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From the Latest Judge Kozinski Opinion:

The court upholds, correctly, a deceptively executed police seizure of a car; for details on the elaborate scheme and why it's legal, read the short and clear opinion. But in the process, Kozinski writes:

If people can't trust the representations of government officials, the phrase "I'm from the government and I'm here to help" will become even more terrifying.

Thanks to the California Appellate Report for the pointer.

PatHMV (mail) (www):
I'm going to have to take a look at the seize-the-car-without-a-warrant precedents on which the court relies. I'm troubled by the fact that the police obviously had enough time to put together a very elaborate incident, but did not take advantage of that time to get a warrant to seize the car beforehand.

It's one thing to say that the police may seize a car and conduct an administrative search incident to that seizure after they've pulled over the driver for a traffic violation or something and arrested him, but this feels likes something else entirely.

P.S. For some reason, I am reminded of a drug-trafficking enforcement technique that one rural D.A. (who presided over a stretch of a drug trafficking interstate corridor) I know had implemented. They rigged up an air scoop of sorts which would funnel air from outside of a van to the inside, where it would pass by the nose of a drug-sniffing dog. They'd drive up and down the interstate in the unmarked van, pulling up closely behind "suspicious" vehicles. If the dog smelled drugs, the police would pull the car over. Worked very well, he said.
6.8.2007 3:06pm
Ex parte McCardle:
Can we cite this decision as authority for the proposition that the past tense of "sneak" is, in fact, "snuck?"
6.8.2007 3:14pm
Clayton E. Cramer (mail) (www):
It was certainly creative. But why did they insist on such a creative approach? I agree with PatHMV: if they had enough time and probable cause to do this, why not just get a warrant?
6.8.2007 3:18pm
Just Dropping By (mail):
Having read the case, I have to say that if this search/seizure is constitutional, then the Fourth Amendment truly is a dead letter.
6.8.2007 3:19pm
Dave N (mail):
My favorite part of the opinion was Footnote 1:

Doubtless, Alverez-Tejeda was more frightened about the fact that he lost the boss's car with the stash of drugs in it, but that fear arose from the lawful seizure of the car, not the deceit.
I can picture Mr. Alvarez-Tejeda trying to explain that to his boss.
6.8.2007 3:30pm
MikeC&F (mail):
The Second Circuit upheld similar conduct just last week. Link.
6.8.2007 3:44pm
Felix Sulla:

But why did they insist on such a creative approach?

The opinion does not go into too mcuh detail, but I gather it implied that they wanted to seize the vehicle without any of the perps (the driver or his boss) being aware that it had been seized by law enforcement. I imagine (without having read any of the briefing on this or seen the record) that a big part of the government's argument here was that it was essential to get the evidence in the car, and also essential for the investigation to go on with the targets (hopefully) not being any the wiser.

I agree with PatHMV: something about this case does seem to smell a bit, though I find nothing with which to specifically disagree as such. And frankly, if someone had ended up getting injured or if something fairly spectacular and unplanned had happened in the course of this, I suspect we would have gotten a different opinion.
6.8.2007 3:44pm
Eugene Volokh (www):
Ex parte McCardle: I'd never take a single opinion as authority on a question of common English usage. But the dictionary.com entries report that "snuck" and "sneaked" are both in use, and that while some people disapprove of snuck, it's pretty well established. And a google search reports more pages with "snuck" than with "sneaked."
6.8.2007 3:54pm
PatHMV (mail) (www):
I can understand the desire to get the car without the bad guys knowing that the government had gotten it, though as I think through it, I become more confused. What benefit do they get from seizing the drugs without alerting the individuals? According to the opinion, they had already done an undercover drug buy from the car. Did they just want the weight of the drugs to be able to hold over the head of the driver later, in some subsequent effort to make him turn snitch?

And the more I think about it, the more tragedies I can imagine ensuing. Suppose some local cop, or even just a local do-gooder, had spotted the "theft" without being aware of the ruse, and begun pursuit. These days, I can even imagine a passer-by pulling a gun and popping off a shot at the fleeing vehicle. I'm sure the DEA agents had thought through some of this, making contingency plans for aborting if there were others in the area or something, but I can't imagine they were able to think through all the possible bad things that could go wrong.

