Court Says There's No Remedy For Person Whose Vehicle Was Subjected To Civil Forfeiture After An Illegal Search

from the 4th-Amendment-meets-local-statutes-and-no-one-wins-but-the-government dept

A bizarre case comes out of the Texas court system -- landing squarely in the middle of a legal Bermuda Triangle where illegal searches meet civil asset forfeiture… and everything is still somehow perfectly legal. (via FourthAmendment.com)

The facts of the case: police officers arrested Miguel Herrera and seized his 2004 Lincoln Navigator. An inventory search of the vehicle uncovered drugs and the state moved to seize the vehicle itself as "contraband" using civil (rather than criminal -- this is important) asset forfeiture. Herrera argued that the stop itself was illegal and anything resulting from it -- the drugs and the civil seizure of the vehicle -- should be suppressed.

The Supreme Court of Texas examines the facts of the case, along with the applicable statutes, and -- after discarding a US Supreme Court decision that would have found in Herrera's favor -- decides there's nothing he can do to challenge the seizure. He can't even move to suppress the evidence uncovered following the illegal stop -- the same search that led to the state seizing his vehicle under civil forfeiture statutes.

The presiding judges spend several pages (including two concurrences) discussing the aspects [PDF] of this case in detail, but cannot bring themselves to exclude the evidence obtained from the illegal search, much less return Herrera's vehicle to him.

First, the court decides that the deterrent effect of suppressing the evidence is outweighed by the cost to society.

In this case… the exclusion of admittedly relevant evidence imposes a substantial social cost. Here, the vehicle and the evidence found within it are indisputably relevant—if the state shows by a preponderance of the evidence that the vehicle was “used or intended to be used in the commission of” a felony under the Controlled Substances Act, then it is “contraband.” If it qualifies as contraband under Chapter 59, then it “is subject to seizure and forfeiture.”

[...]

Additionally, applying the exclusionary rule here ostensibly results in returning a vehicle “used or intended to be used” in the commission of drug crimes to its owner. See CODE CRIM. PROC. art. 59.01(2)(B)(i). Applying the rule to Chapter 59, therefore, would likely have the undesirable effect of politely handing such vehicles—or computers, money, weapons, or whatever else—back to those who might put them to criminal use.

The court moves on to dismiss the Supreme Court's 1965 decision (One 1958 Plymouth Sedan v. Pennsylvania), suggesting not only that things have changed too much over the past 50 years to consider it relevant, but also -- unbelievably -- that the seizure of a person's assets via civil forfeiture is not a form of punishment.

[T]he legal and jurisprudential landscapes have changed significantly since Plymouth Sedan was decided in 1965, weakening some of the opinion’s underpinnings. For one thing, Plymouth Sedan was decided at “a time when [the Supreme Court’s] exclusionary-rule cases were not nearly so discriminating in their approach to the doctrine,” yet more recently the Court has “abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” Thus, the Court’s more recent jurisprudence, and its now well-established cost-benefit analysis, controls our analysis. And, as discussed, the “deterrences against [illegal searches] are substantial—incomparably greater than the factors deterring warrantless entries when Mapp [and Plymouth Sedan] [were] decided.”

Finally, in Plymouth Sedan, the forfeiture proceeding’s “object, like a criminal proceeding, [was] to penalize for the commission of an offense against the law.” See 380 U.S. at 700. Chapter 59 forfeitures, on the other hand, are expressly civil and non-punitive; indeed, “[i]t is the intention of the legislature that asset forfeiture is remedial in nature and not a form of punishment.”

It's hard to see how civil asset forfeiture isn't a form of punishment. Without having to prove an asset was illegally obtained or used in criminal activity, the state can simply take cars, money, houses, etc. away from citizens simply by providing a limited amount of evidence suggesting these might have been related to criminal activity. And if the state is wrong, it's still a long, uphill battle for anyone seeking to have their property returned. This is even admitted by the court in the same paragraph.

While this provision certainly relates to criminal activity, it does not require any proof that a person committed a crime—it only requires that the state prove by a preponderance of the evidence that the property is contraband.

The court then concludes that neither the Fourth Amendment nor the state's civil forfeiture statutes provide a remedy for Herrera -- at least not one the court is willing to grant.

Even if the state is not statutorily empowered to unlawfully seize contraband, (and it is not), what is the remedy for failure to comply with article 59.03(b)? Herrera argued in his motion to suppress—and argues now—that the remedy is exclusion. Yet what is the source of this exclusionary remedy? As discussed above, it is not the Fourth Amendment. The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs, and that is not the case here. Nor does Chapter 59 provide for exclusion. To start, article 59.03(b) deals with seizure of the property to be forfeited; it does not concern itself with other evidence that might be used to prove property is subject to forfeiture. Thus, we reject Herrera’s argument that evidence found during the seizure should be excluded under article 59.03(b).

Moreover, while article 59.03 appears to limit officer conduct as to seizure of property subject to forfeiture, it does not provide a remedy—much less exclusion—for a violation of that apparent limitation. Articles 59.03(a) and (b) provide for how property subject to forfeiture may be seized. Article 59.03(c) requires the peace officer who seized the property to provide the attorney representing the state with a sworn statement including, among other things, “a list of the officer’s reasons for the seizure.” In the forfeiture proceeding, that attorney must then “attach to the notice [of seizure and intended forfeiture] the peace officer’s sworn statement.” See CODE CRIM. PROC. art. 59.04(b). Yet, despite providing fairly detailed notice requirements such as these, Chapter 59 never mentions excluding or suppressing property subject to forfeiture, even if such property is unlawfully seized

By finding no remedy workable or worthwhile in the face of societal cost, the Texas Supreme Court has given law enforcement another way to salvage evidence obtained by illegal searches: simply seize the "container" (house, car, boat, etc.) the evidence was discovered in.

