it was seized because the state intended

to forfeit the vehicle in a separate civil proceeding. As such,

it clearly falls outside the category of objects which may be

seized without a warrant under the plain view doctrine.

C. The Seizure Infringed on Respondent’s Privacy

Interests.

Finally, the United States attempts to justify the

warrantless seizure of Respondent’s vehicle by arguing that

the seizure merely infringed upon Respondent’s possessory

interest which, it argues, is not entitled to the same

protections as privacy interests. See, e.g., Arizona v. Hicks,

480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

That argument is, at best, specious, and ignores the reality

of what inevitably and invariably occurs following a seizure

of a vehicle. See, e.g., Illinois v. Lafayette, 462 U.S. 640,

103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), upholding inventory

searches of seized vehicles.

Although Respondent admittedly had no privacy

interest in the outside of his vehicle, which was parked in a

public place, he most assuredly had a privacy interest in the

contents of the locked vehicle, which were not exposed to

11

the public.° Thus, a fortiori, it is clear that Respondent’s

privacy interests were both implicated and infringed upon by

the seizure and subsequent search of his vehicle.

V. WHERE THE GOVERNMENT SEIZES PROPERTY NOT

TO PRESERVE EVIDENCE OF WRONGDOING, BUT

TO ASSERT OWNERSHIP AND CONTROL OVER THE

PROPERTY ITSELF, THE GOVERNMENT MUST ALSO

COMPLY WITH THE DUE PROCESS CLAUSES OF

THE FIFTH AND FOURTEENTH AMENDMENTS.

This Court has previously rejected Petitioner’s

argument that the Fourth Amendment provides the sole

measure of constitutional protection that must be afforded to

property owners in forfeiture proceedings. Good, supra,

510 U.S. at 51, 114 S.Ct. at 500 (1993) ("Though the

Fourth Amendment places limits on the Government’s power

to seize property for purposes of forfeiture, it does not

provide the sole measure of constitutional protection that

must be afforded property owners in forfeiture

proceedings"). Thus, the Court has held that where, as

here, the government seizes property not to preserve

evidence of wrongdoing, but to assert ownership and control

over the property itself, the government must also comply

with the Due Process Clauses of the Fifth and Fourteenth

Amendments. /d., at 52.

® During an inventory search following the seizure, the police found

two rocks of crack cocaine which were wrapped in paper and placed

inside a paper bag, which was placed inside the vehicle’s ashtray. The

cocaine was not visible from any public vantage point. Joint Appendix,

at A-27. Moreover, even if the police had not conducted an inventory

search following the seizure, they obtained the keys from Respondent and

drove the car to the police station. The act of entering the car and

driving it away necessarily infringed on Respondent's privacy interest in

the interior of the vehicle.

12

The Court in Good also rejected the argument

advanced by Petitioner here that requiring a warrant for the

seizure of property for forfeiture elevates the protections of

an accused’s property over that of his person,’ noting that

the arrest or detention of a person occurs as part.

criminal process, “where other safeguards ordinarily

compliance with due process." Jd., at 50. Citing its earlier

decision in Gerstein v. Pugh, 450 U.S. 103, 95 S-Ct. 854,

43 L.Ed.2d 54 (1975), the Court further observed that - «

exclusive reliance on the Fourth Amendment is appropriate

in the arrest context, because the Amendment "was tailored

explicitly for the criminal justice system," and its “ <,*

between individual and public interests always has beens —

thought to define the ‘process that is due’ for seizures of .

person or property in criminal cases." /d., at 125, n. 27

(emphasis supplied). Finally, the Court noted that the

protections afforded during an arrest and initial detention of

a person are "only the first stage of an elaborate system,

unique in jurisprudence, designed to safeguard the rights of

those accused of criminal conduct." J/bid.

A. The Reasonableness of the Warrantless Seizure in

this Case Must be Assessed in Light of the Post-

Seizure Procedures Available and the Government’s

Direct Pecuniary Interest in the Outcome of the

Proceeding.

” As Justice Powell cogently observed in his concurring opinion in

United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 820

(1976), “There is no historical evidence that the Framers or proponents

of the Fourth Amendment, outspokenly opposed to the infamous general

warrants and writs of assistance, were at all concerned about warrantless

arrests by local constables and other peace officers. See, N. Lassen,

THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION, 79-105 (1937).” Jd., 423 U.S. at 429.

13

1. The post-seizure procedures available.

There is a stark contrast between the procedures

available to a defendant in a criminal case and those

available to a claimant in a civil forfeiture proceeding. For

example, a person is entitled to be brought before a

magistrate within 48 hours following an arrest, at which time

the government bears the burden of esiablishing probable

cause for the arrest and continued detention. See, e.g.,

Riverside County v. McLaughlin, 500 U.S. 44, 111 S.Ct.

1661, 114 L.Ed.2d 49 (1991). Similarly, a defendant may

immediately move the appropriate court for return of

property which has been unlawfully seized. See, e.g.,

Fed.R.Crim.P. 41(e).

