WHEN CAN POLICE SEIZE PRIVATE PROPERTY?

Supreme Court hears case today that tests limits of a powerful
crime-fighting tool.

It's one of the most contentious areas of American law in the 1990s:
allowing police to seize personal property - often in advance of a finding
of guilt - if they believe it is linked to criminal activity.

Opponents say such police tactics raise basic questions of fairness,
privacy, and due process.

Laws allowing such confiscation of private property exist at the federal
level and in most states - and courts across the US have upheld the basic
concept of forfeiture. But judges are split over exactly how those laws
should be enforced so they comply with the Constitution's protections
against unreasonable searches and seizures.

For instance, it remains unclear whether law-enforcement officials need a
search warrant before they make a seizure, or whether such forfeiture
decisions are up to the exclusive discretion of the police.

Today, the US Supreme Court takes up the case of a Florida man whose car
was seized by police because they suspected he had used it to deal drugs
two months earlier.

The police did not obtain a court-authorized warrant approving the seizure.
Instead they acted under the authority of Florida's forfeiture law, which
they say permits the police to carry out warrantless confiscation of any
vehicle, money, or other property that they have probable cause to believe
has been used in a crime.

After seizing the car, police found two pieces of crack cocaine in the
ashtray. The owner of the car, Tyvessel White, was charged and eventually
convicted of narcotics possession.

When a warrant is needed

Mr. White challenged the legality of the car's search, claiming that police
never obtained a warrant as is required under the Fourth Amendment. The
police countered that when acting under the forfeiture law they needed no
warrant.

The Florida Supreme Court overturned White's conviction, ruling that,
regardless of the state's forfeiture law, law enforcement-officials should
have first obtained a warrant from a judge prior to seizing the car.

The case arises at a time when police agencies are increasingly turning to
civil forfeiture, not only as a crime-fighting tool but as an important
source of revenue.

Law-enforcement agencies across the nation have long relied on captured
booty and other property of suspected drug dealers, smugglers, money
launderers, and other criminals to pay for a large portion of the war on
drugs and other anticrime efforts. In 1996, the Drug Enforcement
Administration alone seized nearly a half billion dollars' worth of
currency, real estate, vehicles, vessels, and aircraft. More than $275
million of it came in the form of cash.

The same methods are expanding into other areas of law enforcement. Last
month, New York City announced that drunk-driving suspects pulled over in
traffic stops would face immediate forfeiture of their cars.

The Florida case marks the first time the high court will consider whether
a warrant is need-ed in forfeiture cases. Federal appeals courts and state
court judges are divided on the issue.

Part of the debate revolves around whether forfeiture - carried out under
civil law - is actually a disguised form of punishment for criminals.

"Forfeiture is punishment," says Steven Kessler, a New York City lawyer who
specializes in forfeiture. "If you are going to punish someone, you have to
comply with constitutional protections."

Those protections include the requirement that police obtain a warrant
before seizing private property.

Private property in public

Proponents of strong forfeitures laws counter that criminal proceeds and
assets, such as cars used to facilitate a crime, are no longer private
property. When they become involved in illegal enterprise, the law views
them as contraband. Officers who find what they suspect to be contraband in
someone's possession in a public location are empowered to seize it.
White's car was in a business parking lot.

In addition to Florida, 27 states and the US Justice Department are urging
the justices to overturn the Florida Supreme Court decision. They argue
that forfeiture is an important crime-fighting tool that will be
significantly watered down if agents and police officers are forced to win
judicial approval prior to seizing criminal proceeds and property.

Law-enforcement officials add that judicial review of prospective seizures
is unnecessary because owners of the seized property have an opportunity to
contest the action later in court.

Dangerous incentive

Many defense lawyers say the revenue-raising aspect of forfeitures creates
a dangerous incentive for police to confiscate as much as possible. Judges,
who do not stand to benefit from the forfeitures, are in a better position
than a police officer to determine when a seizure of property might be
unreasonable under the Constitution, they say.

"If you allow the police to make the probable cause determination in a case
where they stand to directly gain from it, it doesn't pass the smell test,"
says Richard Troberman, a Seattle lawyer who filed a friend-of-the-court
brief in the case on behalf of the National Association of Criminal Defense
Lawyers.

"The problem is, what about the case where the police seize a car because
an informant tells the police something that turns out to be totally
wrong," Mr. Troberman says, "and the innocent owner loses the use of the
car for weeks, or months, or years without any opportunity to go before a
judge to contest it."

In its brief in the case, the US Justice Department says that under the law
police have the exclusive power to seize property without any prior
judicial oversight. But the brief says the department's current policy is
nonetheless to obtain a warrant from a judge whenever it is possible prior
to a seizure.

Troberman says there is no down side for law enforcement in obtaining a
warrant when police face no time constraints.

In some cases, assets or evidence must be seized immediately to prevent it
from being destroyed or hidden. But in many other cases, there are no
exigent circumstances, and obtaining a warrant would in no way hinder the
ability of police to make such forfeitures, Troberman says.