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A Plymouth, a parolee, and the police: the case for the exclusionary rule in civil forfeiture after Pennsylvania Board of Probation and Parole v. Scott.


The exclusionary rule has been under near-constant attack (1) since its inception as a federal constitutional device more than forty years ago. (2) The Supreme Court has consistently limited the rule's operation in criminal cases (3) and has refused to extend it to most contexts outside the criminal trial. (4) In Pennsylvania Board of Probation and Parole v. Scott, (5) the Court's most recent case addressing the exclusionary rule's application in a non-criminal proceeding, the Court refused to apply the rule to parole revocation hearings even though they might result in longer periods of incarceration than many criminal trials. (6) The Court concluded that police officers would not be sufficiently deterred by the suppression of evidence at revocation hearings to justify the relatively high costs that suppression would inflict. (7) This conclusion raises a fundamental question--if the exclusionary rule does not produce enough deterrence to police when illegally seized evidence puts a person at risk of going to jail, why would the rule produce any more deterrence when mere property is at stake?

Scott suggests that the Court might retreat from its prior decision in One 1958 Plymouth Sedan v. Pennsylvania, (8) in which the Court applied the exclusionary rule to civil forfeiture. (9) One Plymouth Sedan remains the only Supreme Court case to apply the rule outside the criminal trial context. (10) Under the analysis employed in Scott, however, the application of the exclusionary rule in civil forfeiture hearings is in serious doubt. (11) If police officers are not sufficiently deterred by the prospect of evidence being suppressed at a hearing where a person's liberty is in jeopardy, it is a fortiori that they will not be deterred by the possibility of suppression at a civil forfeiture hearing where only the person's property is in jeopardy.

Law enforcement officials have much to gain in the outcome of the issues raised in Scott, and will likely bring challenges to the exclusionary rule in civil forfeiture. While the court's trend is moving away from applying the exclusionary rule in civil contexts, law enforcement agencies are increasingly relying on civil tools to attack crime. (12) At the forefront of this movement is the use of civil forfeiture to seize the fruits and instrumentalities of the narcotics trade. (13) Civil forfeiture statutes allow law enforcement officers to seize privately held assets that have been used in a crime, a practice that not only frustrates narcotics traffic, but also fills public coffers. (14) Moreover, most civil forfeiture statutes carry with them low burdens of proof and few defenses, (15) thus providing governments with a powerful device that is far more streamlined than the time-consuming process of prosecuting a criminal. With so much at stake, law enforcement officials are likely to use Scott to mount challenges to the exclusionary rule in civil forfeiture.

In fact, lower courts have not been silent on the vulnerability of One Plymouth Sedan. (16) A California appellate court has outright rejected the exclusionary rule in civil forfeiture:
 [The] application of the exclusionary rule in civil forfeiture actions is
 unnecessary and of little additional benefit, particularly when the
 property is owned by a third party claimant who has not been convicted of
 any offense. To date the United States Supreme Court has rejected
 application of the exclusionary rule to civil cases, and we decline to do
 so as well in this civil forfeiture case. (17)

A Maryland court put it more bluntly: "Has One 1958 Plymouth Sedan, whatever it stood for, retained its vitality over the thirty-three years since it was handed down? No, it has not." (18)

This Article presents a counterargument to the encroachments on the continued use of the exclusionary rule in civil forfeiture proceedings. Part II examines briefly the Supreme Court's existing exclusionary rule case law. (19) Part III explores how law enforcement officials may use cases, especially Scott, to attack the application of the rule in civil forfeiture proceedings. (20) Part IV attempts to rebut these arguments through a two-pronged counterattack based on the factors the Court balances in determining whether to apply the exclusionary rule--the deterrence to police misconduct and the social costs of exclusion. (21) Arguably, the deterrence to police in the context of civil forfeiture is high because of the emphasis on civil forfeiture in modern police work; conversely, the social cost of the rule in civil forfeiture is low because of the formality such proceedings exhibit, and because the only loss the government suffers is the value of a seized asset. Part V concludes that this alchemy of high deterrence and low costs makes the exclusionary rule an effective device for civil forfeiture proceedings. (22)


An understanding of the exclusionary rule framework is necessary before discussing its application to civil forfeiture. The Supreme Court has made clear that the exclusion of evidence seized in violation of the Fourth Amendment is not compelled by the Constitution itself. (23) The Court has described the rule as a "judicially created means of deterring illegal searches and seizures." (24) As such, the Court extends the rule only to contexts "`where its remedial objectives are thought most efficaciously served.'" (25) The Court has concluded that the rule's aims are best served in situations where the suppression of evidence creates a deterrent to police misconduct that outweighs the social costs of the rule. (26) For example, the Scott decision noted that the rule is "applicable only where its deterrence benefits outweigh its `substantial social costs.'" (27)

As for deterrence, the Court takes a skeptical view of the ability of the exclusionary rule to deter police misconduct. (28) The Court quantifies deterrence by measuring it against the baseline deterrence already achieved through the exclusion of evidence in criminal trials. (29) Therefore, the Court speaks only in terms of the "marginal deterrence" to be gained. (30) The Court's deterrence analysis also considers factors in a given case that reduce the deterrent effect of exclusion. (31) Moreover, the Court has held that in order for the exclusionary rule to effectively deter police misconduct, the activities involved must be within "the offending officer's zone of primary interest." (32) This definition of deterrence discourages a broad view of what motivates police behavior. (33)

On the cost side, the Court recognizes that the exclusion of evidence is, in itself, a cost to be weighed in the balance: "Clearly, the enforcement of admittedly valid laws would be hampered by ... extending the exclusionary rule, and, as is nearly always the case with the rule, concededly relevant and reliable evidence would be rendered unavailable." (34) After factoring in this baseline cost, the Court looks for whatever marginal costs may be added to the balance because of the characteristics of the particular proceeding. (35) The Court typically considers such factors as the tribunal's competence to determine the legality of the search and the toll that the administration of suppression hearings would take on otherwise informal proceedings. (36) The Court does not make such an extensive inquiry into the rule's benefits as it looks only at marginal deterrence. (37) That is to say, the Court employs a cost/benefit analysis but does so in a way that considers any cost while narrowly defining benefits to include only deterrence.

A brief discussion of the Court's decisions that apply this deterrence/cost analysis will illuminate how it functions. The Court first applied this formula in United States v. Calandra. (38) In Calandra, investigators attempted to use illegally obtained evidence as the basis for grand jury questions. (39) After an extensive review of the history and functions of grand juries, (40) the Court determined that an "extension of the exclusionary rule would seriously impede the grand jury." (41) The Court identified two costs: first, "[p]ermitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings;" and second, "[s]uppression hearings ... might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective." (42) These costs reflected a concern that the exclusionary rule would alter the very functioning of grand jury proceedings and "effectively transform[] them into preliminary trials on the merits." (43) The Court found this intrusion on the functioning of the grand jury to be weighty, particularly because the delay in investigations could make prosecution impossible in some circumstances. (44) Next, the Court narrowly defined deterrence by stating that an extension of the rule "would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation." (45) The Court then dismissed the marginal deterrence because police would already be deterred by the fact that the evidence could not be used at a later trial. (46) Having "substantially negated" the possible deterrence, the Court concluded that the rule's costs outweighed its benefits, and refused to apply the rule to grand jury proceedings. (47)

Two years later, the Court was asked to extend the exclusionary rule to a non-criminal context in United States v. Janis. (48) In Janis, state police officers seized documents that implicated the defendant in a gambling operation. (49) The local officers notified the Internal Revenue Service, which in turn initiated tax assessment proceedings against the defendant. (50) In these tax proceedings, the defendant, claiming that the state officers had illegally seized the evidence, asked the court to suppress it. (51) In analyzing deterrence, the Court identified a factor that blunted the deterrent effect of the rule in this context--the inter-sovereign filter through which the evidence had passed. (52) As the Court explained, "[t]he admission of evidence in a federal civil proceeding is simply not important enough to state criminal law enforcement officers to encourage them to violate Fourth Amendment rights...." (53) A second limit on deterrence, while not explicit in the opinion, is the fact that the local officers did not have a policy of contacting the IRS when gambling operations were involved. (54) It is worth noting that the Court did not mention any specific costs of exclusion above the baseline cost that all suppression inflicts. (55) This absence of a marginal cost analysis suggests that the Court viewed the marginal deterrence to be so low that it could not overcome even the baseline costs of the rule.

The Court next had occasion to review non-criminal application of the exclusionary rule in Immigration and Naturalization Services v. Lopez-Mendoza, a civil deportation case in which the INS sought to deport two illegal aliens using evidence obtained from illegal searches. (56) The Court recognized that "the deterrence value of applying the exclusionary rule in deportation proceedings would be higher than it was in Janis." (57) The Court stated, however, that deterrence would be limited by the fact that in criminal trials the application of the rule already achieved a baseline level of deterrence. (58) It also found marginal deterrence in the fact that "only a very small percentage of arrests of aliens are intended or expected to lead to criminal prosecutions." (59) For immigration officers, the "primary objective, in practice, will be to use evidence in the civil deportation proceeding." (60) The Court then noted, however, that several factors reduced this deterrent effect: (1) many illegal aliens could still be deported by using evidence that was not illegally obtained; (61) (2) most illegal aliens do not challenge their deportation, thus limiting the potential use of the rule; (62) (3) the INS had a policy against illegal searches, (63) and (4) many alternative remedies were available to illegal aliens. (64)

Turning to costs, the Court concluded that the costs of the rule in deportation proceedings were "unusual and significant." (65) First, the Court noted that deportation is a preventative measure in that it prevents continuing criminal activity: "Applying the exclusionary rule in proceedings that are intended not to punish past transgressions but to prevent their continuance or renewal would require the courts to close their eyes to ongoing violations of the law." (66) The Court also considered the fact that "[t]he INS currently operates a deliberately simple deportation hearing system, streamlined to permit the quick resolution of very large numbers of deportation actions, and it is against this backdrop that the costs of the exclusionary rule must be assessed." (67) The Court concluded that "[t]he prospect of even occasional invocation of the exclusionary rule might significantly change and complicate the character of these proceedings." (68) Thus, the Court found some marginal deterrence value and also analyzed marginal costs but ultimately concluded that the costs outweighed the potential benefits of exclusion. (69)

Most recently, the Court declined to apply the exclusionary rule to parole hearings in the aforementioned Scott case. (70) In Scott, police officers conducted a purportedly illegal search of a parolee's home and discovered a firearm, which Mr. Scott was not permitted to possess. (71) The Court made no inquiry into the benefits of the rule beyond the baseline deterrent effect achieved in the criminal context. (72) On the cost side, the Court concluded that the exclusionary rule would "significantly alter" the informal nature of parole revocation proceedings and that suppression hearings were beyond the institutional competence of those conducting these proceedings. (73) The Court also expressed reluctance to intrude on state penal practices that are entered into as a matter of consent and grace. (74) The Court concluded that the costs of exclusion outweighed what little deterrence could be gained. (75)