For that matter, did they have any idea of the medical history of the occupants of the car? What if one of them had a very weak spinal cord, or what if the girl was pregnant?

I'd like to see this go up to the Supremes, really. Justice Scalia has always had a very solid take on the Fourth Amendment, in my opinion, and I'd like to see how he came down on this. I doubt that will happen, since according to the opinion, both the prosecution and the defense agreed that "the DEA had a right to seize the car without a warrant."
6.8.2007 4:02pm
Steve P. (mail):
The opinion is very clear and readable — it should answer most of your questions.

The short answers are that the agents didn't need a warrant to seize the car, both sides agree on that. The question is whether the seizure was justifiable, which they determined by weighing the intrusion into the defendant's 4th amendment rights (which boils down to the vehicular tap by the fake-drunk police officer) vs. the government's interests (stopping the drugs, recovering them, and not letting the defendant know).

Judge Kozinski notes that if the government's ruse had been different, it could easily have violated the justifiability guideline. It's not just that no one was injured, but the plan itself seemed fairly safe. He describes it better than I could; again, read the opinion.
6.8.2007 4:04pm
e:
My questions to those who say why not just get a warrant -

If they had gotten a warrant, would they have had to show it to the driver within a certain window, thus defeating the desire to not tip off the kingpin? Or is there a problem of that being public record whereas other details of an ongoing investigation can be kept quiet?
6.8.2007 4:06pm
jimbino (mail):
Right, I fruck out to hear that we Amerikans get feaked daily by our own government. The real question is how do you lawyers and judges justify participation in such a corrupt system?
6.8.2007 4:07pm
New World Dan (www):
Just Dropping By,

Apparently you aren't familiar with the very long and extensive history of asset forfeiture laws. They have been upheld by the Supreme Court time and again for about as long as the court has existed. So, if you accept the legitimacy of asset forfeiture laws (I don't, no matter what SCOTUS says) then I don't see much to argue here. The ruse itself my give rise to a section 1983 lawsuit (doubtful, except maybe for the girlfriend, though still doubtufl).
6.8.2007 4:07pm
JRL:
aka Chombi?

Mecca lecca hi, mecca hiney ho!
6.8.2007 4:15pm
Don Miller (mail):
I think a couple posters missed one thing. There was a warrant before the search.

From the opinion:

Having seized the car through this ruse, the agents obtained
a search warrant and discovered cocaine and methamphetamine
inside, as well as property belonging to Alverez-Tejeda
and his girlfriend.


I imagine that criminal law regarding drug enforcement could be a specialty unto itself.

I especially like how the defendent said this behaviour was "so grossly shocking and so outrageous as to
violate the universal sense of justice." I asked around my place of employment (no lawyers) and they all laughed. Thought it was very clever.
6.8.2007 4:20pm
e:
But did they get a "seizure warrant" before an agent drove the car away? My other questions remain?
6.8.2007 4:26pm
gab:
This concerns me:

The parties agree that the DEA agents had the right to
seize the car without a warrant: "If agents have probable
cause to believe that a car is or has been used for carrying
contraband, they may summarily seize it pursuant to the federal forfeiture statutes."

Seize the car without a warrant? Just because it's a possible drug offense? What the hell is this country coming to?
6.8.2007 4:28pm
Houston Lawyer:
Cops lie to suspects all the time. We applaud the more clever ones. This reads like a episode of "The Shield".
6.8.2007 4:42pm
rbj:
Yet another example of why the War on Drugs is a bad idea -- more erosion of the 4th Amendment.
6.8.2007 4:49pm
Steve P. (mail):
gab — I could be wrong, but I think that every traffic stop is essentially a 'temporary seizure' of the vehicle.

Basically, the officers were allowed to seize the car due to probable cause until they got the search warrant to go through it. They just seized the car in a very odd way.

