Just note that seizure laws are as old as the constitution and the Supreme Court has never interpreted the 4th amendment that way. Example cases are "The Palmyra, 25 U.S. (12 Wheat) 1 (1827)." where they seized a pirate ship originally owned by Spain but was operating on its own. Or "Dobbins's Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637 (1878)" where they ceased property of the man who'd leased out his property for a distillery. In "254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921)" a taxicab used to transport illegal liquor was seized. In "Calero Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974)" they cease a yacht because the people leasing it had one marijuana cigarette. There's 200 years of precedent saying they can cease property even though the owner is innocent.
What seems to be fundamentally different is that most the recent cases seem to involve seizures where there's no real evidence of a primary crime in which the property was an "accessory". "Preponderance of evidence" has basically been replaced by speculation and accusation with no basis in fact. A conviction has never been a formal requirement, say they try to stop a car at a border crossing, the driver makes a getaway, abandons the car and is never found or convicted. In this case they would seize the car as objectively used for drug smuggling even though no person could be convicted for the crime. But when there's not the slightest hint of link to a crime, that's just wrong.
It also gets better, there's no need for the seized property to be instrumental in the crime.
The dissent argues that our cases treat contraband differently from instrumentalities used to convey contraband, like cars: Objects in the former class are forfeitable "however blameless or unknowing their owners may be," post, at 2, but with respect to an instrumentality in the latter class, an owner's innocence is no defense only to the "principal use being made of that property," id., at 4. However, this Court's precedent has never made the due process inquiry depend on whether the use for which the instrumentality was forfeited was the principal use. If it had, perhaps cases like Calero Toledo, in which Justice Douglas noted in dissent that there was no showing that the "yacht had been notoriously used in smuggling drugs . . . and so far as we know only one marihuana cigarette was found on the yacht,"
Basically if you got a friend riding your car and you get stopped for any reason and they find a joint on your friend your car can be ceased under drug laws, there's no requirement that it be instrumental in transporting drugs. Same if you got a friend or family member visiting, your house is now a de facto drug stash even though it was on their person the whole time.
In any event, for the reasons pointed out in Calero Toledo and Van Oster, forfeiture also serves a deterrent purpose distinct from any punitive purpose. Forfeiture of property prevents illegal uses "both by preventing further illicit use of the [property] and by imposing an economic penalty, thereby rendering illegal behavior unprofitable." Calero Toledo, supra, at 687. (...) "The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner."
Basically it's the "nuke it from orbit" theory, anything found in the vicinity of a crime gets caught in the blast wave. It doesn't matter if it was your property and you're innocent, if bank robbers steal your car and use it in a bank robbery clearly you should lose your car right? Your fault for letting it get stolen and be used to rob a bank, you pay the price.
The dissent also suggests that The Palmyra line of cases "would justify the confiscation of an ocean liner just because one of its passengers sinned while on board." Post, at 5. None of our cases have held that an ocean liner may be confiscated because of the activities of one passenger. We said in Goldsmith Grant, and we repeat here, that "[w]hen such application shall be made it will be time enough to pronounce upon it."
Is it time yet?
