When can police seize private property?

It's one of the most contentious areas of American law in the 1990s: allowing police to seize personal property - often in advance of a finding of guilt - if they believe it is linked to criminal activity.

Opponents say such police tactics raise basic questions of fairness, privacy, and due process.

Laws allowing such confiscation of private property exist at the federal level and in most states - and courts across the US have upheld the basic concept of forfeiture. But judges are split over exactly how those laws should be enforced so they comply with the Constitution's protections against unreasonable searches and seizures.

For instance, it remains unclear whether law-enforcement officials need a search warrant before they make a seizure, or whether such forfeiture decisions are up to the exclusive discretion of the police.

Today, the US Supreme Court takes up the case of a Florida man whose car was seized by police because they suspected he had used it to deal drugs two months earlier.

The police did not obtain a court-authorized warrant approving the seizure. Instead they acted under the authority of Florida's forfeiture law, which they say permits the police to carry out warrantless confiscation of any vehicle, money, or other property that they have probable cause to believe has been used in a crime.

After seizing the car, police found two pieces of crack cocaine in the ashtray. The owner of the car, Tyvessel White, was charged and eventually convicted of narcotics possession.

When a warrant is needed

Mr. White challenged the legality of the car's search, claiming that police never obtained a warrant as is required under the Fourth Amendment. The police countered that when acting under the forfeiture law they needed no warrant.

The Florida Supreme Court overturned White's conviction, ruling that, regardless of the state's forfeiture law, law enforcement-officials should have first obtained a warrant from a judge prior to seizing the car.

The case arises at a time when police agencies are increasingly turning to civil forfeiture, not only as a crime-fighting tool but as an important source of revenue.

Law-enforcement agencies across the nation have long relied on captured booty and other property of suspected drug dealers, smugglers, money launderers, and other criminals to pay for a large portion of the war on drugs and other anticrime efforts. In 1996, the Drug Enforcement Administration alone seized nearly a half billion dollars' worth of currency, real estate, vehicles, vessels, and aircraft. More than $275 million of it came in the form of cash.

The same methods are expanding into other areas of law enforcement. Last month, New York City announced that drunk-driving suspects pulled over in traffic stops would face immediate forfeiture of their cars.

The Florida case marks the first time the high court will consider whether a warrant is need-ed in forfeiture cases. Federal appeals courts and state court judges are divided on the issue.

Part of the debate revolves around whether forfeiture - carried out under civil law - is actually a disguised form of punishment for criminals.

"Forfeiture is punishment," says Steven Kessler, a New York City lawyer who specializes in forfeiture. "If you are going to punish someone, you have to comply with constitutional protections."

Those protections include the requirement that police obtain a warrant before seizing private property.

Private property in public

Proponents of strong forfeitures laws counter that criminal proceeds and assets, such as cars used to facilitate a crime, are no longer private property. When they become involved in illegal enterprise, the law views them as contraband. Officers who find what they suspect to be contraband in someone's possession in a public location are empowered to seize it. White's car was in a business parking lot.

In addition to Florida, 27 states and the US Justice Department are urging the justices to overturn the Florida Supreme Court decision. They argue that forfeiture is an important crime-fighting tool that will be significantly watered down if agents and police officers are forced to win judicial approval prior to seizing criminal proceeds and property.

Law-enforcement officials add that judicial review of prospective seizures is unnecessary because owners of the seized property have an opportunity to contest the action later in court.

Dangerous incentive

Many defense lawyers say the revenue-raising aspect of forfeitures creates a dangerous incentive for police to confiscate as much as possible. Judges, who do not stand to benefit from the forfeitures, are in a better position than a police officer to determine when a seizure of property might be unreasonable under the Constitution, they say.

"If you allow the police to make the probable cause determination in a case where they stand to directly gain from it, it doesn't pass the smell test," says Richard Troberman, a Seattle lawyer who filed a friend-of-the-court brief in the case on behalf of the National Association of Criminal Defense Lawyers.

"The problem is, what about the case where the police seize a car because an informant tells the police something that turns out to be totally wrong," Mr. Troberman says, "and the innocent owner loses the use of the car for weeks, or months, or years without any opportunity to go before a judge to contest it."

In its brief in the case, the US Justice Department says that under the law police have the exclusive power to seize property without any prior judicial oversight. But the brief says the department's current policy is nonetheless to obtain a warrant from a judge whenever it is possible prior to a seizure.

Troberman says there is no down side for law enforcement in obtaining a warrant when police face no time constraints.

In some cases, assets or evidence must be seized immediately to prevent it from being destroyed or hidden. But in many other cases, there are no exigent circumstances, and obtaining a warrant would in no way hinder the ability of police to make such forfeitures, Troberman says.