The Drug War on the Constitution

By Steven Duke

America’s Longest War was declared by Richard Nixon more than a quarter of a century ago. It has been a total failure in keeping drugs from entering the country. Whether it has significantly contributed to the reduction of drug abuse is debatable. But there is one arena in which victory has been achieved: the Constitution has surrendered. If there is any phase of American life in which the rights of the people have not diminished during the drug war, it has escaped my notice. The anti-constitutional effects of the drug war have been so relentlessly obvious for so long that a cynic might wonder whether the Constitution is not the true enemy of the drug warriors.


Late at night last August, armed men shot their way into a Compton, California home, set off a "flash-bang" grenade, then ran into a bedroom where Mario Paz, a 64-year-old grandfather, and his wife had been sleeping. One of the gunmen shot Paz in the back twice, killing him. They later discovered $10,000 in cash which the couple had withdrawn from the bank that day, fearing Y2K. The gunmen took the cash. The invaders were cops, looking for evidence against a former next-door neighbor, suspected of being a drug dealer. No drugs or other evidence was found.1

Such raids are standard procedure in most large cities and, except in the most outrageous cases, they receive the approval of courts. Police can get search warrants on the flimsiest of suspicion -- even the word of an anonymous informant.2 In many cases, though, the police don't even bother to get a warrant, since they are virtually unfettered by the risk of successful suits or other sanctions, especially if they confine their warrantless invasions to poor members of minority groups.

The Fourth Amendment of the United States Constitution, which guarantees against "unreasonable searches and seizures" and prohibits warrants on anything but "probable cause," is a casualty of the drug war.3

Since the early 1970s, almost all the searches and seizures reaching the United States Supreme Court have been approved. The Court has held, for example, that a search on an invalid warrant does not require any remedy so long as the police acted in "good faith."4 People may be stopped in their cars or in airports, trains or buses, and submitted to questioning and dog sniffs.5 Police may search an open field without warrant or cause, even if it has "no trespassing" signs and the police trespass is a criminal offense.6 They may also, as in Orwell's Nineteen Eighty-Four,7 conduct close helicopter surveillance of our homes and backyards.8 They may also search our garbage cans without cause.9 If they have "reasonable suspicion," the police may even search our bodies. Mobile homes, closed containers within cars,10 as well as cars themselves may be searched without a warrant.

The Court has also held that a suspected "balloon swallower" may, without warrant or probable cause, be seized as she arrives from abroad at the airport, strip-searched and ordered to remain incommunicado until she defecates over a wastebasket under the watchful eye of matrons. Validating such an 18 hour ordeal, Chief Justice Rehnquist listed other invasions that the Court had upheld:

[F]irst class mail may be opened without a warrant on less than probable cause....Automotive travelers may be stopped...near the border without individualized suspicion even if the stop is based largely on ethnicity...and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever.11

Those incursions, Chief Justice Rehnquist said, are responsive to "the veritable national crises in law enforcement caused by smuggling of illegal narcotics."12

Searches or seizures have been upheld on nothing more than suspicion that drugs are being transported. Sufficient suspicion can be mustered by matching the victim of the search with a few of the characteristics contained in secret "drug courier profiles" that rely heavily upon ethnic stereotypes. As a result of such profiles, hundreds of innocent people are subjected to indignities every day.

Hispanics bear the major brunt of the profiles near our southern border, but young African-Americans suffer from it wherever they go. An African-American who drives a car with an out-of-state license plate is likely to be stopped almost anywhere he goes in America. A survey of car stoppings on the New Jersey turnpike revealed that although only 4.7% of the cars were driven by Blacks with out-of-state plates, 80% of the drug arrests were of such people.13 The Pittsburgh Press examined 121 cases in which travelers were searched and no drugs were found. Seventy-seven percent of the people were black, Hispanic or Asian.14 In Memphis, about 75 percent of the travelers stopped by drug police in 1989 were black yet only 4 percent of the flying public is black.15

Almost as offensive as relying on racial characteristics in a profile to justify searches or seizures is permitting the trivial and subjective profile characteristics to count as "reasonable" or "articulable" suspicion. Federal Circuit Judge Warren Ferguson observed that the DEA's profiles have a "chameleon-like way of adapting to any particular set of observations."16 In one case, a suspicious circumstance (profile characteristic) was deplaning first.17 In another, it was deplaning last.18 In a third, it was deplaning in the middle.19 A one-way ticket was said to be a suspicious circumstance in one case;20 a round-trip ticket was suspicious in another.21 Taking a non-stop flight was suspicious in one case,22 while changing planes was suspicious in another.23 Traveling alone fit a profile in one case,24 having a companion did so in another.25 Behaving nervously was a tip-off in one case,26 acting calmly was the tip-off in another.27

As even their users admit, the profiles are self-fulfilling. If the profiles are based on who is searched and found guilty, the guilty will necessarily fit the profiles. The DEA claims to catch 3,000 or more drug violators through the profiles,28 but no records are kept of how many people are hassled, detained or searched to produce the 3,000. Amazingly, the DEA keeps no records of the failures of the profile system.

