Daniel R. Alonso, Chief ADA in the NY County District Attorney’s Office has authored a rebuttal to Thomas O’brien’s concerns regarding New York’s new forfeiture bill. He points out that substantial process concerns have been added, at the suggestion of state prosecutors. He’s right. But that isn’t the right question. It’s not sufficient to add process concerns. The additional process concerns must be sufficient. Thus far they aren’t.
The bill still needs work.
ANY PROPERTY SUBJECT TO FORFEITURE UNDER THIS SECTION MAY BE SEIZED
BY LAW ENFORCEMENT, EX PARTE AND UNDER SEAL, UPON A SHOWING OF PROBABLE
CAUSE TO BELIEVE THAT THE PROPERTY IS FORFEITABLE, EXCEPT THAT A SEIZURE
MAY BE MADE WITHOUT A WARRANT:
(A) PURSUANT TO AN ORDER OF ATTACHMENT; OR
(B) IF THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PROPERTY IS SUBJECT
TO FORFEITURE; AND
(I) THE SEIZURE IS MADE PURSUANT TO A LAWFUL ARREST OR SEARCH; OR
(II) ANOTHER EXCEPTION TO THE FOURTH AMENDMENT WARRANT REQUIREMENT OF
THE FEDERAL CONSTITUTION APPLIES.
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 restrict 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.
2.) The exception language is inversely formulated. It permits the seizure of property if any of a series of listed conditions can be reached or if “another exception to the Fourth Amendment warrant requirement of the Federal Constitution applies.”
There should be a presumptive notion that private property should not be seized by the state. The permissible exceptions should then be expressly listed.
3.) The language is unclear as to what the applicable exceptions are and it places discretion in the hands of seizing agents (who have a pecuniary incentive to seize) to guess at the law. It provides for a scenario where a seizure may be made without a warrant but with probable cause to believe that property is forfeitable provided some nebulous Fourth Amendment exception applies-apart from a lawful arrest or search. Possible exceptions, presumably, include 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.”
What are the limits to the plain view seizures?
Are there other applicable exceptions?
It’d be nice to know what they are. The police might want to know too. Courts would probably find the information useful.
Codified exceptions ought to be expressly described.
The power of law enforcement to seize property, absent a warrant, is an extraordinary power. It requires instructions.
Codified exceptions should make explicit that the power to seize requires lawful access. Property should not be able to be seized (without warrant or lawful arrest or search) unless lawful access exists and
- The property is inherently illegal; or
- There are articulable and reasonable, exigent circumstances necessitating the seizure; or
- There are articulable and reasonable, emergency circumstances necessitating the seizure.
Whatever the permissible exceptions may be, everyone should know what they are. Law enforcement can then operate with the presumption that they are following the law.
4.) 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. Qualification to contest timeliness for good cause should be clearly expressed. This is going to be a mess otherwise.
5.) If New York is going to use the term contraband, it should be defined. New York defines prison contraband and it defines dangerous prison contraband but its not very clear what qualifies for contraband in the new forfeiture proposal. The revision includes the term “contraband” twice. Both permit interpretation broader than inherently illegal property. That’s dangerous.
5. NOTWITHSTANDING ANY PROVISION OF THIS SECTION, NO PERSON MAY ASSERT
AN OWNERSHIP INTEREST UNDER THIS SECTION IN CONTRABAND OR OTHER PROPERTY
THAT IT IS ILLEGAL TO POSSESS.
3. SUBDIVISION ONE OF THIS SECTION SHALL NOT APPLY IF THE COURT FINDS
THAT THE SEIZED PROPERTY: A. IS CONTRABAND; IS TO BE USED AS EVIDENCE OF A VIOLATION OF THE LAW;
B. IS PARTICULARLY SUITED FOR USE IN ILLEGAL ACTIVITIES BY REASON OF
DESIGN OR OTHER CHARACTERISTIC;
C. IS LIKELY TO BE USED TO COMMIT ADDITIONAL CRIMINAL ACTS IF RETURNED
TO THE CLAIMANT; OR
D. IS LIKELY TO BE USED TO COMMIT ADDITIONAL CRIMINAL ACTS IF RETURNED
TO THE CLAIMANT.
6.) If New York is going to assign money judgments with criminal forfeiture, responsibility and applicability should not be adjudicated with civil procedure.
7.) There should not be a direct incentive to seize property. All of the money should go into the general fund. The people of New York can then appropriate as they see fit. At minimum, put all law enforcement dividends into a general law enforcement fund. Individual departments should never directly profit from individual seizures.
8.) A budget bill is a poor forum to dramatically alter search, seizure, and forfeiture laws. 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. These proposals should be publicly vetted. 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. Legislators should have sufficient time to consult their constituents. There should be a legislative record to consult intent. The prosecutors deserve credit for substantially improving the initial proposal..but everyone should be at the table.
9.) The proposal needs an independent body looking over the plea agreements. The proposal figurees to bring in a substantial amount of money to State District Attorney Offices. The majority of dispositions are plea bargains. The DA Offices have a direct financial incentive to cut deals that are monetarily beneficial to their offices. Someone should be publicly reporting. It is irresponsible to marry the power, discretion, and incentive without consistent public knowledge.
10.) Regardless of merit, misdemeanors shouldn’t be a part of the proposal until the public has a chance to vet and approve.