(I imagine the situation of a normal traffic stop, where the cop smells a very distinctive odor, but isn't given permission to search the car. He ought to be able to prevent the driver from leaving with the car until he can get a warrant, right?)
6.8.2007 4:49pm
Eugene Volokh (www):
Steve P. is right: You don't even need a warrant (only probable cause) to search a car; likewise, you don't need a warrant to seize it. Maybe that's wrong, but it's not a question of "What ... is this country coming to?" -- as best I can tell, this has always been the rule in this country.
6.8.2007 4:52pm
wt (www):
There is no warrant requirement (or requirement of exigent circumstances) to search or seize a vehicle on a public road. That's settled. Probably applies even to cars parked at home outside of the home's curtilage.

Bad rule of law, in my opinion, but it's settled.
6.8.2007 5:00pm
PatHMV (mail) (www):
New World Dan is correct about the weird and whacky world of asset forfeiture laws, which turn otherwise innocent objects like cars into "contraband" based on the use to which they have been put by their owners or others.

It does look like this case is in accord with Florida v. White. I am troubled by that opinion because it adopts a per se rule that no warrant is needed when the contraband is (or is in) a vehicle so that it could be rapidly spirited out of the jurisdiction. I would be much more comfortable with a rule which allowed such seizures only when the time between obtaining probable cause and executing the seizure is so short as to demonstrate that there was no time to wait before making the seizure.

Here, the cops obviously had ample time to plan the elaborate ruse, so they obviously weren't that worried that the vehicle was going to flee the jurisdiction. Adopting a more case-specific analysis would allow for immediate seizure when it is truly needed, such as drugs discovered incident to a routine traffic stop, but also prevent abuses such as this one. Alas, that is not the rule adopted by the Court; in Florida v. White, two months elapsed between obtaining probable cause to believe the car to be "contraband" under the Florida statute and the actual seizure. Thus, it appears that this case, but for the ruse aspect, is well within established precedent.

As for contraband, I appreciate Justice Souter's concurrence in Florida v. White reminding us that "contraband" is not some talisman which can be invoked to ward off the Fourth Amendment in all cases.

Also, from a deeper standpoint, I think Justice Thomas' analogy of the car to a ship (which was the historical analogue of the car to which the first car-based Fourth Amendment cases turned) is rather off. A ship, particularly in the 18th and 19th century, was an inherently corporate venture. Ships were commonly commandeered by governments and pressed into service, and ships bearing a nation's flags had a very special status. We got into wars over the right of these private vessels to travel in international waters. I'll have to continue exploring the older cases, but surely there were laws in the Framer's time, and cases, involving searches and seizures of private horses or carriages, a much closer analogue. I have a hard time believing that the framers would have approved of a rule allowing for warrantless seizures of Paul Revere's horse.

Really, this strikes me as an example where the Court has been too focused on interpreting precedents rather than applying the Constitution itself. At some point, it's time to step back and start from scratch again with your analysis.
6.8.2007 5:00pm
New World Dan (www):
Here's the truly great thing about asset forfeiture: the siezed object (not the owner) is the defendent in the proceeding. You'll see cases like "DEA vs $112,000" and the like. As PatHMV seems to indicate the very dangerous slippery slope of precedent. In the 18th century, it was essentially impossible to bring the owner of a ship to justice if the owner resided in a foreign country, so the ship itself was siezed as a substitue. From there, it was a small matter to the situation we have today: from a constitutional standpoint, there's really nothing that would stop a state from enacting a law allowing your car to be siezed if you were pulled over for speeding. See Bennis v. Michigan.
6.8.2007 5:18pm
Thorley Winston (mail) (www):
Cops lie to suspects all the time. We applaud the more clever ones. This reads like a episode of "The Shield".


Several episodes actually except there's nothing in the opinion that suggests the cops were trying to recover a stolen badge or high money from the Armenian money train at the same time. Not even in the dissent ;)

Seriously though if you want a good cop drama that deals with 4th Amendment issues, the Wire is one of the best. The first season they spent the first half of the season just establishing the necessary probable cause to get a warrant for the wire tap. Not as fast-paced as the Shield (which is still one of my favorites) but much more realistic.
6.8.2007 5:18pm
Alex 2005 (mail):
What a great example of outstanding judicial writing. I do have one question, however. Why did the officers need to obtain a separate search warrant for the vehicle if they had probable cause to seize the vehicle? (If the police have probable cause to seize "Eugene," they don't need a seprate warrant to search him, right?) What am I missing here?
6.8.2007 6:09pm
K Parker (mail):
HL,
This reads like a episode of "The Shield".
The elaborate staging sounds more like something Solzhenitsyn would have written.
6.8.2007 6:09pm
e:
re: why search warrant if PC to seize?