And what of the cherished constitutional right to the privacy of bedroom and telephone conversations? An elaborate federal statute seeks to prohibit most interceptions of such conversations that are not approved by a court order, upon an application establishing probable cause, necessity and several other requirements.29The granting of wiretap and eavesdropping applications, however, appears to be even more routine than rubber-stamping of search warrants. In 1991, 856 requests were submitted to federal judges; each and every one of the applications was approved.30 Sixty-one percent of the surveillances were of suspected drug dealers.31In 1998, 72 percent of the applications were for drug suspects.32

Not all of the court rulings against Fourth Amendment rights have occurred in drug cases, but most of them have, and the drug war fuels the attack on privacy even in cases not directly dealing with drugs. The pressure to uphold police activities in drug cases generates new "principles" that thereafter apply to everyone, whether or not drugs are involved. If the police are authorized to search for drugs on suspicion, they can also search for evidence of tax evasion, gambling, mail fraud, pornography, bribery and any other offense. The putative object of a police search does not limit what can be confiscated. If police conduct a lawful search, they can take and use any evidence they see, however unrelated it may be to what got them into the home -- or the body -- in the first place.

The Supreme Court has not stopped at amending the Fourth Amendment's "probable cause" to mean, in most cases, only "reasonable suspicion," and creating a dozen or more exceptions to the search warrant requirement; it has also virtually eliminated legal remedies for those few searches that are still illegal. The exclusionary rule -- which forbids use of illegally-obtained evidence -- has been restricted to the point of absurdity.33 The rule does not apply to grand jury proceedings, to civil cases, or even to sentencing procedures. It does not apply even in a criminal trial if the defendant has the temerity to testify in his own defense, for the illegally-obtained evidence can then be used to "impeach" the defendant as a witness.34 Thus, the police have strong incentives to violate the meager Fourth Amendment rights that remain intact, because there is in most cases no practical remedy for their violations.

Students And Other Quasi-People

Although students in our public schools are "people" protected in theory by the Bill of Rights, they are treated otherwise in practice. The Supreme Court approved the search of a high school student's purse on reasonable "suspicion" that the search will turn up evidence that the student has violated either the law or the rules of the school.35 Courts uphold searches of lockers and even college dorm rooms on the same flimsy justification.36 Students have been subjected to strip searches,37 and to having their activities in a bathroom recorded on film.38 A court even upheld the strip search of a male student because his crotch, a teacher thought, was "too well-endowed." (The search revealed no contraband.)39 The Supreme Court has upheld mandatory drug testing of student athletes40 and some lower courts have upheld it for virtually all students.41 If such testing becomes commonplace it is hard to imagine that it will be confined to drug searches. The substances taken for drug tests will also reveal pregnancy and countless genetic secrets.

If students get only a diluted version of an already watered Fourth Amendment, at least they have standing to complain. But aliens who are searched abroad by our drug agents seem to have no rights at all. Upholding the warrantless search of a defendant's home in Mexico by American DEA agents, Chief Justice Rehnquist declared that nonresident aliens are not "people" protected by the Constitution even if, as in the case before the Court, the victim of the search had been taken to the United States and was being held here for trial while the search was conducted in Mexico to help convict him here.42 Thus, unless they are acting against American citizens or resident aliens, our police can do anything abroad to anyone and the Constitution is seemingly inoperative.

It is not even clear, however, that our own citizens have any Constitutional rights outside our borders. In 1992, the Supreme Court upheld the DEA-supervised kidnaping of a drug suspect in Mexico and his forceful abduction to the United States for trial. Nothing in either the Constitution or the extradition treaty with Mexico, the Court held, required any remedy for the kidnaping.43 It doesn't matter who the police kidnap, or where they kidnap them, or how they do it; the kidnaping will not prevent the victim's own criminal trial.


What the drug war has done to the Fourth Amendment, it has also done to the Sixth. The Sixth Amendment guarantees, among other things, that in "all criminal prosecutions" the accused shall enjoy "the Assistance of Counsel for his Defense." No other right is as precious to one accused of crime as the right of counsel. A loyal, competent lawyer is essential for the protection of every other right the defendant has, including the right to a fair trial.

In recognition of that fact, the definition of the enemy in the war against drugs has been expanded. Not only are drug sellers and drug users targets, so are their lawyers.44 Criminal defense lawyers have increasingly come to expect their law offices to be searched, their phones tapped or their offices bugged. Prosecutors frequently serve subpoenas on defense lawyers prior to trial, requiring them to produce documents and testify about their clients before a grand jury.45 Having thus driven a wedge between client and attorney, creating a disqualifying conflict of interest at worst and mistrust of the lawyer at least, the prosecutor is then in a strong position to extract a guilty plea. The courts have upheld all these practices, the effect of which is to deprive the accused of his only real defensive armament.46

The Supreme Court added a powerful missile to the Government's arsenal when it held in 1989 that federal authorities could freeze and later obtain the forfeiture of the assets of a person accused of a drug crime, so that he would have no money with which to pay a lawyer.47

