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Property Seizure in the War on Drugs

By Caleb Groos on October 14, 2009 | Last updated on March 21, 2019

The Supreme Court heard arguments today in a case about the extent to which police can seize property connected to drug crimes without offering any procedure for owners to contest the seizure.

The scenario of concern in the case happens across the U.S. Police, while investigating or making arrests in a drug case, seize property that may be connected to the case, like cars. What happens next depends on state law, but in many places, property owners go months or even years without their property, even when no charges are filed against them.

In his brief summary of the case before the Supreme Court (Alvarez v. Smith), George Mason law professor Ilya Somin points out how state seizure laws can threaten innocent property owners whose car or other property gets swept up in the War on Drugs. In Illinois, state law offers no procedure to challenge the seizure, and requires no proof from police that seizure is necessary to preserve evidence.

And as with this lawsuit's original plaintiffs, this can happen even when the owners are never charged with violating any law.

As Professor Somin points out, those whose property is seized are often poor -- meaning that the loss of a car for months on end is a very big deal.

The issue before the Supreme Court is whether by not providing a procedure to challenge seizure, Illinois has violated its the right to due process of those whose property is seized. The court of appeals below ruled that the seizure law does in fact deprive property owners of due process.

We'll see whether the Supreme Court agrees with the lower court, decides to overturn it, or throws the case out on procedural grounds (oral arguments today hinted that some justices may view the case as moot because the car owners involved have gotten their cars back and no class action has been certified).

Some, including professor Somin, worry that law enforcement may be too tempted to seize property first and ask questions later, as law enforcement often auctions off seized property later and keeps the proceeds.

As detailed in a Frontline report from 2000, federal and local practices regarding property seizure in drug cases shifted in 1984, when federal law created forfeiture funds for property seized by the DEA and FBI, and allowed local law enforcement to share proceeds from the sale of property seized.

While states struggle to find a balance between not allowing accumulation of property through crime and protecting the civil rights of property owners, some wonder whether law enforcement agencies have become addicted to the property they seize in drug cases.

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