The Volokh Conspiracy

I'm going to have to take a look at the seize-the-car-without-a-warrant precedents on which the court relies. I'm troubled by the fact that the police obviously had enough time to put together a very elaborate incident, but did not take advantage of that time to get a warrant to seize the car beforehand.

It's one thing to say that the police may seize a car and conduct an administrative search incident to that seizure after they've pulled over the driver for a traffic violation or something and arrested him, but this feels likes something else entirely.

P.S. For some reason, I am reminded of a drug-trafficking enforcement technique that one rural D.A. (who presided over a stretch of a drug trafficking interstate corridor) I know had implemented. They rigged up an air scoop of sorts which would funnel air from outside of a van to the inside, where it would pass by the nose of a drug-sniffing dog. They'd drive up and down the interstate in the unmarked van, pulling up closely behind "suspicious" vehicles. If the dog smelled drugs, the police would pull the car over. Worked very well, he said.

It was certainly creative. But why did they insist on such a creative approach? I agree with PatHMV: if they had enough time and probable cause to do this, why not just get a warrant?

My favorite part of the opinion was Footnote 1:

Doubtless, Alverez-Tejeda was more frightened about the fact that he lost the boss’s car with the stash of drugs in it, but that fear arose from the lawful seizure of the car, not the deceit.

I can picture Mr. Alvarez-Tejeda trying to explain that to his boss.

But why did they insist on such a creative approach?

The opinion does not go into too mcuh detail, but I gather it implied that they wanted to seize the vehicle without any of the perps (the driver or his boss) being aware that it had been seized by law enforcement. I imagine (without having read any of the briefing on this or seen the record) that a big part of the government's argument here was that it was essential to get the evidence in the car, and also essential for the investigation to go on with the targets (hopefully) not being any the wiser.

I agree with PatHMV: something about this case does seem to smell a bit, though I find nothing with which to specifically disagree as such. And frankly, if someone had ended up getting injured or if something fairly spectacular and unplanned had happened in the course of this, I suspect we would have gotten a different opinion.

I can understand the desire to get the car without the bad guys knowing that the government had gotten it, though as I think through it, I become more confused. What benefit do they get from seizing the drugs without alerting the individuals? According to the opinion, they had already done an undercover drug buy from the car. Did they just want the weight of the drugs to be able to hold over the head of the driver later, in some subsequent effort to make him turn snitch?

And the more I think about it, the more tragedies I can imagine ensuing. Suppose some local cop, or even just a local do-gooder, had spotted the "theft" without being aware of the ruse, and begun pursuit. These days, I can even imagine a passer-by pulling a gun and popping off a shot at the fleeing vehicle. I'm sure the DEA agents had thought through some of this, making contingency plans for aborting if there were others in the area or something, but I can't imagine they were able to think through all the possible bad things that could go wrong.

For that matter, did they have any idea of the medical history of the occupants of the car? What if one of them had a very weak spinal cord, or what if the girl was pregnant?

I'd like to see this go up to the Supremes, really. Justice Scalia has always had a very solid take on the Fourth Amendment, in my opinion, and I'd like to see how he came down on this. I doubt that will happen, since according to the opinion, both the prosecution and the defense agreed that "the DEA had a right to seize the car without a warrant."

My questions to those who say why not just get a warrant -

If they had gotten a warrant, would they have had to show it to the driver within a certain window, thus defeating the desire to not tip off the kingpin? Or is there a problem of that being public record whereas other details of an ongoing investigation can be kept quiet?

Just Dropping By,

Apparently you aren't familiar with the very long and extensive history of asset forfeiture laws. They have been upheld by the Supreme Court time and again for about as long as the court has existed. So, if you accept the legitimacy of asset forfeiture laws (I don't, no matter what SCOTUS says) then I don't see much to argue here. The ruse itself my give rise to a section 1983 lawsuit (doubtful, except maybe for the girlfriend, though still doubtufl).

I think a couple posters missed one thing. There was a warrant before the search.

From the opinion:

Having seized the car through this ruse, the agents obtained
a search warrant and discovered cocaine and methamphetamine
inside, as well as property belonging to Alverez-Tejeda
and his girlfriend.

I imagine that criminal law regarding drug enforcement could be a specialty unto itself.

I especially like how the defendent said this behaviour was “so grossly shocking and so outrageous as to
violate the universal sense of justice.” I asked around my place of employment (no lawyers) and they all laughed. Thought it was very clever.

This concerns me:

The parties agree that the DEA agents had the right to
seize the car without a warrant: “If agents have probable
cause to believe that a car is or has been used for carrying
contraband, they may summarily seize it pursuant to the federal forfeiture statutes.”

Seize the car without a warrant? Just because it's a possible drug offense? What the hell is this country coming to?

Yet another example of why the War on Drugs is a bad idea -- more erosion of the 4th Amendment.

