Saying Someone Might Do Something Illegal With Cash Isn't Enough For Gov't To Seize It, Court Rules

from the by-any-means-unnecessary dept

The government loves taking people's money. It likes it so much it gets pretty weird about it. Even considering all we've covered here on the subject of forfeiture, the legal theory deployed by the government in this case is astounding. From the Ninth Circuit Court of Appeals decision [PDF]:

The panel reversed the district court's judgment of civil forfeiture of $11,500 under 21 U.S.C. § 881(a)(6) from claimant Charles Guerrero, and remanded for a new trial.

When Guerrero, through a friend, tried to post the $11,500 as bail for his wife, the government seized the cash. At trial, the government alleged two theories: that the money was proceeds from the claimant's drug deals, and that the claimant used or intended to use the money to facilitate drug transactions.

Charles Guerrero and his wife were no angels. But neither were they high-level drug dealers. Both apparently had crippling heroin addictions and engaged in a small amount of dealing to ensure the incoming flow of heroin.

But that's not enough to excuse the government nabbing bail money under the theory it probably came from drug dealing or -- more spuriously -- that it might have been used to purchase drugs if it hadn't been spent on bail.

Guerrero had his friend take the cash to pay the bail because Guerrero had no valid ID. Guerrero claims he had about $14,000 in cash in his home obtained from insurance settlements and the sale of a vehicle. The government made its own claims, based on the discovery of drugs in the vehicle Guerrero was sitting in, along with a dog that said, "Yes. That is drug money."

While Charles waited outside, Wood went to the MCDC’s bail window and told an officer he was there to post the cash to free Rosalie. Jail officials ran Wood’s records and discovered that he had a criminal history. Coupled with the fact that Wood was attempting to bail out a repeat drug offender with a wad of cash, this prompted jail officials to call Agent Guy Gino of the federal Department of Homeland Security. Agent Gino went to the MCDC, asked Wood a few questions regarding the origin of the $11,500, and requested permission to have a drug sniffing dog smell the currency. Wood agreed.

The dog (Nikko) alerted to a drug odor on the money. Agent Gino asked Wood if Nikko could sniff his car. Again, Wood agreed. On the way to the car, the group encountered Charles, who was waiting for Woods to come out of the jail. Charles objected to law enforcement searching the car but Wood nonetheless permitted Nikko to do so. Nikko alerted to a black bag in the vehicle—which, the officers later discovered, belonged to Charles—containing 3.6 grams of heroin. Officers also found an additional $2,971 in cash on Charles. Agent Gino arrested Charles and seized the drugs, the $2,971 found on Charles, and the $11,500 Wood had tried to post as bail.

The government seized it all. Guerrero challenged the seizure. The jury at the lower level let the government keep it. Guerrero appealed and the Ninth Circuit Court reversed on the issue of the $11,500. On remand, the government restated its assertions about the $11,500, claiming the Guerrero's had no proof the money had been obtained legally. Failing that, the government claimed the money -- even if obtained legitimately -- would only be used to purchase more controlled substances. Heads, I win. Tails, you lose. But not this time.

The Appeals Court will send this case back to the lower court a second time. As it noted during its first pass, there were genuine questions about the origin/destination of the $11,500, but it needed far more than the government's speculative assertions to make this call. Unfortunately, the lower court dismissed Guerrero's argument that the jury's split verdict allowed the government to punish him for thinking, rather than for what he actually did. The district court basically gave the government an unearned win, stating the money's origin was clean but its intended use wasn't.

This makes a mockery of due process, even more so than civil forfeiture already does. If someone socks away some cash intending to purchase drugs at some point, but then attempts to pay bills with it instead, the government could theoretically seize the cash before the bills are paid based on the person's arrest history, apparent drug dependency, etc. Given free reign, no one's money is safe, least of all those with criminal pasts.

Unsurprisingly, the court finds this theory of future "guilt" a violation the Eighth Amendment. Americans are supposed to be free of cruel and unusual punishments. Taking money from people because they might use it to commit a legal act in the future is cruel and unusual, especially when no actions have been taken indicating the cash is headed for an illegal destination. As the concurring opinion points out, the $11,500 was in process of being handed over to pay bail, making any illegal future use of that $11,500 impossible.

The court points out the law simply cannot be read the way government would like it to be. To do so would make any amount of cash seizable from anyone, simply because cash and the possibility for bad things to be done with it are both things that will always exist.

On its face... § 881(a)(6) contains no limiting principle and appears to apply whenever anyone, at any point in time, so much as thinks about using money to purchase drugs. One need not look any further than this case to realize how far the literal language of § 881(a)(6) could reach. The only evidence from which the jury could have concluded that the Guerreros intended to use the $11,500 for drugs shows that the couple were heavy heroin addicts who bought and sold drugs regularly. The government offered no specifics. Although it should surprise no one that an addict might think of spending whatever money he has to sustain his addiction, the Guerreros, so far as the evidence indicates, did not act on any such thoughts with respect to the $11,500. 4 In fact, at the time Agent Gino seized their money, the Guerreros had entrusted it to Virgil Wood, who was standing at a bail window in the MCDC asking to bail out Rosalie. Was there some possibility that, prior to Wood walking in the MCDC, the Guerreros intended to use the money for drug transactions? Of course. And is there a likelihood that if the Guerreros got the bail money back they would have used some part of it in the future for drugs? Again, it seems reasonable to answer “of course.” Does § 881(a)(6) reach either back in time to unrealized intentions or forward in time to speculative, inchoate plans? We think not.

