Contesting the Seizure of Vehicles Under Civil Forfeiture: What Process Is Due?

Contesting the Seizure of Vehicles Under Civil Forfeiture: What Process Is Due?

Legal Sidebari

Contesting the Seizure of Vehicles Under
Civil Forfeiture: What Process Is Due?
March 16, 2021
In September 2015, United States Customs and Border Protection (CBP) agents seized Gerardo Serrano’s
F-250 pickup truck at the U.S.-Mexico border for allegedly attempting to smuggle “munitions of war.”
CBP held the vehicle for almost two years while Serrano contested its forfeiture. Serrano sued the agency,
arguing that the Due Process Clause requires the government to provide a prompt, post-seizure judicial
hearing before confiscating property under federal civil forfeiture laws. Conducting the balancing test
required under prevailing Supreme Court precedent, the United States Court of Appeals for the Fifth
Circuit ultimately held in Serrano v. Customs and Border Patrol that the existing legal process provided
under the federal civil forfeiture laws was sufficient to satisfy due process. This decision is in some
tension with a ruling from the United States Court of Appeals for the Second Circuit, which invalidated a
New York City civil forfeiture law for failing to provide independent judicial review of the validity of the
city’s confiscation of vehicles. This Sidebar will provide an overview of the Fifth Circuit’s opinion in
Serrano v. CBP, an analysis of Serrano’s petition for review before the Supreme Court, and a discussion
of potential implications this case could have on congressional regulation of federal forfeiture laws.
Overview of Serrano
On September 21, 2015, CBP agents stopped Serrano when he was seen taking photographs at a border
station at the U.S.-Mexico border. The agents ordered Serrano out of his truck and searched the vehicle,
finding a .380 caliber magazine and five .380 bullets. After being detained and questioned for about three
hours, Serrano was released, but CBP retained possession of the truck and ammunition. A few days later,
Serrano received notice of the seizure in the mail, informing him that his truck, magazine, and bullets
were subject to forfeiture because there was probable cause to believe that Serrano had attempted to
export “munitions of war” from the United States. The notice advised Serrano that the following options
were available to him concerning the seizure: (1) file a remission petition; (2) submit an “offer in
compromise” with a check for the proposed settlement amount; (3) abandon any interest in the property;
(4) request court action and have his case referred to the U.S. Attorney for judicial forfeiture proceedings;
(5) do nothing; or (6) offer to substitute assets to release the seized property. Serrano responded with a
written demand for his truck’s return or a court hearing. In the letter, Serrano include a check to cover the
cost bond required under the statute to institute judicial forfeiture proceedings.
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On four separate occasions, Serrano called the primary point of contact that CBP had indicated on the
notice of seizure. During one of these calls, Serrano was told that his case had been delayed because the
forfeiture attorneys were “very busy.” After 23 months of waiting, on September 6, 2017, Serrano filed a
complaint in the federal district court seeking return of his property based upon violations of the Fourth
and Fifth Amendments. Several weeks later, CBP returned his truck, cost bond, and ammunition.
Although the district court found that the case was not mooted by the return of his property, it rejected
Serrano’s argument that due process requires a prompt post-seizure, pre-forfeiture hearing at which a
property owner can challenge the legality of the seizure and the retention of his vehicle pending forfeiture
proceedings. Serrano appealed this ruling to the Fifth Circuit Court of Appeals. Before addressing the
Fifth Circuit’s ruling, this Legal Sidebar surveys relevant aspects of federal forfeiture law and the Due
Process Clause.
Civil Forfeiture Overview
“Asset forfeiture” is the process of confiscating either property or money from a person because it is
illegal to possess (contraband), constitutes the proceeds of a crime, or was used to facilitate a crime. Asset
forfeiture comes in two forms, civil and criminal, each with its own set of intricate rules. In civil asset
forfeiture, the government proceeds against the offending property, not the property owner, in what is
known as an in rem proceeding. In civil forfeiture cases, the guilt of the property owner is not in question.
Rather, these cases turn on whether the property was sufficiently connected to a federal crime. Under
federal customs laws, which applied in Serrano’s case, when the government seizes property valued
below $500,000, the seizure can be processed through administrative forfeiture—the nonjudicial process
for confiscating offending property. The seizing agency initiates the administrative forfeiture process by
sending notice to the property owner, including a set of options available to the owner. One of the options,
which Serrano chose, is to contest the confiscation of his vehicle in federal court. Upon choosing this
route, the seizing agency refers the case to the U.S. Attorney to institute judicial forfeiture proceedings.
Because civil forfeiture fundamentally entails the deprivation of private property, it necessarily implicates
the Due Process Clause.
Procedural Due Process Framework
The Fifth Amendment, which applies to federal government actions, and the Fourteenth Amendment,
which applies to states, require that “[n]o person shall … be deprived of life, liberty, or property, without
due process of law[.]” The Due Process Clause contains two components: procedural and substantive. The
substantive component of due process concerns the government’s ability to regulate certain fundamental
rights—for example, abortion or marriage. The procedural aspect, which is the focus of the analysis here,
assesses the legal process required by the Constitution when the government seeks to deprive people of
life, liberty, or property. The Supreme Court addressed the modern framework for procedural due process
in Mathews v. Eldridge. There, the Court noted that in identifying the “specific dictates of due process,”
the following three factors must be considered: (1) “the private interest that will be affected by the official
action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards;” and (3) “the Government's
interest, including the function involved and the fiscal and the administrative burdens that the additional
or substitute procedural requirement would entail.”
Fifth Circuit Ruling in Serrano
Before the Fifth Circuit Court of Appeals, Serrano argued that both existing federal case law—including a
prominent ruling from the United States Court of Appeals for the Second Circuit—and an independent
application of the Mathews balancing test, entitle him to an intermediate judicial hearing while he awaits