Steve P. is right: You don't even need a warrant (only probable cause) to search a car; likewise, you don't need a warrant to seize it. Maybe that's wrong, but it's not a question of "What ... is this country coming to?" -- as best I can tell, this has always been the rule in this country.

New World Dan is correct about the weird and whacky world of asset forfeiture laws, which turn otherwise innocent objects like cars into "contraband" based on the use to which they have been put by their owners or others.

It does look like this case is in accord with Florida v. White. I am troubled by that opinion because it adopts a per se rule that no warrant is needed when the contraband is (or is in) a vehicle so that it could be rapidly spirited out of the jurisdiction. I would be much more comfortable with a rule which allowed such seizures only when the time between obtaining probable cause and executing the seizure is so short as to demonstrate that there was no time to wait before making the seizure.

Here, the cops obviously had ample time to plan the elaborate ruse, so they obviously weren't that worried that the vehicle was going to flee the jurisdiction. Adopting a more case-specific analysis would allow for immediate seizure when it is truly needed, such as drugs discovered incident to a routine traffic stop, but also prevent abuses such as this one. Alas, that is not the rule adopted by the Court; in Florida v. White, two months elapsed between obtaining probable cause to believe the car to be "contraband" under the Florida statute and the actual seizure. Thus, it appears that this case, but for the ruse aspect, is well within established precedent.

As for contraband, I appreciate Justice Souter's concurrence in Florida v. White reminding us that "contraband" is not some talisman which can be invoked to ward off the Fourth Amendment in all cases.

Also, from a deeper standpoint, I think Justice Thomas' analogy of the car to a ship (which was the historical analogue of the car to which the first car-based Fourth Amendment cases turned) is rather off. A ship, particularly in the 18th and 19th century, was an inherently corporate venture. Ships were commonly commandeered by governments and pressed into service, and ships bearing a nation's flags had a very special status. We got into wars over the right of these private vessels to travel in international waters. I'll have to continue exploring the older cases, but surely there were laws in the Framer's time, and cases, involving searches and seizures of private horses or carriages, a much closer analogue. I have a hard time believing that the framers would have approved of a rule allowing for warrantless seizures of Paul Revere's horse.

Really, this strikes me as an example where the Court has been too focused on interpreting precedents rather than applying the Constitution itself. At some point, it's time to step back and start from scratch again with your analysis.

Cops lie to suspects all the time. We applaud the more clever ones. This reads like a episode of "The Shield".

Several episodes actually except there’s nothing in the opinion that suggests the cops were trying to recover a stolen badge or high money from the Armenian money train at the same time. Not even in the dissent ;)

Seriously though if you want a good cop drama that deals with 4th Amendment issues, the Wire is one of the best. The first season they spent the first half of the season just establishing the necessary probable cause to get a warrant for the wire tap. Not as fast-paced as the Shield (which is still one of my favorites) but much more realistic.

HL,

This reads like a episode of "The Shield".

The elaborate staging sounds more like something Solzhenitsyn would have written.

"I'm from the government and I'm here to help" will become even more terrifying.

That is a terrifying phrase, especially when the government decides that can of gasoline you kicked over in your garage is a “toxic spill,” and you find men in space suits on your property. Later you get a $50,000 bill for a clean up.

After the Oakland firestorm in 1991, I met the men in spacesuits while I was inspecting what was left of my property. I couldn’t help laughing, as the fire was so hot it had virtually incinerated everything. My spaceman took extreme offense and began to act in a threatening manner. After all he was from the government, and he was there to help.

e: I understand that in some circumstances there are limits as to where you can do a search. (For example, when officers have probable cause to stop the car because the driver was violating the traffic laws, that does not give them probable cause to search the trunk.) But here, the officers had probable cause to seize the car (so says the opinion) because they thought it is (or had been used) for carrying drugs (contraband). So, I just don't see why they needed a separate warrant to perform the search. Can anyone point me to any cases on this point?

the phrase "I'm from the government and I'm here to help" will become even more terrifying.

So, I assume conclude from this that Judge Kozinki finds the concept of "help" from hard working government employees "terrifying" in the usual case.

When Judge Kozinksi finds himself in need of police protection or other vital government assistance, I hope he is grateful rather than terrified when they provide him with excellent service.

Help from the government is not usually a terrifying proposition. Unless, perhaps, that "help" comes in the form of a Kozinski opinion. What is really bothersome in Kozinki's obvious, general, and irrational disdain for government workers is that he himself is a government worker. His opinions constitute "help" for litigants who want difficult questions (and not so difficult questions) of law answered. Should anyone thinking of appealing a wrongly decided opinion issued by a District Court be "terrified" by the prospect of a Kozinski opinion??