As defense attorney John Wesley Hall notes in his post on the case, this decision will also encourage more questionable asset forfeitures because the court here has declared it's unwilling to entertain notions of deterrence when dealing with "non-punitive" civil seizures.

I disagree with the lack of deterrence because the seizure for forfeiture is immediate, before booking, and it’s part and parcel of the police arsenal to punish the defendant before trial; that along with a high bail. Besides, the police help finance their drug enforcement operations with forfeitures, even when there’s no prosecution. It’s contingent fee law enforcement.

It's a state Supreme Court decision, so it's precedential. That's the bad news. The (potentially) good news is that it touched on an issue previously handled by the US Supreme Court, so it could be pushed up the judicial ladder back in the direction the ignored decision emanated from. Of course, this Supreme Court has been very inconsistent on Fourth Amendment issues and seems particularly willing to punt on issues it would rather not address directly.


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  • icon
    That One Guy (profile), 19 Jul 2016 @ 4:14pm

    'Stupid criminals go into cells, smart criminals go into law enforcement and/or politics'

    Yet, despite providing fairly detailed notice requirements such as these, Chapter 59 never mentions excluding or suppressing property subject to forfeiture, even if such property is unlawfully seized…

    So even if the theft(let's call it what it is) is determined to have been illegal, the thieves with badges still get to keep their stolen goods. Even if the theft is ruled to be illegal, the results from it can still be used as evidence.

    Yup, that'll certainly show those criminals that crime does't pay. Well, it doesn't pay unless you're a cop or other government agent anyway, if you are then it pays extremely well.

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  • identicon
    Anonymous Coward, 19 Jul 2016 @ 4:28pm

    It is Texas, so not too surprising

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 19 Jul 2016 @ 4:33pm

    Because they are bad people, they deserve no rights.

    Now quit bitching about us stealing your car & violating your rights... you get none because you are bad.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 20 Jul 2016 @ 12:26am

      Re:

      No, you haven't got the logic of civil asset forfeiture. The guy deserves all his rights and has not been proven bad, or we would be talking about criminal asset forfeiture here.

      It's the car that is bad and needs to get stopped from doing bad things while under the care of its owner. The process is similar to childcare seizing a criminal child and giving it to foster parents.

      It's for the best of the car and is nothing like a punishment.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2016 @ 6:28am

        Re: Re:

        Interesting .... so when this child is taken away, for their own benefit, are the parents responsible for child care ($$$)?

        If not, then the analogy is broken.

        reply to this | link to this | view in chronology ]

      • identicon
        Former Beaucrat, 20 Jul 2016 @ 10:19am

        Re: Re:

        Ya Know it gets all messy mean an nasty an time consumin provin in a court a law how guilty this perp is an that perp ya know what I mean? We just wan it all to come out in the wash so to speak.. get my meanin?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jul 2016 @ 10:07am

      Re: FTFY

      They IS bad people!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 4:40pm

    Seize the courthouses

    Since they have no problem seizing things, civilly seize the courthouses themselves. All you have to do apparently is point out where they aided or abetted a crime (like sending innocent people to jail) and there you go. Let them work out the specifics of how you are wrong, then use it for every other case going forward. Seizing private property is wrong, and that is why the government was prevented from doing it in the constitution.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 5:04pm

    Want to keep your vacation money? Don't drive through Texas.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 19 Jul 2016 @ 5:20pm

      Re:

      Vacation money and/or vehicle, and unfortunately this is not just a 'Texas' problem, it's one that infects a great many US states where 'upholding justice' takes a backseat to 'Stealing anything that isn't nailed down, then breaking out the crowbar for what's left, under the cover of accused criminals don't have rights, especially not the right to have nice stuff that the police want.'

      reply to this | link to this | view in chronology ]

      • identicon
        David, 20 Jul 2016 @ 4:20am

        Re: Re:

        under the cover of accused criminals don't have rights, especially not the right to have nice stuff that the police want.'

        Except that we are not talking about an accused criminal here but rather one that could not be successfully accused because of the evidence stemming from an illegitimate search. For (successfully) accused criminals, there is criminal asset forfeiture. This isn't it. This is taking nice stuff that the police want instead of accusing a purported criminal.

        reply to this | link to this | view in chronology ]

    • identicon
      Fester, 20 Jul 2016 @ 10:11am

      Re:

      They ain't nuttin but a couple old whores in that there state anywho.

      reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 20 Jul 2016 @ 2:10pm

      Re:

      you might not realize but countries around the world are warning their citizens to not travel to america as the police will steal from them.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 5:19pm

    How many gunfights do police want?

    If a person is worried their 30,000$ vehicle will now be taken because of whatever minor infraction, a person is MUCH more likely to turn a standard traffic stop into a lethal one. How many police will die because of someone panicking that they will loose their families car or their employers?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 6:24pm

    "The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs"

    ::cough:: Bullshit! The violation of the 4th Amendment is the heaviest of social costs. It weakens the rights of other citizens in our society and all to alternatively punish someone they can't even bother to properly prosecute.

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 19 Jul 2016 @ 6:34pm

    Just ignore inconvenient parts of the constitution?

    The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs,

    Where does the Constitution say that parts of it don't apply if the "social costs" are too great? The Constitution isn't a document of polite requests to government.

    Whenever judges say or write that they have balanced the cost of some law or other, you know that they are just making stuff up.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 20 Jul 2016 @ 3:57am

      Re: Just ignore inconvenient parts of the constitution?

      The Constitution isn't a document of polite requests to government.

