Justices further limit drug forfeitures

December 14, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau Staff Writer Darren M. Allen contributed to this article.

WASHINGTON -- For the third time this year, the Supreme Court put a new limit yesterday on the government's use of its sweeping power to seize property that has been used in drug crimes.

In a 5-4 ruling that showed the court's deepening worry that federal "forfeiture" power is being overused, the majority declared that the government acts unconstitutionally if it takes a house, buildings or land that was the scene of drug trafficking without justifying the seizure beforehand.

Such seizures are invalid even if the owner already has been convicted of crime, the court stressed.

The decision appears to end the government's option of going quietly to a federal magistrate to get an order allowing a seizure of real estate without notifying the property's owner, leaving the government's right to the property to be judged later in court.

Since Congress in 1978 gave federal officials the power to seize property linked to drug crimes, the government has gathered up a large fleet of boats, cars and planes, many houses and parcels of land, and piles of currency.

But, beginning in February, the court has moved repeatedly to narrow that power. In its February decision, the court rejected the government's claim that it becomes the owner of property the minute it is used in a drug crime.

The court said the government must first give owners a chance to show they were not involved in drug activity, and thus can keep the property. Then, in June, the court ruled that a seizure can be unconstitutionally excessive if the scope of the seizure is far greater than the seriousness of the specific drug crime.

In the third limiting ruling yesterday, the court said that any time the government is thinking of seizing property that it believes was the scene of illegal drug transactions, it must first tell the owner and have a court hearing, giving him a chance to challenge the seizure.

Liberals and conservatives

The ruling, written by Justice Anthony M. Kennedy, was exactly the kind that had been requested by an unusual coalition of liberal and conservative civil rights groups.

However, several states -- including Maryland -- had urged the court not to cut back further on forfeiture power. Many states, like the federal government, have a number of property-seizure laws linked to crimes.

Even one of the dissenting justices, Clarence Thomas, commented yesterday that the court may need to do more to cut back on forfeitures. Although objecting to the specifics of the decision, Mr. Thomas wrote that "I am disturbed by the breadth" of recently enacted federal forfeiture laws.

Justice Kennedy, in his opinion, voiced concern that the Justice Department may be using its forfeiture powers to help raise money to pay for federal criminal prosecutions. He quoted from a department memo in 1990 urging prosecutors to do more to "increase forfeiture income" to meet targets set in the agency's annual budget.

With that financial interest at stake, Mr. Kennedy said, there is a risk that seizure decisions may not be the result of "neutral" enforcement.

Postponing a chance to challenge a seizure until after the government actually holds the property, he said, may mean a possibly incorrect seizure is not remedied by busy courts for "many months."

The majority opinion spoke at length of the importance of protecting private ownership rights against government intrusion.

The decision expressly applied only to two situations of property seizure: when the target is real estate, such as a residence, another kind of building, or land, and when the procedure is a civil law gesture in federal court that follows a criminal case in state courts.

Carroll County unaffected

Assistant State's Attorney Barton F. Walker III, who coordinates the Carroll County Narcotics Task Force, whose seizure and forfeiture practices have been criticized by the American Civil Liberties Union, said the decision would not affect how the task force operates.

"This was a due process case," Mr. Walker said. He said his group, which rarely seizes real estate, already gives the notice required under Maryland's "more restrictive" forfeiture statute.

But the language of the majority's opinion was so broad, the NTC dissenters said, that it appeared likely to extend to forfeitures in tax and customs cases.

The ruling was at least a temporary victory for James Daniel Good of Honolulu, who had pleaded guilty in a Hawaiian state court in 1985 of "promoting" an illegal drug.

He was arrested after Honolulu police, with a search warrant, found 89 pounds of marijuana, marijuana seeds, vials of hashish oil, drug-using devices, and more than $7,000 in cash in his house. He was sentenced to a year in prison and fined $1,000, and forfeited the cash.

More than 4 1/2 years later, federal prosecutors asked a federal magistrate to order Good's house and four acres of surrounding property seized.

Took ownership

By then, Good was living in Nicaragua, so the government simply took ownership and started collecting the rent from his tenants. Good had not been told. He then sued to challenge the seizure.

Yesterday's ruling produced the first significant vote in a major criminal case by new Justice Ruth Bader Ginsburg. She voted with the majority to strike down the seizure-without-a-hearing process. Also in the majority were Justices Harry A. Blackmun, David H. Souter and John Paul Stevens.

The four dissenters were Justice Thomas and Chief Justice William H. Rehnquist, Sandra Day O'Connor and Antonin Scalia.

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