I know Kozinksi is a libertarian, but I do not think that insults on his fellow government workers as a class are appropriate in a formal judicial opinion, especially where their job performance in general (as opposed to the performance of the police and DEA agents executing this particular search and seizure) is irrelevant to the opinion. Rather than snide remarks that seem to put Kozinksi in a superior position over his fellow workers, respect for them and the government he serves is more appropriate.

Mr X,

I wonder how many people are grateful when law enforcment provides the excellent service of tearing the family car apart looking for drugs.

I agreeee with rbj - this idiotic "war" on drugs is creating a police state, where you can't trust anything a law enforcement officer says to you. I have reached the point where I will not talk to peace officers without counsel.

Alex 2005, I'm away from my books, but isn't it: PC to arrest, giving the cops search incident to arrest and the Belton lunge gives you the passenger compartment.

But you need separate PC to search the car itself, which according to the opinion, they had: "They also had probable cause to believe the car was carrying contraband
on the day of the seizure based on several intercepted phone calls and direct surveillance." This should be enough to search the car including trunk and including any containers therein without a warrant.

That they felt the need to get a warrant might just have been overprotectiveness; because in addition to PC, a warrantless inventory search would have been justified.

But the search was not at issue here (it was all about whether a complicated ruse to seize a car the police could have lawfully seized was unreasonable). Presumably, defense counsel realized that after a legit seizure, an inventory search would have given up everything in the car anyways, so he didn't bother to bring it up and argued the seizure only.

I wonder how many people are grateful when law enforcment provides the excellent service of tearing the family car apart looking for drugs.

No one said that government employees are perfect in all contexts. However, it would be a mistake to be "terrified" of all government workers due to the mistaken actions of a few. That a few postal workers have lost it and gone berserk in the history of the U.S. Postal Service would not lead a rational man to cringe in abject terror at the sight of his mailman.

More to the point. While the competance of government workers as well as private sector workers generally is of course a legitimate topic for political discussion, it does not have a place in this particular official judicial opinion by Mr. Kozinski, a government worker himself. For Mr. Kozinski to use his opinion as a forum to take an opportunistic swipe at his fellow government workers is distasteful to say the least. It is also innapropriate.

Mr. X, perhaps as a judge himself, this guy recognizes what his peers sometimes contribute to this "terror", and is noting and even underlining it? Remembr, people will be most-influenced by the "terror" incidents... that's what they'll remember first... and that's the whole effect of "terrorism", whether brought on with good intention or bad. So the first step in understanding is to illustrate it's existence.

whackjobbbb,

I am not arguing about the merits of Kozinki's larger political views. I am asserting that it is illlegitimate to use an official judicial opinion to advance political views that are not relevant to the case at hand. Kozinki is free to self-righteously think that we should be terrified of every government worker other than himself. He is even entitled to advance that view in his writings. But an official judicial opinion is not the correct forum for advancing political views that are irrelevant to the case.

I am not a lawyer but I think the Ninth Circuit opinion is wrong, and the lower court had it right. I don't believe that there should be any general exception to the Fourth Amendment for vehicle seizures, especially to search for drugs although I'm willing to be persuaded about a limited exception for public safety reasons (terrorists or violent criminals in the commission of an illegal act or during hot pursuit). I would also support a short seizure period conducted by lawful means while a warrant was being obtained in some circumstances.

I also believe that any illegal act by law enforcement should cause evidence siezed in such fashion to be excluded from trial as "fruit from a poison tree", although I don't support automatic reversal of a lower court verdict on that basis alone -- it should be one of several factors weighed in considering whether the verdict should be reversed or sent back for retrial.

I almost knew before reading the opinion that Alex Kozinski was on the panel and supported the opinion. I find his opinions extremely disturbing and I disagree with them often.

I am not arguing about the merits of Kozinki's larger political views. I am asserting that it is illlegitimate to use an official judicial opinion to advance political views that are not relevant to the case at hand.

The Impressive Mr. X,

Maybe they are relevant? I'm sure Koz was as uncomfortable working through this as I was reading his workthrough. And I'm sure he wasn't any less uncomfortable in the aftermath, and if he left a pile of scat behind as marker, to warn others as they approach this same path, doesn't that make his action relevant to the case... and future cases?

I agree, we may have too much editorial commenting in the law. But this bit seems to be connected to the case, and is somewhat counter to the decision he reached, and in it he seems to be looking forward and backward, and allowing others to decide for themselves. Is that bad?

If you deliberatly hit anyone elses vehicle you would be violating the law. If you lie to a judge, same thing. But if you are a enforcer of the law you get a pass? Another bite out of the 4th. Soon ,if not already ,the 4th will be nothing but a sentimental rememberance. We are not ,at this moment, secure in our homes and possessions. Just read the news in regards to drug warrior, wrong home, invasions. Prohibition is the gateway to tyranny. The only success in the drug war is that of the preservation of drug war careers.