The centuries-old tradition that confidential conversations between a lawyer and client cannot be divulged without the client’s consent also seems headed for the basement of American legal history. Courts have held that because "monitoring" of conversations in jails and prisons is well-known, any attorney-client conversations that are eavesdropped upon are fair game -- they have been implicitly "consented" to. This absurd fiction was even applied to Colonel Manuel Noriega, who barely speaks English. After he was kidnaped in Panama and thrown in a Miami jail, his phone conversations with his lawyers were "monitored." A federal court found he waived his rights by talking to his lawyers on the phone.48

Unpunished Prosecutorial Crimes Against Defendants

Some prosecutors don't stop at making grand jury witnesses out of criminal defense counsel. They even arm traitorous defense lawyers with bugging devices and direct them to get incriminating admissions directly from their clients’ lips. Novelist Scott Turow, when a federal prosecutor in Chicago, did exactly that. An attorney named Marvin Glass came under suspicion in the federal corruption investigation dubbed "operation Greylord." To help himself, he cut a deal with Turow to provide information incriminating his clients. Among others, Glass was representing Ronald Ofshe, who had been arrested on cocaine charges in Florida. Turow equipped Glass with a body bug and directed him to talk with his client Ofshe while agents listened in. Glass continued to represent Ofshe for ten months, all the while secretly helping the Government convict him and others. The federal appeals court held that while the prosecutors' behavior was "reprehensible", it did not require any remedy; Ofshe had not been "prejudiced" by the fact that the person passed off to him as his lawyer was really a government informant.49

Even more reprehensible was a conspiracy between prosecutors, drug agents, and a Los Angeles defense lawyer named Ron Minkin. After representing drug defendants for twenty years, Minkin became an imposter lawyer, working for the Government while pretending to defendants that he was their lawyer. He would suggest to the prosecutors whom they should investigate, and even provide evidence against them. When it arrested the targets selected by Minkin, the Government would then encourage the defendants to hire Minkin as their counsel, for which he would collect large fees.50

The conduct of the Government and the defense lawyers in the Ofshe and Marshank cases is not only "outrageous," it is a felonious criminal conspiracy, yet I have never heard of a case like those where any proceedings of any kind were brought against the prosecutors.51 In most cases, nothing whatever is done. The possibility of a dismissal in the rare case that is actually exposed provides little incentive to prosecutors to refrain from such criminal conduct.52

Defending a Client can be a Crime

Courts have also upheld recent requirements that criminal defense lawyers report to the IRS anyone who pays them $10,000 or more in cash, whether a client or a third party. Attorneys who have refused to make such reports about their clients have been jailed.53 As of 1986, it is also a felony for anyone, including a lawyer, to accept money or property in excess of $10,000 which was derived from specified unlawful activity.54 It is no defense to a lawyer or any other recipient that the money or property was received for legitimate goods or services, even essential legal services. Nor is it a defense that the attorney was unaware of the specific criminal activity that produced the money.55 It is not even a defense to the attorney that he had no actual knowledge that the money or property was illegally derived. "Wilfull blindness" is a substitute for knowledge, and the lifestyle of the client -- fitting stereotypes of how drug dealers comport themselves -- may go far toward establishing the attorney's guilty "knowledge," or "wilful blindness." Thus, an attorney who represents a person who is charged with a drug offense who "looks like" a drug dealer is at risk of being indicted also.56

It has always been difficult for persons accused of drug crimes to find competent attorneys willing to bear the stigma of being "a drug dealer's lawyer," but now that such attorneys are under prosecutorial attack privately retained drug defense lawyers are on their way to extinction -- which is what the Congress and the Supreme Court apparently want.


Court opinions that eat away at specific constitutional guarantees ought to be alarming to all who value liberty, but such decisions are at least visible and are subject to intense scrutiny and criticism. Professor Steven Wisotsky calls the result of this erosion "the Emerging 'Drug Exception' to the Bill of Rights."57 A less visible and therefore more ominous "drug exception" corrodes the rights to a fair trial protected by the Fifth and Fourteenth Amendments' due process clauses. In most drug prosecutions, the trial proceedings are ignored by the press and no opinions are written by the trial judges justifying or explaining their rulings. Those accused of crime must rely on the integrity of appellate judges to scrutinize the record and assure that the trial proceedings were fair and consistent with due process. Yet in many courts criminal convictions and long prison sentences are routinely upheld without even hearing argument of the appeal, and without even the writing of an appellate opinion. In such cases, there is no basis for believing that the appellate judges even bothered to read the briefs or understood the issues, much less dealt with them fairly.58 The prevailing -- although rarely acknowledged -- attitude in American courts is that almost any trial is too good for a person accused of a drug crime. That attitude was succinctly displayed in a remark made in 1987 by one of the most liberal Supreme Court Justices. The late Thurgood Marshall, a lifelong defender of the Bill of Rights, told Life Magazine, "If it's a dope case, I won't even read the petition. I ain't giving no break to no dope dealer...."59 That statement caught the attention of some in the legal profession, but it produced neither a bark of criticism nor a paragraph of protest. What would have happened if Justice Marshall had said the same thing about petitions from politicians convicted of bribery? Or those of securities dealers convicted of stock fraud? In stark contrast, when Judge Harold Baer ruled in favor of a drug defendant, Presidential candidate Bob Dole called for his impeachment and the White House said it would ask for his resignation if he didn’t change his ruling. He changed it.60


The signers of the Declaration of Independence believed, with John Locke, that the right of property was fundamental and inalienable, an aspect of humanity. They regarded liberty as impossible without property, which was the guardian of every other right.61 These beliefs are reflected in constitutional text. The Fifth Amendment declares that "No person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation." Under forfeiture statutes enacted since 1970, however, both deprivations occur routinely, with the imprimatur of courts.

