(Peace Officer’s) License to Steal

By | June 27, 2016

Texas illegal seizure

On the recent Texas Supreme Court decision in State of Texas v. One (1) 2004 Lincoln Navigator, I have only a few remarks.

It is flim and flam. It is hook and crook. It is rip and off. It drags itself out of the abyss of stupidity, laboriously climbs the pole of inexperience, and unfurls a dangerous flag of nonsense.

But I grow lyrical.

Now, some of the issues here will seem a little technical. But they won’t seem so technical when the police illegally search you and start taking your stuff.

So stick with me. This is important.

Some lawyers, after reading Riley v. California, thought that the United States Supreme Court decided that police officers had to get a warrant before searching the digital contents of a cell phone because every member of that court had his or her own personal cell phone. Each of those cell phones probably contains personal, confidential information about the Justice and his or her family and they did not like the idea of police officers seizing those phones and searching them without a warrant.

With that frame of reference, I turn to the recent Texas Supreme Court decision in State of Texas v. One (1) 2004 Lincoln Navigator. The Justices of the Texas Supreme Court probably cannot so easily imagine themselves in the shoes of Miguel Herrera, who was driving that Lincoln Navigator, which contained illegal narcotics.

The Lincoln Navigator case is known as an “in rem” action. The defendant is the Lincoln Navigator itself. “What?” you ask. How can the car defend itself? Well, naturally, the driver of the vehicle, Miguel Herrera, had a thing or two to say about whether it was appropriate for law enforcement officers to illegally search and then seize his vehicle.

The Lincoln Navigator decision concluded that an illegal search does not require exclusion of evidence in a civil forfeiture proceeding which arises when a law enforcement officer seizes contraband.

This issue is not settled across the nation. In United States v. $191,910 in U.S. Currency, the court held that illegally seized property may not be introduced as evidence in a forfeiture proceeding. In that case, police became suspicious of the claimant after he put his bags through an airport security X-ray that revealed he was carrying a large amount of cash. The claimant gave inconsistent answers about how much cash he was carrying. The police, believing that they had reasonable suspicion to search his bags, found the $191,910 in his bags.

The government filed a forfeiture complaint against that money. The District Court held that the search was illegal, suppressed all fruits of the search, and ordered the money returned to the claimant.

The Ninth Circuit Court of Appeals said: “to have held otherwise would merely reward the government for carrying out an illegal search or seizure.”

That is why I am writing this blog. The Texas Supreme Court Justices may not be able to put themselves in the shoes of someone who is carrying a large amount of cash and who has that cash seized by virtue of an illegal search. But plenty of other people will soon wear those shoes. They won’t have to imagine anything. They’ll walk in Kafkaesque circles.

The Texas Supreme Court decision amounts to a (peace officer’s) license to steal. The police can now search you and your stuff illegally and if they see something that they think is contraband, then they will take it. And they will keep it, even if they never prove beyond a reasonable doubt that what you had was contraband. They only have to prove that it’s a little more likely than not that the seized asset is contraband.

It might be that you have just concluded a real estate transaction and that you insisted on being paid in cash. Some people just don’t trust banks. There is no law that requires that you keep your money in banks. But as far as most law enforcement officers are concerned, if you are carrying a large amount of cash, it is because you are trying to hide the proceeds of an illegal transaction, usually one involving drugs.

Ironically, the Texas Supreme Court said that “the deterrence rationale [to deter law enforcement officers from illegal searches]–at least as it relates to civil forfeiture in taxes–is marginal at best.”

“Marginal at best”? Are they kidding? Who keeps that money after it has been successfully forfeited to the government? I know who: the police, that’s who. A large part of the proceeds of civil asset forfeitures always go to the agency that made the seizure.

The Texas Supreme Court’s decision avoids the common sense question of just why exactly would we put the fox in charge of the hen house.

The result will be many more forfeiture cases successfully made. Some of those forfeitures might seem “righteous,” in which the tractor trailer truck was hauling marijuana, not grapefruit, up from the Rio Grande valley.

But some of those forfeitures will involve people who weren’t doing anything wrong, who were just doing something that the police thought “fit the profile,” and then suffered an illegal search.

And a loss of their family’s small fortune.

I don’t care where on the political spectrum you stand. You can’t be in favor of legalized theft. Please contact your legislator. Yes, I know, things are desperate when we turn to the Texas Legislature for a dollop of common sense.

But the Texas Supreme Court is fresh out.