Civil Asset Forfeiture: Violation of Due Process and Illegal Search and Seizure?
Imagine you are driving from the
east coast to your home in Washington in a car belonging to your parents, who
also live in Washington. As you travel through Arizona, you are pulled over by an
Arizona Department of Public Safety officer for your dark window tint.[1]
Before you know it, drug dogs are being brought out and you are arrested for
having $31,000 in cash and some personal use marijuana. Your parents’ car is
seized by Arizona state troopers, and they are informed they have 30 days to
file an objection.
This is what happened to the son of
William and Ria Platt in 2016. With no money to pay for legal assistance, the
Platts set out to file the objection themselves only to have it rejected by the
Navajo County Deputy Attorney due to an error made by the Platts because they
did not include the language “signed under penalty of perjury.”[2]
The state of Arizona kept the car and the cash and the Platts were left to
figure out why this was allowed to happen, even after their son was not charged
with a crime.
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| Ria and Terry Platt - Image Source |
Civil asset forfeiture is a tool
that allows law enforcement to seize property believed to have been obtained through
illegal activities. At the federal level, it was established via the Comprehensive
Crime Control Act of 1984, which set up the fund and the rules for the
distribution of seized assets. Each state has their own version of this tool which
is often kept in state coffers, regardless of the outcome of the case, and is used to fund law enforcement.[3]
The Platts decided to sue Moore,
the police departments involved, and numerous individuals within the Arizona
state government in a federal civil suit on the basis that the Arizona state
civil asset forfeiture laws were unconstitutional via the fourth
and fifth
amendments. Shortly after they filed, their car was returned to them, but they
decided to fight on with the help of the Institute of Justice. Moore, et al., filed multiple motions to dismiss with U.S. District Court of Arizona, only to
have them split by the court. Some motions were granted and others were denied. The Platts
appealed their case in the Ninth Circuit and on October 4, 2021, they were
given the green light by the court to continue their case against the state of
Arizona, remanding it back to the district court, [4] with Judge Marsha Berzon stating, “This obvious vulnerability in Arizona's forfeiture regime to a
procedural due process challenge cannot be mitigated by interpretative
sleight-of-hand.”[5]
In May of 2021, in a separate win
for those advocating against Arizona’s civil forfeiture laws, Arizona Governor
Doug Ducey signed into law Arizona House Bill 2810 which requires a conviction
before assets can be seized, thanks, in part, to the attention that the Platts
brought to this issue.[6]
Questions to consider:
- Did Moore deny the Platts their right to due process by dismissing their initial objection on a technicality as the appeals court opined?
- Should law enforcement be allowed to seize someone’s assets before they are convicted of a crime?
- If so, should said assets be returned automatically to the accused once it is deemed no charges will be brought?
- Do you agree that seized assets should be used to fund the law enforcement agencies responsible for seizing them?
I agree with the appeals court. It seems like a better course of action would have been to allow them to correct the form right at the start of the action.
ReplyDeleteI'm torn on the second question--say it was a trunk full of cash, it seems reasonable for law enforcement to hold on to it, so long as it is properly documented and both parties are in agreement as to what is being stored and when the accused will regain access if not convicted. On the other hand, if it was a vehicle that was a person's only means of getting to/from work, it seems fundamentally unfair that it would be seized without conviction.
I absolutely think that items should be returned once charges are not brought. This is why I think it is so important to have a proper inventory and documentation of the assets, as well as agreement from both parties as to what it is. As it stands, the system seems ripe for plenty of "oops, not sure what happened to that $20,000 cash--sorry!"
Finally, I absolutely think that any seized assets should NOT be used to fund the agencies seizing them. This is such blatant abuse and conflict of interest. Instead, any assets seized should be used to fund something completely unrelated, like after-school programs or similar. That way law enforcement will see no direct benefit from the practice (except perhaps that fewer kids grow up to be criminals because their schools had excellent after-school music programs?!)
Very interesting case and questions.
ReplyDelete1. Yes, I feel that Moore did deny the Platts their right to due process. In fairness to the process, a simple discussion regarding the missed requirement with the ability to file an amendment to meet the requirement seems like a much fairer process and outcome than just outright dismissing it.
