August, 1996

HEADLINE: Blown away; US Supreme Court's recent ruling on seizure of property in a criminal case; The Playboy Forum

BYLINE: Bovard, James

Hugh Grant's tryst with Divine Brown in a white BMW may have been the most publicized sex act of 1995, but it did little to affect our freedom. John Bennis' quest for front-seat fellatio, on the other hand, made legal history.

On October 3, 1988 Detroit police swooped down on an 11-year-old Pontiac sedan parked on a street frequented by hookers. Inside, Bennis and a prostitute were engaged in a consensual sex act. The police interrupted before the prostitute finished and before she was able to collect her fee. Bennis was arrested for gross indecency. Then, adding insult to sodomy, the Wayne County prosecutors, enforcing a 1925 Michigan law, declared the Pontiac to be a public nuisance and confiscated it.

It was business as usual in Detroit, where nearly 3000 cars were Confiscated in 1995 in an effort to crack down on men who patronize hookers. The state keeps the profits from the car grabbing, which may explain the popularity of the practice.

Unfortunately for the state, the coowner of the Pontiac was Tina Benhis, John's wife. Outraged that the state confiscated the car even though she had no guilt or complicity in her husband's illicit escapade, she filed suit. The case ended up in the lap of the U.S. Supreme Court.

On March 4 of this year the Court shocked almost everyone by endorsing the seizure. Chief Justice William Rehnquist, who wrote the majority opinion in the 5-4 split, based his decision on an 1827 case involving the seizure of a Spanish pirate ship that had attacked U.S. vessels. Regrettably, Chief Justice Rehnquist did not explain the legal equivalence of piracy in the 1820s with freelance fellatio in the 1980s. The car did not attempt to perform oral sex on. Bennis (i.e., it was not the tool of a crime), nor was it the fruit of a criminal enterprise. The vehicle was not used to transport contraband (unless the Court views the product of an orgasm as a controlled substance). The Pontiac was simply the location of the crime.

Rehnquist ruled that since the property had been involved in breaking the law, there was no violation of due process in its seizure. The issue of takings (uncompensated government seizure of private property under public domain) was therefore irrelevant. "The government," Rehnquist decreed, "may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain."

During preliminary arguments the Justice Department attempted to imply that Tina Bennis had known or should have known of her husband's intent. (Did he say, "Honey, I'm going down to the corner for a blow job. Can I get you anything?" Did he stock up on Scotchgard?) The feds never bothered to supply evidence for this claim.

Justice John Paul Stevens issued a dissent that shows how much arbitrary power the Supreme Court grants government agents:

"For centuries prostitutes have been plying their trade on other people's property. Assignations have occurred in palaces, luxury hotels, cruise ships, college dormitories, truck stops, back alleys and backseats. A profession of this vintage has provided governments with countless opportunities to use novel weapons to curtail its abuses. As far as I am aware, however, it was not until 1988 that any state decided to experiment with the punishment of innocent third parties by confiscating property in which, or on which, a single transaction with a prostitute has been consummated."

Where does the government's right to seize property from innocent third parties end? One law professor saw the possibilities immediately: "Most major hotels in this country have seen an act of prostitution or two. Get the police to make a prostitution bust at each of these hotels. We then seize the hotels and sell them at auction. There are about 6000 such hotels with an average value of $30 million each. That produces about $180 billion in revenue, about the size of the annual deficit."

The Supreme Court's ruling is producing copycat forfeiture legislation in other cities and states. A few weeks after the decision, a headline in the Chicago Sun-Times declared: Too LOUD, TOO LATE, YOU LOSE YOUR CAR.

"Crank up your car stereo obnoxiously loud--lose your car. Proposition a prostitute--lose your car. Hang out after curfew--lose your car, or your parents' car."

The chief justice should have issued a warning to be attached to all car titles:

Purchaser hereby recognizes and accepts that if the owner or any other person using this auto engages in sexual relations in the vehicle, the title to the property automatically transfers to the nearest law enforcement agency.