A Plymouth, a Parolee, and the Police: The Case for the Exclusionary Rule in Civil Forfeiture after Pennsylvania Board of Probation and Parole V. Scott
Crandley, Mark J., Albany Law Review
The exclusionary rule has been under near-constant attack (1) since its inception as a federal constitutional device more than forty years ago. (2) The Supreme Court has consistently limited the rule's operation in criminal cases (3) and has refused to extend it to most contexts outside the criminal trial. (4) In Pennsylvania Board of Probation and Parole v. Scott, (5) the Court's most recent case addressing the exclusionary rule's application in a non-criminal proceeding, the Court refused to apply the rule to parole revocation hearings even though they might result in longer periods of incarceration than many criminal trials. (6) The Court concluded that police officers would not be sufficiently deterred by the suppression of evidence at revocation hearings to justify the relatively high costs that suppression would inflict. (7) This conclusion raises a fundamental question--if the exclusionary rule does not produce enough deterrence to police when illegally seized evidence puts a person at risk of going to jail, why would the rule produce any more deterrence when mere property is at stake?
Scott suggests that the Court might retreat from its prior decision in One 1958 Plymouth Sedan v. Pennsylvania, (8) in which the Court applied the exclusionary rule to civil forfeiture. (9) One Plymouth Sedan remains the only Supreme Court case to apply the rule outside the criminal trial context. (10) Under the analysis employed in Scott, however, the application of the exclusionary rule in civil forfeiture hearings is in serious doubt. (11) If police officers are not sufficiently deterred by the prospect of evidence being suppressed at a hearing where a person's liberty is in jeopardy, it is a fortiori that they will not be deterred by the possibility of suppression at a civil forfeiture hearing where only the person's property is in jeopardy.
Law enforcement officials have much to gain in the outcome of the issues raised in Scott, and will likely bring challenges to the exclusionary rule in civil forfeiture. While the court's trend is moving away from applying the exclusionary rule in civil contexts, law enforcement agencies are increasingly relying on civil tools to attack crime. (12) At the forefront of this movement is the use of civil forfeiture to seize the fruits and instrumentalities of the narcotics trade. (13) Civil forfeiture statutes allow law enforcement officers to seize privately held assets that have been used in a crime, a practice that not only frustrates narcotics traffic, but also fills public coffers. (14) Moreover, most civil forfeiture statutes carry with them low burdens of proof and few defenses, (15) thus providing governments with a powerful device that is far more streamlined than the time-consuming process of prosecuting a criminal. With so much at stake, law enforcement officials are likely to use Scott to mount challenges to the exclusionary rule in civil forfeiture.
In fact, lower courts have not been silent on the vulnerability of One Plymouth Sedan. (16) A California appellate court has outright rejected the exclusionary rule in civil forfeiture:
[The] application of the exclusionary rule in civil forfeiture actions is unnecessary and of little additional benefit, particularly when the property is owned by a third party claimant who has not been convicted of any offense. To date the United States Supreme Court has rejected application of the exclusionary rule to civil cases, and we decline to do so as well in this civil forfeiture case. (17)
A Maryland court put it more bluntly: "Has One 1958 Plymouth Sedan, whatever it stood for, retained its vitality over the thirty-three years since it was handed down? No, it has not." (18)
This Article presents a counterargument to the encroachments on the continued use of the exclusionary rule in civil forfeiture proceedings. Part II examines briefly the Supreme Court's existing exclusionary rule case law. …