      And in this case, we are talking about the Bill of Rights. That explicitly names no-go areas for the government. As such, it is utterly nonsensical to talk about its "deterrence": there are no punishments for the government not heeding the constitution other than the government no longer being legitimate since there is no law enforcement outside of the government.

      Basically, the only "deterrence" from breaking the Bill of Rights is that when it becomes endemic, it legitimates a military or civil coup with the target of reestablishing constitutional rule.

      reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 20 Jul 2016 @ 2:11pm

      Re: Just ignore inconvenient parts of the constitution?

      or being paid to.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 7:05pm

    "The legal and jurisprudential landscapes have changed significantly since Plymouth Sedan was decided in 1965,"

    I wonder if those Texas judges would have used the same logic when the FBI tried to compel Apple to unlock a phone using a law from 1789.

    And I really hope every copyright case lands in front of these judges so we can cite how much things have changed since the 1787 Copyright Clause of the U.S. Constitution.

    reply to this | link to this | view in chronology ]

  • identicon
    tear down the malls, 19 Jul 2016 @ 7:25pm

    It's On!!

    Murder and destruction will no longer be tolerated, it's probably going to be a multi sided civil war but that is what has begun

    reply to this | link to this | view in chronology ]

  • icon
    Barnassey (profile), 19 Jul 2016 @ 7:26pm

    As i've said before, the rule of law is dead and gone.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 19 Jul 2016 @ 7:35pm

    So what is the social cost of allowing agents of the state to perform unreasonable searches and seizures.

    I'm pretty sure the Supreme Court of Texas did not figure that into their social cost / benefit analysis.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 20 Jul 2016 @ 5:12am

      Re: So what is the social cost of allowing agents of the state to perform unreasonable searches and seizures.

      I'm pretty sure they don't care, since to rule otherwise would require placing(or in this case simply enforcing) limits on police action, and we can't have that now can we?

      Why if the police aren't allowed to do anything and everything they want society itself will undoubtedly collapse, so clearly the social costs, whatever that is, of allowing that is acceptable.

      When you start from the position of 'The police can do no wrong'/'Violations of the law are acceptable so long as accused criminals are caught and/or punished', as seems to be the case here, the balancing act between public interests and 'law enforcement' interests will always come down heavily on the latter.

      reply to this | link to this | view in chronology ]

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    identicon
    Whatever, 19 Jul 2016 @ 8:11pm

    I honestly fail to see how this is a problem. Can you imagine the nightmare of procedures and paperwork to follow? It's the same for body cam footage, doing things based on Techdirt's ridiculous standards is far too difficult. Just another attempt to throw a monkey wrench into law enforcement, because you're all pirates.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 20 Jul 2016 @ 4:26am

      Re:

      Well, the U.S. government does not leave a lot of room for rightwing lunatics but it would appear that it doesn't even leave a lot of breathing room for mere trolls either.

      You won't feed the flames with a turd as fetid and steamy as that.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2016 @ 6:32am

        Re: Re:

        Methinks this someone channelling Whatever and not Whatever itself. It was the second sentence with its loaded sarcasm and irony that clued this in.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jul 2016 @ 5:18am

      Re:

      horse with no name just hates it when due process is enforced.

      reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 19 Jul 2016 @ 8:11pm

    They wonder why people have started to shoot cops, when the current legal system protects the criminals in their ranks so badly.

    reply to this | link to this | view in chronology ]

  • identicon
    Who Cares, 19 Jul 2016 @ 8:54pm

    Deja Vu all over again

    The courts, congress, and POTUS, have declared a War On Citizens, er... I meant to say Consumers, regardless of "Hope & Chane," etc.

    Scuz me while I kiss my posterior goodbye.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 9:53pm

    The frog is no longer in boiling water. It has evaporated away and we are left on a red hot metal pan burning our little frog feet while realizing there is only 1 way out of the situation our leaders have created for us.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Blowhard, 19 Jul 2016 @ 10:58pm

    I wouldn't expect anything else

    I wouldn't expect anything else from a police state. It works when there is no evidence whatsoever why not for illegal searches?

    reply to this | link to this | view in chronology ]

  • identicon
    David, 19 Jul 2016 @ 11:07pm

    Don't see anything wrong with the verdict

    It's hard to see how civil asset forfeiture isn't a form of punishment.

    Civil asset forfeiture is designed as a tool for withdrawing the tools for crimes from use, independent of their owners or a criminal or other conviction of them.

    The evidence here has been obtained in a search illegal in context of obtaining an illegal conviction. The car, however, has not contested the search leading to its seizure.

    In short: the whole bullshit celebrated here is square in the middle road of asset forfeiture's legal existence. They could not convict the car owner, but they can convict and seize the car and keep it due to evidence that they got in unrelated contexts which they did not pursue.

    You can't throw out this seizure without throwing out civil asset forfeiture as an independently working tool altogether.

    Mind you: I very much am of the opinion that the whole construct is unconstitutional and an abomination on due process and should be abolished.

    As long as it isn't, this particular case is square with both letter and intent of civil asset forfeiture. This is what it is supposed to do, not as a convenient side effect but as its principal justification.

    It's not plucking fruit from the forbidden tree but rather picking up from the ground what you got by a shakedown.

    Hooray for U.S.A.

    reply to this | link to this | view in chronology ]

    • identicon
      Goliath, 25 Jul 2016 @ 11:19am

      Re: Don't see anything wrong with the verdict

      First I heard cars can be convicted of criminal behavior. Are they another legal "person" I overlooked? You are right.. shakedown is the correct word. The cowardly activity of blackguards, highwaymen and gangsters.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2016 @ 12:50am

    Cops and Courts Not Learning...Yet

    We now have "bell-tower" replies to the legitimized murder of black people by LEOs. I can easily imagine organized, drug syndicates - among the most viciously and vengefully murderous collectives ever known - taking note of the increasingly general anti-cop sentiments and directing their street-level operatives to "up their game."

