Passing the Buck: an Analysis of State v. Franco, 257 Neb. 15, 594 N.w.2d 633 (1999), and Nebraska's Civil Forfeiture Law

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 1299. Passing the Buck: An Analysis of State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999), and Nebraska's Civil Forfeiture Law

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Passing the Buck: An Analysis of State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999), and Nebraska's Civil Forfeiture Law

TABLE OF CONTENTS

I. Introduction ..................................................... 1299
II. Background ...................................................... 1301
A. Civil Forfeiture in the United States ........................ 1301
B. Civil Forfeiture in Nebraska Prior to State v.
Franco .......................................... 1304
C. State v. Franco .................................. 1305
III. Analysis ....................................................... 1307
A. Breaking Down Franco 's Holding ................. 1307
B. Franco 's Legacy: Federal Adoption .............. 1312
C. A Proposal for Reform ....................................... 1319
1. Superseding Franco .......................... 1320
2. Limiting Federal Adoption ................................ 1320
3. Additional Procedural Protections ........................ 1323
IV. Conclusion ...................................................... 1323

I. INTRODUCTION

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On June 5, 2000, a young African-American businessman named Jacob King was waiting to catch a plane at Eppley Airfield in Omaha, Nebraska.(fn1) King was planning on flying from Omaha to Phoenix to purchase a car for his car cleaning and detailing business. He had decided to purchase the car with cash so that he would not have to wait for a check to clear from an out-of-state bank. When King went to the Southwest Airlines desk at Eppley Airfield, he paid cash for his ticket. He was then immediately questioned by a sheriff's deputy who

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worked at the airport. The deputy asked whether King had a large amount of cash with him. When King told him that he was carrying approximately $7,000, the deputy took King's money into another room and had it sniffed by a drug dog. When the deputy returned, he told King that the drug dog had detected the odor of narcotics on the money.(fn2) The deputy then told King that his money was being seized on the suspicion that it had been utilized in drug trafficking. His money was seized through a process known as civil forfeiture, where property is "condemned" and then taken by the State. King, however, was not arrested by the deputy and he was never charged with a crime.

King went to the Nebraska branch of the American Civil Liberties Union ("ACLU") to seek legal assistance in getting his money returned to him. The ACLU chose to take the case primarily to challenge the use of racial profiling by police in airports to infer that black men with large amounts of money are drug couriers.

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When the ACLU challenged the forfeiture, King learned that his money, which had been confiscated by a local sheriff, had been turned over to the federal government through a process known as "federal adoption." King and the ACLU had to challenge the forfeiture proceeding in federal court and meet the procedural requirements and burden of proof imposed upon claimants under the federal asset-forfeiture statutes. This placed King at a significant disadvantage, because the federal forfeiture proceedings lacked many of the procedural safeguards that were required in forfeiture proceedings brought under Ne

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braska law. In fact, under Nebraska's forfeiture statute,(fn3) there likely would have been insufficient evidence even to bring a forfeiture action against King's money.(fn4) Unfortunately, Nebraska's forfeiture statute, for all intents and purposes, no longer existed. Since the Nebraska Supreme Court's decision in State v. Franco,(fn5) drug-related civil forfeitures in this state have been brought almost exclusively under federal law. As Jacob King's story demonstrates, the Franco decision has had a profound impact on how civil forfeitures are pursued in Nebraska.

In Parts II and III, this Note will examine the reasoning behind the Nebraska Supreme Court's decision in State v. Franco, as well as the decision's effect on how forfeitures are now conducted within this state. Section III.B of this Note will then examine how the Franco decision intensified the practice of federal adoption and how that practice has allowed state law enforcement to circumvent Nebraska law. Finally, section III.C of this Note will propose an alternative to the current system that attempts to balance the concerns of civil libertarians with those of law enforcement.