On the other hand, claimants in most civil forfeiture

proceedings are afforded only minimal protections.* There

is no right to a prompt post-seizure judicial probable cause

hearing in forfeiture proceedings brought pursuant to the

federal drug forfeiture statute (21 U.S.C. §881).’ Indeed,

® The Florida Contraband Forfeiture Act provides more protections

than most state forfeiture statutes. For example, it provides that a person

may request a post-seizure probable cause hearing. The request must be

made within 15 days after receipt of the notice of seizure. The hearing,

if requested, must then be held within 10 days after the request for

hearing is made, “or as soon thereafter as is practicable.” Fla. Stat.

Ann. §932.703(2)(a) (Supp. 1999). Thus, even under this statute it is

possible that the post-seizure hearing may not occur for 25 days, or even

longer, after notice of seizure.

% Unless a claimant in a federal drug forfeiture presents a timely

claim, which must be accompanied by a cost bond equal to 10% of the

value of the seized property (not less than $250 nor more than $5,000),

the case will never be filed in court. 19 U.S.C. §1608. In such cases,

there would never be an opportunity for judicial review of the police

14

the federal forfeiture statute does not contain a statutorily

mandated time limit for giving notice of the seizure to

interested persons. Moreover, the federal statute does not

impose a time limit on when the government must file a civil

complaint for forfeiture following receipt of a claim and cost

bond.'” In its most recent decision on the subject, this

Court held that a delay of 18 months in filing a civil

forfeiture complaint did not violate the claimant’s right to

due process of law. United States v. $8,850 in United States

Currency, 461 U.S_555, 103 S.Ct. 2005, 76 L.Ed.2d 143

(1983).

Further exacerbating the problem, once the govern-

ment serves an inistrative notice of seizure and intended

forfeiture, courts are divested of jurisdiction to hear a motion

for return of property pursuant to the criminal rules.''

officer’s probable cause determination. Moreover, even if the owner

files a claim and cost bond, the government is under no statutory

obligation to promptly commence a judicial forfeiture proceeding.

'0 The federal drug forfeiture statute does contain expedited

procedures for seized conveyances. 21 U.S.C. §888. However, even

these procedures do not require the government to commence a judicial

proceeding for up to 60 days following receipt of a claim and cost bond.

Of course, the claim and cost bond can only be filed after receipt of

proper notice, which can take up to an additional 60 days. Thus, even

under these “expedited” procedures, it would likely be more than four

months before a property owner could challenge the police officer's

probable cause determination in court.

'! See, e.g., United States v. One 1987 Jeep Wrangler, 972 F.2d

472 (2nd Cir. 1992); Industrias Cardoen, Lid. v. United States, 983 F.2d

49 (Sth Cir. 1993); Shaw v. United States, 891 F.2d 602 (6th Cir. 1989);

United States v. Elias, 921 F.2d 870 (9th Cir. 1990); Frazee v. IRS, 947

F.2d 448 (10th Cir. 1991); United States v. Castro, 883 F.2d 1018 (11th

Cir. 1989); United States v. Price, 914 F.2d 1507 (D.C. Cir. 1990).

15

—

Thus, once the administrative notice is issued, access to the

courts to contest probable cause is denied until the

government commences the judicial forfeiture proceeding.

Consequently, there may be no opportunity for judicial

review of the seizing officer’s probable cause determination

for many months, or even years, if ever.

This Court has previously recognized that even the

availability of a post-seizure hearing may be no recompense

for losses caused by erroneous seizures. The Court observed

in Good

Given the congested civil dockets in federal

courts, a claimant may not receive an

adversary hearing until many months after the

seizure. And even if the ultimate judicial

decision is that . . . the Government lacked

probable cause, this determination, coming

months after the seizure, "would not cure the

temporary deprivation that an earlier hearing

might have presented." [Connecticut v.]

Doehr, 501 U.S. [1], at 15, 111 S.Ct. [2015],

at 2115.

510 U.S. at 56. Consequently, a pre-seizure warrant based

upon a judicial determination of probable cause is the only

practical procedural safeguard.

B. The Government has a Direct Pecuniary

This Court, which acknowledged the government’s

direct pecuniary interest in the outcome of forfeiture

proceedings in Good, 510 U.S. at 56, has traditionally

recognized the need for special scrutiny where the

16

a mami i ih a

government stands to benefit financially from the imposition

of sanctions as a result of criminal conduct. See, Harmelin

v. Michigan, 501 U.S. 957, 979, n. 9, 111 S.Ct. 2680,

2693, n. 9, 115 L.Ed.2d 836 (1991) (opinion of SCALIA, J.,

("[I]t makes sense to scrutinize governmental action more

closely when the State stands to benefit").

Given the government’s direct and _ substantial

pecuniary interest in civil forfeiture proceedings, a

governmental seizure of property without a prior judicial

determination of probable cause should be allowed only upon

a clear showing of extraordinary circumstances. As Justice

Jackson wrote a half-century ago concerning the preference

for a warrant: "[T]he point of the Fourth Amendment, which

often is not grasped by zealous officers, is not that it denies

law enforcement the support of usual inferences which

reasonable men draw from evidence. Its protection consists

of requiring that those inferences be drawn by a neutral and

detached magistrate instead of being judged by the officer

engaged in the often competitive enterprise of ferreting out

crime." Johnson v. United States, 333 U.S. 10, 13, 68

S.Ct. 367, 369, 92 L.Ed. 436 (1948). The protection of a

pre-seizure warrant is even more important here, where the

government has a direct financial interest in the outcome of

the proceeding.

