Supreme Court

Supreme Court Expands Police Power to Seize Your Assets Before Conviction


It's been a banner week for law enforcement at the U.S. Supreme Court. On Tuesday, in the case of Fernandez v. California, the Court broadened the power of the police to conduct warrantless home searches. But it was a decision handed down on Monday that's likely to have the greatest impact on our criminal justice system.

At issue in Monday's ruling in Kaley v. United States is an area of the law known as asset forfeiture. In essence, asset forfeiture is designed to help law enforcement officials seize the ill-gotten fruits of criminal activity, such as cash, cars, or homes. To that end, prosecutors are permitted to freeze the assets of criminal suspects during trial if there is probable cause to believe those assets constitute "proceeds" of the alleged criminal activity. Notice that this freezing occurs before the suspect has been duly convicted.

That timing matters a great deal to the plaintiffs in this case, a married couple by the name of Kaley who have been indicted by a federal grand jury on charges of selling stolen medical supplies. That may sound like a finding of guilt, but in fact grand jury proceedings are a non-adversarial process where the prosecution alone is permitted to call witnesses and present evidence. The suspects have no opportunity at that point to rebut anything the government alleges against them.

In the wake of the grand jury indictments, the federal government moved to freeze the Kaleys' assets, including their home and a $500,000 certificate of deposit the couple had recently purchased in order to cover the anticipated legal expenses arising from their trial. Put differently, the government has eliminated their ability to pay their lawyer.

Writing for a 6-3 majority, Justice Elena Kagan sided with the government. "The question here presented," Kagan wrote, is whether the Kaleys have a constitutional right "to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding."

Writing in dissent, Chief Justice John Roberts zeroed in on the dangers lurking in Kagan's ruling. "The hearing the Kaleys seek would not be mere relitigation of the grand jury proceedings," Roberts countered, it would be a hearing before a federal judge aimed at determining if the prosecution had indeed proved probable cause for the asset forfeitures. "And of course, the Kaleys would have the opportunity to tell their side of the story—something the grand jury never hears," he added.

Furthermore, "the Court's opinion pays insufficient respect to the importance of an independent [criminal defense] bar as a check on prosecutorial abuse and government overreaching," Roberts declared. "Granting the Government the power to take away a defendant's chosen advocate strikes at the heart of that significant role."

The chief justice got it right. Our criminal justice system only works when both sides get the opportunity to put their best case forward. Something has gone very wrong when the deck is stacked so heavily against those who still remain innocent until proven guilty.

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  1. Is there any berobed individual on that court who isn’t a statist prick in one area or another?

    1. Being a statist is a prerequisite for the job.

      1. If you need a good laugh, read Imbler v. Pachtman. The gist is, sure prosecutors might be malicious pieces of shit who set people up and withhold exculpatory evidence, utilize false testimony, but the public WANTS them to be pieces of shit, no NEEDS them to be pieces of shit. And they can’t be malicious pieces of shit if the peasants can sue them for their malicious conduct. Therefore, absolute immunity.

        Read this gag-worthy cite:

        “The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction.

        There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. . . . The apprellension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded, and we would have moved away from the desired objective of stricter and fairer law enforcement.”

        We cannot afford to let lawbreakers go free. Unless they work for the government, then it’s all good.

        1. What a piece of sophistry. The decision without saying so changes the question form “should prosecutors who are found to commit criminal acts be subject to civil liability” to “should prosecutors who fail to win a conviction be subject to civil suit”. Whoever wrote that is either mendacious or stupid.

          1. Look here, buddy, are you one of the Nazgul? Do you have a magic black robe? Did you attend an Ivy League law school? Then shaddup and mind your betters.

            But if you like that quote, here’s a little more

            We are well aware of the fact that in thus shielding the public prosecutor against actions of this sort the rule may work hardship and injustice in individual cases. But there is no middle ground to be occupied in the matter; either all such suits are to be tolerated or none. We are confronted with the not unusual situation that calls for the subordination of the rights of the few to the interests of the whole body of the public.

            Peasant, the state thanks you for sacrificing your life, property, and freedom, so that prosecutors may be free to fuck with even more people.

        2. The life of a person is something which must be lived with courage and independence. Yet how can this be if the person is made subject to persecution by those who simply feel like fucking with him? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious people by those who would profit thereby. There would be involved in every case the possibility of just being fucked with and potentially sent to prison.

