The courts have ruled that it is constitutional to seize property who are merely arrested, not convicted of drug offenses.
Since there is nothing constitutionally unique about drugs, it seems reasonable that this ruling could be be applied to other scofflaws. For example, would it be possible to pass laws allowing authorities to cite a logging or mining company for polluting the environment and then seizing their redwood forests or mines?
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
Amendment V: No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Clearly the USSC ignored these basic rights when they ruled that confiscation prior to conviction was constitutional as long as the cops don’t take too much. Congress could pass similar confiscation laws about any crime they choose. The only hope individual citizens have is for a more literalist court to overturn the previous rulings, and re-affirm that the Constitution means exactly what it says.
I just can’t understand what the Court was thinking with this ruling. The Constitution is so clear on this one. Right there in black and white
Just a question. What gives them the right to keep felons guns then.Is that a grey area. Maybe they can’t keep them?Offer them for sale? Who gets the money?
Having seized a fair number of things in my day, let me take a stab:
Seizures of vehicles (for example) are made because the seizure is of evidence. If Johnny Scofflaw uses his '93 Sable to drive to your meeting place where he attempts to sell you a drug, the vehicle was used as a conveyance for the illicit material and can be seized. It would not be proper in most states to seize Johnny’s car sitting in his driveway when there is no direct evidence he used the car to get the drug to his home.
So much for the seizure, which is the taking and securing of the property by the police. If the agency wants to pursue forfeiture, the actual transfer of ownership, they typically do so under state (or Federal) laws that provide that vehicles used in the commission of drug dealing are subject to forfeiture (for Florida statues, see: This link )
In Florida, at least, this is not restricted to vehicles, or even drug dealing, but any felony, as shown here in a portion of chapter 701:
(bolding mine)
As to whether a forfeiture proceeding can be brought even though the defendant was not convicted, this is true at least in FL. Note that I did not say “acquitted”, but rather “not convicted”. If a defendant was acquitted of all charges at trial, it is likely (but not certain) that he would prevail in retrieving his lawful property. But remember that the forfeiture proceedings are typically separate from the criminal trial, and may use their own findings of fact and admissibility of evidence.
[Note: This message has been edited by manhattan]
Short answer: Because it’s what “the people” want.
The laws did not arise ex nihilo. They were created by people who were elected to make those decisions.
The USSC is another matter. They have a history of picking, choosing, and making up parts of the Constitution.
One more thought:
I was listening to a radio talk show one time, and the guest was an IRS agent.
The host asked him how the IRS circumvented the 4th and 5th amendments concerning unreasonable search and seizure, presumption of innocence (if the IRS says you’re guilty, you have to prove you’re not), etc.
I don’t remember his exact words, but it all boiled down to “I don’t know–we just do.”
Thanks for the explanation, Raza, but I still have a couple of questions.
We’ve all heard about suspected drug dealers having their possessions siezed, without being convicted. How often does this really happen?
When the property is siezed, do the owners get it back? If so, how long does it take? Or is it siezed indefinitely?
Is the siezure really to collect evidence with the intent of prosecuting, or is it something the police do to punish people they know are dealing drugs?
If I were on the SCOTUS, it seems clear that siezure of property for the purpose of collecting evidence is OK, but the police must make a reasonable effort to evaluate the evidence, and return the property as soon as the job is done. Any rule that the police use to punish suspected criminals without it going through the courts is a clear violation of the “due process of law” clause of the fifth amendment.
The seizure of property is a civil, not a criminal, proceeding.
The Constitution simply guarantees due process of law. It does not mandate that “beyond a reasonable doubt” be applied to the seizure of property as well as to the conviction of criminals.
No property may be forfeited without a trial, at which the government must prove by a preponderance of the evidence that forfeiture is appropriate.
No property may be seized, even temporarily, without a finding of probable cause.
Adherence to both of these rules is “due process of law,” and proceedings under them are not violative of the Constitution.
IIRC, asset forfeiture laws are justified through an astounding bit of casuistry. The property in question is put on trial, not the person. This is, in oversimplified laymen’s term, the reason the courts give for upholding asset forfeiture laws, even though they’re blatantly unconstituional on their face. (If my info is incorrect here, let me know.)
Unfortunately, the laws are very old. They were first used, I think, in the 1800s. Up until recently, they were only used in rare cases, where a mobster or drug lord would have his casino or meth lab seized. Nowadays, a conviction is gained in only a small minority of asset forfeiture cases, and it has been used to justify all sorts of egregious acts. It’s become a major source of revenue for many police departments. And yes, it’s not just used in drug cases. New York mayor Giuliani wants to use asset forfeiture of cars when the motorist is arrested for drunk driving, explicitly stating that this would be used even if the driver is never convicted.
