That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest. A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Indostan, under appellations proverbial of the most compleat despotism.
–James Madison March 29, 1792
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, …
-4th Amendment to the United States Constitution Passed 1789, ratified 1791.
Civil Asset Forfeiture: when property is seized by law enforcement under suspicion it was obtained or used in criminal act (s).
Criminal Asset Forfeiture: is when property is seized by law enforcement from a person who has been convicted of a crime and that property is directed related to the crime.
Civil Asset forfeiture is considered a case against the property, and not the person in ownership of the property. As such in civil matters the courts have adopted lower standards for burden of proof. Leonard vs. Texas shows that the State of Texas was operating under a preponderance of evidence –the lowest burden of proof. Consequently, Clarence Thomas eviscerated this practice by Texas citing their precedence as outdated, and that the burden of proof should be set at beyond a reasonable doubt –the highest burden of proof.
Since September 11, 2001, 61, 998 assets forfeitures have been committed without a warrant or indictment. Asset forfeiture began to take off in the 1980’s as official war was declared on drugs (sounds like the excuse for mandatory sentencing). Previous to this time the seizure of assets was primarily a maritime issue in regards to importation of goods. The laws that Texas cited for precedence were about seizing illegal imports and pirate’s booty. In those times the logistics of bringing the owners into a courtroom were at times impossible as they could continents away and never return. Effectively there is no need for asset forfeiture to have such a low burden of proof considering the technological advances of the world: the owner of the property can make it to court, and the property can be seized after the case.
Legally there is precedence for taking property that was party to a crime, especially money. It is when that practice is turned upon innocent citizens and used to strip them of their property that we begin to enter the despotism warned by James Madison. Pulling someone over for a minor infraction –which is being taught in law enforcement communities- and then searching their vehicle by manipulating the law to seize their property through more manipulation is corruption of the utmost.