JUSTICES WEIGH RULES ON RECOVERING SEIZED ASSETS

WASHINGTON -- Every year, police agencies seize more than $1 billion
of cars, cash and other goods linked to drug crimes. The Supreme
Court will hear arguments Wednesday on how hard it should be for
owners to try to recover that property.

Police typically get to keep much of what they seize, although owners
can fight forfeiture in court. On Wednesday, the central issue will
be whether owners are entitled to a prompt, informal hearing to argue
that they should get their property back while waiting for a formal
forfeiture proceeding that could be scheduled months or years in the
future. At present, some states impound the property during that lag
time and provide owners no recourse. Critics say many innocent owners
just give up during that period, and states then are free to sell
their cars and other items.

The justices will hear a case from Chicago involving six different
property owners, including Tyhesha Brunston, who loaned her Chevrolet
Impala to a childhood friend who was later arrested in the car and
charged with possessing drugs.

"Words can't describe how mad I was" at him, says Ms. Brunston, 30
years old. "He was not supposed to be smoking marijuana in my car."

Illinois law allows "innocent owners" to reclaim seized property. But
in practice they may have to wait months -- or in Ms. Brunston's
case, three years -- before recovering their cars.

Last year, the Seventh U.S. Circuit Court of Appeals in Chicago ruled
that the Constitution requires that owners get a more timely chance
to seek return of their property.

The appeals court ordered a trial judge to work with city officials
and lawyers representing Ms. Brunston and other owners of seized
property to fashion "some sort of mechanism" to test whether seizures
were valid.

"The hearing should be prompt but need not be formal," the court
said. A neutral judge or hearing officer would decide whether the
owner got possession of the property during the lengthy period before
the more formal forfeiture proceeding was held -- something like a
property equivalent of a bail hearing before trial.

The Cook County state's attorney appealed the decision. The Justice
Department, 20 states and several organizations representing state
and local government have backed the appeal.

"It's really about government bullying," said Craig Futterman, a
University of Chicago law professor representing Ms. Brunston and
other owners in the case.

For law enforcement, "forfeiture has become a multibillion-dollar
business across the nation," he said, noting that Chicago netted
nearly $14 million through asset forfeitures in 2008. "With those
powerful interests in taking and seizing and keeping property, there
needs to be some kind of check," he said.

A Justice Department fund that receives proceeds from forfeitures of
cash and property across the country received $1.2 billion in cash
and cash equivalents in the fiscal year ended Sept. 30, 2008, down
from $1.4 billion in the previous fiscal year.

In 2000, then-U.S. District Judge Michael Mukasey rejected a
challenge to New York City's forfeiture system, which was similar to
Chicago's. He found that if police had sufficient reason to arrest a
suspect, they also were justified in seizing the property pending a
forfeiture hearing months or years later.

That decision was reversed by Justice Sonia Sotomayor, then a judge
on the Second Circuit in New York.

"A car or truck is often central to a person's livelihood or daily
activities," she wrote. The Constitution gives people a right to
force the city to justify seizures "at an early point...in order to
minimize any arbitrary or mistaken encroachment upon plaintiffs' use
and possession of their property."

To comply with the ruling, New York City adopted a system that
provides owners a hearing within weeks of a seizure. In 2008, the
city seized 3,166 vehicles, said police spokesman Paul Browne. Of
those, 2,152 were returned, mostly to people charged with drunken
driving, after they had undergone treatment for alcoholism. Among the
others, the city kept 632 vehicles, while 320 remain in dispute, he said.

The rapid scheduling of the hearings gives police leverage with
defendants, Mr. Browne says. In drunken-driving cases, for example,
police will often agree to release a vehicle if the driver undergoes
substance-abuse counseling.

Paul Castiglione, a Cook County assistant state's attorney who will
defend the Illinois law before the court Wednesday, said that giving
owners a preliminary hearing to recover their property would
interfere with law enforcement.

"It would be disruptive in a number of ways," he said. "The police
would have barely begun their investigation" before having to defend
the seizure, he said, and may not have been able to locate all the
people who could claim ownership of the property. Moreover, "it would
force a duplication of effort, a duplication of the ultimate civil
forfeiture hearing."

He rejects arguments that police are motivated by the chance to keep
the property.

"When property is seized, it's not like the government can use it
right away. It's a car impounded in a lot," he said. "It's never
going to be turned over till a court says so."

John Worrall, a criminologist at the University of Texas at Dallas
who has studied drug-forfeiture policies, said it isn't that simple.
"To say that law enforcement is only in it for the money is silly;
there are easier ways to get money than going through
asset-forfeiture proceedings," he said.

On the other hand, Prof. Worrall said, "the money matters." He found
that 40% of police executives in a 2001 survey said drug-forfeiture
funds were necessary to their budgets. "With the budget crisis in
local government, I think we're going to see renewed interest in
forfeiture," he said.