The Jurisprudence of Civil Asset Forfeiture

The seizure by the state of assets connected to crime is a controversial subject. Asset forfeiture’s proponents—mainly law-enforcement agencies—view it as essential to fighting crime (especially the drug trade), because it deprives wrongdoers of the fruits of their illicit activities. Civil libertarians worry about the lack of due process for criminal defendants and the danger of official abuse of this crime-fighting tool.

“Civil” asset forfeiture—seizing property without a criminal conviction—raises yet more qualms. Many constitutional conservatives are concerned about the confiscation of assets (often cash) belonging to third parties, sometimes innocent third parties, without procedural protections. Forfeited assets account for a significant percentage of the budget of some rural law-enforcement agencies, highlighting the potential for untoward economic incentives—sometimes dubbed “policing for profit.”

A recent appellate decision in Texas, State of Texas v. One (1) 2004 Lincoln Navigator, has stirred the pot. Unfortunately, many who are upset about this case have conflated the policy aspect, that is, asset-forfeiture legislation, with the merits of the legal arguments considered by the Texas Supreme Court. The unanimous decision, and the outcry it raised from Republican activists in the Lone Star State (who tend to lean toward the Tea Party brand of conservatism), present a good opportunity to explore the issue.

On the evening of November 3, 2010, troopers from the Texas Department of Public Safety, acting on a tip regarding an upcoming drug deal from a confidential informant they had never previously used, staked out a pool hall in Corpus Christi. The troopers observed a white Lincoln Navigator with shiny rims driven by a Latino male enter the parking lot and park next to the pool hall, where a drug transaction arranged by the confidential informant was to occur.

The vehicle, location, and driver all matched the informant’s tip, down to the shiny rims. The informant, who accompanied the troopers to the pool hall, identified the driver, Miguel Herrera, as the drug dealer with whom he had arranged the sale. The informant reported that Herrera usually carried a weapon. As one of the troopers approached the Navigator, he observed Herrera make a “quick motion down towards the floorboard.” When Herrera was patted down and the driver’s area searched, the troopers found a handgun in the center console. Herrera, a convicted felon, was taken into custody for illegal possession of a firearm. When the Navigator (owned by Herrera) was searched a second time, troopers discovered cocaine, pills, and a second loaded magazine for the gun.

Because of the bifurcated nature of Texas’ appellate system—the state has a court of last resort for criminal cases, and a separate court of last resort for civil cases—the record of this case only concerns the asset-forfeiture issue, not the criminal charges. Nonetheless, it appears that the trial court ruled in both the criminal case and the separate (civil) asset-forfeiture proceeding that the troopers had not established that the informant’s tip was reliable. Accordingly, in the trial court’s view, the initial (warrantless) search in the pool hall parking lot was not supported by probable cause and was therefore illegal. The evidence discovered in the subsequent inventory search was likewise ruled inadmissible.

The state appealed the trial court’s ruling to the 13th Court of Appeals, which affirmed the ruling below. The state then sought review by the Texas Supreme Court, which, due to its civil-only jurisdiction, only considered the asset-forfeiture issue. (The Texas Court of Criminal Appeals has ultimate jurisdiction in criminal cases.)

Texas has an asset-forfeiture statute, codified in Chapter 59 of the Code of Criminal Procedure, that permits the state to obtain property by forfeiture, following a civil proceeding in which the state carries the burden of proof (albeit by a “preponderance of the evidence”), if the property qualifies as “contraband.” “Contraband” is defined as (among other things) any property “used or intended to be used in the commission” of enumerated crimes, including the sale of drugs. What makes One (1) 2004 Lincoln Navigator interesting is whether the exclusionary rule should apply to civil asset-forfeiture proceedings. The question had never been decided by the Texas Supreme Court prior to this case.

Although the state supreme court unanimously reversed the decision by the 13th Court of Appeals—and remanded the case for “further proceedings,” taking the excluded evidence into account—four justices joined a concurring opinion written by Justice John Devine.

Justice Devine and his colleagues reached this result by holding that the troopers had reasonable suspicion for the initial search, which led to the subsequent inventory search revealing the drugs. In other words, the “contraband” (in the form of the Lincoln Navigator) was subject to forfeiture because the search was valid and the underlying evidence was not subject to exclusion.

The five-justice majority, in an opinion written by Justice Jeff Brown, reached the same result by holding that, even if the search was illegal, the exclusionary rule doesn’t apply to civil asset-forfeiture cases.

