It is unclear why United States District Judge Michael J. Reagan decided to express his reservations regarding the use of exclusionary rule-based suppression motions in civil forfeiture proceedings. Whatever the reason(s), claimants facing civil forfeiture actions against their property who hope to have illegally obtained evidence excluded should probably hope for a different judge:
D. Analysis of Suppression Motion
→ PRELIMINARY ISSUEAll parties assume that the exclusionary rule applies to forfeiture, so that the res must be returned if it was improperly seized. Yet the Supreme Court has twice held that the exclusionary rule is not used in civil proceedings. See INS v. Lopez–Mendoza, 468 U.S. 1032 … (1984) (deportation); United States v. Janis, 428 U.S. 433 … (1976) (taxation). See also Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 … (1998)(rule inapplicable to probation revocation). Although One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), suppressed evidence in a forfeiture, Janis stated that this was because that forfeiture was intended as a criminal punishment. 428 U.S. at 447 n. 17…. The forfeiture in our case is civil. It is farther from a criminal prosecution than is a probation-revocation proceeding. Suppressing the res in a civil proceeding, even though the property is subject to forfeiture, would be like dismissing the indictment in a criminal proceeding whenever the defendant was arrested without probable cause.The Supreme Court has been unwilling to use the exclusionary rule to “suppress” the body of an improperly arrested defendant….
One issue not briefed by the parties but bearing mention is the preliminary question of whether a Fourth Amendment-based suppression motion is proper in an in rem civil forfeiture proceeding like the case at bar. The federal courts have not answered this question uniformly. Some Courts of Appeal have held that since civil forfeiture proceedings are quasi-criminal in nature, the exclusionary rule applies, and suppression motions may be filed. See, e.g., U.S. v. $291,828.00 in U.S. Currency, 536 F.3d 1234, 1236-38 (11th Cir. 2008)(“The Fourth Amendment exclusionary rule applies to civil forfeiture actions.”); U.S. v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th Cir. 2008)(“The exclusionary rule applies in civil forfeiture cases…. It bars the admission of evidence obtained in violation of the U.S. Constitution, as well as ‘fruits of the poisonous tree.’”). Other courts have voiced uncertainty about the use of suppression motions in civil forfeiture actions. A 2009 Seventh Circuit case furnishes an example.
In United States v. Marrocco, 578 F.3d 627, 631 n.5 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit sidestepped the potential obstacle, because the Government had not argued that the remedy of suppression is unavailable in forfeiture proceedings under 21 U.S.C. 881. However, in his concurring opinion, Judge Easterbrook expressed concern with the assumption that suppression motions are appropriate in civil forfeitures:
Why then would it be sensible to suppress the res? Marrocco, 578 F.3d at 642 (emphasis added).Similarly, the District Court for Northern District of Illinois has pointed out: The Supreme Court has suggested that, barring “egregious” Fourth Amendment violations, the exclusionary rule does not apply in civil proceedings. See Krasilych v. Holder, 583 F.3d 962, 967 (7th Cir. 2009)(citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 … (1984)). The primary purpose of the exclusionary rule is to deter unlawful police conduct. Courts have generally held that application of the exclusionary rule to criminal trials alone creates an adequate deterrent; any marginal benefit gained by extending the exclusionary rule to civil proceedings tends to be outweighed by the social cost of losing probative evidence. See generally United States v. Janis, 428 U.S. 433 … (1976). The exclusionary rule seems particularly ill-suited to civil forfeiture proceedings, where it is a physical object, not a person, that is the defendant. United States v. Funds in the Amount of $239,400, — F. Supp. 3d –, 2012 WL 2007025, *6 (N.D. Ill. 2012).
The undersigned shares Judge Easterbrook’s reservations regarding the use of exclusionary rule-based suppression motions in civil forfeiture proceedings. However, here, as in Marrocco, the Government has not argued that suppression motions are unavailable in civil forfeitures. And the Seventh Circuit has not squarely held the exclusionary rule inapplicable to such proceedings. So the undersigned will reach the merits of Claimants’ Fourth Amendment challenge, analyzing the three components of the challenge (the traffic stop, the existence of a consent, and the scope of the consent) after addressing whether Claimants have standing to context the seizure of the res herein. United States v. $304,980 in United States Currency, U.S. Dist. (S.D. Ill. January 3, 2013). (Hat tip to John Wesley Hall’s Fourth Amendment Blog.)