October 13, 2009
Due Process and Seizure of Property Related to Drug Crimes
The Supreme Court will hear arguments tomorrow in Alvarez v. Smith, a case involving competing due process tests when law enforcement seize property related to crimes.
At issue is the Illinois Drug Asset Forfeiture Procedure Act ("DAFPA"), which authorizes local law enforcement to seize vehicles, aircraft, vessels, and money involved in certain drug crimes. Under DAFPA, authorities can hold property worth more than $20,000 for up to 97 days after the seizure and before the state's attorney files judicial forfeiture proceedings. Authorities can hold property worth less than $20,000 for up to 187 before the state's attorney files forfeiture proceedings. (Claimants may reduce that time to 142 days under certain circumstances.)
Claimants sued the Cook County State's Attorney under 42 U.S.C. Sec. 1983, arguing that the DAFPA violated, on its face, the three-part procedural due process balancing test in United States v. James Daniel Good Real Property and Mathews v. Eldridge.
The state argued that the Seventh Circuit's ruling in Jones v. Takaki governed. That case relied upon United States v. $8,850 and Barker v. Wingo in ruling that criminal property seizures are governed by the test for speedy trial: "The Barker test requires consideration of the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant." Smith v. City of Chicago, at 4.
A three-judge panel of the Seventh Circuit (Bauer, Posner, and Evans) sided with the claimants and ruled that the DAFPA violated the Fourteenth Amendment Due Process Clause. The court aligned the case with Krimstock v. Kelly, a Second Circuit ruling by then-Judge Sotomayor that applied Mathews v. Eldridge, not $8,850:
[A] warrantless arrest by itself does not constitute an adequate, neutral "procedure" for testing the City's justification for continued and often lengthy detention of a vehicle which may be owned by the arrestee or by someone entirely unconnected with the conduct that gave rise to the arrest. Further, to say that the forfeiture proceeding, which often occurs more than a year after a vehicle's seizure, represents a meaningful opportunity to be heard at a meaningful time on the issue of continued impoundment is to stretch the sense of that venerable phrase to the breaking point. We also consider it a non sequitur to hold . . . that because postponing the commencement of a forfeiture action pending the underlying criminal proceeding may not offend due process, retention of the seized vehicle without a hearing throughout that same period, or longer, is constitutionally permissible. The issues of a speedy trial and a prompt retention hearing are not parallel in this context, particularly when less restrictive methods for protecting the City's interest in the alleged offending res are available.
Krimstock, at 18. The Seventh Circuit similarly distinguished $8,850: "$8,850 concerns the speed with which the civil forfeiture proceeding itself is begun--a different question from whether there should be some mechanism to promptly test the validity of the seizure." Smith, at 6.
Thus the issue before the Court tomorrow is which test governs: the Mathews v. Eldridge procedural due process test; or the Barker speedy trial test, applied in $8,850?
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