The majority’s reasoning has rankled court-watchers who reject asset forfeiture on policy grounds. Do these conservative critics have a point? Can property legitimately be “seized” as contraband if it was discovered in an illegal search?

Although it seems counter-intuitive, the answer appears to be “yes.” The reason is twofold.

First, the U.S. Supreme Court has steadily backpedaled from applying the exclusionary rule to criminal asset forfeitures since its application in One 1958 Plymouth Sedan v. Pennsylvania, a 1965 decision written by Justice Arthur Goldberg at the height of the Warren Court’s activism. As the majority opinion in One (1) 2004 Lincoln Navigator persuasively explains, the exclusion of illegally obtained evidence is a judicially-created remedy designed to safeguard the Fourth Amendment, not a personal constitutional right.

Moreover, the rationale for the exclusionary rule—“the criminal is to go free because the constable has blundered,” in Justice Benjamin Cardozo’s famous formulation—doesn’t apply in the civil context, as the Supreme Court has recognized numerous times since 1965, declining to exclude evidence in parole-revocation hearings, civil deportation hearings, civil tax cases, and grand jury proceedings. The Supreme Court has made it clear that civil in rem forfeiture is not considered to be punishment of the wrongdoer for his criminal offense.

Second, the relevant policies are embodied in legislation, not common law rules. Forfeiture of contraband in Texas is expressly authorized by statute. The Texas legislature created a civil asset-forfeiture scheme that authorizes the seizure of property without a warrant pursuant to “a lawful arrest, lawful search, or lawful search incident to an arrest.” Code of Criminal Procedure, article 59.03(b)(4). The statute does not forbid seizure of property obtained in an illegal search. As a matter of state law, the exclusionary rule has been codified in article 38.23(a) to apply in criminal cases.

Critics of asset forfeiture generally, or of the use of illegally discovered evidence in civil forfeiture proceedings, should not expect the Texas Supreme Court to legislate from the bench by ignoring or rewriting laws it doesn’t like. Consistent with their limited judicial role, the justices ruling in One (1) 2004 Lincoln Navigator faithfully followed the applicable law, and correctly declined to make new law.

To be sure, citizens are right to be vigilant when it comes to action by government without criminal due process protections. Abuses have been well-documented. Many reforms have been suggested, including the abolition of civil asset forfeiture; raising the burden of proof to more than “preponderance of the evidence”; protecting the rights of innocent third parties (such as vehicle owners and lien holders); allowing prevailing defendants to recover their attorneys’ fees; not allowing forfeited assets to directly benefit the law-enforcement agency responsible for the seizure; tightening up the definition of “contraband” and “proceeds” subject to forfeiture; and imposing greater reporting obligations to enhance transparency.

According to critics, the asset-forfeiture statute in Texas is one of the worst compared to other states. These reform proposals strike me as good ideas, and I also think that revising the statutory exclusionary rule to apply to civil asset-forfeiture proceedings ought to be under discussion in Texas. But these are matters for the legislature, not the Texas Supreme Court. In my view, the court reached the right result.

Still interesting to consider is whether, taking policy out of the equation, the majority’s approach is more consistent with judicial restraint, or whether Justice Devine’s concurring opinion is. Recall that the Texas Supreme Court has no jurisdiction in criminal cases. Writing separately, Justice Don Willett (recently in the news as one of Donald Trump’s potential candidates for the U.S. Supreme Court) offered several prudential reasons why he joined Justice Brown’s majority opinion.

Justice Willett wrote that ruling on the legality of the search would intrude into the purview of the Court of Criminal Appeals; that considering the exclusionary rule inapplicable to civil asset-forfeiture proceedings eliminates uncertainty, and streamlines those proceeding in the future by obviating any inquiry into the reasonableness of the search; and that, unless and until the legislature changes the law, “we dutifully take existing law as we find it.”

That is precisely how courts are supposed to function in a free society. Critics of One (1) 2004 Lincoln Navigator (or asset forfeiture generally) should address their arguments to the Texas legislature.

Reader Discussion

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on July 14, 2016 at 17:45:55 pm

Clearly, you favor "judicial restraint" as the proper judicial stance toward review of legislation. And clearly if one considers this only as a matter of Texas law, one can agree with the decisions of the Court(s). As you say, IF you take policy out of it - it all makes good legal sense.

