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Originally Posted by smooth
I keep reading references to standards of proof that lead me to believe that a number of you are not making adequate distinction between civil proceedings and criminal ones.
This practice, of seizing assets, has been around for almost a decade. It's a civil proceeding, as are civil gang injunctions. My friend researches the latter, and we both see these types of proceedures as end-arounds to "flip" suspected criminals into the less protected domain of the civil court systems.
So if that means that narco-traffickers get their bling jacked and bangers can't hang at the local parks, it also means that ordinarily law abiding people need to pay particular attention to their conduct to not be swept up in a net they demanded be employed.
These public policies were reponses to a public demand during the hayday of public outcry about a (mythical) lenient criminal justice system. They were implemented over and above the objections of experts. Crime touches people in both tangible and gut level ways--and it often results in public responses that have no basis in sound responses that have been tested empirically.
Civil forfeiture, gang injunctions, 3 strikes, measure 11, mandatory minimum sentences, the new spate of anti-sex crime legislation that was until recently trumpeted as necessary and sufficient to address molestations, STEPping gang members, extending the RICO Act to gang members and drug traffickers (not to mention the empirically debunked link between traditional street gangs and narcotic trafficking) are all products of public hysteria over problems that either don't exist to the extent believed or produce much worse consequences than they hope to resolve.
BOTTOM LINE: public pressure on government to successfully prosecute drug traffickers, and failing that to at least disrupt their ability to conduct business as usual, created a situation that might possibly entangle law-abiding citizens...so don't moan about tyrannical government entities when they are merely responding to the demands of the people...
...and as someone who's been there and done "that," his story sounds like horseshit. but I don't begrudge him from trying and if he can muster up enough BS to win his money back all the power to him.
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Smooth, this and your other posts do a good job of covering the waterfront on this issue. I have just a few thoughts to add:
1. If the guy had refused to consent to a search, the speeding offense probably would have been converted into a reckless driving charge or other offense requiring that he be taken into custody. Then, of course, to "protect" the guys's property, there would have been a search of the vehicle when it was impounded and the money would have been legally discovered anyway.
2. What bugs me most about this isn't the big picture (albeit admittedly it's problematic here to strike a balance between individual property rights and government interests in a way that will satisfy everybody), it is that the Court of Appeals, under the rubic of "mixed question of law and fact", uses a de novo standard of review, and in so doing, gives lip service to a "clear error" standard as to predicate facts, but then doesn't apply it. The dissent properly points out that no evidence was admitted to dispute claimants' plausible explanation of the situation, which the District Court obviously accepted. It is one thing to disagree, and another to find that the explanation was "clear error" on the part or the District Court, which had the benefit of weighing the credibility of the witnesses.
This has happened too much in my experience, and even where the result was to my advantage, it creates confusion and unpredictability in attempting to ascertain potential outcomes of cases in our legal system.