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.