Yet, this is the problem with a jurisprudence that is self limited to "restraint." It quite frequently will permit clear violations of the citizens liberties and due process guarantees. I'll not list all the abuses of this policy of CAF. (Indeed, I am surprised that our co-blogger nobody.really has not chimed in with news that last years Missouri turmoil was in part attributable to CAF in the locality and that current State Legislators advocate eliminating this policy in an attempt to reduce the number of unwarranted traffic stops). These abuses are many and quite varied.
Why is it not proper for the Court to determine that due process guarantees are to be protected? Is there some secret clause in the 5th and 14th that we are not privy to that excludes property of those persons involved in *civil cases.*

Or are you here accepting the Court's tiers of scrutiny regime? Yep, this automobile is less "fundamental" than a similar automobile seized in a criminal case - is that the reasoning?

And, oh by the way, said the court(s) "it matters not that the man was not engaged in criminal activity, it is a *civil case.*

Sorry, but this is ludicrous and allows for the wholesale plunder of small business people who just happen to make deposits in a certain amount and with a certain frequency; or allows for the seizure of one's home when no offense has been charged nor conviction brought.

Back to basics:

Court(s) ought to do their duty to judge all cases with the lens of the US Constitution and not the misguided need to show deference to the Legislative. Think Chief Justice Roberts and O-care to name just one.

Sorry this praise for judicial restraint is forty years too late - and it represented a false solution even then.

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Image of gabe
on July 14, 2016 at 18:17:21 pm

Gabe, on what basis would a court strike down a civil asset forfeiture statute? A hearing is required prior to forfeiture, which rules out due process objections. The wisdom of civil asset forfeiture presents the same issue as liability rules, damages, penalties, and other aspects of our civil justice system. Are we going to make courts a super-legislature?

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Image of Mark Pulliam
Mark Pulliam
on July 14, 2016 at 20:37:45 pm


Here’s a hypothetical: The President deploys federal troops to Texas to impede enforcement of the state’s civil forfeiture law on the grounds that the statute violates the citizens’ liberties and due process guarantees. I take it outrage would ensue, and properly so. But why? Because process matters, and even if that’s the right result, it’s the wrong way of attaining it. If we want a law repealed, we get the law repealed, and we have ways of doing that. We don’t bottom-line our way to the result we want with brute force, even if our justification of that result is liberty, because we recognize that liberty also requires regular institutions of republican government. The simple fact that a claim has been presented in court doesn’t mean the judiciary is the proper forum for its resolution. If a bill of attainder was presented in a legislature against a genuinely guilty person, we wouldn’t accuse a legislature that refused to pass it of abandoning its duty by exercising “legislative restraint," we would say it was doing its duty by swimming in its own lane and sending the dispute where it belonged: the judiciary. The judiciary’s lane is applying the law. The law in this case provides for civil forfeiture. For the record, my own view is that these forfeiture laws are prone to abuse, and while I am not an expert in this area of policy, I lean toward their repeal. But if I want that result, it’s my job to convince my fellow citizens, who have decided otherwise, of that. That’s the essence of republican self-government, and republican self-government is also one of the citizens’ fundamental liberties—in fact, the founders regarded it as *the* fundamental liberty.

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Image of Greg Weiner
Greg Weiner
on July 15, 2016 at 00:05:58 am

Mark / Greg:

Shorthand does sometimes leave things out.

1) My principal objection to Mark's essay is that I believe the notion of Judicial restraint CANNOT and OUGHT not be a proper remedy for the problems with the Judiciary. One may take a hypothetical and rework it so that applying the concept of restraint, we can depending upon the particular preferences of the majority of jurists we can either nullify or consecrate a law that is clearly in violation of our constitutional guarantees.
2) At times, would you not agree that a legislative act OUGHT to be overturned. Are we to call this proper exercise of judicial power "restraint" or as the particular cases supporters would suggest "activism." It seems to me that we apply the one remedy or the other a little too widely. Neither of the two dispositions has the elasticity (except in the mind of clever jurists) to cover all of the possible permutations of proper judicial decision making.
3) As you may recall, my preferred approach is consistent with Phillip Hamburgers exposition of Judicial *duty* as well as Evan Bernink recent essay, an excerpt of which may be found at last weeks Originalism Blog. Recent discussions of "scrutiny" here by Hadley Arkes,and others further reinforces my understanding of the problems inherent in restraint. Is not the application of the lower tier of scrutiny, rational basis, not a form of restraint. Yet, should the good justices decide that they do not prefer a certain policy prescription, would they (do they) not enlist the more rigorous tier's of scrutiny. There is to my mind as much elasticity in "restraint" as there is in "scrutiny."
4) Clearly, there must be some valid method / approach to judicial decision making because clearly Judges must Judge. I do not pretend, nor do I think it possible, to advance a "one size fits all" jurisprudential theory of interpretation / construction. I ask only that Judges judge with an eye on their sworn duty to uphold the Constitution, to do so clearly and convincingly without resort to certain penumbras, emanations and "mysteries of life" when a rather clear expression of the peoples will, via a fair construction of the text, is available; that they do without the coloration of their own preferences.
5) In the case of civil asset forfeiture, it may be the case that in Texas, one may have the "benefit" of appearing before a Civil Law judge. This is not the case nationwide and the number of instances in which citizens have been deprived of their property is rather larger than we would in first instance imagine - and it is still rising.

