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Notes on New York’s revised forfeiture proposal

On February 13, 2012, in states, by Scott Alexander Meiner

The revised version of New York’s post-conviction forfeiture proposal adds substantive process concerns echoing some of the good parts of CAFRA and addressing some of the criticisms that we’ve been leveling.  The revisions still need work though.

The revisions haven’t addressed the warrant exception language.

 6    3. ANY PROPERTY SUBJECT TO FORFEITURE UNDER THIS SECTION MAY BE SEIZED
7  BY LAW ENFORCEMENT, EX PARTE AND UNDER SEAL, UPON A SHOWING OF  PROBABLE
8  CAUSE TO BELIEVE THAT THE PROPERTY IS FORFEITABLE, EXCEPT THAT A SEIZURE
9  MAY BE MADE WITHOUT A WARRANT:
10    (A) PURSUANT TO AN ORDER OF ATTACHMENT; OR
11    (B) IF THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PROPERTY IS SUBJECT
12  TO FORFEITURE; AND
13    (I) THE SEIZURE IS MADE PURSUANT TO A LAWFUL ARREST OR SEARCH; OR
14    (II)  ANOTHER EXCEPTION TO THE FOURTH AMENDMENT WARRANT REQUIREMENT OF
15  THE FEDERAL CONSTITUTION APPLIES.

It provides for a scenario where a seizure may be made without a warrant where there is probable cause to believe that property is forfeitable with some unnamed exception apart from a lawful arrest or search. The exception is, presumably, for plain view seizures as expressed in Horton v California (1990): “If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy.”

That exception ought to be expressly limited to contraband that is inherently illegal or it should require exigent or emergency circumstances. It should also state, explicitly, that such seizures require lawful access. The proposed language encourages speculative seizures. The power of law enforcement to seize your property, absent a warrant, is an extraordinary power. It requires instructions.

At a minimum, the proposed exceptions should be generally stated.

It says that such seizures are permitted if an exception applies. It then leaves it to law enforcement agents to decide if they have an applicable exception-without specifying the exceptions. That’s backwards. There should be a presumptive notion that private property should not be seized by the state. If the people want to allow certain exceptions, they should iterate the exceptions. Law enforcement can operate accordingly.

It’s also problematic that the exception language is tethered to the Fourth Amendment of the federal constitution in lieu of New York’s. The federal standard is inherently more lax than New York’s. New York added the federal 4th amendment language to their constitution in 1938. The parallel language necessitates a federal floor for New Yorker’s rights, not a ceiling, because the 4th amendment is incorporated through the 14th amendment of the US Constitution (Wolf v Colorado (1949)Mapp v Ohio (1961)Aguilar v Texas (1964)Ker v California (1963). New York is free to interpret the language as offering greater protections and it has done exactly that. In The People v Weaver (2009), New York’s highest court declined to rule on the federal constitutionality of the warrantless placement of a GPS device on an automobile and instead invoked New York’s constitutional analogue (contrast with the related US Supreme Court holding US v Jones (2012)):

 In reaching this conclusion, we acknowledge that the determinative issue remains open as a matter of federal constitutional law, since the United States Supreme Court has not yet ruled upon whether the use of GPS by the state for the purpose of criminal investigation constitutes a search under the Fourth Amendment , and, indeed, the issue has not yet been addressed by the vast majority of the Federal Circuit Courts. Thus, we do not presume to decide the question as a matter of federal law.

The very same principles are, however, dispositive of this matter under our State Constitution. If, as we have found, defendant had a reasonable expectation of privacy that was infringed by the State’s placement and monitoring of the Q-Ball on his van to track his movements over a period of more than two months, there was a search under article I, § 12 of the State Constitution. And that search was illegal because it was executed without a warrant and without justification under any exception to the warrant requirement. In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone.
We note that we have on many occasions interpreted our own Constitution to provide greater protections when circumstances warrant and have developed an independent body of State law in the area of search and seizure (see e.g. People v Scott, 79 NY2d 474 [1992]; People v Harris, 77 NY2d 434 [1991]; People v Dunn, 77 NY2d 19 [1990]; People v Torres, 74 NY2d 224, 228 [1989]).We have adopted separate standards “when doing so best promotes ‘predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens’” (People v P.J. Video, 68 NY2d 296, 304 [1986] [citations omitted])

