Texas refuses to follow One 1958 Plymouth and holds that the exclusionary rule doesn’t apply to civil forfeiture cases

Texas refuses to follow One 1958 Plymouth and holds that the exclusionary rule doesn’t apply to civil forfeiture cases because there is no deterrence rationale and it’s a dated case; i.e., pre-Herring. State v. One (1) 2004 Lincoln Navigator, 2016 Tex. LEXIS 479, 59 Tex. Sup. J. 1103 (June 10, 2016), rev’g State v. 2004 Lincoln Navigator, 2014 Tex. App. LEXIS 9557 (Tex. App. – Corpus Christi Aug. 28, 2014). [There are concurrences, but it’s effectively unanimous. Moreover, I disagree with the lack of deterrence because the seizure for forfeiture is immediate, before booking, and it’s part and parcel of the police arsenal to punish the defendant before trial; that along with a high bail. Besides, the police help finance their drug enforcement operations with forfeitures, even when there’s no prosecution. It’s contingent fee law enforcement. And finally, this case got by me initially in my daily document dump because the key words were missing. I stumbled on it by accident doing citation checks for the next supplement, and I saw no news stories on it. Finally, since this case distinguishes One 1958 Plymouth, it’s certworthy.]

And the deterrence rationale—at least as it relates to civil forfeiture in Texas—is marginal at best. Most importantly, the Fourth Amendment and state exclusionary rule together apply to broadly exclude illegally obtained evidence in the criminal-law context. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 86 Ohio Law Abs. 513 (1961) (applying U.S. Const. amend. IV); Code Crim. Proc. art. 38.23. Thus, “local law enforcement official[s] [are] already ‘punished’ by the exclusion of [illegally obtained] evidence in [both] state … [and] federal criminal trial[s], … so that the entire criminal enforcement process, which is the concern and duty of these officers, is frustrated.” See Janis, 428 U.S. at 448.6 “If the exclusionary rule is the ‘strong medicine’ that its proponents claim it to be, then its use in [the criminal-law context] must be assumed to be a substantial and efficient deterrent.” Id. at 453. Given this “substantial and efficient deterrent,” any additional deterrence provided by also applying the rule in the civil-forfeiture context is marginal and “surely does not outweigh the cost to society of extending the rule to that [context].” See id. at 453-54.

Herrera argues that the Supreme Court’s decision in One 1958 Plymouth Sedan v. Pennsylvania, where the Court held that the exclusionary rule applied to a civil-forfeiture statute that was “criminal in nature,” compels a different conclusion. See 380 U.S. 693, 697-98, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965). We disagree. The forfeiture provision in Plymouth Sedan “requir[ed] the determination that the criminal law ha[d] been violated.” See id. at 701. This, in addition to the fact that the forfeiture could “result in even greater punishment than the criminal prosecution,” led the Court to find that “the forfeiture [was] clearly a penalty for the criminal offense.” See id. at 700-01. The Court thus considered that civil-forfeiture provision “criminal,” id.8—even noting 10 years later that it “never has applied [the exclusionary rule] to exclude evidence from a civil proceeding, federal or state,” Janis, 428 U.S. at 447. In Janis, the Court confirmed a narrow reading of Plymouth Sedan, explaining that it had “expressly relied on the fact that ‘forfeiture is clearly a penalty for the criminal offense.'” See id. at 447 n.17 (quoting Plymouth Sedan, 380 U.S. at 701). And “[a]lthough there is language in [the Court’s] cases to the contrary,” it has made clear that “civil in rem forfeiture is not punishment of the wrongdoer for his criminal offense.” See United States v. Ursery, 518 U.S. 267, 293, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996) (Kennedy, J., concurring) (citing Plymouth Sedan, 380 U.S. at 700).

Importantly, moreover, the legal and jurisprudential landscapes have changed significantly since Plymouth Sedan was decided in 1965, weakening some of the opinion’s underpinnings. For one thing, Plymouth Sedan was decided at “a time when [the Supreme Court’s] exclusionary-rule cases were not nearly so discriminating in their approach to the doctrine,” yet more recently the Court has “abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” See Davis, 564 U.S. at 237, 238. Thus, the Court’s more recent jurisprudence, and its now well-established cost-benefit analysis, controls our analysis. And, as discussed, the “deterrences against [illegal searches] are substantial—incomparably greater than the factors deterring warrantless entries when Mapp [and Plymouth Sedan] [were] decided.” See Hudson, 547 U.S. at 599.

Finally, in Plymouth Sedan, the forfeiture proceeding’s “object, like a criminal proceeding, [was] to penalize for the commission of an offense against the law.” See 380 U.S. at 700. Chapter 59 forfeitures, on the other hand, are expressly civil and non-punitive; indeed, “[i]t is the intention of the legislature that asset forfeiture is remedial in nature and not a form of punishment.” See Code Crim. Proc. art. 59.05(e) (emphasis added). Article 59.01(2)(B) defines as contraband items “used or intended to be used in the commission of” specific crimes. While this provision certainly relates to criminal activity, it does not require any proof that a person committed a crime—it only requires that the state prove by a preponderance of the evidence that the property is contraband. See id. arts. 59.01(2), 59.02(a), 59.05(b). In other words, “[a] [Chapter 59] civil[-]forfeiture action is an in rem proceeding against contraband,” not a quasi-criminal proceeding against a person. See State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004) (per curiam) (emphasis added); Code Crim. Proc. art. 59.05(d) (“A final conviction for an underlying offense is not a requirement for forfeiture under this chapter.”). In light of the Court’s more recent jurisprudence narrowly confining the exclusionary rule to those criminal cases where it has actual deterrent value, therefore, we hold that the exclusionary rule does not apply to Chapter 59 proceedings. In this context, because “suppression [of illegally-seized evidence under Chapter 59] fails to yield ‘appreciable deterrence,'” constitutional exclusion is unwarranted. See Davis, 564 U.S. at 237.


In addition, Chapter 59 does not effectively import an exclusionary rule. Chapter 59 provides that “[i]f the court finds that all or any part of the property is subject to forfeiture, the judge shall forfeit the property to the state.” Code Crim. Proc. art. 59.05(e) (emphasis added). As already noted, “contraband” is “subject to … forfeiture,” id. art. 59.02(a), and includes any property “used or intended to be used in the commission of … any felony under [the] Texas Controlled Substances Act,” id. art. 59.01(2)(B)(i). A forfeiture proceeding “proceed[s] to trial in the same manner as in other civil cases,” and “[t]he state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture.” Id. art. 59.05(b). While article 59.04 contains various notification and procedural requirements with which the state must comply before a judge allows the forfeiture proceeding to move forward, id. arts. 59.04(a)-(l), for forfeiture to be proper, the statute requires only that the state prove by a preponderance of the evidence that the property at issue is contraband.

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