Wednesday, June 01, 2005
: "The Ninth Circuit has consistently held that the fruits of an unlawful seizure, including the forfeitable item, may not be used as evidence during a forfeiture trial. United States v. $ 191,910.00 in U.S. Currency, 16 F.3d 1051, 1063 (9th Cir. 1994); United States v. $ 277,700.00 in U.S. Currency, 941 F.2d 898 (9th Cir. 1991). The court rejected the government's argument that the money is the nominal defendant and could not be suppressed even if it was obtained as a result of an unlawful seizure, stating that precedent, logic, and common sense precluded the arguments. The court also rejected the government's assertion that INS v. Lopez-Mendoza supported its position, stating that 'an examination of the facts' indicated that the Court was not stating that an illegally seized res is admissible for its evidentiary value in a forfeiture proceeding, but merely restating the settled principle that the government can maintain an action against a defendant even if that defendant's presence was unlawfully procured. $ 191,910.00, 16 F.3d at 1063. The Ninth Circuit expressly disagreed with the dictum and holding of the Eighth and Second Circuits in $ 12,390.00 and $ 37,780.00, and noted in a footnote that 'the majority of circuits to consider the issue have agreed with the rule . . . adopted in $ 277,700.00, which requires the suppression of an illegally obtained res.' The court then cited earlier dicta by the Eighth Circuit that 'had the money in this case been sei"