Under federal statutes, any property is subject to forfeiture if it is "used, or intended to be used, in any manner or part, to commit or to facilitate the commission" of a drug crime.62 No one need be convicted or even accused of a crime for forfeiture to occur. Indeed, in eighty percent or more of drug forfeitures, no one is ever charged with a crime.63

Forfeiture is a "civil" matter. Title vests in the Government instantly upon the existence of the "use" or the "intention" to use the property in connection with a drug offense.64 All the Government needs to establish its right to seize the property is "probable cause," the same flimsy standard needed to get a search warrant. The government can take a home on no stronger a showing than it needs to take a look inside. Hearsay or even an anonymous informant can suffice. No legal proceedings are required before personal property may be seized. If the police have "probable cause" concerning a car, a boat or an airplane, they just grab it.65 Although property may not be repossessed at the behest of a conditional seller,66 a driver's license may not be revoked,67 welfare benefits may not be terminated,68 and a state employee cannot be fired without a hearing before the action is taken,69 a person can have her motor home confiscated without any proceedings of any kind, if the confiscation is a drug forfeiture.70 There may be a right to contest the forfeiture after the seizure, but even this right is lost if not promptly asserted. Moreover, the costs of hiring a lawyer and suing to recover the seized property may be prohibitive unless the property seized is of great value.

As construed by the courts, the forfeiture statutes also encourage police to make blatantly unconstitutional seizures. Property may be seized without probable cause--on a naked hunch--and still be retained, and still be forfeited. The reason: courts hold that illegally seized property need not be returned if the police can establish probable cause at the forfeiture proceeding itself.71 It doesn't matter that there was no cause whatever for the seizure; it doesn't matter that the seizure was illegal, even unconstitutional. If the government can later establish probable cause (through investigation of the seized property itself after the seizure), that is sufficient to uphold a forfeiture.

If the Government wants to seize real property without notice, it has to get a court's approval, but that is as easy as getting a search warrant. A seizure warrant is obtained in the same way as a search warrant, and on the same hearsay grounds. A six story apartment building in New York, containing 41 apartments, was seized on such a warrant, which the appellate court upheld.72

No civilized country imposes criminal punishment for mere evil intentions; but the forfeiture statutes--since they are "civil," not "criminal"--are subject to no such limitations. A court recently held that a home was forfeitable because the owner, when he applied for a home equity loan, "intended" to use the proceeds to buy drugs. By the time the loan actually came through, he had used other funds for that purpose, but that didn't matter, the court said, because he had intended to use the home to secure a loan, the proceeds of which he intended to use for drugs. The home was therefore no longer his.73

Any activities within a home that relate to drugs are sufficient for forfeiture of the home. A phone call to or from a source, the possession of chemicals, wrappers, paraphernalia of any kind; the storing or reading of any "how to" books on the cultivation or production of drugs. The operative question is whether any of these activities was "intended" to facilitate a drug offense.74 If a car is driven to or from a place where drugs are bought or sold and is then parked in a garage attached to a home, the home has then been used to store the car, which facilitated the transaction, and is probably forfeitable along with the car. If the home is located on a 120 acre farm, the entire farm goes as well.75 If only a few square feet of land in a remote section of a farm are devoted to marijuana plants, the grower loses not only the entire farm, but--if it is on the same land as the farm--his home as well.76

It is hard to see any ending point. Once any property qualifies for forfeiture, almost any other property owned or possessed by the same person can fall into the forfeiture pot. Notions about how otherwise "innocent" property can "facilitate" illegal activities are almost limitless. When drug proceeds were deposited in a bank account that contained several hundred thousand dollars in "clean" funds, the entire account was declared forfeit on the theory that the "clean" funds facilitated the laundering of the tainted funds.77 Where a drug dealer owned and operated a ranch, his quarter horses -- all 27 of them -- were forfeited on the theory that as part of a legitimate business, the livestock were part of a "front" for the owner's illegal activities.78 On this theory, the more "innocent" one's use of property is, the more effective it is as a "front" or "cover" and therefore the more clearly forfeitable.

Entire hotels have been forfeited because one or more rooms of the hotel have been used by guests for drug transactions.79 Entire apartment houses have been lost because drug activities occurred in some apartments.80

Dozens of people have lost their homes for growing a few marijuana plants for personal use, including James Burton, a glaucoma sufferer who needed the marijuana to keep from going blind. Burton lost not only his home but his 90 acre Kentucky farm.81 Thousands of car owners have forfeited their cars because they, or someone else to whom they lent the car, used the car to buy or attempt to buy a small quantity of drugs for personal consumption.82 Boats and airplanes worth millions of dollars have been forfeited because minute quantities of marijuana were found on board.

