Drug asset forfeiture: Will the courts quiet the critics?

On October 14, 2009, the United States Supreme Court (USSC) heard arguments in Alvarez v. Smith, 130 S.Ct. 576 (2009), a case deemed by all to be an important review of Illinois’ drug forfeiture law and the application of procedural due process. In the days surrounding the arguments, the media and blogosphere attention produced titles such as: A Plea for Procedural Due Process (Forbes, Oct. 20, 2009); Police for Profit (Wall Street Journal, Oct. 24, 2009); Need Your Car Back from the Feds? Maybe Sotomayor Can Help (Wall Street Journal Law Blog, Oct. 14, 2009); Drug Fighting or Highway Robbery? (The Pantagraph, Nov. 10, 2009); and Forfeiture Case Before High Court is About Government Bullying (ABA Journal: Law Prof., Oct. 14, 2009). The content of those articles and the comments following, in large part, carried with them the same theme as the titles above: drug forfeiture is bad and the law enforcement officials enforcing drug forfeiture are corrupt. Many observers believed or hoped the USSC would tighten the requirements of Illinois forfeiture laws. However, that was not the case.

Alvarez arose from six owners of personal property seized by the Chicago Police under the Illinois Drug Asset Forfeiture Procedure Act (DAFPA).1 They filed an action, under 42 U.S.C § 1983, against the Cook County State’s Attorney, the City of Chicago, and its police superintendent claiming that when property is seized “due process requires… a prompt, postseizure, probable cause hearing,” not present in the DAFPA.2 The district court, bound by the Seventh Circuit’s decision in Jones v. Takaki,3 granted the City’s motion to dismiss.4 On appeal, the Seventh Circuit departed from earlier precedent and held that Illinois’ drug forfeiture procedure laws “show insufficient concern for the due process rights” of the claimants.5 The court found that the issue was not how quickly the civil forfeiture proceeding began, but rather whether an intermediate mechanism should be in place to test the validity of the seizure soon after the property was seized.6 The case was remanded with instructions requiring the creation of some mechanism to review retention of seized property by law enforcement pending forfeiture proceedings.7 The USSC thereafter granted certiorari and upon oral arguments became aware that the case was moot because final dispositions, either through settlement or default judgments, had been reached on all of the property previously seized.8 The Court held that the case was moot and vacated the lower court’s decision.9 While this decision may have left critics deflated in their hopes to change Illinois’ drug forfeiture laws, it likely will not silence them.

Critics of drug asset forfeiture often argue that individuals’ due process rights are not adequately protected by the Illinois law, which allows police to seize personal property without a warrant and hold that property while the forfeiture is pending. The USSC in Alvarez noted that under Illinois law it could be 142 days before the State is required to begin a judicial forfeiture proceeding. In fact, it can be 187 days before a judicial forfeiture proceeding begins with the filing of a civil complaint. Once property is seized, law enforcement has 52 days to submit the seizure to the proper State’s Attorney for review.10 This time frame allows law enforcement to investigate the property further prior to determining if they will submit it to the appropriate State’s Attorney’s office for forfeiture. In the case of an automobile, law enforcement must investigate the title to determine if any liens exist on the property and who the lien holders are. Also, a determination must be made if the property is worth pursuing based on the status of any liens. Once it is sent to the State’s Attorney’s office, a review is undertaken of the facts and circumstances leading to the seizure and any related interest in the property before approving or denying the seizure. If the seizure is approved for forfeiture proceedings and the property is non-real with a value not exceeding $20,000, then non-judicial forfeiture procedures are initiated.11 If the property is non-real with a value exceeding $20,000, then a judicial in rem proceeding is initiated.12 The DAFPA excludes the value of any conveyance seized in determining if the value exceeds $20,000.13 So, if law enforcement seizes $20,000 and an automobile valued at $50,000, then non-judicial forfeiture procedures would be initiated.

Non-judicial forfeiture procedures are just that non-judicial. The DAFPA requires the State’s Attorney to send notice to all known interest holders within 45 days of receiving the notice of seizure from law enforcement.14 This notice must include “a description of the property” and “the conduct giving rise to the forfeiture or the violation of the law alleged,” among other things.15 Thereafter, any person wishing to claim an interest in the property has to file a verified claim16 and a cost bond in the sum of 10% of the value of the property or $100, whichever is greater.17 Claimants may also file an affidavit of indigency.18 If a proper claim is filed, the State has 45 days to file a verified complaint for forfeiture.19 This is one of two ways forfeited property goes before a judge in a judicial in rem proceeding. The other is non-real property valued over $20,000. The vast majority of drug forfeitures are resolved as non-judicial forfeitures under the procedure just described largely because claims are never filed on the seized property. If a judicial in rem proceeding is required, the State has 45 days to file a complaint for forfeiture.20 A property owner must file an answer within 45 days, and if an answer is filed, a hearing must be held within 60 days.21

Once a hearing is held, the DAFPA allows for several presumptions in favor of the State.22 It is the State’s initial burden to show the existence of probable cause for forfeiture.23 If the court determines probable cause exists, the burden shifts to the property owner to show by a preponderance of the evidence that his or her property interest is not subject to forfeiture.24

