PROPOSITION 12 WOULD SPELL OUT SEIZURE RULES

When is the seizure of personal property permitted under the Louisiana
Constitution? A proposed constitutional amendment going before state voters
Oct. 4 would spell out that it's legal when the property is declared
"contraband."

But critics say that's the law now, and the proposal is unnecessary.

The 1974 Louisiana Constitution protected personal property other than
contraband from government seizure. A 1989 constitutional amendment
specified that contraband connected to drug crimes could be seized or
forfeited, but omitted the "other than contraband" phrase.

Proposed Constitutional Amendment No. 12 would spell out that the
Legislature can authorize the seizure of contraband in non-drug related cases.

State laws call for forfeiture of personal property such as cameras and
computers in pornography cases, guns for hunting violations and vehicles in
DWI cases.

Prosecutors fear those laws might be struck down by a court because of the
current wording in the constitution.

"The issue is the validity of all statutes out there that provide for
seizure and forfeiture of what is personal effects," said Louisiana
District Attorneys Association Executive Director Pete Adams.

The recommended change came from the Louisiana State Law Institute because
of questions arising from a court challenge of a state statute providing
for the seizure of a vehicle for third-offense DWI.

In a case called Edwards vs. the State of Louisiana, the state Supreme
Court upheld the vehicle seizure. But it relied on police powers the
constitution gives the state -- not the personal property protections. The
court, in a 2-1 decision, said police powers could be used to enforce
criminal forfeiture.

That the personal property language in the constitution was such that it
led to a legal challenge prompted a review by a special committee of the
Law Institute and the proposed constitutional amendment.

Retired 1st Circuit Court of Appeal Judge Walter Lanier, who was chairman
of the panel, said the constitutional provision could be read that the only
forfeiture of property allowed is drug asset forfeiture. The court upheld
the seizure using a different part of the constitution. "We saw that as a
bug in the law," said Lanier, a member of the 1973 Constitutional Convention.

"So our thought is the best way not to have this problem ... is to put the
language back in," said Lanier. "In my opinion, a good lawyer keeps his
client out of court."

But New Orleans attorney Timothy Meche, who is a forfeiture law expert,
said the proposed change "is totally unwarranted."

Meche said numerous court decisions back up his view, including the Edwards
case to which Lanier points. The court upheld the forfeiture, he said.

"Every court opinion that's come out since then has recognized that's not a
problem. I know this area of law because that's what I do," said Meche.

Lanier and state Rep. Emma Devillier, D-Plaquemine, said the amendment
would -- among other things -- protect victims of video voyeurism and child
pornography.

"When there's a criminal prosecution and there's been pornographic tapes
and information off computers, what happens if a person is not convicted?"
asked Devillier, who handled the proposal in the Legislature.

The constitutional amendment would guarantee that the evidence is declared
contraband and subject to disposal under established legal procedures and
could not be returned to owners as personal effects, Devillier said.

The constitutional amendment leaves it up to the Legislature, or the courts
in the absence of legislative action, to decide what is contraband.

That scares Baton Rouge defense lawyer Frank Holthaus, who said he fears
the change could open Pandora's Box for more things to be made subject to
forfeiture.

"The constitution is to protect us from the government," said Holthaus. The
proposal would "take away the (public's) protection."

"If the Legislature is smart, it will determine what is contraband instead
of leaving it to the courts," Lanier said.