The sheriff of Volusia County, Florida routinely stops cars and searches them. If substantial sums of money are found, the money is confiscated, whether or not any drugs are found. The theory is that the money is probably drug related. The sheriff says that in most cases the drivers are so happy that they aren't arrested, they don't even ask for a receipt. Such forfeitures are almost never contested.83

Police commonly use trained dogs to sniff in and around cars. The dogs usually react positively to cash and therefore suggest the presence of cocaine. This produces a full search and, often, discovery of cash, which is confiscated.

There are serious problems with forfeiting cash on the theory it is drug money. The fact that there is cocaine on the cash is meaningless. Eighty to ninety percent of allcash in America has cocaine on it.84 Moreover, there are lots of reasons, other than drug dealing, why people carry large sums of cash.

The difference between such routine seizures of cash and armed robbery is either non-existent or paper thin. It is unconstitutional, but who cares? It is probably criminal as well, but who prosecutes the confiscators, especially if the prosecutor gets part of the proceeds?

Innocent owners

What about innocent owners whose property is used illegally, without their knowledge or consent? Such owners of conveyances, such as boats and cars, were defenseless before 1988, since the theory of forfeiture is the preposterous fiction that the property, not the owner, is the wrongdoer. On that theory, the Supreme Court said in 1974, the "innocence" of the owner is irrelevant.85 Such a fiction may have been tolerable as long as forfeitures against innocent owners were rare, but in March, 1988, the Customs Service and the Coast Guard went berserk under a "zero tolerance" program and began enforcing the forfeiture law as it was written. They began seizing boats, cars, and airplanes whenever any detectable amount of any controlled drug was found aboard. Yachts and fishing vessels worth millions were seized merely because a crew member may have possessed a small amount of marijuana. The administration obstinately defended its approach despite expressions of outrage from Congressmen who had enacted the law. The result was an "innocent owner" defense for conveyances (there already was one for real property) included in the otherwise hysterical Anti-Drug Abuse Act of 1988. Now owners of any property seized under civil forfeiture proceedings can defeat forfeiture if they can prove either that offending use occurred or that the offending use occurred "without the knowledge or consent of [the] owner." Despite the plain language of the statute, many courts are unwilling to lift a forfeiture unless the owners can prove that the offending activity not only occurred without their knowledge or consent, but also that they did all they "reasonably could be expected to prevent the proscribed use of the property."86 The owner has been conscripted as a policeman to assure that no improper use is made of the property. In a Milwaukee case, the owner of a 36-unit apartment building plagued by dope dealing evicted 10 tenants suspected of drug use, gave a master key to the police, forwarded tips to the police and even hired two security firms. The city seized the building anyway.87

Property owners who decide that what their lessees do in rented premises, cars or planes is none of their business as long as they don't damage the property, who conclude that renters as well as owners are entitled to privacy in their day-to-day activities, risk losing their property. Such people might lack "knowledge" of drug activities in the traditional sense, but not be able to prove that they do all they should have to prevent the proscribed use. To protect their property rights, owners may conduct background investigations of their tenants, permitting only those who are above suspicion to use the property. In a nation of 20 million illegal drug users and even more former illegal drug users, hardly anyone is above suspicion of drug use.

The forfeiture provisions are not only horribly unjust, they inflict great damage upon our inner cities. They encourage drug dealers and even drug users to invade the property of strangers rather than conducting their activities on their own premises and thus they increase the uncertainties of property ownership in declining neighborhoods. Property owners are always at risk of losing everything to forfeiture. Bankers have incentives, in addition to the risk of declines in property values, to refuse to lend money on property in such areas, for there is a significant chance that the bank itself will lose its security interest in the property. If the offending use took place before the mortgage interest was acquired, there may have been no such interest to convey. If the illicit use occurred after the mortgage was in place, a bank may be faulted for not taking all available measures to assure that such use did not occur, as by background investigations of its mortgagors, random inspections and so forth. There is no way that a bank can effectively regulate the uses to which mortgaged property is put. The only way to protect itself is to avoid lending the money in the first place. The conversion of our cities into ghost towns continues.

Even more dangerous than the destruction of property values involved in the civil drug forfeiture schemes is the capacity of the forfeiture concept to expand to all other criminal activities. When it is so extended, the punishment becomes drastically disproportionate to the offense and the constitutional safeguards of criminal procedure are circumvented. Already, federal forfeiture statutes apply to pornography, gambling, and several other offenses, as well as drugs.88 Many state statutes apply to property used in any felony. The forfeiture of cars used in sex offenses is commonplace.89 Some cities confiscate the cars of "johns" who cruise neighborhoods looking for prostitutes.90 Other states take one's car for drunk driving.91 Where will it end? Why not extend it to income tax evasion and take the homes of the millions--some say as many as 30 million--who cheat on their taxes?92


The Supreme Court held in 1927 that it was a violation of Due Process to try a person, even for a traffic offense, before a judge who had a financial interest in the outcome.93 In 1962, the United States Court of Appeals for the Fifth Circuit extended that principle to a case made by a criminal informant.94 There, a bootlegger made a deal with treasury agents to help them "catch" specified bootlegger suspects by buying moonshine from them. The informant was to be paid $200 for each of the suspects he could "catch" plus $10 per day and travel expenses. He made the purchases and the suspects were convicted. Saying that such a contingent fee agreement "might tend to a `frame up' or to cause an informant to induce otherwise innocent persons to commit" a crime, the court said the "opportunities for abuse are too obvious" and held that no conviction could be based upon the services of an informant who stood to receive a contingent fee.