 

It’s unclear what the effect of citing the federal floor would be but it’s ill conceived. If the courts interpret the new language as instructions to gut the parallel protections, implicated rights will be threatened. If the courts reject that notion, police are being given bad instructions (and the risk is heightened because these are seizures that a judge hasn’t signed off on). This is unnecessary. The police shouldn’t have to guess. The people shouldn’t have to do so either.
The specific language appears to preclude some innocent owner claims for timeliness, apparently without discretion for exceptions, while the general language indicates a conflicting intent. Who knows how the courts would interpret. Generally, specific statutory language governs but there is ample room for inclined courts to decide otherwise. A specific remedy to contest timeliness, with good cause, should be included.
Additionally, there are plenty of dumb things like providing cash incentives to the departments responsible for seizures and perpetuating the fiction that criminal sentences can properly include an in personam money judgment that then employs civil procedure to determine applicability. Those, unfortunately, aren’t unique.

On the plus side:

The revisions clarify a separate hearing process for the adjudication of the forfeiture of property after a criminal conviction. The first edition of the bill didn’t reach the issue and could have been interpreted as not requiring separate hearings. That would likely have been struck as unconstitutional but it could have been read that way. In the meantime, numerous citizens could have lost their property without process. Thomas O’brien (defense counsel in the landmark decision Krimstock v Kelly (2nd Cir. 2002), authored by now Supreme Court Judge Sonia Sotomayor, that ordered prompt post seizure hearings for vehicles to probe detention validity, including a chance to challenge probable cause on initial warrantless seizures) noted,

The history of procedural due process in the forfeiture area has largely been one of judicial insistence that constitutional protections against arbitrary deprivation of property be an integral part of the system. The Court of Appeals, for example, has held that New York’s Constitution guarantees a trial by jury in a forfeiture action.8  The Court has also ruled that, soon after seizure of property, the government must demonstrate a likelihood of success in order to retain the property during the forfeiture case, and show as well that the need to hold it outweighs the hardship imposed on the deprived owner. 9  The federal judiciary has likewise reinforced the indispensability of due process safeguards in state and local forfeiture proceedings. Over 40 years ago, the Second Circuit concurred with state judges’ condemnations of New York City’s Administrative Code forfeiture regime as “shocking” and “a studied indifference to the rights of the public.”10  More recently, the Court ruled that owners of automobiles seized for forfeiture have a constitutional right to a prompt post-seizure hearing to seek return of the vehicle.11 The Court of Appeals agreed.12

The revised proposal also limits the jump bail provision. The initial incarnation was frighteningly broad. One could have lost their property because someone else used their property, without their consent, to commit a crime.  It reached any property that was allegedly involved in, or traceable to property involved in, an offense that gave rise to a criminal charge where the charged skipped bail. Instead, the language has been restricted to property “which constitutes an instrumentality of a felony crime as that term is defined in section 425.00 of the criminal procedure law.”

Similarly, the ‘upon felony conviction’ language has been restricted to property ”which constitutes an instrumentality of a felony crime as that term is defined in section 425.00 of the criminal procedure law.”

Both are significant improvements.

Whatever the changes, this is a poor vehicle. If New York is going to alter the protections that it offers its citizens, it shouldn’t come buried in a budget bill. Budget bills are blunt instruments designed for budgets. Changes to search and seizure laws should require public vetting. Prosecutors and defense attorneys should testify. Police organizations should be able to publicly comment. Civil liberties groups and forfeiture reform activists should be able to weigh in. And legislators should have sufficient time to ask their constituents what they think. Also, this is too important of an issue to not have legislative record on intent. This is too rushed and too furtive.

Lastly, one shouldn’t be deceived into thinking that this applies to all forfeitures. New York would retain the manifestly unfair tool of civil asset forfeiture. If New York is intent on moving toward a conviction requirement, it’d be hard to argue that wouldn’t be an improvement. But this bill doesn’t do that.

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