NCJ Number
119215
Journal
Southwestern Law Journal Volume: 41 Issue: 5 Dated: (February 1988) Pages: 1111-1134
Date Published
1988
Length
24 pages
Annotation
Recent litigation that challenges the government's power to conduct summary forfeiture seizures of drug dealers' private property prior to a hearing is reviewed.
Abstract
In 1984, as part of an initiative to take the profit out of crime, Congress extended the power of Federal law enforcement agencies to seize and forfeit the property of drug dealers. To provide additional funding for the war on drugs, Congress permitted these agencies to retain forfeited property for their own use. Because of the extremely broad scope of forfeiture laws, their summary procedures may threaten not only drug dealers but also innocent third parties. Basic property categories subject to forfeiture under Federal statutes include contraband, derivative contraband, proceeds, and derivative proceeds. Lower courts have begun to impose constitutional limits on the power of authorities to carry out forfeiture seizures. These courts generally hold that the Constitution requires at least an ex parte hearing before a judicial officer prior to the seizure of property for forfeiture and that, absent such protection, seizure provisions of forfeiture statutes violate the prohibition against unreasonable search and seizure of the Fourth Amendment and the due process clause of the Fifth Amendment. The Justice Department relies heavily upon the Calero-Toledo case as authority for the proposition that forfeiture seizures constitute an exception to the warrant requirement of the Fourth Amendment. It is argued that a preseizure judicial review would place a minimal burden on law enforcement officers, provide an important safeguard against erroneous property deprivations, and meet the constitutionally required constraint on what is otherwise the unrestricted power of government to seize private property. 183 references.