Consideration of these factors utilizing the three-part

inquiry set forth in Mathews v. Eldridge, 424 U.S. 319, 96

S.Ct. 893, 47 L.Ed.2d 18 (1976) also provides guidance."

12 The Mathews inquiry was utilized by this Court in Good to

determine whether due process required notice and an opportunity to be

heard prior to the seizure of real property. The Court had previously

held that no such notice was required for the seizure of a yacht, because

of the inherent mobility of the property and the possibility that it could

17

1. The Property Owner's Interest. Under this prong,

the court must evaluate the owner’s interest in protecting his

vehicle from seizure. In today’s mobile society, this interest

is Clearly significant. Moreover, when property rights are at

issue, sO too are liberty rights. As Justice Stewart wrote:

[T]he dichotomy between personal liberties

and property rights is a false one. Property

does not have rights. People have rights.

The right to enjoy property without unlawful

deprivation, no less than the right to speak or

the right to travel, is in truth a ‘personal’

right, whether the property in question be a

welfare check, a home, or a savings account.

In fact, a fundamental interdependence exists

between the personal right to liberty and the

personal right to property. Neither could

have meaning without he other. That rights

in property are basic civil rights has long

been recognized.

Lynch, supra, 405 U.S. at 552.

2. The Risk of Erroneous Deprivation. This Court

has emphasized that, especially where a party has a

pecuniary interest in the outcome, “making realistic

assessments" of the merits of a case based on ex parte

showings is difficult because these showings can be “one-

sided, self-serving, and conclusionary." Doehr, 111 S.Ct.

at 2114. A fortiori, leaving the determination to a police

officer who ultimately stands to gain from the forfeiture,

be removed from the jurisdiction or destroyed or concealed if advance

warning of the seizure were given. Those concerns, of course, are not

implicated by a judicially authorized warrant, which is obtained ex parte.

18

—

ee

rather than to a neutral and detached magistrate, substantially

increases the likelihood of an erroneous deprivation. This is

especially true given the absence of a prompt post-seizure

hearing to contest the probable cause determination. See

discussion, supra, at 16-17.

3. The Government Interest. The governmental

interest to be considered is the government’s interest in

seizing property without a warrant, not the government’s

interest in forfeiting property. See, Good, 510 U.S. at 56.

The government’s interest in seizing vehicles to deter illegal

drug trafficking would not be affected by requiring a

judicially approved warrant for seizure. With a warrant, the

government would still be able to seize property, provide a

significant deterrent to drug trafficking, and enhance revenue

for law enforcement, while at the same time protecting the

property owner from an erroneous deprivation of property

rights. Moreover, requiring a warrant would not place any

additional fiscal or administrative burdens on law

enforcement.

It is worth noting here that federal government, as a

matter of policy, encourages the use of pre-seizure warrants.

Brief of United States, at n. 1. Significantly, the Solicitor

General does not even suggest, let alone argue, that this

policy has lead to any hardships or "missed opportunities"

for agents in the field to successfully seize property for

forfeiture. The federal government’s experience thus flies in

the face of Petitioner’s claim that requiring law enforcement

to obtain a pre-seizure warrant where no exigent circum-

stances exist will lead to an “incalculable” additional burden.

Petitioner’s Brief at 22. Indeed, it seems odd that the

Florida Attorney General, who is the state’s top law

enforcement officer, considers the constitution to be a burden

and a "arbitrary roadblock” to effective police investigation.

19

Ibid. Let no one be fooled, however. Should this Court

determine that warrantless seizures of vehicles for forfeiture

are permissible in the absence of any recognized exception

to the warrant requirement, the government’s “policy”

encouraging the use of warrants will become a footnote in

history before the ink is dry on the Court’s opinion.

The balance of the Mathews factors in this context is

straightforward. In the absence of exigent circumstances,

the Fifth and Fourteenth Amendment Due Process Clauses

require a judicially approved warrant to seize a vehicle for

purposes of civil forfeiture, independent of the protections

guaranteed by the Fourth Amendment.

20

CONCLUSION

The judgment of the Supreme Court of Florida should

be affirmed.

Respectfully submitted.

RICHARD J. TROBERMAN*

1325 Fourth Ave., Suite 1200

Seattle, WA 98101-2509

(206) 343-1111

LisA B. KEMLER

108 N. Alfred Street

Alexandria, VA 22314

(703) 684-8000

EDWARDS, SIMMONS & OLIVER

Wesley MacNeil Oliver

1501 Sixteenth Avenue South

Nashville, TN 37212-2905

(615) 292-9280

HOLLAND & KNIGHT

Tom Bishop

50 N. Laura Street

Jacksonville, FL 32202

(904) 798-7305

*Counsel of Record for

Amicus Curiae

National Association of

Criminal Defense Lawyers

February, 1999

21