Times--and the law--have changed. Instead of receiving $10 per day and a bonus of a few hundred dollars, informants now commonly receive a salary, bonuses for information and/or convictions, and up to 25% of all property forfeitures attributable to their "assistance."95 Some informants have made more than $1,000,000 under such arrangements.96 Informants in a single case, the Manuel Noriega case, were paid almost $4 million and forgiven hundreds of years of prison time.97 Altogether, federal and state agencies pay over $100 million to informants every year.98 Despite the vastly increased motivation informants have to frame others, the 1962 decision invalidating convictions based on contingent fee informers was expressly overruled in 1987.99 It now doesn't matter that the evidence for a forfeiture was the "tip" of an informant who stood to make hundreds of thousands for a successful seizure. Nor does it matter that a defendant is convicted on the testimony of such an informant, who stands to receive a bonus if the defendant is convicted.100 The contingent fee crook can plant marijuana in the far corners of a farm, or place some leaf under the seat of a car, in the hold of a ship, or on the floor of a million dollar Learjet, "drop a dime" and become rich overnight. He probably won't even have to testify, because even if the forfeiture is contested, the forfeiture stands unless the owners can prove that they had no knowledge of the drugs. Their mere protestations of ignorance, even if uncontradicted, need not be--and usually are not--believed.

Informants are not the only ones who directly profit from forfeitures. Police and prosecutors do too. Most of the assets and money obtained from forfeitures stays with the police and prosecutors who are responsible for the forfeitures. The funds are supposed to be spent for extra-budget needs but personal benefit inevitably accrues. Police and prosecutors are often seen driving fancy sports cars, flying airplanes and piloting boats obtained by forfeiture. James M. Catterson, New York Suffolk County District Attorney, for example, drives a BMW, obtained by forfeiture, which he spruced up, including a new stripe, on forfeiture funds.101 Catterson claims that he is not accountable to anyone for forfeited assets or funds. Acknowledging that what Catterson does is legal, the New York Times says, that "doesn't make it right." The Times also questions "the wisdom of asset forfeiture that gives prosecutors and police a financial interest in the criminals they chase." Giving police and prosecutors discretion over forfeiture money also "insults good government."102

If there is a shard of moral justification for forfeiture, it is that an owner, duly forewarned, chooses to use or permit his property to be used illegally and therefore voluntarily "waives" his constitutional rights of property. But such a "waiver" theory can be extended to destroy all rights and all liberty. It is a cancer on the Constitution, certain to metasticize if not eliminated soon.


The drug war cannot succeed in ending the consumption of illicit substances but if the unwinnable war continues, it can deprive us all of precious liberties. It has already done so.



1. See Richard Espinoza, "Drug Raid Shooting Still an Issue in Osawotomie," Kansas City Star, July 13, 1999.

2. Illinois v. Gates, 462 U.S. 313 (1983).

3. See Stephen A. Saltzburg, "Another Victim of Illegal Narcotics: The Fourth Amendment, As Illustrated by the Open Fields Doctrine," 48 University of Pittsburgh Law Review, 1 (1986).

4. United States v. Leon, 468 U.S. 897 (1984).

5. See Florida v. Bostwick, 111 S. Ct. 2382 (1991); United States v. Place, 462 U.S. 696 (1983).

6. Oliver v. United States, 466 U.S. 170 (1984).

7. George Orwell, Nineteen Eighty-Four (New York: Harcourt, Brace & World, 1949), 4.

8. Florida v. Riley, 488 U.S. 455 (1989).

9. California v. Greenwood, 486 U.S. 35 (1988).

10. California v. Acevedo, 111 S. Ct. 1982 (1991).

11. United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985).

12. Ibid.

13. Joseph F. Sullivan, "New Jersey Police are Accused of Minority Arrest Campaigns," New York Times, 19 February 1990.

14. Andrew Schneider and Mary Pat Flaherty, Presumed Guilty: The Laws Victims in the War on Drugs(reprinted from the Pittsburgh Press, 11-16 August 1991).

15. Ibid., 12.

16. United States v. Sokolow, 831 F.2d 1413, 1418 (9th Cir. 1987).

17. United States v. Moore, 675 F.2d 802 (6th Cir. 1982).

18. United States v. Mendenhall, 446 U.S. 544, 564 (1980).

19. United States v. Buenaventura-Ariza, 615 F.2d 29, 32 (2d Cir. 1980).

20. United States v. Sullivan, 625 F.2d 9, 12 (4th Cir. 1980).

21. United States v. Craemer, 555 F.2d 594, 595 (6th Cir. 1977).

22. United States v. McCaleb, 552 F.2d 717, 720 (6th Cir. 1977).

23. United States v. Sokolow, 808 F.2d 1366, 1370 (9th Cir. 1987).

24. United States v. Smith, 574 F.2d 882, 883 (6th Cir. 1978).

25. United States v. Fry, 622 F.2d 1218, 1219 (5th Cir. 1980).

26. United States v. Andrews, 600 F.2d 563, 565 (6th Cir. 1979).

27. United States v. Himmelwright, 551 F.2d 991, 992 (5th Cir. 1977).

28. Tom Morganthau, "Uncivil Liberties," Newsweek, 23 April 1990, 18.

29. 18 U.S.C. §2516.