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a final forfeiture trial. Instead, the Fifth Circuit distinguished these cases and sided with the government
in its Mathews analysis.
In Krimstock v. Kelly, the decision upon which Serrano’s argument heavily relies, the Second Circuit
Court of Appeals applied the Mathews balancing test in a constitutional challenge to a New York law
permitting police to seize vehicles following drunk driving arrests. Under New York City’s civil
administrative code, the government was authorized to seize a vehicle following an arrest for the state-law
charge of driving while intoxicated or any other crime for which the vehicle could serve as an
instrumentality. This provision did not provide a right to a post-arrest hearing to determine whether
probable cause existed for seizing the vehicle. The Krimstock court put significant weight on the first
factor of the Mathews test—the owner’s interest in the property—by noting that the deprivation of
personal property involves substantial due process interests and that motor vehicles were of “particular
importance” as a “means to earn a livelihood.” Although the court noted the risk that erroneous
deprivation posed to innocent owners is substantial, the court found that “on balance” the second
Mathews factor weighed in favor of the government “because a trained police officer's assessment of the
owner-driver's state of intoxication can typically be expected to be accurate.” Finally, as to the third
factor—the government’s interest—the Second Circuit sided with the vehicle owners, noting that “the
need to prevent forfeitable property from being sold or destroyed during the pendency of proceedings
does not necessarily justify continued retention of all vehicles when other means of accomplishing those
goals are available,” such as requiring a cost bond. Ultimately, the Second Circuit held that “[p]romptly
after their vehicles are seized ... as alleged instrumentalities of crime, plaintiffs must be given an
opportunity to test the probable validity of the City’s deprivation of the vehicles pendente lite, including
probable cause for the initial warrantless seizure.”
Noting that “due process is flexible and calls for such procedural protections as the particular situation
demands,” the Fifth Circuit panel distinguished Krimstock on the grounds that its holding is limited to the
specific New York City statute at issue, “which is materially distinguishable from the forfeiture scheme
Serrano challenges” because the federal regime “affords multiple alternative remedial processes.” Instead,
the court engaged in an independent application of the Mathews test to hold that the federal forfeiture
statute in question is constitutionally sound. As to the first factor, the Fifth Circuit agreed with Krimstock
about the importance of private interest involved in seizing one’s vehicle, noting that “the main points of
contention are with respect to the balancing of the second and third Mathews factors.” The court found
that the risk of erroneous deprivation of property—the second factor—was minimal due to the various
remedial processes available to a property owner, including filing a petition for remission, filing an offer
in compromise, or requesting the commencement of judicial forfeiture proceedings. Finally, the court
found that the third factor favored the government, as “its interest in preventing the unlawful exportation
of munitions, drugs, and other contraband is significant.” On balance, the Fifth Circuit concluded that,
when the government seizes property under federal customs laws, due process does not mandate a
prompt, post-seizure hearing before a final forfeiture trial is held.
Petition for Review by Supreme Court
On December 4, 2020, Serrano filed for review by the Supreme Court. This is not the first time the High
Court has been asked to address due process concerns raised by the seizure of vehicles pursuant to civil
forfeiture. In 2009, the Court granted certiorari in Smith v. City of Chicago (restyled Alvarez v. Smith) to
assess the constitutionality of an Illinois statute permitting the seizure of vehicles connected to various
drug crimes. Generally agreeing with the Second Circuit’s constitutional analysis in Krimstock, the
Seventh Circuit held that the statute violated the Due Process Clause and that “some sort of mechanism to
test the validity of the retention of the property is required.” Ultimately, the Court was unable to resolve
these issues in Alvarez because the case was mooted when the government returned the property at issue.

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One of the primary arguments put forth by Serrano in his review petition is that the Fifth Circuit opinion
below conflated two discrete due process inquiries. In the second step of its Mathews analysis, the Fifth
Circuit asserted that claimants can always contest the reasonableness of the government’s delay in
instituting a forfeiture proceeding under the Supreme Court case United States v. Eight Thousand Eight
Hundred and Fifty Dollars ($8,850). In that case, the Court held that the appropriate test for assessing due
process violations for delay in the initiation of a forfeiture trial was the same speedy-trial test set out in
Barker v. Wingo, which weighs the following four factors: length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the defendant. In his petition for review, Serrano argues
that he was not contesting the delay of his final forfeiture trial, as was the issue in $8,850, but was instead
requesting that he be given an “intermediate” hearing to contest the retention of his vehicle while he
awaits his forfeiture trial. The Seventh Circuit acknowledged this distinction in Alvarez when it noted that
“$8,850 concerns the speed with which the civil forfeiture proceeding itself is begun—a different
question from whether there should be some mechanism to promptly test the validity of the seizure.”
Similarly, in Krimstock, the Second Circuit noted that the issue was not the speed with which civil
forfeiture proceedings themselves are instituted, but rather whether a property owner is entitled to a
prompt post-seizure hearing to challenge the legitimacy of the government’s retention of his vehicle while
those proceedings are conducted. This split in approach could prompt the Supreme Court to grant review.
Considerations for Congress
Although the Due Process Clause creates a constitutional floor, requiring a certain level of process before
the government can confiscate personal property, courts have accorded Congress great deference when
shaping federal forfeiture laws. This means Congress can create, if it saw fit, more stringent procedural
requirements than are constitutionally mandated. For instance, as pertains to Serrano’s case, Congress
could place tighter time constraints on how promptly the government must institute judicial proceedings
following a seizure.

Author Information

Richard M. Thompson II

Legislative Attorney

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