Supreme Court to hear case on property seized in drug busts

The Supreme Court Wednesday looks at whether Chicago officials took too long to return property seized in drug busts to owners who turned out to be innocent.

By Warren Richey | Staff writer of The Christian Science Monitor

from the October 13, 2009 edition

Washington - Asset forfeiture is one of law enforcement's most potent weapons against drug crimes. When private property such as cars, boats, houses, and money are used in a narcotics transaction, US laws allow the police not only to seize those assets but to profit from the seizures.

But a problem arises when the confiscated property belongs to someone unaware that crimes were taking place. In such instances, it can take a year or more for the owner to get back the seized property.

The US Supreme Court Wednesday takes up a case examining whether a federal appeals court was right when it ruled that officials in Chicago were taking too long to return property to innocent owners.

The case, Alvarez v. Smith, involves six individuals who filed a class action lawsuit challenging Illinois' Drug Asset Forfeiture Procedures Act (DAFPA). Three claims sought return of seized cash, three others involved cars.

The law provides for a series of administrative steps that can take from three to six months from the time of the seizure until a forfeiture hearing is held before a judge. The plaintiffs complained that was too long for an innocent owner to wait.

The Seventh Circuit Court of Appeals agreed. The appeals court likened the situation to the right of a criminal defendant to a speedy trial.

"The procedures set out in DAFPA show insufficient concern for the due process right of the plaintiffs," Judge Terence Evans wrote in the 3-0 decision.

The hardship is particularly great with the loss of a car, said Judge Evans. "Our society is, for good or not, highly dependent on the automobile," he said.

"Consider the owner of an automobile which is seized because the driver – not the owner – is the one accused and whose actions caused the seizure. The innocent owner can be without his car for months or years without a means to contest the seizure or even to post a bond to obtain its release."

The judges said they recognized the city's interest in ensuring that vehicles don't disappear or get destroyed before a court can make a forfeiture decision. That issue could be resolved, Evans said, through expedited notice to an owner and an informal hearing to test the validity of the seizure.

Illinois officials are urging the Supreme Court to overturn the Seventh Circuit decision. The Constitution does not require the type of interim adversarial hearing suggested by the Seventh Circuit, Cook County Assistant State's Attorney Paul Castiglione says in his brief to the high court. "The judicial forfeiture hearing provides all the process that is due under the Constitution," he writes.

US Solicitor General Elena Kagan entered the case as a friend of the court on Illinois' side. She argues an expedited forfeiture hearing is not necessary so long as a hearing is provided before the property is actually forfeited.

The issue is not so much the elapsed time between seizure and hearing, Ms. Kagan says, but whether the government had a valid justification for the delay.

Chicago lawyer Thomas Peters, who represents the owners of the property in the case, says his clients are not attacking the federal forfeiture scheme or the government's right to impound and forfeit property. "Respondents only insist they are entitled to a prompt, interim hearing before an objective decisionmaker to check against potential bias and overreaching," Mr. Peters writes.

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