Something to do with the basic automobile exception and its limits. To get into the trunk during a traffic stop (original PC for something other than drugs) they would need to find drugs in the passenger compartment. To get into the trunk as part of an inventory search they would need to show standard practice. Use of the automobile (warrant) exception when the state controls the car might knock a hole in that exception and certainly is not supported by the same rationale (road regulations).
6.8.2007 6:26pm
A. Zarkov (mail):
"I'm from the government and I'm here to help" will become even more terrifying.

That is a terrifying phrase, especially when the government decides that can of gasoline you kicked over in your garage is a "toxic spill," and you find men in space suits on your property. Later you get a $50,000 bill for a clean up.

After the Oakland firestorm in 1991, I met the men in spacesuits while I was inspecting what was left of my property. I couldn't help laughing, as the fire was so hot it had virtually incinerated everything. My spaceman took extreme offense and began to act in a threatening manner. After all he was from the government, and he was there to help.
6.8.2007 6:26pm
microtherion (mail):
Alverez-Tejeda should hire Robert Bork's lawyer to sue to government for causing whiplash injuries.
6.8.2007 6:29pm
Alex 2005 (mail):
e: I understand that in some circumstances there are limits as to where you can do a search. (For example, when officers have probable cause to stop the car because the driver was violating the traffic laws, that does not give them probable cause to search the trunk.) But here, the officers had probable cause to seize the car (so says the opinion) because they thought it is (or had been used) for carrying drugs (contraband). So, I just don't see why they needed a separate warrant to perform the search. Can anyone point me to any cases on this point?
6.8.2007 6:35pm
htom (mail):
This nonsense will end when judges and Congressmen start getting their cars "tapped", and it will take a while even then. I'm beginning to think that one of the real problems with the American criminal justice (injustice?) system is a virtual worship of precedent; superior courts ought to be required to state that their decision is meant to be such, and otherwise it's merely an confirmation or denial of a particular decision.
6.8.2007 6:36pm
Mr X (mail):

the phrase "I'm from the government and I'm here to help" will become even more terrifying.


So, I assume conclude from this that Judge Kozinki finds the concept of "help" from hard working government employees "terrifying" in the usual case.

When Judge Kozinksi finds himself in need of police protection or other vital government assistance, I hope he is grateful rather than terrified when they provide him with excellent service.

Help from the government is not usually a terrifying proposition. Unless, perhaps, that "help" comes in the form of a Kozinski opinion. What is really bothersome in Kozinki's obvious, general, and irrational disdain for government workers is that he himself is a government worker. His opinions constitute "help" for litigants who want difficult questions (and not so difficult questions) of law answered. Should anyone thinking of appealing a wrongly decided opinion issued by a District Court be "terrified" by the prospect of a Kozinski opinion??

I know Kozinksi is a libertarian, but I do not think that insults on his fellow government workers as a class are appropriate in a formal judicial opinion, especially where their job performance in general (as opposed to the performance of the police and DEA agents executing this particular search and seizure) is irrelevant to the opinion. Rather than snide remarks that seem to put Kozinksi in a superior position over his fellow workers, respect for them and the government he serves is more appropriate.
6.8.2007 6:45pm
John (mail):
1. As to "why the ruse," it may have been that a direct seizure might have led the drug dealers to realize that there was an informant who needed to be dealt with, while the informant could be shielded by the ruse technique (though obvioiusly not for very long, as court proceedings would inevitably tell all).

2. As to "reasonableness," why do appellate courts so routinely second guess, apparently de novo, the factual findings of the trial court who is, in our system, the trier of fact? Of course, the Supreme Court makes up facts willy nilly without any of the usual fact-finding techniques of our 800 years of jurisprudence, so maybe the lower appellate courts are just joining in the fun. But I wonder whether anyone has done a study of the extent to which appellate courts are intruding on the fact-finding jurisdiction of the trial courts of the country. Does anyone know of such research?
6.8.2007 7:52pm
tsotha:
Mr X,

I wonder how many people are grateful when law enforcment provides the excellent service of tearing the family car apart looking for drugs.