          1. Nikki, are you saying you want prosecutors to possibly be subject to harassment and embarrassment? That prosecutors should be held to account for their acts, committed in bad faith? That sounds suspiciously like terrorist-talk to me. The very definition of freedom is that our betters in government may do anything they want to us without fear of repercussion. How else would government function?

    2. “Presumption of innocence? Fuck you, be happy we let you have a fucking trial.”

      1. Very well then, Mr. Fry. Please recount the events that led you to be guilty.

    3. They all have a statist streak. Some wider than others.

    4. very few on the lower courts, too.

    5. No.

      Though I still have to admit my surprise about Sotomayor, who’s been easily the best justice on criminal justice issues since she joined the Court. She ain’t anywhere near perfect, but she’s the best one there.

  2. Put differently, the government has eliminated their ability to pay their lawyer.

    That’s the point.

    1. exhibit A: Whitey Bulger. Sure, he was indigent.

  3. 6-3? thats it. were officially a police state.

    add it to welfare state and the nanny state.

    1. So basically we’re in a shit state.

  4. They’re obviously guilty. Why else would the government go after them and get an indictment?


    1. Plus, the government is us. We would never do this if they were innocent, right?

    2. Tulpa insists to me it’s all true.

  5. Who were the other dissenters?

    1. KAGAN, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, and ALITO, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined.

      What a crock.

      1. I see Mr. “New Professionalism” continues his delusional ways when it comes to law enforcement.

      2. Thomas, you disappoint me.

  6. An Obama appointee wrote the majority opinion, and a Bush appointee wrote the dissent. So I’m just going to assume this ruling helps the oppressed.

    1. You mean the “oppressed” government, under the tread of the vicious Tea Party?

  7. This whole line of reasoning is so contrary to our political and legal system. At least, what it used to be. You should get full due process for any deprivation of life, liberty, or property. Just because the state finds it inconvenient that people can use potentially ill-gotten funds to pay their counsel doesn’t make it okay to skip the step of proving that the gains were ill-gotten.

    1. The Fifth Amendment states: “Nor shall any person . . . be deprived of life, liberty, or property, without due process of law . . . ”

      So yeah, this is just another case of FYTW, in direct violation of the constitution.

      1. Civil forfeiture in general seems to me to be blatantly and indisputably unconstitutional, despite the Supreme Court blessing and caressing it.

        1. You are correct, in that it deprives you of property without due process. I don’t see how anyone can deny at this point that the courts simply rule based on their desired outcome and then look for some way to justify their pre-determined ruling. The Constitution has become essentially meaningless.

          1. Heck, they’ve been doing that in a very long, slow coup d’?tat. Many, many important cases in law school were decisions that were clearly result-based.

            1. When I took 14th Amendment law, the professor kept telling us to ask ourselves, “Is there any law going on here?”

    2. Pro L, you as an American are not being deprived of life, liberty, and property without due process.

      But there’s nothing in the Constitution that says the due process must occur BEFORE the deprivation.

      Seriously, courts have held in favor of that interpretation.

      1. And they’re wrong. It just goes to show that completely deferring to the government to decide what’s a violation of our rights and what is not was a stupid idea from the beginning.

      2. Looking at some of what’s happened and been argued, I can only think that most of America’s lawmakers, prosecutors, and judges think due process goes like this: “We passed a law that said we could take your stuff, and then we did take your stuff. See, due process.”

        1. If you don’t like the law, just use democracy to change it. It’s not for us judges to go around overriding the legislative will of the people (unless we’re giving ourselves immunity from suit).

          -Oliver Wendell Derp Jr.

  8. Damn it! What a god damn week. I knew they were the Nazgul, I just didn’t know Holder got hold of the One Ring somewhere.

  9. If you’re not guilty, why would you be on trial?

    1. It’s the presumption of gilt.

    2. Precisely. And if you get acquitted, that’s just because you purchased the acquittal with those ill-gotten gains.

  10. So can we talk about how the evil inside Eric Holder is finally affecting his health?

    1. My theory is he accidentally told the truth in a minor matter and it damn near killed him.

    2. I hope he has something extremely painful that only MJ can assuage.

      1. That would be so goddamn awesome. Except he’ll have no trouble getting access to it, legal or not. And won’t feel one twinge of guilt about denying it to the po’ folks.

        1. It’s okay because Top Men like him can handle it, while it would ruin lesser folk. That’s why the peasants have to be protected from themselves.