II. BACKGROUND

A. Civil Forfeiture in the United States

In the United States, there are essentially two types of asset forfeiture proceedings that are utilized by the federal government: criminal forfeitures and civil forfeitures.(fn6) Criminal forfeitures, as the name suggests, are punitive sanctions brought against a defendant as part of a criminal proceeding.(fn7) Since these forfeitures are considered punitive, the Constitution requires the conviction of the defendant and proof beyond a reasonable doubt that the defendant's assets are subject to forfeiture.(fn8)

Civil forfeitures, in contrast, have minimal constitutional protections. These proceedings are brought in rem (against the property itself) under the legal fiction that the property itself committed a

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crime.(fn9) Since the proceedings are brought in rem, there appears to be no constitutionally mandated burden of proof, and property owners do not even have to be charged with a crime.(fn10) The constitutionality of these proceedings is justified on the basis that the proceedings serve a remedial rather than a punitive purpose.(fn11)

The historical origin and evolution of civil forfeiture law in the United States has been thoroughly documented by numerous legal commentators, and duplicating their efforts would go beyond the scope of this Note.(fn12) However, a brief history of the origins of civil forfeiture would assist the reader in understanding this area of the law.

Historically, civil forfeiture proceedings were utilized in the United States as a means of enforcing the nation's custom laws.(fn13) The primary purpose of these early forfeiture statutes was to recover the revenue that was lost as a result of the rampant attempts to circumvent the federal custom laws during this period.(fn14) The use of in rem proceedings was necessary in early forfeiture cases predominantly as a means of establishing jurisdiction over property in situations where

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the property owners were outside of the country.(fn15) However, the Supreme Court also made clear in these early cases that, for in rem proceedings, property could be confiscated without regard to the owner's participation in or knowledge of the illegal act that the property had been used to commit.(fn16)

During the 1920s Prohibition era, the use of civil forfeiture was expanded beyond the context of admiralty law to target the "instrumentalities" used to manufacture and distribute illegal liquor.(fn17) The Supreme Court applied its earlier forfeiture decisions in the admiralty context to the National Prohibition Act(fn18) and concluded that, based upon the nature of in rem proceedings, property owners could be forced to forfeit their property, even if they did not know their property was being used for illegal purposes.(fn19)

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During the late 1970s and early 1980s, the focus of asset forfeitures shifted dramatically with the start of the war on drugs.(fn20) Today, the most widely used federal forfeiture statutes come from the Comprehensive Drug Abuse Prevention and Control Act, enacted by Congress in 1970.(fn21) A series of amendments to the drug-related forfeiture statutes created under this Act steadily increased the types of assets that were subject to forfeiture for drug-related offenses.(fn22) These subsequent amendments also gave the Department of Justice exclusive control over proceeds received from asset forfeitures, instead of placing the proceeds in the U.S. Treasury as previously had been required.(fn23) Through these subsequent amendments to the federal forfeiture statutes, the power of federal law enforcement to seize drug

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related assets and use those assets for their own purposes was greatly expanded. However, as is explained in section III.B infra, the amendment to the federal forfeiture statutes that would prove to have the greatest impact on civil forfeiture in the State of Nebraska was the 1984 provision that created the procedure known as "federal adoption."(fn24)

B. Civil Forfeiture in Nebraska Prior to State v. Franco

At the same time Congress was amending the federal forfeiture statutes in an effort to wage the war on drugs, Nebraska was taking action to reform its own civil forfeiture statute. In November 1984, Nebraska amended its constitution through a voter initiative to allow fifty percent of the funds received through drug-related forfeitures to be paid over to the "county drug law enforcement fund" for the county where the seizure was made.(fn25) Each county was required under this constitutional amendment to set up its own county drug law enforcement board to oversee the use of forfeiture proceeds for drug enforcement purposes.(fn26) The amendment required that the other fifty percent of assets seized from drug-related forfeitures be appropriated exclusively to the use and support of the common schools.(fn27) The clear purpose of this amendment was to allow state law enforcement to benefit from a portion of the assets seized from their counter-drug operations without giving the confiscating agency direct and total control over the use of these assets, as the federal statute allowed.(fn28) The amendment also reflected the intent of Nebraska citizens to allow the state's schools to share in the revenue from drug-related forfeitures.(fn29)

The...