30. "Big Brother is Napping," National Law Journal, 17 (16 May 1992), 119.

31. Ibid.

32. Administrative Office of United States Courts, 1998 Wiretap Report, 9.

33. Steven Duke, "Making Leon Worse," 95 Yale Law Journal, 95, no. 7 (1986), 1414.

34. United States v. Havens, 445 U.S. 620 (1980).

35. New Jersey v. T.L.O., 469 U.S. 325 (1985).

36. Wayne LaFave & Jerold Israel, Criminal Procedure, 2d ed. (St. Paul, MN: West Publishing Co., 1992), 232.

37. Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991).

38. "Camera in School Bathroom Curbs Vandalism but Sets Off Debate," New York Times, 25 March 1992.

39. Cornfield v. Consolidated High School District 230, 1992 U.S. Dist. LEXIS 2913 (N.D. Ill. March 12, 1992); Jerry Shnay, "Stripsearch student is ruled OK by Judge," Chicago Tribune, 25 March 1992.

40. Vernonia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386 (1988).

41. Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998) (students engaging in any extracurricular activity or driving to school).

42. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

43. United States v. Alvarez-Machain, 112 S. Ct. 2188 (15 June 1992).

44. William Genego, "The New Adversary," Brooklyn Law Review, 54 (1988), 781.

45. Fred Zacharias, "A Critical Look at Rules Governing Grand Jury Subpoenas of Attorneys,"Minnesota Law Review, 76 (April 1992), 917.

46. A federal court has even held that a state ethics rule that requires prosecutors to get court approval before subpoenaing attorneys to snitch on their clients is unenforceable against federal prosecutors.Baylson v. Disciplinary Board, 764 F.Supp. 328 (ED. Pa. 1991) aff'd. 975 F.2d 102 (3d Cir. 1992).

47. Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646 (1989).

48. United States v. Noriega, 764 F. Supp. 1480 (SD Fla. 1991). See also, Cook v. O'Toole, 1998 U.S. Dist. LEXIS 5846 (D. Mass. 1998); United States v. Pelullo, 5 F.Supp. 2d 285 (D. NJ 1998).

49. United States v. Ofshe, 817 F.2d 1508 (11th Cir. 1987).

50. United States v. Marshank, 777 F.Supp. 1507 (N.D. Calif. 1991).

51. See generally, Wendy Kaminer, "Games Prosecutors Play," The American Prospect (Sept.-Oct. 1999) 20.

52. For cases where courts did not find use of a defense attorney outrageous, see United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996); United States v. Ford, 1992 U.S. Dist. LEXIS 9352 (N.D. Ill. 1992).

53. Richard Fricher, "Doing Time," American Bar Association Journal, 76 (February 1990), 24.

54. 18 U.S.C. §1957.

55. 18 U.S.C. §1957(c).

56. No attorney seems to have yet been charged under this statute, merely for receiving a tainted fee. But see United States v. Leiberman, 1997 U.S. App. LEXIS 1057 (1997). In United States v. Campbell, 777 F.Supp. 1259 (W.D.N.C. 1991), the government prosecuted a real estate agent for helping to sell a house to one who later admitted he was a drug dealer. The court indicated that his flashy lifestyle and reputation as a drug dealer, while evidence of the defendant's knowledge or "wilful blindness" of the illegal source of the purchase price, were themselves insufficient to prove that she knew that the money was acquired from the sale of drugs. In the hypothetical attorney's case, however, there would be more than a "reputation" as a drug dealer; the client would stand formally accused as such. A mere indictment for a drug transaction has been held for many purposes to constitute "probable cause" to believe the accused is guilty.

57. Steven Wisotsky, "Crackdown: The Emerging `Drug Exception' to the Bill of Rights," Hastings Law Journal, 38 (1987), 889. See also, Paul Finkelman, The Second Casualty of War: Civil Liberties and the War on Drugs, 66 S. Cal. L. Rev. 1389 (1993). Michael Blanchard and Gabriel Chin, Identifying the Enemy in the War on Drugs, 47 Am. U. L. Rev. 557, 601 (1998).

58. Steven Duke, "Civil Procedure," Brooklyn Law Review, 45 (1979), 847-850. On various ways that appellate courts and others are trying to curtail appeals, see Marc Arkin, "Rethinking the Constitutional Right to a Criminal Appeal," UCLA Law Review, 39 (1992), 508-510.

59. Donna Haupt and John Neary, "Justice Revealed," Life, September 1987, 105.

60. See Stephen Bright, "Hanging the Judge; Demagogues, Politicians Chip Away at U.S. Court System," Arizona Republic (June 8, 1997); National News, The Legal Intelligencer (Aug. 1, 1997) 3.