      2. Do you think that he wouldn’t have easy access to it, or that such need would in any way change his views that it’s something that the proles should still be put in prison for? Of course not.

        1. *shakes fist at fast-fingered Kristen, carefully making sure she doesn’t see*

  11. You don’t have to wear a tin foil hat to believe it is truly frightening what is happening to this country. I used to be proud of the US. No more.

    If you’re a young person thinking of going into the military, you really ought to think long a hard about what exactly you think you’ll be defending.

    That “?land of the free and home of the brave?” stuff has become nothing but worthless twaddle. A good comedian could make a great laugh line out of it.

      1. Ha, I forgot about Carlin’s routine.

    1. Your right. I am a “young person” and i wouldn’t consider going into the military anymore.

      Carlin was excellent at that sort of humor. he truly understood the danger of blind patriotism. I got out of the Statist Plantation just in time to vote for Gary Johnson.

      I have a hard time seeing what my friends are defending there, but ill never bring it up as to not jeopardize our friendship.

    2. A good comedian could make a great laugh line out of it

      I see a Jeff Foxworthy routine:
      “If you can be searched without your consent for no reason at all just because you are within 100 miles of the border…You might be in the Land of the free and the Home of the Brave!”

      “If you can be deprived of your property and ability to defend yourself in court without due process….You might be in the Land of the free and the Home of the Brave!”

      “If you have to ask permission and take orders from petty bureaucrats just to take a shit…..You might be in the Land of the free and the Home of the Brave!”

      Jesus, I could do this all night.

        1. “If you’re always pleading ‘Please don’t” but they always do as they please…You might be in the Land of the free and the Home of the Brave!”

  12. Put differently, the government has eliminated their ability to pay their lawyer.

    “If you cannot afford an attorney, one will be appointed for you.”

    A top notch attorney.

    1. Well, Jodi Arias got top notch public defenders — if one judges by their billings.

    2. If you like your attorney, you can keep it.

    3. See, this is where the defendants usually being bad guys results in bad law for all of us. The courts want to avoid the result of letting a criminal use ill-gotten gains to fund high-end defense teams. But, leaving aside the issue of even the criminal having rights, what about the innocent defendants that get crushed because they can’t hire a decent attorney?

    4. Who will get a fully adequate budget to defend you.

  13. What a nutpunch. 🙁

    And here I used to respect Thomas, but he disappoints me constantly on things like this.

  14. The dissenters were Chief Justice Peneltax, Breyer and the Magic Latina. Once again Sotomayor proves to be one of the better justices and Keagan the hack we all feared she would be.

    And extra shame on Thomas and Scalia and Alito who should no better. You read the majority opinion and it just restates the law on probable cause and grand juries. Yes, we got it, the Grand Jury determines that there is probable cause that you are guilty. But it makes no determination of probable cause that this money is the fruit of criminal activity. Kagan and the majority assume that once you are indicted everything you possess is presumed to be the result of criminal activity. And that is frankly insane.

    1. Thomas, Scalia and Alito are generally statist hacks when it comes to anything other than giving corporations more rights. Scalia has made some heartening moves in the (alleged) terrorist detention cases but he’s generally pro-government in all civil liberties cases.

  15. When Sotomayor was nominated, I was very worried about her history as a former prosecutor. I must say that as bad as she is on other issues, I’ve been pleasantly suprised that she’s probably become the most consistent vote on the current court for reigning in cops and prosecutors.

    1. I have been highly surprised by her too.

    2. I think the fact that she was a district judge and saw how things work at the ground level is what makes the difference. She is the only justice who has ever actually tried a criminal case as either prosecutor or lawyer.

      1. Yeah, but the same is true of every cop and prosecutor. Most of them are happy to take advantage of it or at least remain quiet out of misguided loyalty to their coworkers, and I had expected Sotomayor would too.

        The fact she came from that world without having been corrupted by it was a big suprise to me.

        1. Me too. But being at that level at least gave her a shot. The rest of them don’t know enough to be any better.

  16. Um…have the Nazgul forgotten about this tiny little impediment?

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    [Emphasis mine]

    1. Your “due process” is having some prosecutor give a monologue to the court.

    2. No. What they forgot is that the Grand Jury determines if there is probable cause to conclude you committed the crime not if there is probable cause to conclude this property is the fruit of a criminal enterprise.