I agreeee with rbj - this idiotic "war" on drugs is creating a police state, where you can't trust anything a law enforcement officer says to you. I have reached the point where I will not talk to peace officers without counsel.
6.8.2007 8:23pm
whackjobbbb:

What a great example of outstanding judicial writing.


I agree, Alex. It's thoughtful, comprehensive, flows nice. Good to see we got somebody competent on the job out there.

Not that I agree with him, and I think this seizure stuff is worrisome. When I first read the facts portion, I was outraged, but he walks through his analysis and follows a coherent process in making his decision.

Maybe he can justify this one case, but screw seizures in general. We shouldn't just grab somebody's property without coming clean on it straightup. So it is written... so let it be done (I wish).
6.8.2007 8:39pm
NY:
Alex 2005, I'm away from my books, but isn't it: PC to arrest, giving the cops search incident to arrest and the Belton lunge gives you the passenger compartment.

But you need separate PC to search the car itself, which according to the opinion, they had: "They also had probable cause to believe the car was carrying contraband
on the day of the seizure based on several intercepted phone calls and direct surveillance." This should be enough to search the car including trunk and including any containers therein without a warrant.

That they felt the need to get a warrant might just have been overprotectiveness; because in addition to PC, a warrantless inventory search would have been justified.

But the search was not at issue here (it was all about whether a complicated ruse to seize a car the police could have lawfully seized was unreasonable). Presumably, defense counsel realized that after a legit seizure, an inventory search would have given up everything in the car anyways, so he didn't bother to bring it up and argued the seizure only.
6.8.2007 9:13pm
athEIst:
Let's be honest and repeal the 4th Amendment or replace it with "You are not secure in anything, the state owns you."
6.8.2007 10:36pm
The Impressive Mr. X (mail) (www):

I wonder how many people are grateful when law enforcment provides the excellent service of tearing the family car apart looking for drugs.


No one said that government employees are perfect in all contexts. However, it would be a mistake to be "terrified" of all government workers due to the mistaken actions of a few. That a few postal workers have lost it and gone berserk in the history of the U.S. Postal Service would not lead a rational man to cringe in abject terror at the sight of his mailman.

More to the point. While the competance of government workers as well as private sector workers generally is of course a legitimate topic for political discussion, it does not have a place in this particular official judicial opinion by Mr. Kozinski, a government worker himself. For Mr. Kozinski to use his opinion as a forum to take an opportunistic swipe at his fellow government workers is distasteful to say the least. It is also innapropriate.
6.8.2007 11:12pm
c.f.w. (mail):
"Yet another example of why the War on Drugs is a bad idea -- more erosion of the 4th Amendment."

My thoughts exactly - better to tax the drugs and use the tax money to educate and treat the dumb citizens who hurt themselves. Teaching cops to game the "bad guys" with drugs is one step away from gaming the defense counsel, judges, prosecutors. Thou shalt not bear false witness is an ethical, moral and religious commandment for 5000 years for a reason. Judge K (and his system) ignore it at the peril of the US. What we teach the cops and investigators in drug cases is inevitably rippling out to death penalty cases, political cases (Libby), Iran Contra cases, attorney firing cases, etc. The supposed harm of drugs is worse than the harm from the supposed cure - war on drugs.
6.9.2007 11:10am
whackjobbbb:
Mr. X, perhaps as a judge himself, this guy recognizes what his peers sometimes contribute to this "terror", and is noting and even underlining it? Remembr, people will be most-influenced by the "terror" incidents... that's what they'll remember first... and that's the whole effect of "terrorism", whether brought on with good intention or bad. So the first step in understanding is to illustrate it's existence.
6.9.2007 12:17pm
Justin (mail):
The problem with Kozinski's writings is that its really easy for him to make really big mistakes, like citing Shakespeare for the proposition that "silence is assent" when first year law students know that the American legal system tends to go the other way with that question.

