In the case of Brian J. Degen v. United States in 1995, the Supreme Court ruled that a criminal defendant's assets could be frozen before trial even if he was not present in the country to defend himself against charges. The court held that it did not violate due process rights under the Fifth Amendment for a district court to freeze property belonging to an indicted but absent defendant, based on probable cause that such property would be subject to forfeiture upon conviction. This decision came after Brian J. Degen fled from U.S jurisdiction and refused extradition from Switzerland following his indictment on drug trafficking and money laundering charges; meanwhile, he sought access to his seized assets for living expenses and legal fees.

In the dissenting opinion for Brian J. Degen v. United States, Justice Scalia argued that the majority's decision to allow civil forfeiture proceedings before criminal trials was a departure from traditional legal principles and could potentially infringe upon an individual's right to due process. He contended that allowing such actions would create unnecessary complications in criminal cases, as defendants may be forced to reveal their defense strategies prematurely or risk losing their assets entirely. Furthermore, he expressed concern over potential abuses of this power by prosecutors who might use it as leverage during plea negotiations. Ultimately, Justice Scalia believed that the Court should have adhered more closely to established legal norms and prioritized protecting individuals' rights over expediency in asset seizures.