    3. Post hoc determination of guilt is all the due process you deserve.

    4. I’m reminded of a few lines from an old episode of Law and Order:

      Claire Kincaid: They filed the notice of appeal. All evidence relating to the Mack Rangers should have been excluded.
      Jack McCoy: Why, because without it, Greer might’ve won?
      Claire Kincaid: First amendment. The Constitution?
      Adam Schiff: Yeah. That pesky thing.

      That was in 1995. Since then, they’ve found lots and lots of ways to ignore that pesky thing.

    5. Forgotten?

      Fransico, judging by their rulings I am not sure they ever read it at all, or care to.

      Their grasp of the constitution seems on par with Jesse Myerson’s grasp of politics.

    6. Just out of curiousity, is there a form you have to fill out to have one of these homo demons sent to scoop you up?

  17. Government is just the things we all do together. Like freezing people’s assets so they cannot defend themselves against charges we bring against them.

  18. I don’t think the Fernandez case is significant. The guy’s girlfriend was at the house and let the police search. That is consent. At most it is a broadening of who can consent to a search not when a warrant is required to search a home.

    1. I am a cop. I show up at John’s house and I want to search. John tells me to go fuck myself. I arrest John, haul him to jail.

      I then ask his wife for consent. She also tells me to go fuck myself. I arrest her, haul her to jail. John’s neighbor has wandered over to see what is going on. He is standing in the yard watching. I ask him for consent to search John’s house. He says sure. I ransack John’s house.

      The Nazgul say its all good.

      1. I did not finish before posting.

        You can bet your last dollar the cops are going to do exactly that. It will become SOP for getting consent to search.

    2. It’s extremely significant. If the police can get around the whole consent thing by arresting the non-consenting party, it’s open season for abuse (probable cause is extremely easy standard; we’re all guilty of SOMETHING).

      1. They don’t even have to be guilty of anything. They can always detain a person in their cruiser without any justification other that the person raising their voice or holding a recording device.

        1. If you stand up to them it’s resist, obstruct and delay an officer in the performance of duties

    3. The problem with that is that he refused the search as a specific attempt to gain evidence related to a suspected crime. If all it takes is to drag the guy down the street and then repeat the request – we’re all fucked. Why bother with a 4th amendment at all if it’s just an inconvenience to law enforcement that they can wiggle around. A dog can justify a warrantless search, immediate evidence of a crime can justify a warrantless, then there’s effectively no need for the 4th.

      1. If your wife has common access, she can always consent when you are not there.

  19. The honest fuck is fucked hardest. The people who know they’re targets stash cash and pay their lawyers early and often.

    1. Pay their lawyers? Ha! The real ones just pay for the political campaigns of those overseeing the prosecutors. And their lawyers drift in and out of public “service” to keep an air of legality about things.

      1. That too.

  20. What difference, at this point, does the Fifth Amendment make?

    1. didn’t they sing the Age of Aquarius?

      1. That’s right, in Hair. The Constitution is some kind of hippie musical with naked people.

  21. Chicago PD Believes It Can See The Future, Starts Warning Citizens About Crimes They Might Commit

    With that in mind there’s growing concerns about efforts in Chicago to use predictive analytical systems to generate a “heat list” — or a list of 400 or so individuals most likely to be involved in violent crime. The Chicago efforts are based on a Yale sociologist’s studies and use an algorithm created by an engineer at the Illinois Institute of Technology. People who find themselves on the list get personal visits from law enforcement warning them that they better be nice. The result is a collision between law enforcement that believes in the righteousness of these efforts and those who worry that they could, as an EFF rep states, create “an environment where police can show up at anyone’s door at any time for any reason.”

    1. Why don’t they just use a wigi board or hire a psychic? It wouldn’t be any less scientific and would at least have tradition going for it.

      1. They could just run their department the same way our government develops economic policy.

        And by the way, it’s Ouija.

        1. You know what I mean. But is there any sort of junk science these assholes won’t latch onto?

          1. They probably believe their spell checkers, too.

          2. IDK, I’m with McCarthy when he calls the war on drugs an absolute failure. He likes the program described above because they don’t have to put more offenders in overcrowded jails.

            And then he puts his nails on the chalkboard by talking about the goal being “zero crime”.

        2. Why s
          Isn’t it Haida?

    2. Baton Rouge and New Orleans cops were given money by the federal govt to do this exact same stalker routine.

  22. Our libertarian moment is at hand. Or something.

  23. Writing for a 6-3 majority, Justice Elena Kagan sided with the government. “The question here presented,” Kagan wrote, is whether the Kaleys have a constitutional right “to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.”