I could go on about asset forfeiture, if my opinions weren’t already painfully obvious, but I think that would go better in the Great Debates section. For now I’ll just say you can send a free fax to you members of Congress using the ACLU’s link, here: http://www.aclu.org/action/assets106.html
Your Quadell
Very often. In Tucson, AZ, I believe that this is a primary source of police revenue. There were many cases in the news about vehicles and homes being seized for minute quantities of drugs- often there would not be enough evidence for a criminal trial so charges were dropped but the property remained forfeited.
Basically, the onus is on the “defendant” to prove that the property was not used in the commision of the crime.
I genuinely dread having to read long posts with lots of quotes, so I really hesitate posting same. But it is pertinent, and some may have trouble following the links to the source, so here goes (obviously, this only applies to Florida, but may be representative of many other states) (bolding mine)
FSS Chapter 932.704:
and:
and:
There’s more, of course, including repayment to the defendant of attorney fees and other costs if the defendant (claimant in this case) prevails. The nitty-gritty can be found at: This link
(I hope…the server was acting pretty slow)
Rick, regarding the phrase used in SS 8 “clear and convincing evidence”: does this evaluate to P.C.? Or to beyond a reasonable doubt?
Edited in an attempt to get the link not to stretch the page.
[Note: This message has been edited by manhattan]
“Upon clear and convincing evidence that the contraband article was being used in violation of the Florida Contraband Forfeiture Act, the court shall order the seized property forfeited to the seizing law enforcement agency.”
Wow. Talk about conflicting interests. Talk about incentive to “find” reasons to seize property.
“C’mon fellas… Our department is low on funds… Let’s go out there and make some money today.”
“Hey Joe, you know that big house up on Baker’s Hill? Man… that would be worth enough to replace both of our crappy squad cars, plus give the department a new spare car. Hmmmm… what could we do?”
Although I’m fairly sure that this does not happen all the time, I’m sure that it DOES happen. Crappy law.
Things are random only insofar as we don’t understand them.
{{{Just a question. What gives them the right to keep felons guns then. Is that a grey area. }}}—Justwannano
The right to keep a felon’s gun–I expect that you mean handgun–exists because, by virtue of a felony conviction, that individual no longer has the right to own or possess a handgun.
It’s my recollection that this does not extend to long arms, which, in my opinion it should.
–Kalél
TheHungerSite.com
“If our lives are indeed the sum-total of the choices we’ve made, then we cannot change who we are; but with every new choice we’re given, we can change who we’re going to be.”
OK is it then destroyed If not who gets it. How about selling it? who gets the money? does it go into the general fund and is there a record of how much money is (made) in this manner.
Typically, the guns are either destroyed or, for the better ones, retained for department use.
None of the above. 
“Clear and convincing evidence” is much more than probable cause, and more than “preponderance of the evidence”. But it’s a less exacting standard than "beyond a reasonable doubt.
Here’s my take at defining these standards of proof:
Probable cause to believe a crime has been committed simply requires liklihood. It does not require that the crime be the only possible explanation, or even that the crime is the most likely explanation. It simply requires that the crime is likely.
Preponderance of the evidence requires that it’s more likely than not. This is often compared to a balance scale, and if it tips over, more than 50%, in one direction, then preponderance of the evidence is met.
Clear and convincing evidence requires that the party bearing the burden of proof must show that the truth of the allegations is highly probable. There’s no percentage figure here… just that it’s much more likely than not.
Finally, “beyond a reasonable doubt” means that no reasonable doubt as to the truth of the allegation can remain. A reasonable doubt exists when the finder of fact cannot say with moral certainty that a person is guilty of every element of the offense charged, or that a particular fact exists. It must be more than an imaginary doubt, and it is often defined as such doubt as would cause a reasonable person to hesitate before acting in a matter of grave importance.
Hope that helps!
Some 1998 seizure statistics from Missouri:
( can be found at: http://www.auditor.state.mo.us/press/99-97.htm ) that may help shed some light on how forfeiture income is distributed:
Total seizures: 3,196,248
Distributed to schools: 446,467
Given to the Feds: $ 786,343
Pending or
returned to def.: $1,963,438
I don’t know that MO is representative, but was the easiest to find on the 'net.
So if I have $10 worth of weed in my house and the cops raid it, are they allowed to seize my house? After all, the house was a hiding place for the pot, so that means the house was aiding and abetting my marijuana posession, right?
`They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety’
Yes.