No instructions required: due process and post-deprivation remedies for property seized in criminal investigations.

AuthorPrendergast, Nyika
PositionTransparent Adjudication and Social Science Research in Constitutional Criminal Procedure

City of West Covina v. Perkins, 119 S. Ct. 678 (1999)


    In City of West Covina v. Perkins,(1) the Supreme Court considered whether the Due Process Clause(2) of the Fourteenth Amendment requires state or local law enforcement officers to notify property owners of the state law remedies available for recovering property lawfully seized in criminal investigations.(3) The Court ruled that the Due Process Clause does not require officers to give property owners notice of the state law remedies available to retrieve the seized property.(4)

    To arrive at this holding, Justice Kennedy, writing for a seven-person majority, relied heavily on the fact that state law remedies are well

    established by published and widely available statutes and case law.(5) The Court also noted the lack of support for such a notice requirement in Supreme Court precedent and federal and state criminal laws.(6)

    This Note begins by examining the development of the concept of "notice" as it pertains to the Due Process Clause. This Note argues that Perkins correctly rejected the Ninth Circuit's expansive notice requirement because it is unwarranted and unsupported by precedent. The Court properly concluded that law enforcement officers have no obligation under the Due Process Clause to notify property owners of the procedures for recovering their seized property. This Note further argues that the Court's decision will not have a detrimental impact on future judicial decisions regarding deprivation of property. Finally, this Note argues that the majority was erroneous in its assertion, in dicta, that due process requires officers to give notice that property has been seized pursuant to a search warrant. This suggestion by the Court constitutes an unwarranted expansion of due process principles into an area historically governed by the Fourth Amendment.


    The Due Process Clause of the Fourteenth Amendment prohibits states from depriving "any person of life, liberty, or property without due process of law."(7) The concept of "Due Process" encompasses rights not only to judicial procedures and judicial remedies, but also to administrative procedures and to judicial review of administrative decisions.(8) The Supreme Court recognizes rights to both procedural and substantive due process.(9)


      Procedural due process is based on the theory that the protection against deprivation of life, liberty, and property is not absolute, and that such deprivation is permissible when accompanied by procedural steps that ensure fairness.(10) To satisfy the requirements of procedural due process, the state must provide the injured party with notice and a meaningful opportunity to be heard prior to depriving that party of life, liberty, or property.(11) In situations where pre-deprivation notice is impractical or impossible, such as a search warrant or the necessity of quick action by the state, the Supreme Court has found that the existence of post-deprivation remedies satisfies due process requirements.(12)

      There is no bright-line rule that governs the question of the particular procedural protection that due process requires.(13) The Supreme Court established a three-part balancing test in Matthews v. Eldridge(14) to determine entitlement to particular procedural safeguards(15). Under Matthews, a court must consider: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.(16)


      The concept of notice is a fundamental element of the right to procedural due process.(17) To meet the requirements of due process, the notice must be "reasonable and adequate for the purpose, [with due regard afforded] to the nature of the proceedings and the character of the rights which may be affected by it."(18) To determine whether a particular method of notice is reasonable for due process purposes, a Court must weigh the state's interest against the interest of the individual seeking protection under the Fourteenth Amendment.(19)

      1. The Purpose of the Notice Requirement

        The primary purpose of the procedural due process notice requirement is to ensure the "deprived person" a meaningful opportunity to be heard.(20) In Mullane v. Central Hanover Bank & Trust,(21) the Supreme Court held that notice by publication in a newspaper to beneficiaries whose interests and addresses were known regarding judicial settlement of accounts did not satisfy the requirements, of due process because there was no meaningful opportunity to be heard.(22) The Court reasoned that the fundamental right to be heard "has little reality or worth unless one is informed that the matter is pending, and can choose for himself whether to appear or default, acquiesce or contest."(23) In the pre-deprivation context, the Court has developed and consistently applied the Mullane standard, namely the requirement of notice reasonably calculated to provide interested parties with an opportunity to be heard.(24)

        However, when meaningful pre-deprivation process is impractical or impossible,(25) the Supreme Court has established a major exception to the pre-deprivation procedural requirements of notice and a meaningful opportunity to be heard by allowing the existence of adequate post-deprivation remedies to satisfy procedural due process.(26) Under this exception, established in Parratt v. Taylor,(27) the deprivation of property without prior notice or hearing satisfies due process requirements if adequate state law post-deprivation remedies are available.(28) In Parratt, a state prison inmate sued prison officials under 42 U.S.C. [sections] 1983,(29) alleging that the officials' negligent loss of his mail-order hobby materials deprived him of his property without due process of law.(30) The Supreme Court held that although the prisoner had been deprived of property under the color of state law, he did not state a claim for relief under [sections] 1983 because there was no violation of his due process rights under the Fourteenth Amendment.(31) In deciding that the prison officials did not violate the prisoner's due process rights, the Supreme Court stated:

        [E]ither the necessity of quick action by the State or the impracticality of providing any meaningful pre-deprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's actions at some time after the initial taking, can satisfy the requirements of procedural due process.(32) The Court found that pre-deprivation process was impossible in this case because the loss of the prisoner's property was a result of random and unauthorized acts by a state employee.(33) In such a case, a state cannot predict precisely when the loss will occur(34). The Court also found that the state tort claims act provided an adequate post-deprivation remedy, and thus satisfied procedural due process.(35)

        Similarly, in Hudson v. Palmer,(36) a prisoner alleged that during the search of his cell, a prison guard deliberately destroyed some of the prisoner's personal property, including legal materials and letters.(37) The Court, applying the Parratt rule, held that an unauthorized intentional deprivation of property by a state employee does not violate procedural due process when a meaningful post-deprivation remedy exists.(38) The Court reasoned that intentional conduct by a state employee can be as random and unauthorized as the negligent conduct discussed in Parratt since the state cannot anticipate or control either action in order to provide a practical pre-deprivation procedure.(39)

        However, in Logan v. Zimmerman Brush Co.,(40) the Court reaffirmed its holding in Parratt, but held that post-deprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to an established state procedure, rather than random and unauthorized action.(41) In Logan, the Court considered whether the terms of an illinois employment discrimination statute deprived the petitioner of an opportunity to pursue his employment discrimination claim.(42) The Court held that the petitioner was deprived of a protected property interest in violation of the Due Process Clause because the statute's 120-day limitation for convening a fact finding hearing precluded the petitioner's opportunity for a hearing.(43) The Court distinguished Parratt on the ground that it addressed random and unauthorized acts for which no pre-deprivation process was practical, whereas in Logan, the state system itself, by operation of law, would destroy a complainant's property interest whenever the Commission fails to convene a timely conference.(44)

        With respect to Perkins, the California Penal Code provides two post-deprivation remedies for property seized pursuant to a search warrant.(45) Section 1536 states:

        All property or things taken on a warrant must be retained by the officer in his custody, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense respect to which the property or things taken is triable.(46) Section 1540 of the California Penal Code states:

        If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken.(47) Both remedies require the property owner to file a motion with the court.(48)

      2. Statutory Notice

        The principle that a...

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