The Supreme Court applied the exclusionary rule to the specific context of civil forfeiture in the 1965 One Plymouth Sedan case. (76) One Plymouth Sedan dealt with the forfeiture of an automobile that Pennsylvania police officers had wrongfully searched, finding bottles of alcoholic beverages that lacked Pennsylvania tax seals. (77) One Plymouth Sedan was a Warren Court case that predated Calandra (78) and thus did not employ its deterrence/cost analysis. (79) In upholding the trial court's exclusion of the illegally obtained evidence, One Plymouth Sedan noted that the seminal case of Boyd v. United States (80) had itself excluded evidence from a civil forfeiture hearing. (81) The One Plymouth Sedan Court relied on Boyd's determination that civil forfeitures were sufficiently criminal in nature to warrant the full force of the exclusionary rule: "[A]s Mr. Justice Bradley aptly pointed out in Boyd, a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law." (82) For the Supreme Court One Plymouth Sedan, civil forfeiture's quasicriminal nature was the linchpin of the exclusionary rule's application, as opposed to the more modern deterrence/costs analysis. (83)


The series of cases that post-date One Plymouth Sedan, from Calandra to Scott, sets the framework for a renewed attack on the application of the exclusionary rule in civil forfeiture. Two preliminary considerations are worthy of note. First, no Supreme Court case since One Plymouth Sedan in 1965 has applied the exclusionary rule outside the criminal trial context. (84) Second, One Plymouth Sedan predates the modern Calandra test for the application of the exclusionary rule. (85) Because of this change in doctrine, it is unclear how the Court would resolve the One Plymouth Sedan case if it arose anew today. This uncertainty is exacerbated by the fact that One Plymouth Sedan relied on Boyd, a decision that has been abandoned to a large extent. (86)

A close look at the recent Scott case suggests that the Court is ready for an open attack on One Plymouth Sedan. The essence of the holding in Scott is that the exclusionary rule does not apply to parole revocation hearings because officers would not be sufficiently deterred by the suppression of evidence at such hearings. (87) In the Court's terminology, parole hearings were considered outside "`the offending officer's zone of primary interest.'" (88) But, parole revocation hearings can land the defendant in jail, the same consequence of a criminal conviction. Professor LaFave has questioned Scott's conclusion that an officer would be significantly deterred by the threat of exclusion at a criminal trial but not at a revocation proceeding. (89) He ascribes to the reasoning of the Scott dissenters that "the actual likelihood of trial is often far less than the probability of a petition for parole revocation," meaning that "there will be nothing incremental about the significance of evidence offered in the administrative tribunal, and nothing `marginal' about the deterrence provided by an exclusionary rule operating there." (90)

Whether imprisonment results from trial and conviction or a parole revocation, the officer's job is done--i.e., a convicted criminal is off the street and in jail. As Justice Souter's dissent in Scott put it:
 In reality a revocation proceeding often serves the same function as a
 criminal trial, and the revocation hearing may very well present the only
 forum in which the State will seek to use evidence of a parole violation,
 even when that evidence would support an independent criminal charge. The
 deterrent function of the exclusionary rule is therefore implicated as much
 by a revocation proceeding as by a conventional trial, and the exclusionary
 rule should be applied accordingly. (91)

By considering parole revocations as beyond "the offending officer's zone of primary interest" the Court has made it difficult, if not impossible, for the rule to be applied in any context outside the criminal trial. (92) This reasoning is particularly true of civil forfeiture, where the defendant's property, and not her liberty, is at stake.


Despite the plausible attack on the exclusionary rule in civil forfeiture proceedings, a detailed analysis of the rule's deterrent effect balanced against its costs augurs for its continued application in this context. Even if the Court were to strip away thirty-four years of acquiescence in One Plymouth Sedan and reexamine that case, the modern exclusionary rule analysis should lead to the suppression of illegally obtained evidence in forfeiture proceedings.

First, the level of deterrence achieved by applying the exclusionary rule to civil forfeiture is unique among civil contexts. (93) Police officers do not actively seek tax assessments, parole revocations, deportation or even grand jury questions. (94) Put in the Court's language, these tangential activities fall outside the "officer's zone of primary interest" so that they are not ingrained into mainstream police practices. (95) Forfeiture is entirely different. Modern police officers, especially narcotics agents, depend on both the economic punishment of seizing a criminal's assets and the financial benefit those assets bring to police departments. (96) Moreover, police policy statements and training manuals instruct and encourage officers to invoke their forfeiture power, an active encouragement not present in the activities involved in the Court's other non-criminal cases. (97) The unique role of civil forfeiture in modern policing makes it sui generis in the level of deterrence the exclusionary rule will produce.

Second, civil forfeiture is similarly unique on the cost side of the Court's balancing test. (98) Courts that are competent to determine the legality of searches can also hear forfeiture proceedings. (99) Most civil forfeitures occur after there has been an opportunity for a full judicial proceeding. (100) Forfeiture proceedings are heard by courts, which are be definition competent to determine the legality of searches. Forfeiture does not proceed in the informal, administrative manner found in parole revocation hearings, deportation hearings, or grand jury investigations. It is a formal judicial process capable of incorporating the complex standards that the exclusionary rule would necessitate. (101) Because such formal procedures are already in place, application of the rule will not hinder the effective processing of forfeiture claims. Moreover, even if the suppression of evidence causes a forfeiture action to fail, the state loses only the value of a seized asset, which is a much smaller cost than the release of a criminal or the continuance of a criminal activity.

A. Deterrence

The first step in modern exclusionary rule analysis is to determine the degree of deterrence to police misconduct that the suppression of evidence would produce. (102) In making this determination, the Court relies on both common sense insights of police behavior and on available information about police policies and practices. (103) Bearing in mind this view of the exclusionary rule, civil forfeiture is within a police officer's "zone of primary interest" because of: (1) the importance of forfeiture in modern police work; (104) (2) the financial stake police officers have in the assets they retain; (105) and (3) the traditional notion that a civil forfeiture is "quasi-criminal" in nature. (106)

1. The exclusionary rule acts as a deterrent in civil forfeitures because forfeiture has become a primary area of police activity.

Civil forfeiture has become a key weapon in law enforcement's long war on drugs. (107) According to the Director of the Department of Justice's forfeiture unit, "`asset forfeiture can be to modern law enforcement what air power is to modern warfare.'" (108) The Department of Justice alone took in just under $550 million in assets in 1994, and netted $2.7 billion from 1991 to 1996. (109) More than eighty percent of civil forfeitures are not accompanied by an arrest, making the forfeiture the only law enforcement reaction to the alleged criminal activity that provoked the forfeiture. (110) This vast secondary area of police activity runs counter to the assertion that a police officer's "only" goal is to obtain a criminal conviction. (111) Moreover, this evidence rebuts the claim that the deterrence in the civil forfeiture context is limited because police are already deterred by the baseline deterrence achieved from suppression in criminal proceedings. As one commentator has noted:
 For law enforcement agents and agencies, the lure of asset forfeiture is
 strong, and the changes it has effected are significant. Far from being
 merely another weapon in the fight against drugs, forfeiture is shaping the
 core goals and policies of the fight itself. Asset forfeitures have become
 a legitimate alternative policy goal for law enforcement; apart from
 providing a means to the end of curbing drug crime, forfeitures have become
 an end in themselves. (112)

The states have also exponentially expanded the use of forfeiture within their jurisdictions. For example, a study sponsored by the state of Indiana revealed that seventy-seven percent of the state's drug task-force commanders considered seizing assets to be a major objective, while only sixty-eight percent considered arresting "street level dealers" to be a major objective. (113) Asset forfeiture is considered by many criminal justice professionals as a "potential resource base for funding future task force operations." (114)

Moreover, with the ever-expanding importance and reach of forfeiture laws, lower courts have been mindful of the increasing amount of deterrence the exclusionary rule can bring to forfeiture cases:
 [I]n a forfeiture proceeding, the article to be forfeited has been used in
 violation of a criminal law. Forfeiture is clearly a penalty for
 transgressing the criminal laws. Law enforcement officers, who might
 otherwise be tempted to violate an individual's Fourth Amendment rights by
 conducting illegal searches and seizures, are faced with the possibility of
 having the evidence that proves the criminal act excluded at trial. (115)

Similarly, a federal district court has stated that: "More and more courts are voicing frustration at what appears to be overreaching by the United States in the drug war, particularly in forfeiture cases where law enforcement agencies have a `built-in' conflict-of-interest because they share in the product of the seizure." (116)

Three specific sources of evidence illuminate the importance of forfeiture to the modern police officer--police training manuals, legislative encouragement of civil forfeiture, and social science research.

a. Police Policies and Training

First, governments at all levels have published numerous policy manuals and instruction booklets to encourage police officers to partake in civil forfeitures. (117) During the mid-1980s, the Department of Justice began encouraging federal and local law enforcement agencies to drastically expand their forfeiture efforts. (118) For example, the Department stated that "drug agents now have a very real, a very powerful, new weapon to strike at the profits of crime. No longer will investigators be restricted to arresting traffickers...." (119) State governments have similarly encouraged the use of forfeiture as a law enforcement device by publishing policy statements. (120)

The policy materials provided to police cover a variety of subjects in great detail. One Department of Justice policy requires law enforcement officers to perform a pre-seizure analysis of the value of assets owned by criminal suspects. (121) If an asset does not reach a certain minimum value threshold, the instructions tell officers not to seize it. (122) For example, officers are discouraged from seizing a vehicle with less than $5,000 in equity or an aircraft with less than $10,000 in equity. (123) The Department's policy also lays out specific steps that must be taken when officers seize specific classes of assets. (124) For example, when officers seize a traveler's check, they must notify the banking company and "take appropriate steps to liquidate the checks." (125) Another Department of Justice manual urges officers, when seizing assets, to go through a multi-step process to determine the appropriateness of forfeiture in each case. (126) In a section entitled "Pre-seizure Planning," the Department encourages officers to consider the involvement of the government attorney; the likeliness of success in the ensuing forfeiture action; the character and value of the property involved; and the legitimate law enforcement objectives, such as depriving a criminal of property. (127)

The procedures and policies surrounding civil forfeiture have become so ingrained in modern policing that officials have promulgated a forfeiture code of conduct. (128) The code of conduct compels police to "strive to ensure that seized property is protected" and to maintain "procedures for prompt notice to interest holders" among other laudatory aims. (129)

