Of merchant ships and crack-sellers' cars

How is an automobile seized in the 1990s similar to a British merchant ship in the 1790s?

In the 1790s and early 1800s, US customs agents were empowered to search and seize goods, and eventually the trading ships carrying them, without first obtaining a warrant. They could do so if the ships were suspected of smuggling cargo into the country without paying required duty.

A majority of US Supreme Court justices agreed this week that because such laws were passed by early members of Congress shortly after the Bill of Rights was written, the Constitution must also permit present-day law-enforcement officials the same latitude.

At issue before the court was a 1993 Florida case involving the car of an alleged cocaine dealer, Tyvessel White. Police seized the car from a public parking lot under a state forfeiture law without obtaining a warrant. When they searched the car, also without a warrant, they found in the ashtray two pieces of crack cocaine that they used to convict Mr. White of narcotics possession.

At issue before the high court was whether Florida police needed a court-authorized warrant before seizing and searching White's car.

History as a yardstick

Under the Fourth Amendment of the US Constitution, law-enforcement officials are required to obtain a warrant issued by a neutral judge prior to searching or seizing private property. But there are long-standing exceptions to this fundamental requirement. Some of those exceptions date to colonial times.

White's lawyers challenged the warrantless seizure and search of their client's car, saying police had ample time to obtain a warrant, but failed to do so. The Florida Supreme Court agreed, and threw out White's conviction.

On Monday, by a 7 to 2 vote, a majority of the justices reversed the Florida court. They used history to support their decision.

"In deciding whether a challenged governmental action violates the [Fourth] Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed [more than 200 years ago]," wrote Justice Clarence Thomas in the majority opinion.

Such inquiries into the intent and apparent wishes of the nation's founding fathers are common among conservative members of the high court. This so-called jurisprudence of original intent is aimed at rolling back the perceived liberal excesses of earlier Supreme Court decisions while restoring the nation to what conservatives view as the proper balance of constitutional safeguards.

But not all analysts see it that way. Steven Kessler, a New York lawyer and forfeiture expert, says the Supreme Court decision fails to place early US laws in proper perspective. "Whose ships were we seizing? Britain's," he says. "We were at war with that country. We just broke away from them."

Mr. Kessler says that the ship-seizure law was the only British forfeiture statute retained by the new American nation. The ship-seizure law was a form of payback for years of British tyranny.

In addition, legal experts say, the seizure law was grounded in the concept that unless customs officials could act quickly (without taking the time necessary to visit a judge) the illicit cargo and the vessel might disappear. As such, an exception to the warrant rule was established when exigent circumstances required officials to act immediately.

In the Florida case, White's lawyers argued that because police had waited three months before seizing his car, they had more than enough time to satisfy the warrant requirement.

Justice Thomas glossed over this issue in his decision. He repeatedly cites a 1925 Supreme Court decision that includes a historical analysis of warrantless seizure laws dating to the earliest years of the nation. But Thomas does not take note of a key paragraph in that same 1925 decision, which says: "In cases where the securing of a warrant is reasonably practicable, it must be used."

A matter of semantics

The majority decision in the Florida case effectively changes that word "must" to "may" in forfeiture cases involving cars parked in a public place.

"The court really has declared open season on cars," says Tracey Maclin, a professor at Boston University School of Law. "This is a reaffirmation that people have very diminished privacy expectations with respect to their cars."

Specifically, the court ruled that under Florida's forfeiture law, White's car was the legal equivalent of contraband because months earlier police said they watched White conduct drug deals using the car. The forfeiture law permits police to seize and forfeit as contraband any vehicle used to commit a crime.

The majority decided that because police do not need a warrant to seize contraband - such as drugs or crime evidence - in a public place, they would not need a warrant to seize a contraband car in a public parking lot.

Dissenting opinion

In a dissent, Justice John Paul Stevens wrote that he sees no reason that Florida authorities could not have obtained a warrant prior to seizing and searching the vehicle. "On this record, one must assume that the officers who seized White's car simply preferred to avoid the hassle of seeking approval from a judicial officer.

Legal analysts say they are concerned the decision will encourage local, state, and federal law-enforcement officials to abandon the warrant process when seizing or searching cars subject to forfeiture.

"It blows another hole in the Fourth Amendment without any real need to do so," says Richard Troberman, a Seattle lawyer who filed a brief in the case on behalf of the National Association of Criminal Defense Lawyers. "The police never gave any justification for not seeking a warrant. And they waited three months before seizing the car."