The Fourth Amendment blocks the federal government from engaging in the unreasonable search and seizure of private property without due process. At least, that’s the theory.
In reality, the government does plenty to undermine the Fourth Amendment on a regular basis. Much of the focus has been warrantless wiretapping of late, with the Obama administration being a big fan of listening in. He wasn’t the first, nor will he be the last.
However, there’s another Fourth Amendment issue that gets remarkably little press, and that’s civil asset forfeiture. That’s where the government can take your property because, ostensibly, they believe it was being used in certain kinds of crime. However, there are some serious problems.
Two years ago, Gerardo Serano – an American citizen, Kentucky farmer and a one-time GOP Kentucky statehouse candidate – was driving his brand new, $60,000 Ford F-250 pick-up truck to visit relatives in Mexico, snapping pictures along the way, when Customs and Border Patrol agents halted him at the border, demanded his cell phone, and asked him why he was taking pictures.
“I just wanted the opening of the bridge. I was gonna take the opening of the bridge, the entrance of the bridge. That’s all I wanted to do,” Serano told Fox News.
As a self-proclaimed student of the Constitution, Serano said he knew his rights, and protested to Customs and Border Patrol agents vehemently when they asked him to unlock his phone.
“You need a warrant for that,” he says he told them. They searched his truck and found five bullets in a magazine clip that Serano, a Kentucky concealed carry permit holder, forgot to remove before leaving his home.
“We got you,” he says border agents told him. He was detained, but never arrested, nor charged, nor tried, nor convicted. However, agents did seize his prized new truck. Two years since its seizure, they have yet to give it back.
Serano is still making the payments on the truck he doesn’t possess as well as keeping it insured and the licensing fees paid up, but he doesn’t have his truck.
Officially, they argued Serano was using the truck to “transport munitions of war.”
To be sure, that ammo might have caused him some problems in Mexico, but it happens to be legal here in the United States. Further, a handful of rounds is hardly the inventory of a master arms dealer.
Serano is suing to get his truck back, but he’s merely one of tens of thousands of people who have had their property taken under flimsy excuses, only for the individual to find that it’s more costly to fight for the return of their property than to simply replace it.
There have been efforts to require a conviction for a crime before property can be seized, but it gets blocked regularly by supposedly pro-law and order groups who believe it would hamstring law enforcement. To be honest, it might. However, isn’t part of the beauty of our system that it is predicated on the idea that it’s better that 10 guilty men go free than one innocent man be incarcerated?
Why should it be any different with regard to private property? While there is a procedure that looks like due process regarding this seized property, it’s not. The property is treated as the defendant, with a “guilty until proven innocent” standard, and there’s no right to an attorney. That means an owner has to fork over his own cash to “defend” his property, and with the burden of proof resting on the owner, it’s hard to prove what you didn’t intend to do.
Civil asset forfeiture may have served a purpose at the height of the drug war, but it’s being abused these days and needs to end. Period.