State v. $217,590.00 in United States Currency , 18 S.W.3d 631 ( 2000 )

Justice ABBOTT,

concurring.

I concur in the Court’s judgment and analysis, but I write separately to raise the question whether the Court’s analysis is necessary in the first place. The analysis presupposes that the exclusionary rule applies. That is appropriate because neither of the parties in this case argued that the exclusionary rule should not apply. As such, it would be inappropriate for the Court to sua sponte decide the issue.

Both the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution prohibit unreasonable searches and seizures and require the exclusion of evidence obtained in violation of that prohibition in criminal trials. See U.S. Const, amend. IV; Tex. Const, art. I, § 9; Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Polk v. State, 738 S.W.2d 274, 276 (Tex.Crim.App.1987); see also TEX.CODE CRIM. P. art. 38.23(a) (codifying and expanding the exclusionary rule). But forfeiture proceedings are generally in rem actions brought against the property, not the individual, and thus may be considered civil in nature. See United States v. Ursery, 518 U.S. 267, 274, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); State v. Rumfolo, 545 S.W.2d 752, 754 (Tex.1976); State v. Benavidez, 365 S.W.2d 638, 640 (Tex.1963); see also Tex.Code CRiM. P. art. 59.05(b). Texas’ forfeiture statute specifically provides that forfeiture cases “shall proceed to trial in the same manner as in other civil cases.” Tex.Code CRiM. P. art. 59.05(b) (emphasis added).

The United States Supreme Court has held that evidence obtained in violation of the Fourth Amendment must be excluded in certain forfeiture proceedings. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). In reaching that decision, the Court relied heavily on the fact that forfeiture of the claimant’s automobile under the Pennsylvania statute was “clearly a penalty for the criminal offense” of illegal liquor possession or transportation. Id. at 701-02, 85 S.Ct. 1246. But the Texas forfeiture statute declares the Legislature’s intent that “asset forfeiture is remedial in nature and not a form of punishment.” Tex.Code CRiM. P. art. 59.05(e). Moreover, the Court of Criminal Appeals has concluded that Chapter 59 is not so punitive that the Fifth Amendment’s double jeopardy clause bars a criminal prosecution after a forfeiture proceeding. See Fant v. State, 931 S.W.2d 299, 307-08 (Tex.Crim.App.1996).

The foregoing authority leads me to question whether the exclusionary rule applies, and I urge future civil forfeiture litigants to raise the issue.