    A PR campaign could use the motto "Civil Assets Matter."

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 20 Jul 2016 @ 4:24am

    So law enforcement, military gets green light to screw people lives for the most minor infractions or even just out of spite. Then they are surprised that people who lost everything and can't get up after being 'legally' beaten to the ground turn to crime and even terrorism. Go figure.

    reply to this | link to this | view in chronology ]

  • identicon
    Ed, 20 Jul 2016 @ 4:59am

    Precedent

    "The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs"

    Anyone want to apply that statement to the second amendment? Anyone in Texas?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2016 @ 5:01am

    What happens when you stop making payments upon said stolen vehicle ... you did report it stolen, right?

    Does the insurance cover theft? I think you need comprehensive in order to cover that - but there is probably some clause giving the corporation a way out of their obligations. Since the cops act and think as though they are gods, the insurance companies can simply say the auto theft is an act of god and show you the door.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 20 Jul 2016 @ 7:26am

      Re:

      Legally speaking, it isn't theft and so the insurance company would have no obligation to pay.

      In reality, it is theft, of course -- but reality doesn't count here, only legality does.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2016 @ 10:53am

        Re: Re:

        If the car is guilty and therefore is incarcerated, would the no longer an owner of said vehicle still be obligated to make the payments?

        Before answering, consider the fact that in doing so you would be aiding and abetting a known criminal.

        reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 20 Jul 2016 @ 1:02pm

          Re: Re: Re:

          I would certainly continue to be responsible for paying back any loan on the car. That's not in question at all.

          The real question is whether or not my comprehensive insurance policy would cover the case of law enforcement seizing and disposing of it. I'm uncertain about this, but it looks like if I can demonstrate that this happened due to no fault of my own, it would be covered.

          However, it would only pay off the current value of the car, not the amount of the loan. If I owe more than the car is worth (as is usually the case due to depreciation of the value of the car), then I would still be required to pay off the amount that the insurance didn't cover.

          reply to this | link to this | view in chronology ]

  • identicon
    AJ, 20 Jul 2016 @ 5:12am

    The car had a pile of illegal drugs in it.. "Someone" was using the car to transport illegal drugs. The car was in fact being used to commit a crime. I'm not big on asset forfeiture, I think it's a tool to extort the people, but their are some facts to work with here.

    They have a car with a bunch of illegal drugs in it. Yes they botched the search; So the gov should not be able to use the drugs to prosecute him because of the illegal search, but it doesn't change the fact that their are/were illegal drugs in the car. They can't use the evidence against the guy driving the car because they botched the search, but someone was committing a crime, and was using the car to do it. I can see now why they are trying to take the "the car is guilty of a crime" angle lately.

    I could make an argument for this from either side. Ill have to give this some more thought.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 20 Jul 2016 @ 5:29am

      The fact that the car was carrying drugs should be completely irrelevant, as inanimate objects aren't capable of guilt.

      If someone is going to have their property taken from them, it damn well should requiring a finding of guilt in court, no matter how obvious it was that a crime was committed, otherwise you're allowing people to have their stuff taken not because they were found guilty in court, but because their stuff was accused of being guilty, and being inanimate had no way of protesting it's innocence.

      If you're allowed to punish someone(which, contrary to the warped logic of the judges here asset forfeiture/robbery at badge-point absolutely is) without a finding of guilt in court than why even bother with the trial in the first place?

      'We say you're guilty, and while we may not have enough to throw you into a cell we're taking your stuff anyway' is beyond ridiculous, and a complete violation of the concept of 'Innocent until proven guilty in a court of law'.

      reply to this | link to this | view in chronology ]

      • identicon
        AJ, 20 Jul 2016 @ 6:04am

        Re:

        "The fact that the car was carrying drugs should be completely irrelevant, as inanimate objects aren't capable of guilt."

        If inanimate objects aren't capable of guilt, then they should give the drugs back to the owner because they searched the car illegally? I'm thinking that no they should not, because the drugs in and of themselves are illegal right? How about the container used to transport them? Just because the police didn't search the car legally doesn't mean the car wasn't being used to transport illegal drugs.

        In my opinion; there should be serious repercussions to police forces for illegal searches, and the evidence shouldn't be able to be used to prosecute the accused. But at the same time, if something is illegal, or being used illegally, then I could make an argument in it being seized.. especially if it is in itself illegal.

        Someone was using that car to transport illegal drugs. Regardless of how it breaks down or who was doing it, the car was being used in an illegal fashion and I'm not talking about an infraction, I'm talking about the commission of a felony. Like I said, I'll have to give this more thought.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 20 Jul 2016 @ 10:53am

          Re: Re:

          If inanimate objects aren't capable of guilt, then they should give the drugs back to the owner because they searched the car illegally? I'm thinking that no they should not, because the drugs in and of themselves are illegal right? How about the container used to transport them?

          Possession of the drugs is illegal, so as another person noted handing them back would be essentially aiding and abetting a crime, so no, the drugs themselves should probably be destroyed.

          Possession of a vehicle though is entirely legal, and without a conviction of guilt it's rather difficult to say that it was being used in a crime that legally didn't happen.

          This time it was a car, which is bad enough to lose, but what about when(not if) the search is of a house? Should the police be able to keep the house simply because it was 'involved' in criminal action? Even if the search itself is found illegal, the evidence suppressed, and no finding of guilt is made?

          Just because the police didn't search the car legally doesn't mean the car wasn't being used to transport illegal drugs.

          According to what legal finding of guilt? No charge means no crime essentially(otherwise suppression wouldn't matter), which means legally at least it wasn't being used for squat other than driving, and so long as the accused has an up to date license, that's entirely legal.

          Had they managed to secure a conviction by not screwing up the search, I might have agreed with you(probably wouldn't, as I find the whole asset forfeiture idea rotten to the core, but might). As it stands though they're punishing him by stealing the car, without a conviction of guilt, meaning suppression only negated some of the potential punishment, while the rest is still given a pass as perfectly legal.

          Given I find the idea of a person being found innocent(whether they are or not) and still punished, you can imagine I don't much care for that happening here, since at that point why even have a trial?

          This is one of those cases where defending the rights of the innocent sometimes requires defending the rights of the guilty. The facts seem to be pretty clear, the accused was transporting drugs, so had the search been handled correctly(read: legally) then this should have been an easy open and shut case for the police. It wasn't however, and as a result the evidence is tossed and the accused walks(pun unintended).

          To allow the police to keep property of the accused even after a finding of guilt allows them to profit even when they break the law, and undercuts the entire reason for the laws in place to limit what they can and cannot do, neither of which are acceptable to me. In addition it also means that even a finding of innocence doesn't protect the accused from being punished, which I also find unacceptable for the reasons I've noted above.

          reply to this | link to this | view in chronology ]

          • identicon
            AJ, 20 Jul 2016 @ 12:27pm

            Re: Re: Re:

            I understand what your saying. I appreciate you taking the time to write such a detailed response, and do so with a minimum of snark. I found it educational.

            "This is one of those cases where defending the rights of the innocent sometimes requires defending the rights of the guilty. "

            If we have to let a few bad guys go to protect the integrity of the legal system, then so be it. But it's a tough pill to swallow.

            I imagine myself as a cop standing over a car load of drugs/booze/weapons... that in the eyes of the law, doesn't actually exist, and nothing can be done because a rookie cop screwed up. I've seen what that stuff will do to a community, it's not pretty.

            "Just because the police didn't search the car legally doesn't mean the car wasn't being used to transport illegal drugs.

            According to what legal finding of guilt? No charge means no crime essentially(otherwise suppression wouldn't matter), which means legally at least it wasn't being used for squat other than driving, and so long as the accused has an up to date license, that's entirely legal."

            I guess I'm struggling with the reality of the whole thing. Guilty or not, either your standing over a trunk full of illegal booze/drugs/guns or not. It's either there, or it's not. In my mind, just because a cop screwed up shouldn't mean the guy gets a free ride. But that is exactly what it means. I understand it, and I even sympathize a bit with it, but I don't agree 100% with it. But that is the reality of our legal system I guess.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 20 Jul 2016 @ 12:54pm

              Re: Re: Re: Re:

              I imagine myself as a cop standing over a car load of drugs/booze/weapons... that in the eyes of the law, doesn't actually exist,

              If they had not carried out an illegal search, they would not have known of the presence of the drugs/booze or guns. Requiring that cops follow correct procedures, and actually have grounds for a search is what should prevent them searching any vehicle or property on a hunch or just because they do not like the person.
              The US practice of searching vehicles when the can find any excuse to stop the vehicle is actually an abuse of power, as it is easy to find an excuse to stop a vehicle if they want to.

              reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 20 Jul 2016 @ 2:35pm

              Re: Re: Re: Re:

              If we have to let a few bad guys go to protect the integrity of the legal system, then so be it. But it's a tough pill to swallow.

              I imagine myself as a cop standing over a car load of drugs/booze/weapons... that in the eyes of the law, doesn't actually exist, and nothing can be done because a rookie cop screwed up. I've seen what that stuff will do to a community, it's not pretty.


              Absolutely, having a case tossed because someone else screwed up and didn't follow the law, even when you know without a doubt that the person is guilty of what they're charged with has got to be seriously vexing and galling. However galling it is however it's still the better option, as the alternative is far, far worse.

              If the laws don't have to be followed then there's really no point in having them in place at all as they become entirely optional, 'guidelines' rather than 'rules/laws', and available for 'interpretation' by whoever happens to be carrying the badge at the moment.

              If violations of the laws, especially violations conducted by those tasked with enforcing the laws don't have consequences, of which losing a case should be the least, then they have no reason to care about or follow the laws, and plenty of motivation to ignore them entirely.

              Here for example they botched a case, and while it cost them a conviction they still got to keep the car, which means they still came out ahead. Next time it might be something more valuable, and with this ruling making it clear that whether or not the search is ruled to be illegal they still get to keep the property they have even less motivation than they had before to obey the limits the law (theoretically) imposes on their actions, and more motivation to play fast and loose with the law if it might get them something expensive.

              The limits in place on police and government action are meant to protect the public, even if at times that means protecting the criminal element as well, because if accused or even actual criminals don't have rights then no-one does. If all it takes to strip someone of their rights is an accusation then they are no longer rights, and barely qualify as privilege.

              I guess I'm struggling with the reality of the whole thing. Guilty or not, either your standing over a trunk full of illegal booze/drugs/guns or not. It's either there, or it's not. In my mind, just because a cop screwed up shouldn't mean the guy gets a free ride. But that is exactly what it means. I understand it, and I even sympathize a bit with it, but I don't agree 100% with it. But that is the reality of our legal system I guess.

              As you said before it can be a hard pill to swallow, but if the law can be ignored by the very same people that are tasked with upholding it, if there's no penalty for violations of it and in fact incentives for violations, then society suffers as those tasked with upholding the laws are able to flaunt them with impunity. Laws cease to be about protecting the public and turn into weapons to be used against them at whim, regardless of actual innocence or guilt.

              reply to this | link to this | view in chronology ]

              • icon
                Padpaw (profile), 20 Jul 2016 @ 6:24pm

                Re: Re: Re: Re: Re:

                then the public turns on said peace protectors as they see that since the laws will not protect them they might as well fight instead of taking it.

                reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jul 2016 @ 5:31am

      Re:

      Allowing police to seize assets after an illegal search turns them into a vigilante force, dispensing 'justice' as they see fit.

      reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 20 Jul 2016 @ 6:21am

      Re:

      No. There is no argument to be had, full stop.

      There were no tests at all of any nature whatsoever of the substances to determine their nature or quantity. Without knowing that, there is no knowing whether they are legal, licit, whatever other term(s)including illegal may apply. None.

      And don't you freaking DARE get on your high horse about field tests are reliable, and cops are experts. The cops are not experts and field tests are notoriously unreliable. I've done lab work professionally and I have friends who do work in labs. None of us would even look at a test kit as inaccurate as the ones the cops use for drug testing.

      Even with lab work supporting the conclusion the substances were (probably) illegal, there's still no knowing whether that person was carrying them legally or illegally, except with a trial. American law and precedent are pretty granular, and cops are (once again, with feeling) not experts, so a trial is necessary to make that determination.

      Our justice system is supposed to be premised on the facts of the case. Here, we have no facts, hence no crime. No crime, no forfeiture. End of conversation. And since the stop and search were ruled illegal, then the coops shouldn't have even looked askance at taking this person's possession.

      reply to this | link to this | view in chronology ]

      • identicon
        Corey, 20 Jul 2016 @ 6:31am

        Re: Re:

        The last thing you said would only be true if it was done entirely on the criminal side.

        That was the whole point of the article, is how they used a loophole, in the split, between criminal and civil laws and court processes.

        reply to this | link to this | view in chronology ]

      • identicon
        AJ, 20 Jul 2016 @ 6:34am

        Re: Re:

        I'm afraid you're the one on the high horse. I conceded the fact that the stop was illegal, I also conceded the fact that the individual should not have this evidence held against them. I also think their should be additional penalties applied to the police forces for failing to do their jobs properly.

        All that aside, what I was saying, and you obviously didn't read was; Now that they know the drugs are illegal drugs, and the car was being used to transport them, regardless of how we got to this point, I don't think they should just give the drugs, or the vehicle used to transport them back.. full fucking stop.

        Are you suggesting that now that they know the drugs are illegal, and the car was indeed transporting illegal drugs, they should give them both back? If so, I'm afraid we are just going to have to agree to disagree.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Jul 2016 @ 6:56am

          Re: Re: Re:

          I don't think they should just give the drugs, or the vehicle used to transport them back.. full fucking stop.


          The rule of law is not there to protect the guilty, but rather to protect the innocent by stopping law enforcement from becoming vigilantes. Supporting the cops here removes that protection.

          reply to this | link to this | view in chronology ]

          • identicon
            AJ, 20 Jul 2016 @ 7:18am

            Re: Re: Re: Re:

            I'm really not sure how people are reading what I wrote and think that I'm supporting the cops. I think the cops are wrong, and that wrong should be handled. I'm saying that the cops being wrong doesn't change the fact that there is a car full of drugs sitting in evidence. I for one don't think that because the cops are incompetent, that they should have to give the drugs or the car back to the accused. I'm saying that in my opinion, these are two completely different issues... but I see I'm failing miserably in my communication...

            reply to this | link to this | view in chronology ]

            • icon
              James Burkhardt (profile), 20 Jul 2016 @ 8:16am

              Re: Re: Re: Re: Re:

              Probably because you start with the part where the theft of the car was fully justified.

              reply to this | link to this | view in chronology ]

              • identicon
                AJ, 20 Jul 2016 @ 9:11am

                Re: Re: Re: Re: Re: Re:

                Notice how you said theft of the car.. and not theft of the car AND the illegal liquor (I said drugs before, I ment Liquor) being transported in it?

                I still think it's two different issues. First issue is shitty police work, full stop.

                Second issue isn't so much if an object can be made to be "guilty" of a crime, more that it was a tool used in the committing of the crime regardless of who actually committed the crime. There sit's a car with a shit load of illegal liquor in it, so much in fact the ass of the car is dragging.. shitty police work aside, these idiots were bootlegging. It doesn't justify what and how the police acted in making the illegal stop, but the illegal stop doesn't in and of itself nullify the fact that there is a car with a trunk full of illegal liquor sitting in evidence.

                I was just pointing out that i can see both sides of this, and could make a good argument either way.

                reply to this | link to this | view in chronology ]

                • icon
                  John Fenderson (profile), 20 Jul 2016 @ 9:17am

                  Re: Re: Re: Re: Re: Re: Re:

                  If a car has illegal liquor in it and the car was being used to further illegal activities without the consent of the car's owner, then seizing the liquor makes sense. Seizing the car does not, and I have a serious problem seeing how doing so is anything but straight-up stealing.

                  reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 20 Jul 2016 @ 9:55am

          Returning the contraband

          I don't think they should just give the drugs, or the vehicle used to transport them back.. full fucking stop.

          I do. The state is way out of jurisdiction once they have conducted an illegal search, and -- how shall we say it: it imposes a substantial social cost for there to be any impetus for the police to engage in unreasonable search and seizure, since the temptation to do so is so great on its own. The police are not even trustworthy holding contraband in their evidence lockers or destroying it.

          Once we allow law enforcement to gain actually profit from overreach, they're going to do so. Excessively. There are number historic examples of how this goes down.

          No, the proper order in this case is for the police to return to him his belongings (including any contraband) in recognition that the state and its agents are not above law either.

