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.

• Author: Crandley, Mark J.

1. INTRODUCTION

   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. (19) Part III explores how law enforcement officials may use cases, especially Scott, to attack the application of the rule in civil forfeiture proceedings. (20) Part IV attempts to rebut these arguments through a two-pronged counterattack based on the factors the Court balances in determining whether to apply the exclusionary rule--the deterrence to police misconduct and the social costs of exclusion. (21) Arguably, the deterrence to police in the context of civil forfeiture is high because of the emphasis on civil forfeiture in modern police work; conversely, the social cost of the rule in civil forfeiture is low because of the formality such proceedings exhibit, and because the only loss the government suffers is the value of a seized asset. Part V concludes that this alchemy of high deterrence and low costs makes the exclusionary rule an effective device for civil forfeiture proceedings. (22)

2. THE EXCLUSIONARY RULE FRAMEWORK

   An understanding of the exclusionary rule framework is necessary before discussing its application to civil forfeiture. The Supreme Court has made clear that the exclusion of evidence seized in violation of the Fourth Amendment is not compelled by the Constitution itself. (23) The Court has described the rule as a "judicially created means of deterring illegal searches and seizures." (24) As such, the Court extends the rule only to contexts "`where its remedial objectives are thought most efficaciously served.'" (25) The Court has concluded that the rule's aims are best served in situations where the suppression of evidence creates a deterrent to police misconduct that outweighs the social costs of the rule. (26) For example, the Scott decision noted that the rule is "applicable only where its deterrence benefits outweigh its `substantial social costs.'" (27)

   As for deterrence, the Court takes a skeptical view of the ability of the exclusionary rule to deter police misconduct. (28) The Court quantifies deterrence by measuring it against the baseline deterrence already achieved through the exclusion of evidence in criminal trials. (29) Therefore, the Court speaks only in terms of the "marginal deterrence" to be gained. (30) The Court's deterrence analysis also considers factors in a given case that reduce the deterrent effect of exclusion. (31) Moreover, the Court has held that in order for the exclusionary rule to effectively deter police misconduct, the activities involved must be within "the offending officer's zone of primary interest." (32) This definition of deterrence discourages a broad view of what motivates police behavior. (33)

   On the cost side, the Court recognizes that the exclusion of evidence is, in itself, a cost to be weighed in the balance: "Clearly, the enforcement of admittedly valid laws would be hampered by ... extending the exclusionary rule, and, as is nearly always the case with the rule, concededly relevant and reliable evidence would be rendered unavailable." (34) After factoring in this baseline cost, the Court looks for whatever marginal costs may be added to the balance because of the characteristics of the particular proceeding. (35) The Court typically considers such factors as the tribunal's competence to determine the legality of the search and the toll that the administration of suppression hearings would take on otherwise informal proceedings. (36) The Court does not make such an extensive inquiry into the rule's benefits as it looks only at marginal deterrence. (37) That is to say, the Court employs a cost/benefit analysis but does so in a way that considers any cost while narrowly defining benefits to include only deterrence.

   A brief discussion of the Court's decisions that apply this deterrence/cost analysis will illuminate how it functions. The Court first applied this formula in United States v. Calandra. (38) In Calandra, investigators attempted to use illegally obtained evidence as the basis for grand jury questions. (39) After an extensive review of the history and functions of grand juries, (40) the Court determined that an "extension of the exclusionary rule would seriously impede the grand jury." (41) The Court identified two costs: first, "[p]ermitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings;" and second, "[s]uppression hearings ... might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective." (42) These costs reflected a concern that the exclusionary rule would alter the very functioning of grand jury proceedings and "effectively transform[] them into preliminary trials on the merits." (43) The Court found this intrusion on the functioning of the grand jury to be weighty, particularly because the delay in investigations could make prosecution impossible in some circumstances. (44) Next, the Court narrowly defined deterrence by stating that an extension of the rule "would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation." (45) The Court then dismissed the marginal deterrence because police would already be deterred by the fact that the evidence could not be used at a later trial. (46) Having "substantially negated" the possible deterrence, the Court concluded that the rule's costs outweighed its benefits, and refused to apply the rule to grand jury proceedings. (47)

   Two years later, the Court was asked to extend the exclusionary rule to a non-criminal context in United States v. Janis. (48) In Janis, state police officers seized documents that implicated the defendant in a gambling operation. (49) The local officers notified the Internal Revenue Service, which in turn initiated tax assessment proceedings against the defendant. (50) In these tax proceedings, the defendant, claiming that the state officers had illegally seized the evidence, asked the court...