Civil forfeitures can raise an array of due process issues, and the question before the court was the relatively minor one of whether people seeking to get their property back are entitled to a prompt hearing before a judge. Though some justices appeared inclined to rule that at least that much was required, several of them indicated they would leave resolution of the question for another day because the case before them was procedurally flawed.
Law enforcement agencies seize more than $1 billion worth of property every year, generally without warrants and based solely on officials’ assertions that the property was in some way tainted. Property owners may challenge the seizures but must often wait months or years to do so. The police often get to keep what they capture.
Justice Stephen G. Breyer sketched out the basic issue in the case, Alvarez v. Smith, No. 08-351, by describing a hypothetical situation.
“My car was parked on the street,” he said. “There happened to be some big drug crime nearby and the policeman took my car. In my opinion there was no probable cause. I would like my car back.”
“Do I have to wait for up to six months,” Justice Breyer asked, “before I have any magistrate, any neutral official, pass on my claim there was no probable cause to take my car?”
William M. Jay, a Justice Department lawyer, said the government needed significant time to figure out who owned the car and to investigate the owner’s connection, if any, to the criminal conduct at issue.
“I’m sorry,” Justice Sonia Sotomayor said. “You take the car and then you investigate?”
Justice Samuel A. Alito Jr. countered that requiring a prompt hearing could compromise criminal investigations.
“They may think he is involved in the drug conspiracy as well,” Justice Alito said of the car’s owner. “They may have him on wiretaps. They may be preparing to arrest him. Now, you want to force them to come into court within 10 or 14 days and disclose the details of a pending criminal investigation?”
The case was brought by six people whose cars or money had been seized in Chicago. The federal appeals court there ruled last year that the plaintiffs were entitled to prompt hearings.
“The hardship posed by the loss of one’s means of transportation, even in a city like Chicago, with a well-developed mass transportation system, is hard to calculate,” Judge Terence T. Evans wrote for a unanimous three-judge panel of the appeals court.
It is bad enough, Judge Evans wrote, when the owner of the car is accused of a crime. “But consider the owner of an automobile which is seized because the driver — not the owner — is the one accused and whose actions caused the seizure. The innocent owner can be without his car for months or years without a means to contest the seizure.”
The claims of all six plaintiffs in the case have been resolved. That meant, several justices suggested Wednesday, that the case is moot.
“You have nobody before this court with a live claim,” Justice Antonin Scalia told Paul Castiglione, an assistant state’s attorney in Illinois.
Justice John Paul Stevens complained about a second aspect of the appeal: the appeals court had left it to the trial judge to determine the details of how and when hearings would take place.
“We are trying to get into the case much earlier than we should, it seems
to me,” Justice Stevens said. He said the court should dismiss the case as
improvidently granted.