    Didn’t I say… “just wait”? Didn’t I?

  24. My liver can’t take many more Supreme Court decisions.

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  26. this is scary indeed. i currently am being accused of something i am truly innocent of & although i don’t have much in the way of material assets, to grant them the right to take or freeze your assets until guilt or innocence is decided, is wrong. this is a fundamental concept on which this country was founded — INNOCENT unless PROVEN guilty. Law enforcement has way too much latitude as it is. Everyone is a suspect to them (most of the time that is rightfully so), however, they do misjudge & create non-truths in order to gain “victory” so to speak. The issue with asset forfeiture prior to conviction is the overwhelming evidence AGAINST the gov’t that this is a much abused practice for law enforcement. They take great advantage of this concept in order to fund their agencies because of the budget cuts that are straining them. How else do you explain the 300% INCREASE in seizures between FY 2011 & FY 2012?!?!??! (this is per the US Attny General’s website, btw —…..eport1.htm &…..eport1.htm)

    1. “to grant them the right to take or freeze your assets until guilt or innocence is decided, is wrong.”

      Herein lies the problem. They don’t take them until guilt or innocence is decided, they just take them. I don’t know how many stories I’ve read about innocent people not getting their things back…

  27. People who are too wealthy can be denied a public defender because they don’t need one. I’d bet that such an evaluation takes into account the accused’s assets as if they were not frozen.

    In effect, this allows a corrupt prosecutor to ensure that the accused has no lawyer at all.

    1. So does the 2012 NDAA all they have to do is accuse you of terrorism and you will be tried in a military tribunal where you are guilty until proven innocent beyond a reasonable doubt.
      In effect they are just doubling down with what they did 2 years ago to do the same for the civil system so that the sheriffs cant rebel and say no this time

  28. It is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of the government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government.” Murray Rothbard. So quit whining and get used to it. The police state is almost complete. “We have met the enemy and he is us.” Pogo.

  29. Justice System. Is there justice in the system? Or is it just us in the system?

    The love to drag your ass to court. This is the arena for their sick sport. They run for office and make more laws. 100,000 reasons to further their cause. We get charged, we better watch out. A system of fear, what they make out. Either way it goes – good or bad. The attorneys get paid and they get fat. Is there justice in a world gone crazy? Where it’s survival of the fat and lazy? The less you’ve got they’ve got you on your knees. You’ll say please, they get fees….

    It’s all such a web of lies. Attorneys are the spiders and we are the flies.

    One to prosecute, one to defend. One to judge you, and in the end, 12 of your peers are forced to sit in. As lawyers lie, so they can win. Either way, they get paid. We are the victims with the laws they’ve made. They’ll take your freedom, and then your home. They’ll take it all, ’til you’re all alone. Break up a family for a fee. I can’t remember when I was free. Free to worship, free to speak. They never practice what they preach.

    It’s all such a web of lies. Attorneys are the spiders and we are the flies.

    A country of laws and lawyers make them. Arm the police and they defend them. Books full of lies, but we don’t believe them. Their jobs are secure, the long arms of the law.

    It’s all such a web of lies. Attorneys are the spiders and we are the flies.

  30. The Fernandez ruling wasn’t catastrophic, this one is.

    The dumbass Justices force us to pass amendments to fix their dumbass rulings. The problem is our congressmen and senators are even worse. This country needs help.

  31. No matter how much he dissents, Roberts can never make up for his opinion on Obamacare, that a penalty may be a tax, which govt has complete power over. In Sept, the Fairfax County, Va, board of supervisors levied a $100 TAX, as they were at pains to say, on anyone possessing a car not registered with the state, thus, of course, depriving the county of property tax, but nevertheless, it is rarely that much, and the county adopted a $250 PENALTY, which it doesn’t mind calling a penalty, altho it can only be viewed as a tax, since owning an unregistered vehicle in no way impinges on the county welfare. These notions all began with the Lincoln admin’s decision to tax free bank notes out of existence in order to take over the banking system and pay for the Civil War.

  32. The laws have allowed the law to assume the property in any form if it was connected to drugs. 60 Minutes TV did a program on this when a widow sold her home and went to Florida. The clerk at the airlines notified the authorities that the plane fare was one way and paid for with cash. The authorities moved in arrested her and took the cash she had for the sale of her home. Guess what, she lost the cash, due to the bureaucracy of government. It happens more than you think.

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