Friday, April 24, 2009

Asset Forfeiture & The Fourth Amendment

In 1965, George McGonigle was driving his 1958 Plymouth sedan across the Benjamin Franklin Bridge, towards Philadelphia, Pennsylvania when he was stopped by two police officers who had noticed that his car was riding quite low in the rear. Upon searching the car, without a warrant or, as later determined probable cause, the officers found 31 cases of liquor not bearing Pennsylvania tax seals. Among other actions, the officers seized the car under a Pennsylvania statute allowing forfeiture of conveyances used to move contraband.

Now of course, the Fourth Amendment has something to say about that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
In holding that the Fourth Amendment required suppression of the 31 cases of liquor seized thereby precluding forfeiture, the Supreme Court stated:
In sum, we conclude that the nature of a forfeiture proceeding, so well described by Mr. Justice Bradley in Boyd, and the reasons which led the Court to hold that the exclusionary rule of Weeks v. United States, supra, is obligatory upon the States under the Fourteenth Amendment, so well articulated by Mr. Justice Clark in Mapp, support the conclusion that the exclusionary rule is applicable to forfeiture proceedings such as the one involved here.
One 1958 Plymouth Sedan V. Pennsylvania, 380 U.S. 693, 703 (1965). Thus the first of two constitutional rights had been firmly established in modern forfeiture practice -- the exclusionary rule based upon the rationale that "a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law." Id. at 700.  The second was to come a few years later.

However, this holding, that a forfeiture was “quasi-criminal in character” would later prove inconvenient and force the Supremes twenty years later to change that holding.


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