          The suspect should be compensated for time lost due to the police overreach and then let to go about his business

          We need to stop thinking of the police as a caste with a moral high ground over the rest of us. Indeed, if anything they have clearly proven that human beings are incapable of holding that elevated level of power without corruption and indulgence. They just aren't.

          The US police is supposed to operate under the principles of policing by Sir Robert Peel (at least they still teach Peelian Principles in cop school and say these are our foundational principles. The police is the people. The people are the police. It's still supposed to be that way. It's not.

          Rather, our law enforcement agents are so removed from common civilians now that they regard common civilians as the enemy, they defend their own corruption openly and plainly. They prey commonly on innocent civilians as highwaymen and brigands. They act as nothing more than yet another street gang, merely one backed with state funding.

          reply to this | link to this | view in chronology ]

          • icon
            Ninja (profile), 20 Jul 2016 @ 10:19am

            Re: Returning the contraband

            If the cops are above the law then why write laws? Why not let law enforcement (emphasis on law) do whatever they 'feel' is right? No? I too agree. Once the courts start making law enforcement eat their pride and see criminals go free because they didn't follow the law and the Constitutional rights maybe then it will actually start respecting the law. But the courts are happily agreeing with law enforcement so I guess we are screwed.

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Jul 2016 @ 10:09am

          Re: Re: Re: Return of property

          Unless the government can prove in court that the driver knew or reasonably should have known the drugs were in the car, and prove in court that the drugs were illegal, the government has no legitimate claim to touch the car or the driver. Given the crazy way the drug laws are written, I will give them a pass and proving that the driver knew, or reasonably should have known, that possessing the drugs was illegal.

          Since the initial stop was illegal, the proper thing to do would be to suppress all evidence reasonably derived from that stop and reverse any government actions that arose solely because of the suppressed evidence. Per the Techdirt piece, that means the government has no proof that the car or the driver were engaged in criminal activity. I can see an argument for not returning the illegal drugs, on the basis that under current law, mere possession is a crime, so returning them would necessarily cause the driver to become guilty of possession. Instead, those illegal drugs should be destroyed. However, the car was not inherently illegal and, without the illegally seized evidence, cannot be proved to have been involved in any crime, so returning the car is both right and proper.

          reply to this | link to this | view in chronology ]

          • identicon
            AJ, 20 Jul 2016 @ 12:34pm

            Re: Re: Re: Re: Return of property

            Thanks for the reply. It was a good read.

            "However, the car was not inherently illegal and, without the illegally seized evidence, cannot be proved to have been involved in any crime, so returning the car is both right and proper."

            It all seems very technical no? The reality is quite different I would imagine when your standing over 10 pounds of meth that doesn't actually exist because some rookie cop didn't have a good enough reason to pull the car over. I suppose it's necessary to keep our legal system in check, but to me, it doesn't seem "right".

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 20 Jul 2016 @ 2:02pm

              Re: Re: Re: Re: Re: Return of property

              The reality is quite different I would imagine when your standing over 10 pounds of meth that doesn't actually exist because some rookie cop didn't have a good enough reason to pull the car over. I suppose it's necessary to keep our legal system in check, but to me, it doesn't seem "right".
              The meth exists either way. Per grandparent's proposed model, if it could be proved to be an illegal methamphetamine, the cops could seize and destroy the illegal drug despite the search being illegal. Given the government's claims about the street prices of various illegal drugs, losing any sizable quantity of drugs would be a major blow to the person(s) carrying, even if the illegal search excused them from all civil sanction and criminal prosecution. Moreover, that illegal search ought to go on the personnel review of the rookie cop, and his supervisors should seriously consider whether they want to keep him/her employed. Cops are allegedly trained to know the law, so a cop whose conduct causes suppression of evidence is either not properly trained or is too careless to follow his/her training. Either way, letting that rookie continue to perform improper stops will eventually lead either to a civil suit against the department or loss of a big case. In the interest of long term justice, the department ought to retrain or, if necessary, dismiss that rookie before the rookie's conduct causes bigger problems.

              Of course, if the cops get to seize and destroy contraband despite discovering it illegally, there is still a perverse incentive for them to perform illegal stops whenever the contraband they hope to find and destroy is worth the time and materials spent conducting the illegal search. Thus, grandparent's model is arguably insufficiently punitive to the government.

              reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 20 Jul 2016 @ 2:15pm

      Re:

      how long until the police start seizing property because they want it, not because it is involved in a crime?

      Just make up an excuse and steal whatever you want.

      reply to this | link to this | view in chronology ]

  • identicon
    all your cars are belong to usa, 20 Jul 2016 @ 5:29am

    the only solution

    is for everone to just steal cars that way when they take the car its someone elses issue lol

    promoting theft all round the american way

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 20 Jul 2016 @ 10:21am

      Re: the only solution

      You wouldn't steal a car.. Oh wait, where are people actually doing it anyway because the law is so broad and bad that they lost total respect for it? Something with intellectual property on it...

      reply to this | link to this | view in chronology ]

  • icon
    Spaceman Spiff (profile), 20 Jul 2016 @ 5:45am

    Screw Texas

    I used to drive through Texas to visit family in Mexico (Veracruz and Oaxaca) as from Chicago where I live it is a lot shorter a drive than through New Mexico. No more. I won't be driving through Texas on my way back from Mexico at least. So, they will losing a fair amount of my $$ for gas, food, lodging I would spend there on my trip. I hope others feel the same way - Texas has become a Sharia state in just too many ways.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 20 Jul 2016 @ 7:31am

      Re: Screw Texas

      I understand your stance, and this is my gut reaction as well. But Texas isn't alone in this sort of thing. If we really start naming "no go" states, then there are a bunch of them to avoid (including Illinois).

      Refusing to go into states that engage in this sort of abuse isn't a real solution. The day is coming when that would mean there are very few places in the US that would be left to be in.

