from the ABORT,-FAIL dept
Another high-profile asset forfeiture battle has resulted in the government relinquishing its claim on seized cash and returning it to its owner.
In February 2014, DEA agents took $11,000 from Charles Clarke at the Cincinnati/Northern Kentucky International Airport. The DEA claimed Clarke's luggage "smelled" like marijuana. It may have been right (Clarke was a recreational marijuana smoker), but it didn't even bother to get a second opinion from a drug dog. Nor did it find any drugs or paraphernalia when it searched Clarke and his baggage.
It did, however, declare the $11,000 in college funds Clarke had saved over five years to be drug money. So, it took the cash from him and sent him on his way.
Normally, the burden of proof falls on the person whose property has been taken. That's how civil asset forfeiture works. The government files a claim against the seized property, cutting the original owner of the property out of the loop as much as possible. Fortunately, the judge presiding over the forfeiture dispute shifted the burden back on law enforcement after finding Clarke to be a credible complainant.
"Frankly, the fella sounds like he's telling the truth," U.S. District Court Judge William O. Bertelsman said in a hearing over how much information the U.S. government should be required to turn over to Clarke's lawyers. "He's not changed his story once in all the depositions and testimony that he's given even under the threat of perjury."
Bertelsman also ordered the government to show proof that the seized money was the result of criminal activity. This was obviously going to be a problem for the government, considering all it had to work with was some luggage that carried a hint of marijuana odor. That, and Clarke's cash, which it was in no hurry to give up, especially since it had to split the take thirteen ways.
While no further details have been released, it's probably safe to assume the government never came up with the proof Bertelsman was looking for. The Institute for Justice -- which represented Clarke in this case -- is reporting that the government is returning the seized cash to the college student.
“The United States government has agreed to give Charles Clarke back every penny of the $11,000 it seized from him at the Cincinnati/Northern Kentucky International Airport in February 2014, plus interest. Charles is very pleased that he will get his life savings back and that the whole ordeal is now behind him.”
All it would take to combat many questionable seizures would be a shift in the burden of proof. The process makes it almost impossible for those whose property has been seized to mount a successful attempt to reclaim it. The filing of cases as "Gov't v. Property" allows the seizing agency to run unopposed (as it were), since the seized property can't speak for itself and the property owner is tied up in bureaucratic paperwork with strict time limits that is wholly reliant on the seizing agency properly notifying seizure victims of the whereabouts of their cash, etc.
If the government can't come up with criminal charges, it very likely cannot come up with proof the money is tied to illegal activity. But too few courts are willing to shift the burden of proof, leaving the government to indulge in its perverted incentives.