These policy materials demonstrate how forfeiture has become a routine device in modern police work. Today, police are bombarded with encouragement to partake in forfeiture, and are provided detailed procedures for carrying it out. (130) The encouragement for seizure of assets found in these law enforcement policy statements and training manuals are not lost on the everyday officer. These directives constitute a substantial part of the continuing education for police officials. The many volumes of material published on this topic and the intricacies of the policies involved demonstrate that forfeiture has carved out a niche in the core of police activity.

b. Forfeiture Legislation

A second source of evidence for the centrality of forfeiture in modern police work is legislative encouragement of the expanded use of forfeiture. For at least the past twenty years, Congress has expanded the reach of forfeiture laws. (131) These legislative enactments represent the constant encouragement for the increased use of forfeitures. For example, in 1970, Congress enacted a statutory provision (132) that "was intended to forestall the spread of drugs in a way criminal penalties could not--by striking at its economic roots" and allowing the government to claim the tools and profits of the drug trade. (133) This provision was part of the Comprehensive Drug Abuse Prevention and Control Act, (134) which has been periodically amended to reach deeper into the pockets of drug dealers. (135)

Moreover, in the same year, Congress passed the powerful forfeiture provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO). (136) This statute contains a sweeping civil forfeiture provision, similar to that found in the Comprehensive Drug Abuse Prevention and Control Act: "It is fitting that Congress passed these two Acts together; they are fraternal twins in their approach to combating ... crime. Both depart from the traditional criminal justice model, which focuses on prosecuting offenders. Instead, the new statutes proceed from the recognition that drug-related ... crimes have an economic basis." (137) Through these two statutes, the federal government has placed its imprimatur on an expansive role for forfeiture in law enforcement since the early 1970s. (138)

The federal government is not alone in expanding its forfeiture laws. States also have loosened their forfeiture statutes to encourage police to use forfeiture to fight crime. (139) One state court has "acknowledged the broad new powers granted to law enforcement authorities under modern forfeiture statutes." (140) Commentators Eric Blumensonand Eva Nilsen contend that "[m]any state forfeiture laws also promote self-aggrandizing police practices and should be reformed." (141)

Law enforcement officials have not been blind to the broad power that has been bestowed on them by legislatures at every level. Officers recognize that for decades new laws have encouraged them to make use of civil forfeiture. As the Director of the Department of Justice's Executive Office for Asset Forfeiture has stated: "[I]n forfeiture, we are building a new remedy to strike at the economic underpinnings of criminal enterprises by removing the profits, proceeds, and infrastructure which support criminal organizations." (142) Another high-placed law enforcement official has noted that "[w]ithout a doubt, the government has few law enforcement tools as effective in deterring crime as the forfeiture of assets involved in, or derived from, criminal activity." (143) These statements, by high-ranking law enforcement officers, reflect the notion that the broad powers provided by Congress and state legislatures have come to the attention of the law enforcement community. (144)

c. Social Science Research

A third source of evidence demonstrating how ingrained forfeiture has become in modern policing is research into actual police behavior. In a 1994 study, researchers examined firsthand the practices and motivations of police officers involved in asset forfeiture. (145) Under one of the research operations, a researcher, one of the author's of the study, "assumed the role of confidential informant in undercover narcotics operations in a southern state." (146) The police officers had no knowledge that the researcher was not a real confidential informant. (147) The researcher interacted with the police officers in these narcotics units and observed their reactions to the various types of drug dealers and users. (148) After observing the police for one year, the researcher concluded that the opportunity for forfeiture of high-value assets "has become the primary objective of drug enforcement." (149)

Several of the researcher's specific examples illustrate how police are motivated by potential forfeitures. First, the researcher informed police about two narcotics suspects: one, a professional dealer looking to sell two and a half pounds of marijuana; and the other, a factory worker looking to buy a half-pound of marijuana for himself and to potentially resell to friends. (150) The police targeted the factory worker after determining that he had more lucrative assets than the professional dealer. (151) The researcher believed that the officer's primary motivation was the opportunity for forfeiture. (152)

In another case, officers knew that a suspect had a large quantity of drugs that he was planning to sell. (153) The officers declined to make an arrest, stating that an arrest would "`just give us a bunch of dope and the hassle of having to book him.'" (154) Again, forfeiture was in the forefront of the officer's motivation in choosing which case to pursue. The study concluded that asset forfeitures played a major part in the narcotics officers' decision-making process:
 This study addresses what recently has been considered a primary question
 concerning forfeiture laws: "What impact will asset forfeiture have on
 police operations and management?" It is apparent that asset forfeiture is
 already being institutionalized within law enforcement; this process is
 influencing its disposition. Although the narcotics units observed in this
 study were confined to one general locale, the mid-south, neither empirical
 studies nor journalistic accounts suggest that seizure-based policing
 tactics differ elsewhere. (155)

Taken in its totality, the first-hand evidence produced by these researcher supports the conclusion that forfeiture has entered mainstream police practices.

2. The financial stake police officers have in civil forfeiture increases the deterrence produced by the exclusionary rule.

Another factor demonstrating the high deterrence value of the exclusionary rule in civil forfeiture proceedings is the numerous police policies that allow police departments--or related governmental bodies--to retain the assets they seize. (156) These policies give police officers a financial motivation to expand forfeiture and, conversely, the suppression of evidence will quantify deterrence in raw dollar terms. (157)

The federal civil forfeiture scheme allows agencies to retain the assets they seize. (158) The Comprehensive Crime Control Act of 1984 created a "Department of Justice Assets Forfeiture Fund." (159) According to the statute, "all amounts from the forfeiture of property" must be deposited into the Fund. (160) The Attorney General may then use this fund for a catalog of law enforcement purposes, including payments to other agencies for investigative costs, payment of rewards for information, and for enhancing any vehicle used for law enforcement purposes, whether at the state or federal level. (161) Perhaps the most glaringly self-serving law enforcement purpose allows the "payment of overtime salaries, travel, fuel, training, equipment and other similar costs of State or local law enforcement officers." (162)

This direct incentive is hardly unique to federal forfeiture law. Many state statutes allow law enforcement agencies to retain varying percentages of the assets they obtain. (163) In states that do not allow police to retain forfeited assets, local officials are often still eligible to retain the assets through the federal government's "Equitable Sharing Program." (164) This program allows "[a]ny state or local law enforcement agency that directly participates in an investigation or prosecution that results in a federal forfeiture [to] request an equitable share of the net proceeds of the forfeiture." (165) State agencies may receive a variable share of federal forfeiture funds either by participating in a joint investigation with federal authorities or by allowing the federal government to "adopt" a state forfeiture action that was initiated solely by state officers. (166) Equitable sharing is one reason forfeitures have rapidly developed into widespread use, considering over 3,500 local police departments received equitable sharing disbursements in 1990. (167)

As a result of these financial incentives police now emphasize forfeiture in their daily practices. "Critics [of civil forfeiture] argue that asset forfeitures skew law enforcement priorities because the proceeds from forfeitures go directly into police budgets." (168) With the knowledge that they may retain assets for their own benefit, the police have shifted their goals in order to obtain funding for police operations:
 Forfeiture money buys manpower and sophisticated equipment, and forfeited
 property such as cars, planes, and boats is pressed into law enforcement
 service, bypassing the normal budgetary process through which such benefits
 must normally be accrued. It is not difficult to see how this prospect
 serves as an incentive for law enforcement agencies to pursue forfeitures
 aggressively. The traditional law enforcement approaches to drug crime,
 interdicting drugs and apprehending offenders, must seem lackluster
 compared to the allure of forfeiture. Because of its powerful attraction,
 asset forfeiture has emerged as a popular alternative to criminal
 prosecution for law enforcement. (169)

This incentive is especially important because many police officers may receive direct financial benefits in the form of increased pay or bonuses: "Indeed, in some departments, police salaries are paid directly from asset forfeiture funds, so long as the funds supplement rather than supplant budgeted positions." (170)

The Supreme Court has already taken notice of the strong financial incentive that law enforcement agencies have to partake in forfeiture:
 The extent of the Government's financial stake in drug forfeiture is
 apparent from a 1990 memo, in which the Attorney General urged United
 States Attorneys to increase the volume of forfeitures in order to meet the
 Department of Justice's annual budget target:

 "We must significantly increase production to reach our budget
 target.... Every effort must be made to increase forfeiture income
 during the remaining three months of [fiscal year] 1990." (171)

None of this is to suggest that there is necessarily any misconduct on the part of the police who vigorously pursue a source of funding that legislatures have put in front of them. It is only natural for police to invoke perfectly legal methods to increase the small amount of funds available to them. The use of forfeiture as a source of funding, however, demonstrates another reason why the use of the exclusionary rule in civil forfeiture hearings creates significant deterrence to unlawful police conduct.

3. Police are deterred by the exclusionary rule in civil forfeiture proceedings because they are quasi-criminal actions that fall within the police's law enforcement goals.

A final source of evidence for the significant deterrent effect of the exclusionary rule in civil forfeiture is the fact that forfeiture is "quasi-criminal" in nature. (172) Indeed, the fact that civil forfeiture was held quasi-criminal led the Court in One Plymouth Sedan to apply the exclusionary rule. (173) However, because the modern exclusionary rule analysis looks only at the balance of costs and deterrence, the status of the proceeding is only relevant in determining the amount of deterrence the exclusionary rule will produce. (174) If a proceeding can be characterized as "quasi-criminal," officers are likely to experience a level of deterrence similar to that obtained by exclusion of evidence from a criminal trial; as Justice Goldberg stated in One Plymouth Sedan, their "object, like a criminal proceeding, is to penalize for the commission of an offense against the law." (175)

It is unclear whether the Court continues to consider civil forfeiture to be quasi-criminal. (176) For present purposes, one can look to the forfeiture statutes themselves and see that they are indeed both punitive and criminal in nature. For instance, forfeiture statutes are often found in a state's criminal code, along with the full panoply of crimes. (177) Moreover, civil forfeiture statutes target criminal activity because they "are primarily designed `to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct.'" (178) For example, the Iowa forfeiture statute compels the retention of assets that fall into an enumerated category of property. (179) These categories include, for example "[p]roperty which is relevant in a criminal prosecution or investigation." (180) These statutes illustrate the fact that assets are forfeitable only because of some underlying criminal activity, not because a particular asset poses an inherent danger to the public that would be against the state's regulatory interest. (181) Under this analysis, civil forfeiture statutes are quasi-criminal simply because they are intended to punish criminal conduct and supplement general criminal aims by attacking the economics behind crime. (182)

The fact that potential criminal sanctions often surpass the value of a forfeited asset does not reduce the quasi-criminal nature of civil forfeiture proceedings. It is likely that police agencies will argue that unless the civil penalties in a given case eclipse the criminal ones, the forfeiture is not punitive, and thus, not quasi-criminal. (183) The equilibrium between civil sanctions and criminal penalties is merely one factor to consider in determining whether civil forfeiture is quasi-criminal. This determination is now part of a larger, modern calculus of whether deterrence outweighs the cost of the rule's application. Moreover, this argument creates an inequality in exclusionary rule law by allowing its application only in cases where the assets seized are large in comparison with smaller criminal penalties. Conversely, defendants to a forfeiture action involving small assets would be unable to invoke the rule because its application would not be punitive. This imbalance would allow the Fourth Amendment to protect only the worst offenders--i.e., drug kingpins with numerous high-value assets. Finally, a requirement that the civil penalty be greater than the criminal sanction would create a vague exclusionary rule doctrine that would require the courts to weigh the relative punitive nature of every forfeiture when compared with possible criminal penalties. Not only will this situation create ad hoc difficulties in every forfeiture case, but it also would engage the lower courts in the ethereal process of determining what cash value equates with a given amount of prison time.

Under the deterrence system that the Court has established, excluding evidence from quasi-criminal proceedings, such as asset forfeiture, is likely to create the same level of deterrence that is currently produced by the application of the exclusionary rule in criminal proceedings.

B. Social Costs

Social costs lie on the other side of the exclusionary rule ledger. In analyzing the rule's costs, the Court often looks both at the practical consequences of applying the rule and the harm it may inflict on the ease of administrative proceedings. (184) In the context of civil forfeiture proceedings, both of these costs are considerably low.

First, the exclusion of unconstitutionally obtained evidence will have little practical effect on civil forfeiture, as is exhibited by the fact that police continue to use forfeiture forty-six years after One Plymouth Sedan. (185) Indeed, the particular nature of civil forfeiture reduces the baseline cost of the exclusionary rule--the loss of relevant, probative evidence. If evidence is excluded from a forfeiture hearing, the police still may prevail by establishing the underlying criminal activity by other means, so long as the asset itself is not the product of the invalid search. (186) Thus, the application of the exclusionary rule has a relatively low impact on the state's chances for success in civil forfeiture, because, in forfeiture, the rules are already skewed towards the state. For example, in many forfeiture proceedings:
 There is no presumption of innocence, no right to an attorney, and no
 hearsay objection. The burden of proof is reversed: once the government
 establishes probable cause that the property is subject to forfeiture, the
 burden shifts to the property owner to prove by a preponderance of the
 evidence that the property does not belong to the government. There is no
 constitutional requirement that the property owner be at fault, or be
 prosecuted for the underlying criminal activity. (187)

While the Civil Asset Forfeiture Reform Act of 2000 (188) placed the burden of proof on the government in federal forfeiture actions, the statute still only requires the government to prove its case by a preponderance of the evidence, (189) and many state statutes still place the burden on the owner of the asset. (190) These pro-government forfeiture rules, especially those with lower burdens of proof, allow the government to prevail in many forfeiture cases where a criminal action would fail, thus reducing the baseline cost of the exclusionary rule.

The Supreme Court has also analyzed the cost of the rule in terms of the administrative necessities of the proceedings. (191) The Court considers both the toll the rule would take on the informality of the proceedings and the ability of the fact-finder in those proceedings to make the complicated legal determinations necessary to effectively apply the rule. (192) However, civil forfeiture proceedings often take the form of a full civil trial before a judge. (193) In some jurisdictions the state is also required to file a detailed complaint and the defendant must file a detailed answer in response. (194) Moreover, the Court has determined that the Fourteenth Amendment compels the states to follow certain minimum due process standards in civil forfeiture proceedings: "Our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property." (195) Suppression hearings will not clog up the process of civil forfeiture because they are already a relatively formal judicial procedure. Stated slightly differently, application of Fourth Amendment principles are well within the institutional competence of courts, which have been applying the exclusionary rule in criminal trials for at least forty years. (196)

As a final matter, it should be noted that even if a forfeiture action should fail, the costs to society are far less than in most contexts. In a failed forfeiture, the only cost is the loss of an asset. This cost is obviously less than continuing violations of the law, such as the retention of illegal aliens, or the social cost of allowing a criminal go free; the potential consequence of the rule's application to criminal proceedings. And if the seized item is contraband, the police are not required to return it, even under One Plymouth Sedan. (197)


Despite plausible attacks on the application of the exclusionary rule in civil forfeiture proceedings, the rule should prevail under the Court's deterrence/cost balancing test. The deterrence to police misconduct created by the exclusionary rule in civil forfeiture is unique because forfeiture plays a large role in modern police work, officers have a financial stake in seized assets, and the proceedings themselves are quasi-criminal. Civil forfeiture is therefore unlike any previous context to come before the Court in terms of the deterrence the rule can produce. In Calandra and Scott, the Court saw no marginal deterrence to be gained through suppression, (198) and in Janis it actually found less deterrence than exclusion at a criminal trial. (199) Only Lopez-Mendoza found deterrence appreciably higher than that created by exclusion at criminal trials. (200) But exclusion in civil forfeiture produces deterrence because it sweeps across a broad range of law enforcement efforts at both the state and federal levels.

As for the costs, civil forfeiture is again unlike any context in which the Court has refused to apply the rule. In Calandra, Lopez-Mendoza and Scott, the Court stressed the difficulty of administrating the rule in informal agency hearings. In civil forfeiture the rule is applied in a full trial setting, before a judge capable of reaching nuanced legal conclusions. Moreover, even the baseline cost of losing evidence is mitigated in civil forfeiture, as the police may well seize other evidence that is not tainted with the illegal search. This balance of high deterrence and low costs should lead courts to continue to apply the exclusionary rule to civil forfeiture.

(1) Professor Wayne R. LaFave has noted that "[f]or well over half a century, the validity and efficacy of the Fourth Amendment exclusionary rule have been vigorously debated by legal commentators." WAYNE R. LAFAVE ET AL., 2 CRIMINAL PROCEDURE [section] 3.1(c) (2d ed. 1999) [hereinafter CRIMINAL PROCEDURE]. See also Christine L. Andreoli, Note, Admissibility of Illegally Seized Evidence in Subsequent Civil Proceedings: Focusing on Motive to Determine Deterrence, 51 FORDHAM L. REV. 1019, 1024 n.25 (1983) ("The actual deterrent effect of the rule is indeed unclear and has been the subject of much debate. Although expressing doubts about the rule's effect, the Court as yet has declined to abandon the rule and its deterrence rationale.").

(2) See Mapp v. Ohio, 367 U.S. 643, 654-55 (1961) (reinforcing the importance of the "right to privacy" by expanding the applicability of the exclusionary rule to include state courts).

(3) See, e.g., Arizona v. Evans, 514 U.S. 1, 16 (1995) (applying an exception to the exclusionary rule for good faith reliance on "clerical errors of court employees"); United States v. Leon, 468 U.S. 897, 920-21 (1984) (creating a good-faith exception to the exclusionary rule when an officer relies on what is believed, in good-faith, to be an authorized warrant).

(4) See, e.g., Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984) (refusing to apply the exclusionary rule in INS civil deportation hearings); United States v. Janis, 428 U.S. 433, 447 (1976) (rejecting the application of the exclusionary rule in federal civil tax proceedings); see also United States v. Calandra, 414 U.S. 338, 349-50 (1974) (declining to extend the exclusionary rule to grand jury proceedings).

(5) 524 U.S. 357 (1998).

(6) Id. at 369 (holding that a parole board, in making its determination for recommittal, is permitted to consider evidence obtained in violation of the Fourth Amendment). Recommittal may result in a sentence that is equivalent to a punishment for a separate, new crime, since the time the parolee spent free is not subtracted from the time remaining on the original sentence. See generally id. at 379.

(7) See id. at 368 (noting that an officer's role is more "supervisory than adversarial" and that other deterrents, such as departmental training and disciplinary actions, were already in place).

(8) 380 U.S. 693 (1965). The application of the exclusionary rule in One Plymouth Sedan has been widely recognized by the lower courts. See, e.g., United States v. 500 Delaware St., 113 F.3d 310, 312 n.3 (2d Cir. 1997) (noting that forfeiture cases are included under the rule's umbrella); Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir. 1997) (reaffirming that the rule applies to forfeiture proceedings because forfeiture is considered a quasi-criminal sanction); United States v. One 1978 Mercedes Benz, 711 F.2d 1297, 1303 (5th Cir. 1983) (citing to One Plymouth Sedan and stating that evidence seized in violation of the Fourth Amendment must be excluded in a forfeiture action); United States v. One 1976 Cadillac Seville, 477 F. Supp. 879, 884 (E.D. Mich. 1979) (holding that the One Plymouth Sedan decision "mandates" the exclusionary rule's application in civil forfeiture cases).

(9) Civil forfeiture can be defined as "a legal proceeding against a specific type of property believed to be used in a criminal activity.... Property subject to forfeiture can be anything from vehicles, to equipment, to the cash proceeds of an illegal enterprise." Gary W. Potter, Syllabus CRJ 401: Organized Crime, Unit #16: Controlling Organized Crime, The Police and the Law, at (last visited Oct. 1, 2001) (on file with the Albany Law Review). Civil forfeiture statutes exist in all 50 states. See Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War's Hidden Economic Agenda, 65 U. CHI. L. REV. 35, 52 n.66 (1998) (listing the percentage of assets distributable to law enforcement under various forfeiture laws throughout the United States and in the District of Columbia).

(10) See Craig M. Bradley, Pennsylvania v. Scott: No Fourth Amendment Protection for Parolees, TRIAL, Apr. 1999, at 89, 89 (noting that One Plymouth Sedan is the only Supreme Court decision which has "gone the defendant's way" with the application of the exclusionary rule to a civil proceeding).

(11) See Duncan N. Stevens, Off the Mapp: Parole Revocation Hearings and the Fourth Amendment, 89 J. CRIM. L. & CRIMINOLOGY 1047, 1085 (1999) (observing that "[t]he Court, conveniently, did not mention [One] Plymouth Sedan in Scott, ... [even though] the parallels between the two contexts are striking").

(12) See Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 HASTINGS L.J. 1325, 1325-26 (1991) ("[T]here is a rapidly accelerating tendency for the government to punish antisocial behavior with civil remedies such as ... forfeitures.... Many states are using civil law techniques to check domestic violence, drug trafficking, weapons possession, and racial harassment.") (citations omitted).

(13) See Steven Wisotsky, Exposing the War on Cocaine: The Futility and Destructiveness of Prohibition, 1983 WIS. L. REV. 1305, 1364-65 (1983) (citing the failure of traditional law enforcement methods, such as border interdiction, as the reason forfeiture has become such an important tool in fighting the drug trade).

(14) See Cheh, supra note 12, at 1327 (detailing the federal government's seizure in 1991 of "over $600 million worth of currency, cars, planes, boats, and even cattle, ... [and these] efforts [from 1986-1991] have stripped more than one billion dollars from drug dealers").

(15) See, e.g., COLO. REV. STAT. [section] 16-13-505(10)(b) (2000) (requiring proof only by a "preponderance of the evidence" for both an allegation of forfeiture and an affirmative defense); WIS. STAT. ANN. [section] 973.076(3) (West 1998) (stating that the government must merely prove the asset was subject to forfeiture by "the greater weight of the credible evidence").

(16) While some lower courts have applied the exclusionary rule in civil contexts, others have openly questioned its continued application in civil forfeiture proceedings. See People v. $241,600 United States Currency, 67 Cal. App. 4th 1100, 1106, 1113 (Ct. App. 1998) (allowing evidence--money in a briefcase presumed to have been illegally seized from the defendant's vehicle--to be introduced in a civil forfeiture proceeding); Baltimore v. One 1995 Corvette, 706 A.2d 43, 45, 101 (Md. Ct. Spec. App. 1998) rev'd, 724 A.2d 680 (1999) (Md. 1999) (holding, by the Court of Special Appeals, the that vitality of One Plymouth Sedan no longer remains in existence, thereby refusing to apply the exclusionary rule for in rem forfeiture proceedings).

(17) $241,600 Currency, 67 Cal. App. 4th at 1113.

(18) One 1995 Corvette, 706 A.2d at 45, rev'd 724 A.2d 680 (Md. 1999). Professor LaFave has referred to the ruling as "troubling". 1 WAYNE R. LAFAVE ET. AL., SEARCH AND SEIZURE, A TREATISE ON THE FOURTH AMENDMENT [section] 1.7 (3d ed. Supp. 2001) [hereinafter SEARCH AND SEIZURE].

(19) See infra notes 23-83 and accompanying text.

(20) See infra notes 84-92 and accompanying text.

(21) See infra notes 93-197 and accompanying text.

(22) See infra notes 198-200 and accompanying text.

(23) In Scott, the Court stated, "the government's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution." Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 362 (1998). The Court's ability to apply a legal rule against the states without invoking the Constitution, however, is subject to some debate. See, e.g., Andreoli, supra note 1, at 1019 n.1 (describing the debate among justices as to whether the nature of the exclusionary rule is constitutionally based or judicially created).

(24) Scott, 524 U.S. at 363 (citing United States v. Calandra, 414 U.S. 338, 348 (1974)).

(25) Id. (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).

(26) See United States v. Calandra, 414 U.S. 338, 349 (1974) (stating that in determining whether to apply the exclusionary rule, courts must weigh the potential harm to the particular proceeding against the potential benefits of the rule); see also Stone v. Powell, 428 U.S. 465, 486 (1976) (declaring that "[t]he primary justification for the exclusionary rule ... is the deterrence of police conduct that violates Fourth Amendment rights"). This focus on only deterrence ignores other purposes the rule arguably could serve, including "the enforcement of a personal right" and "the maintenance of judicial integrity." Andreoli, supra note 1, at 1019 n.2.

(27) Scott, 524 U.S. at 363 (citing United States v. Leon, 468 U.S. 897, 907 (1984)).

(28) See, e.g., United States v. Janis, 428 U.S. 433, 447-48 n.18 (1976) (citing studies conducted on the deterrent effect of the rule and noting the proposition that the exclusionary rule actually encourages law enforcement officials to lie with regards to seizure in order to preserve the admissibility of evidence).

(29) See id. at 448 (explaining that, for any additional use of the rule to be worthy of its costs, the additional deterrence must extend beyond that already achieved by exclusion of the evidence in a criminal action).

(30) Id. at 453.

(31) See, e.g., , 414 U.S. at 351 (discussing the "incremental deterrent effect which might be achieved by extending the rule") (emphasis added).

(32) Janis, 428 U.S. at 458.

(33) One commentator, William Patrick Nelson, contends that this is precisely the opposite of what should occur: "The emphasis of the current Supreme Court on deterrence in framing the exclusionary rule, which has previously justified a narrowing of evidentiary exclusions in criminal trials, requires by its own logic a broadly framed rule that prohibits law enforcement agency retention of unlawfully seized property." William Patrick Nelson, Should the Ranch Go Free Because the Constable Blundered? Gaining Compliance with Search and Seizure Standards in the Age of Asset Forfeiture, 80 CAL. L. REV. 1309, 1311 (1992).

(34) Janis, 428 U.S. at 447; see also Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1041 (1984) (referring to the cost side of the rule as the loss of valuable, probative evidence which increases litigation expenses by requiring adjudication on less than adequate evidence).

(35) The Court speaks in terms of marginal or incremental costs and deterrence. See Lopez-Mendoza, 468 U.S. at 1045, 1048 (stating that the costs, as well as the benefits, "must be measured at the margin"). This language reflects the fact that every potential application of the exclusionary rule puts at issue the rule's baseline cost, the loss of evidence and the baseline deterrent effect it has in criminal proceedings.

(36) See Calandra, 414 U.S. at 349 (noting the "investigative and accusatorial functions" of the grand jury and the imposition that the exclusionary rule would place upon these functions).

(37) See, e.g., id. at 351 (opining that the deterrent effect of the exclusionary rule is "uncertain at best"). Justice Brennan's dissent in Calandra, however, identifies several benefits of the rule:
 The exclusionary rule, if not perfect, accomplished the twin goals of
 enabling the judiciary to avoid the taint of partnership in official
 lawlessness and of assuring the people--all potential victims of unlawful
 government conduct--that the government would not profit from its lawless
 behavior, thus minimizing the risk of seriously undermining popular trust
 in government.

Id. at 357 (Brennan, J., dissenting).

(38) 414 U.S. 338 (1974).

(39) See id. at 340-41 (detailing the unlawful search of Calandra's business by federal agents and their seizure of loansharking evidence which the grand jury later attempted to use as the basis for questioning).

(40) See id. at 342-46 (noting that the functions of the historical English grand jury, protecting society from both individual and governmental wrongdoing, still survive in the modern day American model).

(41) Id. at 349.

(42) Id.

(43) Id. at 350.

(44) See id. ("In some cases the delay might be fatal to the enforcement of the criminal law.").

(45) Id. at 351.

(46) See id. at 351-52 (finding that the speculative claims of deterrence of police misconduct pale in comparison to a more substantial negative impact on the functioning of the grand jury).

(47) See id. at 354-55 (ruling that the exclusionary rule's deterrence of police misconduct in a grand jury proceeding is minimal and speculative, while the costs of applying the rule would be unacceptably high).

(48) 428 U.S. 433 (1976).

(49) See id. at 434-36 (detailing how police officers obtained a warrant for "bookmaking paraphernalia" and found the sought after documents, along with $4,940 in cash).

(50) Id. at 436-37.

(51) See id. at 437-38 (citing defendant's argument that the affidavit upon which the search warrant was based did not provide a sufficient basis).

(52) See id. at 455-58 (concluding that because state law enforcement officials have little interest in the success of federal tax proceedings and federal tax officials have little interest in the lawfulness of state criminal investigations, the application of the rule would produce little deterrence).

(53) Id. at 459 n.35.

(54) See id. at 436 n.3 (detailing the testimony of an officer who stated that only "major-size book" cases, such as the one at issue in this action, would warrant contacting the Internal Revenue Service).

(55) See id. at 447 (stating that if the rule was extended, it would render relevant evidence ineligible).

(56) 468 U.S. 1032, 1035 (1984) (reporting that agents had entered Lopez-Mendoza's business with neither a search warrant nor an arrest warrant, and had questioned him against his will).

(57) See id. at 1042 (noting, however, that this higher deterrence value would be exceeded by even higher social costs).

(58) See id. (stating, in an interesting choice of words, that officials were already "`punished'" by the exclusionary rule in criminal proceedings).

(59) Id. at 1043.

(60) Id.

(61) See id. at 1043 (explaining that a person's identity is never suppressible which, therefore, eases the INS's burden of proving the respondent to be an illegal alien).

(62) See id. at 1044 (reporting that in over 97.5% of deportations, illegal aliens agree to be deported voluntarily without a hearing).

(63) See id. at 1044-45 (recognizing that the INS has rules, procedures, and punishments in place for immigration officers who violate Fourth Amendment guarantees).

(64) See id. at 1045 (referring to declaratory relief as one of the possible remedial alternatives, but also noting that the standing requirement may be a barrier to those seeking relief).

(65) Id. at 1046.

(66) Id.

(67) Id. at 1048.

(68) Id.

(69) See id. at 1050 (applying the Janis balancing test and ultimately refusing to apply the exclusionary rule in civil deportation hearings). Professor LaFave has called the Lopez-Mendoza Court's conclusion "[a]n extreme and fundamentally unsound cost-benefit analysis." CRIMINAL PROCEDURE, supra note 1 [section] 3.1(g).

(70) Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357 (1998).

(71) See id. at 360 (noting that one condition of the defendant's parole was not to possess any weapons).

(72) See id. at 364 (stating that, because the exclusionary rule already serves its purpose in deterring unconstitutional searches in the criminal context, the rule would serve no purpose in the civil context).

(73) See id. at 364-66 (illustrating the administrative nature of the procedure by noting that parole hearings are conducted by members of parole boards, who need not be judges or lawyers).

(74) See id. at 365 (referring to the state's "overwhelming interest" in ensuring the parolee's compliance with the terms of release).

(75) See id. at 367, 369 (ultimately refusing to extend the exclusionary rule to parole revocation hearings).

(76) One 1958 Plymouth Sedan v. Pennyslvania, 380 U.S. 693 (1965).

(77) Id. at 694.

(78) See United States v. Calandra, 414 U.S. 338 (1974).

(79) See One Plymouth Sedan, 380 U.S. at 700, 702 (concluding that forfeiture invokes Fourth Amendment scrutiny based on its quasi-criminal nature).

(80) 116 U.S. 616 (1886).

(81) See id. at 634-35, 638 (invoking the Fourth and Fifth Amendments in its holding that an owner of property in a forfeiture action is entitled to the same privileges as one who has committed a criminal offense).

(82) One Plymouth Sedan, 380 U.S. at 700.

(83) See id. at 701 (putting forth the rationale that a holding where the same evidence would be suppressed in a criminal proceeding, but allowed in a civil proceeding as "anomalous indeed"). Even though One Plymouth Sedan did not apply the modern exclusionary rule analysis, the case has not been openly questioned by the Court and has occasionally been favorably cited by it. See Austin v. United States, 509 U.S. 602, 608 n.4 (1993) (supporting the proposition that civil forfeiture proceedings are protected by constitutional provisions through the Court's application of the Excessive Fines Clause of the Eighth Amendment to forfeitures of property); Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1047 (noting the similarity of the case with that of One Plymouth Sedan in that the defendant's underlying activity was criminal in nature). The lower courts have also remained faithful to One Plymouth Sedan. See, e.g., United States v. $404,905.00 in United States Currency, 182 F.3d 643, 646 (8th Cir. 1999), cert. denied, 528 U.S. 1161 (2000) (stating that "[t]he Fourth Amendment's exclusionary rule applies to quasi-criminal forfeiture proceedings."). But see supra note 16 (discussing lower court cases which openly question the extension of the exclusionary rule in forfeiture cases). At least one commentator has argued for a broader use of the exclusionary rule in forfeiture hearings, not its contraction. See Nelson, supra note 33, at 1345 (arguing that a constitutional violation should result in both the suppression of the seized asset and a denial of forfeiture, not merely the inadmissibility of evidence supporting forfeiture).

(84) See supra note 10 and accompanying text.

(85) See supra notes 78-79 and accompanying text.

(86) See United States v. Doe, 465 U.S. 605, 618 (1984) (declaring that a later decision by the Court "sounded the death knell for Boyd") (O'Connor, J., concurring); G.M. Leasing Corp. v. United States, 429 U.S. 338, 356 (1977) (declining to follow Boyd "into rejection of the basic governing principle that has shaped Fourth Amendment law"); United States v. Miller, 425 U.S. 435, 440 n.1 (1976) (noting that the implications of Boyd has been severely "undercut" by subsequent cases).

(87) See supra notes 70-75 and accompanying text.

(88) See Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 368 (1998) (quoting United States v. Janis, 428 U.S. 433, 458 (1976)).

(89) See SEARCH AND SEIZURE, supra note 18, [section] 1.6, (noting that officers often prefer parole revocation hearings to a new prosecution since recommittal is procedurally easier to obtain).

(90) Scott, 524 U.S. at 374 (Souter, J., dissenting). Similar to parole revocations, most civil forfeitures are unaccompanied by criminal prosecutions. See discussion infra notes 110-114 and accompanying text (discussing studies that show the vast number of civil forfeitures which are followed by a decision not to prosecute for lack of evidence or even guilt).

(91) Scott, 524 U.S. at 370 (Souter, J., dissenting).

(92) Professor Craig M. Bradley illustrates this contention: "Scott is an open invitation to the authorities to violate the Fourth Amendment. While revocation hearings may be `informal' and `flexible,' the possible result is still imprisonment." See Bradley, supra note 10, at 90.

(93) See discussion infra Part IV.A (noting that civil forfeiture is important in part because officers have a financial stake in forfeited assets).

(94) See Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); United States v. Janis, 428 U.S. 433, 447 (1976); United States v. Calandra, 414 U.S. 338, 349-50 (1974) (providing examples in which the Court viewed the police activities as outside the officer's primary interest).

(95) See cases cited supra note 94 (explaining therein the Court's rationale for not applying the exclusionary rule, specifically as the activities were not traditional police work, the deterrent effect would be lost).

(96) See discussion infra Part IV.A.1 (noting studies concluding that, because of the financial stake, forfeiture of high-valued assets is a primary law enforcement objective).

(97) See discussion infra Part IV.A.1.a (explaining the various types of instructions police officers are provided in forfeiture cases).

(98) See discussion infra Part IV.B (discussing the social costs of the exclusionary rule and concluding that these costs, both in terms of the exclusion of unconstitutionally obtained evidence and the toll on administrative proceedings, are low).

(99) See, e.g., TEX. CRIM. PROC. CODE ANN. [section] 59.05(b) (Vernon Supp. 2001) (instructing that forfeitures shall proceed to trial "in the same manner as in other civil cases").

(100) See, e.g., LA. REV. STAT. ANN. [section] 40:2602 (West 2001) (outlining the jurisdiction and venue for proceedings in forfeiture); MASS. GEN. LAWS ANN. ch. 94C, [section] 47(c) (West 1985) (granting the court authority to order a forfeiture in the specific situations outlined); TEX. CRIM. PROC. CODE ANN. [section] 59.05(a),(b) (Vernon Supp. 2001) (mandating that forfeitures be subject to all the rules and provisions applicable to any other civil proceeding).

(101) See supra note 100 and accompanying text (describing several statutory provisions affording full judicial hearings in forfeiture cases).

(102) See United States v. Janis, 428 U.S. 433, 446 (1976) ("[T]he `prime purpose' of the rule, if not the sole one, `is to deter future unlawful police conduct.'") (citation omitted).

(103) See Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 367 (1998) (noting, in the analysis of police behavior, that the "remote possibility" that the victim of an illegal search is a parolee "surely has little, if any, effect on the officer's incentives"); see also Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1044 (1984) (discussing the reality of INS proceedings, primarily the fact that INS agents know that the lawfulness of their arrests are rarely challenged); Janis, 428 U.S. at 448-54 (discussing academic research and findings regarding the deterrent effects of the exclusionary rule in tax assessment cases).

(104) See discussion infra Part IV.A.1 (evidencing the importance of forfeiture by the distribution of manuals on forfeiture to police officers).

(105) See discussion infra Part IV.A.2 (describing the police policies which encourage the use of forfeiture by awarding the seized assets).

(106) See discussion infra Part IV.A.3 (noting that forfeiture is a "quasi-criminal" proceeding and therefore, police officers are likely to experience the same level of deterrence as that achieved in a full criminal context).

(107) Both courts and commentators have concluded that forfeiture is a major tool of the modern police officer. See Stephen S. Trott, Preface to U.S. DEP'T OF JUSTICE, FORFEITURES: INTRODUCTION TO CIVIL STATUTES 1 (1984) (stating that the forfeiture laws are increasingly relied upon to "combat and deter crime more effectively"); See also Nelson, supra note 29, at 1309 (recognizing that forfeiture is a popular tool used by police to combat drug trafficking). With the explosion of civil forfeiture use, however, evidence of abusive police practices has also come to light. See Civil Asset Forfeiture Reform Act: Hearing on H.R. 1916 Before the House Comm. on the Judiciary, 104th Cong. 19 (1996) (statement of King Cutkomp) (describing the forfeiture of his 75-year-old mother's life savings even though she had no part in any criminal activity); David Heilbroner, The Law Goes on A Treasure Hunt, N.Y. TIMES, Dec. 11, 1994 (Magazine), at 70, 72 (discussing a Louisiana police department's policy of targeting drivers who might be transporting drugs along with assets worth forfeiting).

(108) Heilbroner, supra note 107 (quoting Cary H. Copeland from a Congressional subcommittee investigating forfeitures).

(109) See Sharon Walsh, Give and Take on the Hot Issue of Asset Forfeiture, WASH. POST, Mar. 11, 1996, at F7, 1996 WL 3068475; see also H.R. REP. NO. 106-192, at 4 (1999) (reporting that in 1998 the Justice Department netted $449 million, and currently had on deposit 24,903 seized assets valued at a total of $1 billion).

(110) See Civil Asset Forfeiture Reform Act: Hearing on H.R. 1916 Before the House Comm. on the Judiciary, 104th Cong. 2 (1996) (statement of Ill., Henry J. Hyde, Chairman, House Comm. On the Judiciary) (giving examples of asset forfeitures in which the suspect was never charged with a crime and was most likely innocent); Drug Law Leaves Trail of Innocents; In 80% of Seizures, No Charges, CHI. TRIB., Aug. 11, 1991, at 1C, 1991 WL 9401304 (describing the seizure of over $9,000 from a man whose only overt act was the purchase of an airline ticket with cash).

(111) One commentator, Nelson, describes the law enforcement's motivations in civil forfeiture:
 There may be insufficient evidence to charge the property owner with a
 criminal offense. Or it may be that criminal charges were neither intended
 nor desired ... Whether there is insufficient evidence or insufficient
 desire to charge the claimant with the criminal offense underlying the
 forfeiture, it is clear that criminal conviction is simply one law
 enforcement goal among many, rather than a necessary adjunct to forfeiture.

Nelson, supra note 29, at 1328 (emphasis added). With eighty percent of forfeitures not resulting in even one arrest, the police are pursuing a significant level of activity that is not at all affected by criminal proceedings. See, e.g., 1 DAVID B. SMITH, PROSECUTION AND DEFENSE OF FORFEITURE CASES [paragraph] 1.03 (2001) ("[C]ivil forfeitures are the only sanction available to penalize persons who make their property available for criminal endeavors by others but who are not sufficiently involved in the criminal scheme to be prosecuted.").

(112) Nelson, supra note 33, at 1327.


(114) Id. at 6.

(115) Turner v. Dep't of Revenue, 643 So.2d 568, 569 (Ala. 1994); see also Jonas v. City of Atlanta, 647 F.2d 580, 587 (5th Cir. 1981) Both of these cases contend that because forfeiture is a penalty for violating criminal laws, the exclusionary rule may provide the same level of deterrence in this type of civil proceeding as in a criminal setting. See Turner, 643 So.2d at 569; Jonas, 647 F.2d at 587.

(116) United States v. 632-636 Ninth Ave., 798 F. Supp. 1540, 1551 (Ala. 1992).

(117) See infra notes 120,130 (describing several Department of Justice policy manuals and state materials that encourage forfeitures).

(118) See, e.g., LINDSEY D. STELLWAGEN, U.S. DEP'T OF JUSTICE, USE OF FORFEITURE SANCTIONS IN DRUG CASES 6 (1985) [hereinafter USE OF FORFEITURE SANCTIONS] (recommending that "State and local governments ... consider incorporating the forfeiture process into their standard law enforcement procedures"); DAVID B. SMITH & EDWARD C. WEINER, U.S. DEP'T OF JUSTICE, Introduction to CRIMINAL FORFEITURES UNDER THE RICO AND CONTINUING CRIMINAL ENTERPRISE STATUTES 1 (1980) ("It is official Department policy that forfeiture should be vigorously sought in every RICO or CCE prosecution where substantial forfeitable property exists....").


(120) See, e.g., INDIANA CENTER, supra note 113, at 6-7 (detailing drug unit performances in terms of asset forfeiture); see also ARTHUR J. SAVOY, III, N.Y. STATE DIV. OF CRIMINAL JUSTICE SERVS. AND OFFICE OF PUB. SAFETY, REPORT ON ASSET FORFEITURE 2-7 (1999) (summarizing forfeiture proceedings in New York state and providing monetary information on the seized property).

(121) See ASSET FORFEITURE AND MONEY LAUNDERING SECTION, CRIMINAL DIVISION, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE POLICY MANUAL ch. 1, para.I.B.2. (1996) (defining "pre-seizure planning" as deciding what property to seize, and when, and how to seize the property).

(122) See id. ch.1, para.I.C.1.(a)-(d) (noting that setting minimum federal thresholds encourages the use of state, as opposed to, federal forfeiture laws).

(123) Id. ch.1, para.I.C.1.(b),(d).

(124) See id. at ch.1., para.V. (outlining the various procedures for handling seized financial instruments, such as postal money orders and stocks).

(125) Id.


(127) Id.

(128) See, e.g., EXECUTIVE OFFICE FOR ASSET FORFEITURE, U.S. DEP'T OF JUSTICE, A GUIDE TO EQUITABLE SHARING OF FEDERALLY FORFEITED PROPERTY FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES App. G (1994) [hereinafter EQUITABLE SHARING] (setting forth law enforcement's "National Code of Professional Conduct for Asset Forfeiture" for state and local law enforcement agencies).

(120) Id. For other examples of policy manuals providing explicit instructions to police officers, see UNITED STATES MARSHALS ASSET FORFEITURE OFFICE, U.S. DEP'T OF JUSTICE, PERSONAL PROPERTY MANUAL App. G. (1999) (providing elaborate checklists for marshals to utilize prior to asset seizure in order to ensure the protection of the assets post-seizure).

(130) The depth of the literature provided to police on the issue of expanding asset forfeiture is amply demonstrated by a series of police policy booklets entitled ASSET FORFEITURE. See, e.g., POLICE EXECUTIVE RESEARCH FORUM, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE: STARTING FORFEITURE PROGRAMS: A PROSECUTORS' GUIDE (1992). This series of booklets, aimed at police officials, was published by the Police Executive Research Forum with funding from the Department of Justice. See Letter from Gerald P. Regier, Acting Director, U.S. Dep't of Justice, to Colleague reprinted in POLICE EXECUTIVE RESEARCH FORUM, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE: PROFILE FACTORS AFTER SOKOLOW 3 (1992) (describing the series as part of a "nationally focused technical assistance and training program to help state and local jurisdictions facilitate broader use of [forfeiture] laws"). The titles of the booklets in the ASSET FORFEITURE series demonstrate the depth of subjects on which police are being instructed relating to asset forfeiture. See generally POLICE EXECUTIVE RESEARCH FORUM, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE: HOW TO PRESENT THE FORFEITURE CASE TO THE PROSECUTOR (1993) (providing tools enabling prosecutors to work more closely with investigators, such as a series of questions that prosecutors routinely ask regarding forfeiture proceedings); POLICE EXECUTIVE RESEARCH FORUM, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE: TRACKING DRUG PROCEEDS: BANK SECRECY ACT REPORTS (1992) (discussing how to use federal financial disclosure forms to track drug assets); POLICE EXECUTIVE RESEARCH FORUM, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE: GUIDE TO PRESEIZURE PLANNING (1993) (offering a step by step instructional guide and detailed checklist for police prior to partaking in a forfeiture action); POLICE EXECUTIVE RESEARCH FORUM, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE: FORFEITURE OF REAL PROPERTY: AN OVERVIEW 10-12 (1992) (encouraging police through "Strategy and Policy Considerations" to "target assets as well as defendants"); POLICE EXECUTIVE RESEARCH FORUM, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE: INFORMANTS AND UNDERCOVER INVESTIGATIONS 8-10 (1992) (describing investigative steps to take which lead to forfeiture including "[m]ail [c]overs", giving information on letters sent and received, "[t]rash [a]nalysis", and "[p]ublic [r]ecords [a]nalysis"); POLICE EXECUTIVE RESEARCH FORUM, U.S. DEP'T OF JUSTICE, ASSET FORFEITURE: PROTECTION OF THIRD-PARTY RIGHTS 7 (1992) (describing the nature of third party rights in forfeited property and noting that some persons with interests in forfeited property, such as leinholders or joint tenants, are innocent).

(131) See LEONARD W. LEVY, A LICENSE TO STEAL: THE FORFEITURE OF PROPERTY 106-117 (1996) (highlighting the legislative history of such statutes as RICO and CCE, and culminating with an account of the passage of the Comprehensive Forfeiture Act).

(132) Pub. L. No. 91-513, 84 Stat. 1276, [section] 511 (codified as amended at 21 U.S.C. [section] 881 (1994 & Supp. V 1995-2000)).

(133) Blumenson & Nilsen, supra note 9, at 44.

(134) Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (codified as amended at 21 U.S.C. [subsection] 801 et seq (1994 & Supp. V 1995-2000)).

(135) Blumenson & Nilsen, supra note 9, at 44. These amendments have included such additions as: "[P]roceeds traceable to drug transactions ... and in 1986 Congress promulgated a `substitute assets' law allowing property of equal value to be forfeited in place of forfeitable assets that are no longer available." Id. at 45. "Today cash, bank accounts, jewelry, cars, boats, airplanes, businesses, houses, and land are all fair game." Id.

(136) Organized Crime Control Act of 1970, ch. 96, 84 Stat. 941, 941 (codified as amended at 18 U.S.C. [subsection] 1963-1964 (1994 & Supp. V 1995-2000)) (providing that the court shall, in addition to a sentence, allow the seizure of property subject to criminal forfeiture).

(137) Nelson, supra note 33, at 1314.

(138) Perhaps the most expansive change in forfeiture law was a 1984 amendment to the Comprehensive Drug Abuse Prevention and Control Act that allowed federal law enforcement agencies to retain the assets they seize. See Comprehensive Forfeiture Act of 1984, Pub. L. No. 98-473, 98 Stat. 2040, 2050 (codified as amended at 21 U.S.C. [section] 881, [section] 881(a)(7) (1994)) (providing forfeiture of all property used to commit or facilitate a felony). This financial incentive in forfeiture law will be discussed infra notes 156-171 and accompanying text.

(139) See Blumenson & Nilsen, supra note 9, at 52 n.66 (comparing the various state policies on the distribution of forfeited assets); see generally Cheh, supra note 12, at 1326 (noting that states are using civil forfeiture in such areas as "drug trafficking, weapons possession, and racial harassment").

(140) State v. Person, 699 N.E.2d 783, 785-86 (Ind. Ct. App. 1998) (reversing the award of attorney's fees to the defendant in an unsuccessful asset forfeiture proceeding).

(141) Blumenson & Nilsen, supra note 9, at 110.

(142) Review of Federal Asset Forfeiture Program: Hearing Before the House Legislation and National Security Subcomm. of the House Comm. on Gov't Operations, 103rd Cong. 74-75 (1993) (statement of Cary H. Copeland, Dir. And Chief Counsel, Exec. Office for Asset Forfeiture, Office of the Dep. Attorney Gen.).

(143) Trott, supra note 107.

(144) The Civil Asset Forfeiture Reform Act of 2000, which was introduced by Representative Henry Hyde and intended to curb some of forfeiture's well-publicized abuses, undercut some of the legislative encouragement of forfeiture. Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 (codified at 18 U.S.C.A. [section] 983 (West 2001)). This statute provides the following:
 (1) [R]equire[s] the federal government to prove that seized property is
 related to a crime; (2)[C]reate[s] an `innocent owner' defense, to allow
 property owners who are unaware of the criminal activity associated with
 their property to recover their assets; (3) [P]rovide[s] indigent
 defendants with appointed counsel; and (4) [E]liminate[s] the cost bond
 required of owners to contest the seizure in court.

See U.S. House Overwhelmingly Approves Civil Asset Forfeiture Reform Bill, NEWS BRIEF, This statute, which aims only at abuse of civil forfeiture, does not necessarily indicate a legislative desire to curtail the use of forfeiture as a policing device.

(145) See J. Mitchell Miller & Lance H. Selva, Drug Enforcement's Double-Edged Sword: An Assessment of Asset Forfeiture Programs, 11 JUST. Q. 313, 321-331 (1994) (suggesting that, based on the observations of undercover sting operations, the objective of asset forfeiture programs has shifted from drug enforcement to the generation of income).

(146) Id. at 321.

(147) See id. (observing that a primary function of a confidential informant is simply to interact with potential suspects in order to develop a potential sting operation).

(148) See id. (stating that the researcher's range of experiences ran from county sheriffs departments to state wide operations).

(149) Id. at 331 (emphasis added).

(150) Id. at 323.

(151) See id. at 324 (explaining that the truck owned by the factory worker had greater potential profit for the police than the sports car owned by the professional dealer because the truck was owned outright thus "earning" more equity).

(152) See id. at 325 (noting that the researcher was given the directive to only accept exchanges that involved a certain minimum amount of money or narcotics).

(153) Id. at 326.

(154) Id.

(155) Id. at 332 (citation omitted).

(156) See Blumenson & Nilsen, supra note 9, at 40 (attributing the police attraction to drug enforcement to the availability of funds from federal grants and to the possibility of asset retention). Justice Scalia has argued for a closer analysis of police conduct when officers have a financial stake in a transaction: "[I]t makes sense to scrutinize governmental action more closely when the State stands to benefit." Harmelin v. Michigan, 501 U.S. 957, 979 n.9 (1991).

(157) See Blumenson & Nilsen, supra note 9, at 40. At least these two commentators believe that financial incentives have changed narcotics enforcement over the past twenty years:
 [T]hese programs have distorted governmental policy-making and law
 enforcement. During the past decade, law enforcement agencies increasingly
 have turned to asset seizures and drug enforcement grants to compensate for
 budgetary shortfalls, at the expense of other criminal justice goals. We
 believe the strange shape of the criminal justice system today--the law
 enforcement agenda that targets assets rather than crime, the 80 percent of
 seizures that are unaccompanied by any criminal prosecution, the plea
 bargains that favor drug kingpins and penalize the "mules" without assets
 to trade, the reverse stings that target drug buyers rather than drug
 sellers, the overkill in agencies involved even in minor arrests, the
 massive shift towards federal jurisdiction over local law enforcement--is
 largely the unplanned by-product of this economic incentive structure.

Id. (footnotes omitted).

(158) See 21 U.S.C. [section] 881(a) (1994 & Supp. 1995-2000) (listing certain types of items, including drug manufacturing products and equipment that are subject to forfeiture in the United States).

(159) Comprehensive Forfeiture Act of 1984, Pub. L. No. 98-473, 98 Stat. 2040, 2052 (codified as amended at 28 U.S.C. [section] 524, [section] 524(c)(1)).

(160) 28 U.S.C. [section] 524(c)(4)(A).

(161) 28 U.S.C. [section] 524(c)(1)(A)-(I).

(162) 28 U.S.C. [section] 524(c)(1)(I). See also 21 U.S.C. [section] 881(e)(1) ("Whenever property is civilly or criminally forfeited under [the general federal forfeiture statute], the Attorney General may ... retain the property for official use ...").

(163) See Blumenson & Nilsen, supra note 9, at 52 n.66 (indicating, however, that state law often provides for a less lucrative scheme than federal law, sometimes requiring the allocation of seized funds, among various state agencies or payment of a portion of the assets into a common fund).

(164) 42 U.S.C. [section] 3796dd-3 (1994) (providing for the use of funds from the equitable sharing program for state and local government projects and activities).

(165) See EQUITABLE SHARING, supra note 128, at 2.

(166) See id. at 3 (noting that a state agency has thirty days from the date property was seized to request federal adoption).

(167) Nelson, supra note 33, at 1325. His article also notes how California law enforcement officers commonly elude state limits on the retention of forfeited assets by allowing federal authorities to "adopt" their forfeitures. Id. at 1329-30.

(168) Gregory Y. Porter, Note, Uncivil Punishment: The Supreme Court's Ongoing Struggle with Constitutional Limits on Punitive Civil Sanctions, 70 S. CAL. L. REV. 517, 564 n.241 (1997).

(169) Nelson, supra note 33, at 1310. See also Miller & Selva, supra note 141, at 320 ("Narcotics enforcement is becoming a business, in which officers and equipment are allocated so as to maximize profits rather than to control or eradicate drugs.").

(170) Blumenson & Nilsen, supra note 9, at 65 n. 110 (citation omitted).

(171) United States v. James Daniel Good Real Property, 510 U.S. 43, 56 n.2 (1993) (alteration in original) (emphasis added). As some commentators have noted, state officials are equally motivated by the potential financial benefits of forfeiture: "According to the Deputy Attorney General for the State of California, `[T]he formula for the distribution of proceeds to law enforcement is a determining factor in motivating forfeiture-focused investigations and in choosing the forum for conducting forfeiture proceedings.'" Blumenson & Nilsen, supra note 9, at 54 n.69 (quoting Gary Schons, Fighting Drugs with Drug Money, DICTA: THE LAWYER'S MAGAZINE, Dec. 1998, at 7, 40).

(172) See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 697 (1965). One Plymouth Sedan's holding may be in question because of its reliance on Boyd v. United States, 116 U.S. 616 (1886). The primary holdings of Boyd have been eroded by subsequent cases. See discussion supra notes 82-88 and accompanying text. The key feature of One Plymouth Sedan's reliance on Boyd, however, is its emphasis on Boyd's determination that civil forfeitures are generally "quasi-criminal" in nature. See One Plymouth Sedan, 380 U.S. at 697. One Plymouth Sedan does not rely on Boyd's more general Fourth and Fifth Amendment proclamations. See Boyd, 116 U.S. at 633 (discussing the Fourth and Fifth Amendments and their practical similarity when a person's private books or papers are to be used as the basis for condemnation). This position is distinct from the discussion concerning the quasi-criminal nature of forfeiture proceedings that follow. Therefore, the notion of forfeiture as "quasi-criminal" has not been damaged by the latter treatment of Boyd. The mere fact that some of Boyd's assertions are no longer good law should not affect One Plymouth Sedan's reliance on wholly separate parts of Boyd.

(173) See discussion supra notes 76-83 and accompanying text.

(174) See United States v. Calandra, 414 U.S. 338, 348 (1974) (expressing the greatest need for deterrence and a rationale for the exclusionary rule is when a person is facing criminal sanctions).

(175) One Plymouth Sedan, 380 U.S. at 700.

(176) See Porter, supra note 168, at 523 (viewing the Supreme Court's most recent posture as a "policy-driven decision" that seeks to enlarge the state's ability to pursue forfeitures). Compare United States v. Ursery, 518 U.S. 267, 292 (1996) (holding that civil forfeiture is not criminal punishment for purposes of the Double Jeopardy Clause) with Austin v. United States, 509 U.S. 602, 622 (1993) (holding that forfeiture is a form of punishment and therefore, the Excessive Fines Clause applies to civil forfeitures). Whether civil forfeiture is in fact quasi-criminal is somewhat irrelevant under modern forfeiture analysis because of the modern emphasis on deterrence and social costs. It is also a question beyond the scope of this Article. However, the fact that civil forfeiture is arguably quasi-criminal is evidence that the exclusionary rule in such proceedings will produce deterrence.

(177) See, e.g., ARIZ. REV. STAT. ANN. [section] 13-4311, 13-4312 (West 2001) TEX. CRIM. PROC. CODE ANN. [section] 59.05(a) (Vernon 2001).

(178) State v. Person, 699 N.E.2d 783, 786 (Ind. Ct. App. 1998) (quoting United States v. Ursery, 518 U.S. 267, 284 (1996)).

(179) IOWA CODE ANN. [section] 809.1(3) (West 1994) (providing that seized property may be held by law enforcement without the owner's consent).

(180) [section] 809.1(1)(a).

(181) See, e.g., MD. CODE ANN., PUBLIC GEN. LAWS [section] 297(i)(1)(i) (Supp. 2000) (providing for motor vehicle seizure and a recommendation of forfeiture when the vehicle has been involved in the sale, or attempted sale, of controlled substances); 21 U.S.C.A. [section] 881(a)(1) (West 1999) (denying any individual property right in controlled substances and subjecting them to forfeiture).

(182) See Boyd v. Hickman, 689 A.2d 106, 111 (Md. Ct. Spec. App. 1997) (describing Maryland's drug forfeiture law as purposefully harsh in order to impede drug trafficking by depriving traffickers of any instrument used in connection with the sale and use of drugs); see also Prince George's County v. Blue Bird Cab Co., 284 A.2d 203, 207 (Md. 1997) (characterizing the drug trade as a plague, and describing the forfeiture laws as a necessary attempt to control its spread).

(183) Again, whether civil forfeiture statutes are actually quasi-criminal is beside the point in the Court's modern analysis. However, the Court itself in One Plymouth Sedan referred to the punitive nature of forfeiture proceedings. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 701 (1965) (acknowledging that, in at least some instances, the value of property forfeited may well exceed the maximum fine of a criminal proceeding).

(184) See Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 364 (1998) (referring to the burdens the exclusionary rule would place on the functions of state parole systems); Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1048 (1984) (weighing the need for a swift resolution of a large amount of deportation actions against the social costs of the exclusionary rule).

(185) See, e.g., In Re U.S. Currency in the Amount of $26,980.00, 18 P.3d 85, 90 (Ariz. Ct. App. 2000) (requiring the return of funds that had been seized by police because the state failed to carry its burden of showing that the funds were traceable to illegal activity).

(186) See Ware v. Greene, 984 S.W.2d 610, 613 (Tenn. Ct. App. 1998) (asserting that even though the exclusionary rule is equally applicable in both criminal and civil forfeiture proceedings, the rule itself does not prohibit the admission of evidence attained by means other than those subject to constitutional scrutiny).

(187) Blumenson & Nilsen, supra note 9, at 48-49 (emphasis added). See also SMITH, supra note 107, [paragraph] 1.03, at 1-33 ("Criminal defense attorneys confronting their first civil forfeiture case feel like they are in an Alice-in-Wonderland world where the property owner generally has the burden of proof...."); George C. Pratt & William B. Peterson, Civil Forfeiture in the Second Circuit, 65 ST. JOHN'S L. REV. 653, 665 (1991) (listing burden shifting, low standards of proof, and the limited number of affirmative defenses as standard procedure in civil forfeiture hearings).

(188) 18 U.S.C.A. [section] 983 (West Supp. 2001)

(189) See 18 U.S.C.A. [section] 983(c)(1) (shifting the burden to the government to prove a substantial connection between the property and the alleged criminal offense).

(190) See, e.g., S.C. CODE ANN. [section] 44-53-586(B) (Law Co-op. 1985) (requiring that an owner demonstrate certain factors to the court by a "preponderance of the evidence" to prove innocent ownership).

(191) See Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 366 (describing these proceedings as informal and thus not subject to the rules of evidence).

(192) See id. (noting that another cost of the exclusionary rule would be an increase in litigation in order to determine whether the evidence must be excluded).

(193) See, e.g., MD. CODE ANN., PUBLIC GEN. LAWS [section] 297(h)(1) (Supp. 2000) (stating that the general rule is to commence the proceedings in Federal Circuit Court). The Maryland forfeiture statute is particularly relevant because a Maryland court has openly questioned whether forfeiture remains a quasi-criminal action. See One 1995 Corvette, 706 A.2d at 45 (reading the holding in One Plymouth Sedan more narrowly and declining to apply the exclusionary rule to a decidedly civil, in rem proceeding). This holding, however, was reversed in One 1995 Corvette v. Mayor and City Council of Baltimore, 724 A.2d 680 (Md. 1999) (expressly applying the exclusionary rule to these particular in rem proceedings).

(194) See MD. CODE ANN., PUBLIC GEN. LAWS [section] 297(h)(3) (Supp. 2000) (requiring such items as the names of any lien holders and a statement of facts to be listed in the complaint); see also [section] 297(h)(4) (requiring process to be served and a detailed notice to be provided to the defendant within twenty days of filing the complaint). The Civil Asset Forfeiture Reform Act of 2000 goes one step further by authorizing paid counsel for property owners in some contexts. See 18 U.S.C.A [section] 983, [section] 983(b)(1)(A) (West Supp. 2001) (providing counsel to those who are financially unable to retain private counsel).

(195) United States v. James Daniel Good, 510 U.S. 43, 48-49 (1993).

(196) See Mapp v. Ohio, 367 U.S. 643, 657 (1961) (describing the exclusionary rule as "essential" and a "logical dictate" without which the Court would promote violation of the Constitution).

(197) See SEARCH AND SEIZURE, supra note 18, at 187 (noting that an illegal search does not require the return of property that is "inherently unlawful", such as narcotics or profits from criminal activity).

(198) See Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 368 (stating that police officers would not be deterred by the suppression of evidence in an administrative hearing, since these are outside the primary area of police interest and objectives); see also United States v. Calandra, 414 U.S. 338, 351 (1974) (noting that "any incremental deterrent effect" certainly does not outweigh the burden on the grand jury process).

(199) See United States v. Janis, 428 U.S. 433, 454 (1976) (considering the deterrent effect to be especially low because of the inter-sovereign nature of the case).

(200) See Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1045 (1984) (reasoning that at least in deportation hearings, deterrence value is difficult to assess since there were alternative remedies of which the INS could employ).

Mark J. Crandley, Law Clerk to the Hon. Frank Sullivan, Jr., Indiana Supreme Court. I am deeply indebted to Justice Sullivan for all he has taught me. I would like to thank Prof. Craig Bradley for both his useful comments on this article and his tutelage when I was his student at the Indiana University School of Law. I also wish to thank Brian Bailey, clerk to the Hon. John Baker of the Indiana Court of Appeals, and David Neboyskey, associate at Winston & Strawn, for taking the time to read this piece. As always, I owe much to my wife, Amanda Hewitt.
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