      The solution has to be to stop the behavior entirely. I'm not sure how to get there, though.

      reply to this | link to this | view in chronology ]

    • identicon
      Deputy Dickwad, 20 Jul 2016 @ 8:11am

      Re: Screw Texas

      I'll alert my brother in-law in New Mexico, Patrolman Peckerwood, that since Texas will be missing out on our forfeiture funds, he should step up and take care of my light-work.

      I'll let him know to look out for a guy with a stuffed tiger rolling down the highway in a large-ish cardboard box with Illinois plates.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2016 @ 5:51am

    Wow...

    The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs, and that is not the case here.

    The 4th ALWAYS applies regardless of its "social cost" and it most fucking certainly is the case here!

    When people understand that they are certain to get an unfair trial, more and more people will are likely to shoot cops, especially criminals because they will have nothing to lose. We put people away for lengthy amounts of time over some of the stupidest fucking shit.

    Eventually they will start coming for those Judges too... looks like we are on our way to becoming a 3rd world nation with a vengeance.

    reply to this | link to this | view in chronology ]

  • identicon
    corey, 20 Jul 2016 @ 6:26am

    perfect example

    Of why I hate the split between criminal and civil. It created too many loopholes to abuse and circumvent the constitution. Due process and search and seizure.

    reply to this | link to this | view in chronology ]

  • icon
    Rattran (profile), 20 Jul 2016 @ 6:47am

    It's pretty bad

    Back in the late '80s, we were warned not to take nice cars, cash, or travelers checks across the Texas border from El Paso to Juarez, as the policia could not be trusted to not confiscate them on trumped up charges. I thought it was a bit paranoid myself at the time, but still heeded the advice. I'm now giving the same advice now to my Canadian friends about America.

    reply to this | link to this | view in chronology ]

  • icon
    got_runs? (profile), 20 Jul 2016 @ 6:48am

    The Texas legal system doesn't recognize the U.S. Constitution. That's the problem.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 20 Jul 2016 @ 8:38am

    "Sure, the police illegally entered the suspect's home and beat a confession out of him, but the deterrent effect on criminals outweighs any violation of his rights."

    reply to this | link to this | view in chronology ]

  • identicon
    Elmo, 20 Jul 2016 @ 9:53am

    Highway Robbery

    Highway robbery used to be a crime. Oh, but wait.. even though the cops don't have to know what is legal and what is not with good faith deemed by the courts, they can dance around the constitution and somehow seize assets without convictions and they wonder why people are having a bit of a challenge with their policies that are handed down by those who have usurped an entire nation.

    That's fucking joyous.

    reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 20 Jul 2016 @ 10:29am

    "As discussed above, it is not the Fourth Amendment. The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs, and that is not the case here."

    Let's sum this up: "4th amendment only apply when we say it does."
    Which goes quite well with the more general rule of "your rights apply only when we say they do".

    And the context will change things a lot:
    - If you are white and rich, we will grant you rights broadly.
    - If you're non-white and rich, you will have only the exact rights as written in law, no less, but definitely not more.
    - If you have a badge, you not only have rights as written in the law (interpreted broadly in your favor already), but we're even willing to cut you some slack on rights you definitely do not have (perjury, theft, rape, murder).
    - If you can afford a lawyer, you have a chance that we will examine your case properly. (YMMV though.)
    - If can't afford a lawyer, "we will grant you the most overworked one we can find who will urge you to plead guilty." (Thanks to John Oliver for this one.)
    - You get bonus points if you can get newspapers and internet to focus on your case for a few days. That will definitely make us examine the case with more attention than it deserves. We're busy and important people after all, we can't more than a few seconds to judge little people like you.

    ---

    Sarcasm aside, this kind of statement is exactly what erodes trust in law, law enforcement and "justice".
    If LEOs and judges don't follow proper laws and procedures, how can we expect them to judge people fairly? If they're willing to suspend rights because "the end justifies the means", how is any right guaranteed at all?

    reply to this | link to this | view in chronology ]

  • identicon
    Still Runnin, 20 Jul 2016 @ 10:45am

    Git yer kicks on rte 66

    We are in the age of selective law enforcement. If the expected outcome don't outweigh the fat lady, it don't make no sense at all to prosecute for nothin when we can just spank someone who shoulda and coulda ended up behind bars anyway, we just decided to go another route around him. Oh yeah, baby. How's that feel? Oh YEAH come to daddy!

    reply to this | link to this | view in chronology ]

  • identicon
    A Texas Judge, 21 Jul 2016 @ 4:50am

    The legal and jurisprudential landscapes have changed significantly since The US Constitution was written in 1787.

    It therefore no longer applies. Except the parts we still like. Those totally apply. But only after we "interpret" them.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 21 Jul 2016 @ 12:06pm

      Re: The legal and jurisprudential landscapes have changed significantly since The US Constitution was written in 1787.

      Taxation without representation also legitimately applies as a grievance worthy of redress...by mischief if necessary.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jul 2016 @ 1:22pm

    Damn carpet bagger judges.

    Nuff said.

    reply to this | link to this | view in chronology ]

  • identicon
    David Geffen, 23 Jul 2016 @ 9:08pm

    Dumb Texas Supreme Court Justices

    Listen here you faggots sitting on the bench. You motherfuckers take my property without charging me with a crime, then there will be war you bunch of hillbilly bitches.

    reply to this | link to this | view in chronology ]

  • identicon
    Ed, 24 Jul 2016 @ 6:09am

    "No Remedy"

    But there is a remedy. None of those cops that died in Dallas will ever engage in a "Civil Forfeiture After An Illegal Search" again.

    reply to this | link to this | view in chronology ]


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