(CN) - The government's ability to delay judicial review of forfeitures appeared to puzzle Supreme Court justices on Wednesday. A visibly frustrated Justice Stephen Breyer asked, "What is the constitutional justification for making a person wait for six months before he gets a neutral judicial official to say whether there was even cause to take his car?"
Breyer proposed a situation in which his car was parked near the scene of a drug crime, and the police confiscated it.
"In my opinion there was no probable cause," he told the state's lawyer. "I would like my car back."
Property valued at less than $20,000 can be kept for 187 days before a forfeiture proceeding is held. No hearing is needed to establish probable cause.
"You can assert an interest, but someone has to determine whether it really exists or not," Justice Sonia Sotomayor said.
Apart from the question of whether the case was moot, lawyers tackled whether the people of Illinois who have had their property confiscated are entitled to such probable cause hearings.
Thomas Peters, who argued for a hearing to establish probable cause, said the hearing should take place some short amount of time after the seizure, and proposed that it be within 10 days.
Illinois argued the importance of confiscating and holding property involved in crimes, even if it is done without a hearing to establish probable cause. Assistant State Attorney Paul Castiglione underlined the importance of having enough time to investigate whether the property really was involved in the crime.
"I'm sorry. You take the car and then you investigate?" Sotomayor asked.
Sotomayor said that police departments may have an interest in keeping the property because they can keep the proceeds.
"So what you're saying is that constitutionally its OK for the party holding on to property without a warrant to decide whether or not it wants to give something back, whether or not there is a viable defense?" Sotomayor asked. "I'm a little confused.
"Is there any other area of law where we permit a prejudgment attachment and/or seizure of property without a neutral magistrate reviewing the reason for that seizure?" Sotomayor asked.
Castiglione said that's the case only in narrow circumstances, but that the state has an interest here in confiscating cars or money, which might otherwise be used again for crime.
But Justice Samuel Alito seemed to have a different concern.
"I don't see how you can expect the state to come into court within such a short period and have any burden of contesting an innocent owner defense without compromising a criminal investigation," Alito said.
"They may think he is involved in the drug conspiracy as well. They may have him on wiretaps. They may be preparing to arrest him," Alito said. "Now, you want to force them to come into court within 10 or 14 days and disclose the details of a pending criminal investigation."
Illinois police confiscated cars and cash allegedly involved in drug crimes and held the cars for more than a year without a judicial hearing. The owners of the cars and cash sued, and a judicial hearing was conducted.
No hardship provision exists in Illinois that would allow a property owner to speed up the process if they use their car, for example, to get to work.
However, the plaintiffs each had a right to assert an innocent-owner defense, which lets property owners keep belongings if they can prove they did not know it was involved in the crime.
"Suppose your statute said there shall be a forfeiture hearing with all the procedures you want, but the forfeiture hearing shall take place one year after the seizure. Would that be adequate?" Justice John Paul Stevens asked.
Castiglione replied that a hearing one year after seizure would be constitutional.
"Ten years?" Scalia exclaimed.
Castiglione said 10 years would be problematic.
"You have given up the position, then," Scalia said. "You've said time does matter. So we are just arguing over what the time is, whether it's 10 years, 1 year or 40 days."
Breyer said that for such cases in Florida, "You have to bring them before a magistrate within a short time to see if there's probable cause." He appeared frustrated that Illinois had no such procedure.
Castiglione replied in essence that there is no hearing before the formal hearing.
During arguments, justices appeared concerned that the case could be moot.
An Illinois district court dismissed the case against the state. The Seventh Circuit reversed and remanded.
The plaintiffs originally asked the court to declare the Illinois statute unconstitutional for not providing an interim hearing.
The property owners later tried to certify a class to pursue damages and restitution, but the class was never certified and the class action was denied as moot.
"So you have nobody before this court with a live claim, neither the original named plaintiffs nor a certified class. So who's here?" Scalia asked.
Castiglione began to reply that the plaintiffs have asked for damages, before Justice Ruth Bader Ginsburg cut in."
They did not ask for damages originally," she said.
The plaintiffs did not formally amend their complaint to pursue injunctive relief or damages.
When the district court dismissed, the plaintiffs appealed the order to dismiss, but did not appeal the denial of class certification.
"Since they defaulted in the final hearing, how can they possibly have any claim left with regard to an interim hearing?" Scalia asked.
Castiglione replied that the nature of the claim hasn't changed, so the case should not be found moot.