Washington — Those waiting for a U.S. Supreme Court ruling on whether   government seizures of property related to criminal activity without a probable cause hearing is unconstitutional may be disappointed.

During oral arguments in Alvarez v. Smith on Wednesday, the justices hinted strongly that the case may now be moot and that they may dismiss the appeal as improvidently granted.

In the case, a group of individuals sought to bring a class action after their cars and other property were seized by Chicago police under a law that allows law enforcement officials to confiscate property associated with drug activity. While no member of the proposed class was charged with a crime, their property was held for several months to a year without a hearing being conducted and without an opportunity to retrieve it.

Once forfeiture proceedings are initiated, owners have the right to assert an “innocent owner” defense and show that they had no active or constructive knowledge that the property was associated with drug activity.

The district court, applying precedent related to speedy trials, dismissed the suit.

But the 7th Circuit reversed, applying a due process standard instead and finding that the seizure process required “some mechanism to test the validity of the retention of the property.”

The Supreme Court agreed to hear the case.

No ‘live claim?’

At oral argument, the justices took note that all the plaintiffs had either resolved their individual cases through settlement or forfeited their claims. Also, the justices noted that the class was never certified, leaving, as Justice Antonin Scalia put it, “nobody before this Court with a live claim.”

Some justices hinted strongly that perhaps the case should stop right there.

“Has there ever been a case in which this Court has considered the merits of a dispute where the individual claims of the named plaintiffs expired before we heard argument and a class had not yet been certified?” asked Justice Samuel Alito, Jr.

Paul Castiglione, as assistant Illinois State’s Attorney, pointed out that some of the plaintiffs asked for damages and another class certification after the case was reversed and remanded by the 7th Circuit. But Justice Ruth Bader Ginsburg still wasn’t convinced there was anything for the High Court to do.

“So as the case comes to us, we have a district court final judgment dismissing the case,” Ginsburg said.

Setting aside the mootness issue momentarily, Ginsburg questioned just what means were available to someone whose property is seized.

“In your brief you suggested that there is a means that these plaintiffs could get back their property pending the ultimate forfeiture proceeding,” Ginsburg said, referring to a hearing the petitioner said was available for people seeking to get their property back. “So I don’t understand their argument that there’s one and only one procedure, the forfeiture procedure, when on the other hand you are telling us that there is a means.”

Castiglione said individuals can request a civil forfeiture hearing where they can ask the government to either “file an action or release the property. I think it operates much the same way that the speedy trial factors would operate in a criminal case.”

‘Decide the merits’

Thomas Peters, a Chicago practitioner representing the plaintiffs, jumped right into the mootness question.

“This case is not moot,” Peters said. “It is not moot because at the time that the plaintiffs filed the case they clearly had standing. They immediately moved for class certification [and the] class certification was denied [only because] the merits of the case were simultaneously denied.”

Peters said since the issue is ripe for repetition, the Court should decide it on the merits. But Scalia wasn’t so sure.

“If you are relying on [the] ‘capable of repetition yet evading review’ [standard], that tests whether indeed these people stand a chance of having the same thing happen,” he said.

“I respectfully beg to differ, Your Honor,” Peters said. “There is right now today a class of people in the city of Chicago who have their cars impounded. Their claims are repeating daily.”

“You are assuming that the class is a valid class,” Scalia said. “It hasn’t been certified.”

Justice John Paul Stevens wondered what the next step is.

“The mootness decision won’t really decide anything,” Stevens said. “You’ll say you [have] to file another lawsuit and start over again. But if you just say we ought to dismiss this writ as improvidently granted, and let the record be developed and the case go by and we could decide the issues.”

“That, it seems to me, is a very wise choice of action,” Peters said.

A decision from the court is expected later this term.