As to the legal question, I agree with a lot of people here. Given past precedent, the decision is correct, but past precedent is most horribly wrong. Florida v. White and United States v. Johnson, though both binding on Kozinski, are terrible decisions - and this case shows why.
6.9.2007 12:55pm
The Impressive Mr. X (mail):
whackjobbbb,

I am not arguing about the merits of Kozinki's larger political views. I am asserting that it is illlegitimate to use an official judicial opinion to advance political views that are not relevant to the case at hand. Kozinki is free to self-righteously think that we should be terrified of every government worker other than himself. He is even entitled to advance that view in his writings. But an official judicial opinion is not the correct forum for advancing political views that are irrelevant to the case.
6.9.2007 5:32pm
Ryan Waxx (mail):
Is such a minor, nearly buried comment really a forum to advance one's political views? Would you even have noticed the comment, if the poster hadn't turned it into the headline? Is it even possible to police judicial opinions to that degree, and if it were done, what percentage of current opinions would fall afoul were the rule applied evenhandedly?

Would you support such scourging of even the smallest hint of political thought if that thought was something you agreed with?
6.10.2007 4:04am
George Nace (mail):
I am not a lawyer but I think the Ninth Circuit opinion is wrong, and the lower court had it right. I don't believe that there should be any general exception to the Fourth Amendment for vehicle seizures, especially to search for drugs although I'm willing to be persuaded about a limited exception for public safety reasons (terrorists or violent criminals in the commission of an illegal act or during hot pursuit). I would also support a short seizure period conducted by lawful means while a warrant was being obtained in some circumstances.

I also believe that any illegal act by law enforcement should cause evidence siezed in such fashion to be excluded from trial as "fruit from a poison tree", although I don't support automatic reversal of a lower court verdict on that basis alone -- it should be one of several factors weighed in considering whether the verdict should be reversed or sent back for retrial.

I almost knew before reading the opinion that Alex Kozinski was on the panel and supported the opinion. I find his opinions extremely disturbing and I disagree with them often.
6.10.2007 12:09pm
Mr. X (www):

Help from the government is not usually a terrifying proposition. Unless, perhaps, that "help" comes in the form of a Kozinski opinion. What is really bothersome in Kozinki's obvious, general, and irrational disdain for government workers is that he himself is a government worker. His opinions constitute "help" for litigants who want difficult questions (and not so difficult questions) of law answered. Should anyone thinking of appealing a wrongly decided opinion issued by a District Court be "terrified" by the prospect of a Kozinski opinion??

I know Kozinksi is a libertarian, but I do not think that insults on his fellow government workers as a class are appropriate in a formal judicial opinion, especially where their job performance in general (as opposed to the performance of the police and DEA agents executing this particular search and seizure) is irrelevant to the opinion. Rather than snide remarks that seem to put Kozinksi in a superior position over his fellow workers, respect for them and the government he serves is more appropriate.


This Mr. X is an impostor. I am the real Mr. X and I like Judge Kozinski's writing.
6.10.2007 1:49pm
whackjobbbb:

I am not arguing about the merits of Kozinki's larger political views. I am asserting that it is illlegitimate to use an official judicial opinion to advance political views that are not relevant to the case at hand.


The Impressive Mr. X,

Maybe they are relevant? I'm sure Koz was as uncomfortable working through this as I was reading his workthrough. And I'm sure he wasn't any less uncomfortable in the aftermath, and if he left a pile of scat behind as marker, to warn others as they approach this same path, doesn't that make his action relevant to the case... and future cases?

I agree, we may have too much editorial commenting in the law. But this bit seems to be connected to the case, and is somewhat counter to the decision he reached, and in it he seems to be looking forward and backward, and allowing others to decide for themselves. Is that bad?
6.11.2007 12:18pm
Robert Lutton:
Hmm...would I be correct in asking that if I "tap" a police car I will arrested for assault?

just asking....
6.11.2007 4:06pm
OLDHIPPIE (mail):
If you deliberatly hit anyone elses vehicle you would be violating the law. If you lie to a judge, same thing. But if you are a enforcer of the law you get a pass? Another bite out of the 4th. Soon ,if not already ,the 4th will be nothing but a sentimental rememberance. We are not ,at this moment, secure in our homes and possessions. Just read the news in regards to drug warrior, wrong home, invasions. Prohibition is the gateway to tyranny. The only success in the drug war is that of the preservation of drug war careers.
6.12.2007 11:59am