6) "it’s my job to convince my fellow citizens" - indeed it is. And if they do not, if they are even aware of it, and the Legislature determines that this is a good source of revenue, and the Courts finds that there is a rational basis for it - what then? You say it is prone to abuse; I would contend that it is, in and of itself, an abuse of governmental power and exceeds the specific grants of power provided to a (our) republican government. Is due process to be limited to a statement by a Police Officer that "I believed a crime was being committed - so I confiscated the bakers bank deposit bag" and then the baker has to a) fight for his property and b) provide an affirmative defense against the authorities who may even then deny him his property.
I am not one who favors the modern / expanded notion of substantive due process - but C'mon fellas, is the current system for redress really due process?

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Image of gabe
on July 15, 2016 at 07:52:50 am

Gabe, "restraint" is not the appropriate judicial response in all cases, but it is what courts should exercise unless the challenged law violates a right protected by the Constitution. See my explanation here: http://www.nationalreview.com/article/416590/quandary-judicial-review-mark-pulliam

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Image of Mark Pulliam
Mark Pulliam
on July 15, 2016 at 10:11:18 am

Mark, then we are in substantial agreement. Restraint ought to be but *one* tool in the jurists toolbag, but the tool bag should be emblazoned with the word "DUTY" on its' sides.

take care

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Image of gabe
on July 16, 2016 at 16:43:52 pm

Not the author does nto favor "judicial restraint",
he favors the constitutional nonsense that some on the right have coopted and confused with judicial restraint.

Out nation is NOT a democracy. The concept that the judiciary should defer to the legislature in all things is NONSENSE. It deserves no serious consideration by anyone. It should have no place in law.
It not only was rejected by our founders but it is the same route to disaster that progressives have been trying to push on us for a century.

Rights are not created by government - not even by the constitution.
They come from nature and the purpose of government is to protect them.

The role of the courts is to say NO when government infringes on a right.

The author notes the exclusionary rule is a remedy to protect a right. It is not itself a right - all well and good - but the right still exists outside the criminal context, and when it is breached the person whose rights have been violated is entitled to be made whole.

One of the major problems here is that government should rarely if ever enter the civil context as an actor.

The entire framework of "civil asset forfeture" is deliberate efforts to abuse the civil court system to achieve what the government could not accomplish in the criminal system.

The Civil system is not designed for this. We have enough problems in the criminal justice system because government is both the moving party and the adjudicator. We should take great care pollution our civil system in the same way.

It is rarely if ever justified for government to confiscate for itself property that might have been aquired illegally - that property belongs to whoever was harmed when it was aquired - not government.

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Image of jbsay
on June 03, 2018 at 14:30:02 pm

Kudos to Mark and gabe for having a good, friendly debate.

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Image of Diamondback
on June 03, 2018 at 14:32:52 pm

Thumbs up, Greg and jbsay!

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on June 28, 2018 at 19:56:06 pm

[…] of the Texas Supreme Court, Willett was known for supporting a broad range of rights. That includes opposing asset forfeiture laws that enable law enforcement officials to seize property with little or no due process, a practice […]

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on June 29, 2018 at 09:03:04 am

[…] of the Texas Supreme Court, Willett was known for supporting a broad range of rights. That includes opposing asset forfeiture laws that enable law enforcement officials to seize property with little or no due process, a practice […]

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on June 29, 2018 at 12:37:51 pm

[…] of the Texas Supreme Court, Willett was known for supporting a broad range of rights. That includes opposing asset forfeiture laws that enable law enforcement officials to seize property with little or no due process, a practice […]

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.