Erica Goldberg discusses one of the cases in which the Court granted cert. yesterday.

The Fourteenth Amendment squarely prohibits the taking of property without "due process," but defining the requirements of this nebulous concept has consistently plagued the courts. On February 23, the Court granted certiorari in Alvarez (Cook County State Attorney) v. Smith, No. 08-351, to determine what the government owes an owner whose property is seized, without a warrant, because police believe it was used in connection with a drug crime.

The State of Illinois, like most states and the federal government, authorizes police officers to seize vehicles and cash involved in certain drug crimes. Even if the owner of the vehicle did not participate in the crime, the Illinois Drug Asset Forfeiture Procedure Act allows the State to wait as many as 187 days before filing forfeiture proceedings, which test the legitimacy of the state's seizure in court. This forfeiture proceeding may then be delayed indefinitely for "good cause," or if there is a related proceeding in criminal court.

The six plaintiffs in Alvarez  v. Smith "“ three of whom were never charged with a crime "“ allege that their cars or money were seized, without a warrant, for months or years without any judicial hearing related to the continued detention of their property. They brought a lawsuit contending that the Illinois statute is unconstitutional, and the Seventh Circuit agreed. It held that because there was considerable delay between the seizure and the forfeiture proceeding, the plaintiffs must be afforded an informal hearing in the interim to determine whether there is probable cause to detain the property.

Petitioner Anita Alvarez, the Cook County State Attorney, sought review of the Seventh Circuit's decision, which in her view flouts Supreme Court precedent and creates a conflict among the circuits. Alvarez argued in the petition for certiorari that both Supreme Court precedent and authority from seven other circuits dictate that the courts ask only whether the delay before a forfeiture proceeding is unconstitutionally long and therefore requires dismissal of the proceeding. The brief in opposition submitted by the six plaintiffs counters that the Seventh and Second Circuits correctly add another inquiry: whether, even if dismissal of the forfeiture action is not required, the burden of the seizure is so onerous that a pre-forfeiture probable cause hearing must be held.

In resolving this case, the Court must decide which of its fractured lines of due process precedent to apply. It must determine whether or not to analogize this case to speedy-trial rights, and whether or not to distinguish the seizure of personal property, like automobiles, from the seizure of real property. The Court has the opportunity to clarify its due process precedent so that states can enact and follow seizure statutes with the confidence that they are constitutional.

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