The “post-and-forfeit” provision of the DC Code that permits a defendant to post bond and forfeit it rather than contest does not violate the Fourth Amendment. Fox v. District of Columbia, 2013 U.S. Dist. LEXIS 20524 (D. D.C. February 15, 2013):
Count 4A of Fox’s second amended complaint alleges that the post-and-forfeit procedure violates the Fourth Amendment on its face: “The policy of charging arrestees money under the ‘post and forfeit’ procedure constitutes an unreasonable seizure under the Fourth Amendment and so D.C. Code § 5-335.01 is unconstitutional.” Sec. Am. Compl. ¶ 246. The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. Amend. IV.
To establish an unlawful seizure under the Fourth Amendment, Fox must demonstrate that payment of collateral under the District’s post-and-forfeit procedure (1) constitutes a seizure, and (2) that the seizure is unreasonable. Soldal v. Cook County, Ill., 506 U.S. 56, 61–71 (1992). Fox has failed to meet both requirements. A payment under the post-and-forfeit procedure does not constitute a seizure nor is it unreasonable. “A ‘seizure’ of property ... occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’” Id. at 61, quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984). Further, a “seizure” is not unreasonable if it occurs with the non-coercive, voluntary consent of the owner. See Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973) (“[I]f under all the circumstances it has appeared that the consent was not given voluntarily – that it was coerced by threats or force, or granted only in submission to a claim of lawful authority – then we have found the consent invalid and the search unreasonable.”). Here, the Court has already determined that the post-and-forfeit payment is voluntary:
The fundamental flaw at the heart of plaintiff’s case is that while his papers are generously seasoned with strong language connoting wrongdoing – “force,” “coerce,” “exact,” “deprive,” and “take,” and the allegations all turn upon the city’s alleged policy of “making” arrestees pay money, there simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case.
Mem. Op. at 2–3. The Court added that “the payment was a bargained for exchange whereby both parties obtain a benefit: the arrestee gains both his release and complete finality.” Mem. Op. at 18. Moreover, the reasonableness of the procedure is bolstered by the fact that the statute also provides the arrestee with ninety days to reconsider the decision to pay the collateral and ask for his money back. See D.C. Code § 5-335.01(d)(6). So the District does not meaningfully or unreasonably interfere with arrestees’ possessory interests in property when it accepts their voluntarily tendered collateral.
Fox’s Fourth Amendment facial challenge is further undermined by the Court’s prior determination that “the city has asserted legitimate interests” in the post-and-forfeit procedure, Mem. Op. at 18. ...
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