This procedure and the time allowed for filing claims spurred not only the law suit that eventually went before the USSC but also the numerous articles questioning the methods used in seizing and forfeiting personal property. Only a quick review of the DAFPA is needed to see that the act protects the rights of property owners. Setting aside for a moment the initial 52 days law enforcement has to submit the seizure, each stage of the procedure gives an equal amount of time to the State and the property owner to make any filings. The process could be accelerated to ensure the property owner’s day in court arrives more quickly. However, to whose advantage would that be? The State’s Attorney who has training and experience in these matters, or John Q. Property Owner with no legal training? When a typical property owner receives the initial notice of pending forfeiture he or she must first interpret the legal document received and then determine how to make a claim. Most will be unable to make a sufficient pro se claim as there are several requirements.25 So, the property owner must seek out a competent attorney willing to enter into this rarely-practiced area of law. All of this takes far more time than it does for the State’s Attorney to submit the required notice and filings. So again, why do those arguing for property owners want to shorten the process? It seems obvious that abbreviating the process would only lead to more cries of “State sponsored theft”—to quote an attorney I often have this debate with—because property owners would be left with an inadequate time frame to defend their interests in the property. Now, addressing the time frame given to law enforcement; although they are given 52 days to submit the seizure, most law enforcement agencies have internal policies that require notice to the State’s Attorney within a shorter time frame. Many law enforcement agencies, including the Illinois State Police, require that notice be sent within 35 days. However, notice is often given to the State’s Attorney in far less than 35 days.

Those who argue against drug forfeiture need to answer this question: Do you want to rid your community of the illegal sale of drugs and the crime that comes with it? If you do, you must be willing to give law enforcement the tools to protect you from the drug trade and the contiguous crime. On June 29, 1990, Thomas Homer, then a member of the Illinois legislature, while speaking on the floor of the House of Representatives said, “It’s a good Bill that attacks drug dealing at the source, by taking profits away and the assets away from those who profit by drug dealing. It gives law enforcement a significant tool in combating the ever increasing drug trafficing [sic] problem[.]”26 Minutes after Representative Homer (and now the former Presiding Justice of Illinois’ Third District Appellate Court) gave this recommendation, Illinois’ drug forfeiture laws were passed with 106 voting ‘yes,’ 7 voting ‘no’ and 3 voting ‘present.’

Obviously our elected leaders did not see deficient due process protections in the DAFPA. However, an honest evaluation of the process does allow for one debate: Should there be a prompt post-seizure hearing to determine if probable cause exists? This was precisely the mandate that the Seventh Circuit gave in Smith v. Chicago. Such a hearing would require the State to give a showing of probable cause before a judge who would determine if the property in question could be held while the forfeiture was pending. This would ensure that law enforcement is not abusing the power given to them under the DAFPA. Florida law, for example, requires a preliminary hearing be held, but only at the request of the property owner.27

A preliminary hearing could serve a dual purpose in that it could allow a bond to be set for the release of the property during the pendency of a claim. This would address arguments that allowing the State to hold the property can present an extreme hardship on the property owner. Clearly, posting a percentage bond would not work in the case of seized currency; however, there is a better argument for such a procedure with seized automobiles. Many people rely on their vehicle to support themselves and their family. A judge could determine an appropriate bond to be posted based on the value of the property, the alleged forfeitable acts, the property’s relationship to the acts, the property owner’s role in any wrong doing, and the likelihood the property will be diminished in value if returned to the owner. The issue will be whether the value of the property can be maintained. If the property value is diminished, the State will lose the value of its interest. Whether a bond is issued or not, a preliminary hearing would allow for a neutral judge to make a probable cause determination and thereby validate the seizure of the property.

This preliminary hearing is the “mechanism” the Seventh Circuit mandated in Smith. While the USSC remanded the case with instructions to dismiss, there is no question that there will be no shortage of potential future plaintiffs. Drug forfeiture of property will continue to be the primary tool in the fight to ensure the drug trade is not a profitable enterprise in Illinois. And while the fight will not change, if the DAFPA is challenged again, the process may very well be required to change. The Seventh Circuit has shown in their opinion what “mechanism” they feel is a necessary addition to Illinois’ drug forfeiture laws. If in place, a preliminary hearing may give critics of drug forfeiture the process they feel is due. ■

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Adam W. Ghrist is an Assistant State’s Attorney in the McLean County State’s Attorney’s Office. Any opinions expressed in this article are solely those of the author and not those of the McLean County State’s Attorney’s Office.

1. 725 ILCS 150/1 et seq.

2. Smith v. Chicago, 524 F.3d 834, 835 (2008).

3. Jones v. Takaki, 38 F.3d 321 (1994).

4. Jones was decided under United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555 (1983), which applied the speedy trial test when determining if a delay in forfeiture proceeding violated due process.

5. Smith, 524 F.3d 834. The Seventh Circuit applied the three part test from Mathews v. Eldridge, 424 U.S. 319 (1976), thereby rejecting its pervious holding in Jones declining to follow the due process analysis of $8,850.

6. 524 F.3d 834.

7. Upon notice of certiorari, the Seventh Circuit vacated their mandate requiring an intermediate hearing to test the validity of the questioned seizure.

8. Alvarez v. Smith, 130 S.Ct. 576, 580 (2009).

9. Alvarez, 130 S.Ct. 576.

10. 725 ILCS 150/5

11. 725 ILCS 150/6

12. Id.

13. Id.

14. 725 ILCS 150/6(A)

15. 725 ILCS 150/6(B)

16. 725 ILCS 150/6(C)(1)

17. 725 ILCS 150/6(C)(2)

18. Id.

19. Id.

20. 725 ILCS 150/9(A)

21. 725 ILCS 150/9(E)

22. See 725 ILCS 150/7

23. 725 ILCS 150/9(G)

24. Id.

25. See 725 ILCS 150/6(C)(1)

26. Remarks of Rep. Homer, June 29, 1990, House Debate on House Bill No. 3610 (which, as Public Act 86-1382, effective September 10, 1990, enacted the provisions in question) at 110.

27. Fla. Stat. 932.703(2)(a) (requires a preliminary notice of forfeiture to go out within 5 days after which time the property owner may request a preliminary hearing within 15 days).