61. James W. Ely, The Guardian of Every Other Right (New York: Oxford University Press, 1992).

62. 21 U.S.C. §881(a).

63. Schneider and Flaherty, Presumed Guilty, 3.

64. 21 U.S.C. §881(h).

65. 21 U.S.C. §881(b)(4).

66. Fuentes v. Shevin, 407 U.S. 67 (1972).

67. Bell v. Burson, 402 U.S. 535 (1971).

68. Goldberg v. Kelly, 397 U.S. 254 (1970).

69. Cleveland Board of Education v. Laudermill, 470 U.S. 532 (1985).

70. Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663 (1974).

71. United States v. $37,780 In U.S. Currency, 920 F.2d 159 (2d Cir. 1990).

72. United States v. 141st Street Corporation by Hersh, 911 F.2d 870 (2d. Cir. 1990).

73. United States v. RD1, Box 1, Thompsontown, Delaware Township, Juniata County, Pennsylvania, 952 F.2d 53 (3d Cir. 1991).

74. See David B. Smith, Prosecution and Defense of Forfeiture Cases (New York: Matthew Bender, 1992), §4.02.

75. United States v. Property At 4492 S. Livonia Road, Livonia, New York, 889 F.2d 1258 (2d Cir. 1989).

76. United States v. Tax Lot 1500 Township 38 South, Range 2 East, Section 127, Further Identified as 300 Cone Road, Ashland, Jackson County, Oregon, 861 F.2d 232 (9th Cir. 1988); United States v. One 107.9 Acre Parcel of Land Located in Warren Township, Bradford County, Pennsylvania, 989 F.2d 396 (3d Cir. 1990).

77. United States v, All Monies ($477,048.62) in account 90-3217-3, 754 F.Supp. 1467 (D. Hawaii 1991).

78. United States v. Rivera, 884 F.2d 544 (11th Cir. 1989).

79. Dave Altimari, "Property Seized in Drug Arrests Boon to Suburbs," New Haven Register, 3 May 1992.

80. United States v. 141st Street Corporation.

81. Schneider and Flaherty, Presumed Guilty 9.

82. Seth Mydans, "Powerful Crimes of Drug War Arousing Concern for Rights," New York Times, 17 October 1989.

83. Stephanie Saul, "High Cost of Breaking the Law," Newsday, 12 April 1990, 4.

84. Schneider and Flaherty, Presumed Guilty, 15.

85. Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663 (1974).

86. United States v. 141st Street Corporation.

87. Schneider and Flaherty, Presumed Guilty, 18.

88. 21 U.S.C. §§853, 882 (drugs), 18 U.S.C. §§981, 982 (money laundering), 18 U.S.C. §1955 (gambling), 18 U.S.C. §§2253, 2254 (obscenity), 18 U.S.C. §981 (savings and loan offenses), 26 U.S.C. §7302 (tax offenses).

89. In re Forfeiture of 1978 Ford Fiesta, 436 S.2d 373 (Fla. App. 4 Dist. 1983).

90. George Judson, "Price of Prostitution: Your Car," New York Times, 4 December 1992.

91. See Grinberg v. Safir, 1999 N.Y. Misc. LEXIS 259 (N.Y. 1999), but see Montecalvo v. Columbia County, 1999 N.Y. Misc. LEXIS 256 (N.Y. 1999).

92. The statutory basis for forfeiting homes and businesses of tax evaders is already in place. The Internal Revenue Code reads: "It shall be unlawful to have or possess any property intended for use in violating the provisions of the Internal Revenue Service Laws...or which has been so used, and no property rights shall exist in any such property." 26 U.S.C. §7302. Although use of this provision has mainly been limited to seizures of moonshine and gambling equipment, and sometimes businesses, there is no reason--given the breadth of the drug forfeiture decisions--why it can't be employed to take the homes and offices of tax evaders and even those of their accountants and lawyers. A congressman who failed to pay social security tax on wages of his housekeeper could lose his home. Moreover, unlike drug forfeiture, the tax forfeiture statutes have no innocent owner defense. United States v. One Pontiac Coupe, 298 F.2d 421 (7th Cir. 1962).

93. Tumey v. Ohio, 273 U.S. 510 (1927).

94. Williamson v. United States, 311 F.2d 441 (5th Cir. 1962).

95. Mark Curriden, "Making Crime Pay: What's the Cost of Using Paid Informers?," American Bar Association Journal, 77 (June 1991), 43.

96. See Cynthia Cotts, "Year of the Rat," Reason (May 1992), 41.

97. Mark Curriden, "Snitches Score Big in Noriega Case. Defense May Assail `Bought' Testimony,"Atlanta Constitution 2 February 1992.

98. Mark Curriden, "Making Crime Pay," 44.

99. United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987).

100. United States v. Gonzales, 927 F.2d 139 (3d Cir. 1991).

101. John McQuiston, "Asset Seizure Is Questioned In Suffolk," New York Times, 2 October 1992.

102. "The Case of the Prosecutor's BMW," New York Times, 8 October 1992.