2. No, law enforcement should not be allowed to seize assets before a conviction unless the asset is evidence. For example, a car that was involved in an accident and the appropriate investigation may take time. The assets should be released as soon as possible after that. I feel this entire practice puts the cart before the horse and punishes someone before they have been found guilty. Punishing my children before proving they did something wrong wouldn’t fly and this should not as well.
3. The assets should be returned immediately and automatically to the accused if charges are not filed and won’t be filed. Taking something that is not yours is stealing and this is akin to the officers stealing the assets of the accused and then forcing them to fight to get them back. That is a bully maneuver and it is not the way the justice system should work.
4. Absolutely not to the last question! These assets should not be used to fund law enforcement or the seizing agency as it could lead to overreach and abuse of the system. Finding a better use of this instead of incentivizing the seizure of property seems like a better use of the funds. I agree with Megan and using it on an unrelated program for the community seems to make more sense and avoids the conflicts of interst.
Great post and comments. This is an interesting case.
ReplyDelete1. I would agree that there should have been an opportunity to ammend the filed objection. If the document had been filed by an attorney representing the Platts, I am guessing that the ommission would have either been overlooked or quickly corrected without being denied.
2. How often are other family members, totally uninvolved in an accusation of a wrongdoing, affected by the actions of one family member? While it seems unfair, law enforcement has a duty to preserve evidence. Think of the discussion we had in class last weekend regarding the amount of ESI for which there is a requirement to preserve from the first possibility of a lawsuit? Physical evidence is no different.
I think the Arizona law may have overstepped by requiring a conviction before confiscating the evidence. Perhaps there is a middle ground for the law, requiring a purpose or need for confiscating the evidence. Contaminated evidence holds no weight in court, so this is a fine line.
3. I would agree that once the case has been decided in favor of the defendant, the evidence should be returned. What if the defendant is convicted? Who has claim on that property?
4. A conflict of interest does need to be avoided in how money and property seized is used if not returned.
First, yes, I think the Platt's due process rights were violated. However, the reason I believe this is not because of it being a simple error which could be corrected. Technically, there was an error in their filing and if the correct process is not followed, it's not necessarily a violation of someone's rights. Unjust, probably; but, not necessarily unconstitutional.
ReplyDeleteThe part that gets me, is the fact the DA's office is allowed to make this claim in court without having to provide the documents or even explain how they were incorrect. This seems extremely unconstitutional and a violation of the sixth amendment on several levels. First, it violates their right to know what the accusations against them are. If the DA is going to allege the forms were filled out incorrectly, then they need to provide information about how they are filled out correctly. Secondly, defendant's are allowed to see all evidence against them. So, again, If the DA is going to allege the forms were filled out incorrectly, then they need to provide the forms as evidence (this ties in to our topic last week about discovery).
In terms of the other points raised, I may be a little biased seeing as how I am a law enforcement officer myself. I believe it is an important law enforcement tool to be able to seize assets if there is reason to believe they were obtained illegally, will be used in an illegal manner, or there is a possibility of the assets being hidden or dispersed. In this case, I'm not sure I agree with seizing a vehicle and $31k based on a misdemeanor possession of marijuana, but in many circumstances it is much more urgent.
Also, although I agree with returning the the assets once it is known no charges will be filed, I don't necessarily agree with there being a specific timeframe on that requirement. Many times, in either my job or in prosecutions, the threat of a violation or new charges based on the evidence may be necessary to get a deal or regain compliance.
I'm reminded of one person I was supervising, a sex offender, in which we found pornography on his cell phone. This is a violation of his conditions of supervision, but not the most egregious violation. I seized his cell phone and made a deal with him that I would not file a violation against him if he successfully completed sex offender treatment. This was back in April, and I still have the cell phone in our evidence locker. Five months later, it is still undetermined as to whether I will need that evidence or not.
