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Forfeiture Victory for Police: They Can Seize and Keep Assets Even In an Illegal Search Says Texas Supreme Court

Texas law allows the police to take property from someone even if the property owner is never charged, much less convicted of a crime. This is called “civil forfeiture,” it’s allowed under Tex. Code Crim. Proc. Ann. arts. 59.01-.14 et seq., and we’ve discussed this several times before.

Lots of people are against civil forfeiture actions by law enforcement. Lots of people think it’s unconstitutional. Lots of people think it’s a shield that allows police to steal property without due process in order to meet their annual budget and cash flow needs.

And police departments DO depend upon forfeiture property in order to make ends meet. That’s not in dispute.

New Opinion From Texas Supreme Court on Forfeiture

There was a case coming up out of Houston that was a legal challenge to this forfeiture practice by police, and the Court of Appeals down in Houston ruled against the police practice and ordered the property returned to its owner.

The case was appealed to the highest civil court in the state, the Texas Supreme Court, and fingers were crossed that the high court would bring a halt to this forfeiture free-for-all by police departments.

Maybe we would end up like New Mexico, where no property could be seized and kept by law enforcement unless and until there was a criminal conviction against its owner. Sounds fair, right?

Well, no. This month, the police had a major victory.

The Texas Supreme Court issued its opinion in the case of State v. ONE (1) 2004 LINCOLN NAVIGATOR, VIN# 5LMFU27RX4LJ28242, No. 14-0692 (Tex. June 10, 2016) — and reversed the ruling of both the trial court judge and that Houston appellate court.

Happy police.




Miguel Herrera’s 2004 Lincoln Navigator

The case began several years ago down in Corpus Christi, in the parking lot of a pool hall called Rack Daddy’s. A snitch told a trooper with the Texas Department of Public Safety (DPS) that he had set up a drug buy in this parking lot and that this drug dealer would be carrying “an unknown amount of drugs” in his vehicle. Yes, it’s a bit like TV here — the snitch was helping the police because he had pending charges against him and he was trying to help himself get around those charges by setting up this sting.

Back to that parking lot. The DPS Troopers were watching as a white 2004 Lincoln Navigator driven by a Hispanic male entered Rack Daddy’s and parked. No one got out of the vehicle. A DPS Trooper drove the snitch past the Navigator and the snitch said that this was the guy he was supposed to meet.

The snitch and his trooper drove on — and then 4 other DPS officers went up to the SUV. They would later testify that the driver had not committed any crime that they could see, not even a traffic violation. No officer pulled their guns; the driver was asked to get out of his vehicle, which he did, and one of the troopers patted him down.

Another officer searched the “reachable area” of the Navigator, around the driver’s seat. He found a hidden compartment in the floor near the center console, and the man, identified as Miguel Herrera, was arrested for being a felon in possession of a firearm.

DPS then seized the 2004 Lincoln Navigator and drove it to their impound lot where they did another search. They found another hidden compartment in the center console. Inside of it, there were several baggies of cocaine as well as pills. They kept the drugs and they kept the SUV. Title was even transferred from Miguel Herrera to the State of Texas.

In the criminal matter, Miguel Herrera filed a motion to suppress all the evidence that had been discovered in these police searches of the vehicle, because what had happened was an illegal traffic stop, arrest, or search in violation of the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure.

The trial court granted that motion. All criminal charges against Miguel Herrera were dismissed.

Over in the civil system, the State of Texas filed a civil petition for forfeiture under Tex. Code Crim. Proc. Ann. arts. 59.01-.14 et seq., asking for a civil judgment that the state could keep the Lincoln Navigator. The State of Texas lost and the trial judge ordered possession and title of the SUV returned to Miguel Herrera.

So, the State of Texas appealed that civil forfeiture loss to the Houston Court of Appeals. They lost again.

Then they took the case up to the Texas Supreme Court, where they have just scored a big fat victory.

It was an illegal search and seizure, no conviction — all charges dismissed — but the police get to keep that Lincoln Navigator anyway.

Police in Texas Can Keep Seized Property Even After An Illegal Search

Here’s why this case is a big, big deal. According to the opinion in State v. ONE (1) 2004 LINCOLN NAVIGATOR, VIN# 5LMFU27RX4LJ28242, No. 14-0692 (Tex. June 10, 2016), a law enforcement agency in Texas — a police department, a deputy sheriff’s office, the Department of Public Safety, etc. — can seize and keep assets even when their officers have VIOLATED THE CONSTITUTION AND STATE LAW by conducting an illegal search.

Now, the Houston appeals court had taken the position the the Texas Code of Criminal Procedure shouldn’t be used and cannot be used to allow the state to file a civil forfeiture action when the assets were seized in an illegal search. Makes sense, right?

The Texas Supreme Court nixed that opinion. Reversed it.

The Texas Supreme Court held that a civil court can’t sanction the police in civil proceedings for illegal searches in a criminal action. In legalese, the case holds (and this is new law) that the “exclusionary rule” does not apply in civil forfeiture cases.

What? Why? They do give their reasoning.

The exclusionary rule exists to punish bad police behavior, and that “punishment” occurred when the defendant’s motion to suppress was granted and the criminal case was dismissed. Barring that civil case to keep the Lincoln Navigator? That would punish the police a second time — and that’s not fair, in their view.

What Happens Now?

With this new law in Texas, because the opinion of the highest civil court in the state sets the law here, police are given great comfort in their ability to seize assets EVEN IF THEY ILLEGALLY STOP, SEARCH, AND SEIZE THEM.

It’s easy to imagine all sorts of scenarios where police officers can focus upon some specific individual and stop them as they wish, because they will be able to keep the assets they seize EVEN IF THEY KNOW THE CRIMINAL CASE WILL BE DISMISSED FOR AN ILLEGAL SEARCH AND SEIZURE.

Here’s the thing. When Miguel Herrera’s 2004 Lincoln Navigator was taken by the police, and KEPT, that was a criminal punishment on him. HE LOST HIS VEHICLE.

Right now, criminal prosecutors and local police departments are being allowed to skip over from the criminal system into civil courts and punish defendants they can’t make a case against by taking and keeping their stuff via civil forfeiture laws.

And they’ve got a Golden Ticket to do it now.

For more information on civil forfeiture, read our web resources as well as Michael Lowe’s Case Results and check out his  article,


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