"We consider the Fourth Amendment’s limits on the use of trickery and force in conducting seizures.
Facts: Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving. The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing. Just then, out of nowhere, someone snuck into their car and drove off with it. As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring. The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel.
The whole incident was staged. DEA agents learned that one of the leaders of a drug conspiracy was dealing drugs out of his car and deduced from several intercepted calls and direct surveillance that Alverez-Tejeda, one of the conspiracy’s subordinates, was using the leader’s car to transport illicit drugs. The agents decided to stage an accident/theft/chase in order to seize the drugs without tipping off the conspirators. Every character in the incident, other than Alverez-Tejeda and his girlfriend, was either a DEA agent or a cooperating police officer." (emphasis added)
The lower court found that the seizure was unconstitutional. It ordered the evidence obtained by the seizure to be suppressed. Although it acknowledged that the car, which had been used in previous documented drug selling activity, was subject to immediate seizure under forfeiture laws, even such seizures have Constitutional protection from "unreasonable" seizures. The lower court decided that the staging of an accident and car theft was not reasonable:
"The seizure in this case needs to be contrasted against the principles discussed above. Unlike a normal seizure by law enforcement, this seizure appeared to be a car theft. Any person seeking information on the theft would reach a dead end. Local authorities were told to deny knowledge of the event if asked. Even during the pendency of the case before this Court, defense attorneys were told that there was no record of such an event in the Deschutes County Sheriff’s Office records. No inventory was filed. No judicial determination was made of the need for a covert search. No judicial determination was made of the period of time needed to delay notification. No judicial review of the inventory was made. All of the decisions normally made by the judiciary were made by the officers involved. It is difficult to conclude that the authors of the Fourth Amendment contemplated such discretion be afforded to the Executive branch."
But the 9th Circuit reversed. In a rather cavalier decision, it essentially reasoned as follows:
1.The government had the right to seize the car (even if not the right to seize the property of the occupants).
2.Nobody got hurt.
3.It was reasonable because the government's interest in preventing drugs from entering the market, and its interest in avoiding tipping off the driver that the car was seized outweighed the relatively minor inconvenience of the driver. (The second point is important because the government could not arrest the driver at the time of the seizure because they did not have probable cause to know if drugs were in the car).
Of course, what is left unsaid in the 9th Circuit's analysis is what happens if the government's information is wrong, or if it identified the wrong car, etc. It has essentially given the green light for government agents to stage pretend crimes, carjackings, and other phony scenarios in order to buy time to search a car and obtain an arrest warrant for the driver.
There was never a question that the officers could have obtained a warrant prior to the seizure. Indeed, under today's drug forfeiture laws they could have seized the car at any time (because they had probable cause to believe that it had been involved in a prior drug crime). Despite these powerful tools, US government has decided to step up the tactics another notch. The so-called liberal 9th Circuit has given its blessing. We can only wonder what other creative methods our government will come up with to prosecute this endless "war."
One minor moral of the story is to never leave your keys in the car when asked by a police officer to leave it. They just might steal it.
Copy of the 9th Circuit opinion here:
The US District Court ruling here: