Texas Supreme Court Calls Civil Asset Forfeiture a “Remedy” instead of “Punishment” Skirting Constitution

 In Asset Forfeitures

Texas Supreme Court Holds Exclusionary Rule Does Not Apply to Civil Asset Forfeitures

The Texas Supreme Court recently found that illegal searches and seizures do not stop the State from trying to keep the property it illegally took. In State of Texas v. One (1) 2004 Lincoln Navigator, the Court, in a departure from the recent trend curtailing certain asset forfeiture practices, held that civil asset forfeiture actions are not quasi-criminal, and thus are not covered by the protection of the exclusionary rule. In this case, a vehicle was stopped and the driver was arrested. As a result of the arrest an inventory of the vehicle was taken and drugs were found. A civil forfeiture commenced arguing that the vehicle was used to acquire, store, or deliver drugs. However, a hearing concluded that the arrest was illegal and the evidence found within it was suppressed, or thrown out. This left the State with no means to connect the Navigator to illegal activity and thus the forfeiture action was likely over. The district court and first level of appeals agreed that suppression was warranted. Despite this, the Texas Supreme Court disagreed and the forfeiture action can commence.

What are civil forfeiture actions?

Under federal law (18 USC 981 and 983) the forfeiture of private property is allowed if that property is connected to crime. Under Texas law (Article 59 of the Texas Code of Criminal Procedure) the forfeiture of ‘contraband’ is allowed. Contraband is described in Article 59 but, put simply, it is property that is connected to a crime.
Whether under federal or Texas law, forfeiture is the transfer of ownership of private property from that private owner to the government.
Also under both federal and Texas law, the most commonly alleged connections between property or crime used to justify forfeiture are either ‘instrumentalities theories’ or ‘proceeds theories.’ That is, either the U.S. Government or Texas prosecutors may allege that property was used to commit a crime, such as a vehicle used to transport drugs, or that property was bought with the fruits of crime, such as jewelry or a yacht bought with proceeds of a scam.

What is the exclusionary Rule?

The exclusionary rule is the long-held doctrine that evidence that has been obtained illegally may not be used in a subsequent prosecution. This is also known as the fruit of the poisonous tree doctrine. For example, if a home was searched without a warrant and there existed no independent warrantless search exception such as consent or exigent circumstances, then any evidence, regardless of how probative, found during that search could be used in a criminal trial.

What was the Texas Court’s rationale for not applying the exclusionary rule in forfeiture actions?

Although civil forfeiture has been treated as quasi-criminal for decades, the Texas Supreme Court declines to view it as such. In other words, in this case the Court held that civil forfeitures are ‘remedial’ and not ‘punishment.’ Using this distinction, the court held that police misconduct is not as harmful to society if it results in the taking of private property as it would be in cases where liberty is deprived. [This certainly does not seem to fit the principle that neither life, nor liberty, nor property ought to be taken without due process of law.]

What impact can be expected with this ruling?

Calling civil asset forfeiture a remedy further fans the flame of an already prevalent national debate regarding civil forfeiture. There are already major concerns in this arena because civil forfeitures, in most places, do not require any accompanying criminal prosecution. That is, a state or federal authority could pursue taking private property on the basis that it is connected with criminal activity without making any [other] effort to prosecute such activity or make arrests. This has been heavily criticized as it fosters the question whether profit sometimes replaces public safety as the highest directive of law enforcement. It is important to recognize the more than $1 billion dollar value of the DOJ Asset Forfeiture Fund and the millions of dollars garnered by various Texas government entities using civil asset forfeiture.
Another concern arises from the fact that this holding involves the further deterioration of the exclusionary rule. Within the opinion, the Texas Supreme Court notes that prior rulings regarding the exclusionary rule were decided at “a time when [the Supreme Court’s] exclusionary-rule cases were not nearly so discriminating in their approach to the [fruit of the poisonous tree] doctrine.” Instead, the court notes that the Supreme Court has “abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” Put simply, the exclusionary rule has been curtailed substantially in criminal cases. Further, it has been found to be entirely inapplicable in other contexts such as immigration cases, and now apparently, in Texas civil asset forfeiture cases.
Ironically, Article 59.05(d) creates a presumption against forfeiture in cases resulting in an acquittal or dismissal. However, such language doesn’t provide protection in circumstances where prosecutors simply forego investigating or prosecuting a crime and instead just go after private property.

What you can do about this decision.

Civil asset forfeiture is an issue that is gaining nationwide attention. Legislators are aware of the seizure and forfeiture of funds that are not associated with criminal activity and that the burden is placed on the citizen to disprove such an association, as opposed to the burden being on the State. Legislators should consider laws designed to disallow or disincentivize the use of illegally obtained evidence in forfeiture matters. Citizens can reach out to their local legislators to let them know this is an important issue.

What is Equitable Sharing?

What are theories of asset forfeiture?

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