To the last point, I generally believe property seized should not be used to fund the law enforcement agencies responsible for seizing it. This certainly seems like a policy ripe for abuse. However, on the flip side, I think everyone here can agree they do not want drug deals happening in their neighborhood. In order to combat that, it takes money to pay salaries, train dogs, train officers, etc. Perhaps there could be a middle ground in that all seized property goes into a statewide or federal coffer with a portion of it being dispersed evenly amongst all LE agencies. I recognize this could still have the potential for abuse, but I feel like it would be a detriment to the protection of the community to erase this source of funding for LE agencies.
Methinks twice about driving through Arizona! First of all, being pulled over for windows that are tinted too dark is a stretch. Every state has different laws about window tinting. Stopping a car with a Washington state license plate, for such a reason sounds quite unreasonable. However, for whatever reason property might be confiscated, I believe the Platt's due process rights were abridged both because of a technicality and perhaps because of the way Arizona's asset forfeiture law is written and applied.
ReplyDeletePerhaps this is a prime example of how difficult, how expensive and how complex it is to navigate both state and federal legal systems in the United States. I can only imagine what a nightmare this was for the Platt's and the emotional toll and frustration that they have faced. At least some new legislation seems to have occurred (at least in Arizona) due to their great effort and sacrifice.
Good post, Stephanie!
ReplyDelete1. While the Platt’s decision to pursue this litigation case in hopes of changing the statute, I do believe the headache of it all could have been avoided had they been allowed to correct the form at the beginning.
2. Yes, items seized should be kept until a conviction is charged or dropped. All assets seized are evaluated as either evidence or not or but this process cannot take place is only partial assets are present. It would be like solving a puzzle work pieces missing.
3. I hope this is a no-brainer, as the Platt’s hoped this too, items seized should be returned in a timely manner if no conviction is charged! All evidence should be properly documents on case there is any need to reopen a case.
4. I asked a friend who works for a police department what happens to the money they seize and they stated their department keeps 10% for funding and donates the remaining 90% to the city to allocate accordingly. I believe this is fair.
1. Did Moore deny the Platts their right to due process by dismissing their initial objection on a technicality as the appeals court opined?
ReplyDeleteMoore did deny the Platts' right to due process by dismissing the initial objection. Although a technicality, should justice be so quick to punish because of an omission by non-professional citizens? This is where I do think much of the conversation surrounding policing in general gets stuck on, technicalities. Technicalities are what often empowers discrimination against citizens by state-sanctioned individuals with guns.
2. Should law enforcement be allowed to seize someone’s assets before they are convicted of a crime?
No, law enforcement should not be able to seize property belonging to private citizens before they are convicted of a crime AND after such conviction. Evidence is evidence, but assets that belong to an individual and their immediate loved ones is not appropriate.
"A Vietnamese immigrant and his business partner are fighting to get back more than $100,000 seized by Oklahoma police who allege that it was drug money."
https://www.nbcnews.com/news/us-news/highway-robbers-how-trip-buy-farmland-ended-police-taking-all-n1281629
3. If so, should said assets be returned automatically to the accused once it is deemed no charges will be brought?
If assets seized by the law enforcement department is not relevant to the case, then it should be returned to the rightful individual and their immediate family members regardless of conviction.
4. Do you agree that seized assets should be used to fund the law enforcement agencies responsible for seizing them?
HELL NO. All the comments justifying any sort of utilization of the private assets to fund public law enforcement departments seized is a disappointing view, imo. Not only does the state already have a monopoly over violence (e.g. police), but now some are restating that they can have power to play for keeps? Nah. Imagine another state agency having the power to keep assets because they don't want it recirculate? Yeah, not a good take.
I wanted to be one of the last to speak up here. I really enjoyed reading the above comments. In our office, we have a board with copies of checks payable to Uncle Sam for itemized seized, assets surrendered or funds collected from cases and seizures. I am astounded at the amount of some of these checks. I mention this only because our office has a specialized division which pursues seizure matters. I don't have first hand knowledge of the process here, but I believe, after reviewing this case and reading the above comments, there was a violation of due process rights for the Platts and the request should have been amended. On the issue of law enforcement seizing items before a conviction, I am aware of a current trial (US v. Kingston, et al) where pleas and a conviction were obtained and in Nov 2021, a bench trial on forfeiture items will take place. These assets are being collected and sold, AFTER the conviction was received.
ReplyDelete