Because the government's assertions came before the jury instructions, the forfeiture is being overturned on a procedural issue, rather than the governing statute being innately unconstitutional. The government will get a third chance to take $11,500 from the Guerreros, unfortunately. But it won't be able to argue quite as vehemently that a drug user's cash will only be spent on drugs.


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  • identicon
    Anonymous Coward, 13 Sep 2017 @ 1:36pm

    Illegal search or seizure

    Plain and simple. We had to fight a war the last time a government felt it could seize money and goods whenever it wanted.

    reply to this | link to this | view in chronology ]

  • identicon
    Machin Shin, 13 Sep 2017 @ 1:46pm

    "The dog (Nikko) alerted to a drug odor on the money."

    Ummmm, I seem to vaguely remember some study years ago saying something like over 90% of hundred dollar bills had drug residue on them. Really not hard to imagine this being the case. Drug dealer drops off handful of bills at the bank, these then run through a counting machine. Suddenly a LOT of bills have drugs on them as the counting machine spreads small amounts around.

    Point is that wouldn't a drug dog almost always alert near cash considering almost all cash has likely 1) Come in direct contact with drugs or 2) come in contact with bills that have had direct contact?

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 13 Sep 2017 @ 2:49pm

      Re:

      I remember this, my memory suggests that it was cocaine most of the time. A quick google search showed me a story on CNN but because this is the internet I'll post this link.

      http://www.snopes.com/business/money/cocaine.asp

      This was a thought crime. We thought there might be crime so we had to swoop in and stop it before anything bad happened. Because they were "Bad People™" means we don't need to follow those pesky laws & regulations, they are going to get what they deserve.

      Everyone is someones "Bad Person™", and allowing them to keep doing this to others opens everyone up to it.

      Of course the other side of the coin is why are we taking the word and assumptions of LEO's who think a dog with a wagging tail is a threat, black teens can power up like DragonBall characters, that kids toys in the front yard aren't a sign there might be kids in the house you're about to flash bang, that because we raided the wrong house doesn't mean we need to pay to replace your door, a woman knocking on a window is a threat that needs to be shot first, we tore down your house to make sure the hot spot we saw wasn't the criminal who left 3 hours ago, that a made up medical condition killed the victim not the 50 taser hits, I'd keep going but I'm depressed.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 19 Sep 2017 @ 4:00pm

        Re: Re:

        Given that Bad People™ become Bad People™ because they break/ignore pesky rules, regulations and laws -- you have to wonder how cops justify their own breaking and ignoring of pesky rules, regulations and laws such that they don't have to consider themselves to be Bad People™ as well.

        reply to this | link to this | view in chronology ]

    • identicon
      David, 14 Sep 2017 @ 2:26am

      Re:

      Ummmm, I seem to vaguely remember some study years ago saying something like over 90% of hundred dollar bills had drug residue on them.

      Before or after the police handled it?

      reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 13 Sep 2017 @ 1:58pm

    So

    So when I was told the USA is different, they were just mistake then?

    Shooting blacks, stealing poor people's money, no knock warrants, wiretapping, and mistakes being allowed because of good intentions. This is your American justice.

    reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 13 Sep 2017 @ 2:02pm

    Eighth Amendment?

    The idea that they had to use the eighth amendment as a reason that the government went too far is a bizarre result when they punished someone for something they may have been thinking. This implies that the real problem is that the government went too far in the punishment rather than over reaching in their prosecution.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2017 @ 11:42am

      Re: Eighth Amendment?

      The idea that they had to use the eighth amendment as a reason that the government went too far is a bizarre result when they punished someone for something they may have been thinking.

      That's almost the entire basis for the drug war. The Federal Government claims the right to regulate drugs under the Interstate Commerce clause of the constitution—regardless of whether there's any interstate activity, or any commerce at all. E.g. Gonzales v. Raich about someone growing pot for their own use within one state:

      In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.

      So they can regulate because it might "affect" interstate commerce in some way. And since the basis for much of modern American commerce is ideas (copyright/patents/etc.)...

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 19 Sep 2017 @ 4:04pm

        Re: Re: Eighth Amendment?

        Under the government's definition of the commerce clause, there is nothing in the world they do not have power over.

        For example, if you choose to voice your freedom of expression instead of buying paint and canvas and painting that expression, you have had an impact on interstate commerce in choosing not to spend money, therefore your exercise of first amendment rights is subject to government control via the commerce clause. You therefore don't have a guaranteed right, you have a privilege the government can take away, restrict or otherwise regulate because you are engaging in interstate commerce.

        Even if the paint and canvas you might have bought came from sources located 100% inside your state, the choice to buy local means you didn't engage in interstate commerce, which means a company in another state won't get your money, which DOES impact interstate commerce, so your avoidance of interstate commerce is interstate commerce, and therefore the federal government has control of it under the commerce clause.

        Seriously.

        reply to this | link to this | view in chronology ]

  • identicon
    any mouse cow word., 13 Sep 2017 @ 2:16pm

    It's a little odd that police rarely question wealthy people about where their money comes from or will be spent. And when there are any serious questions, they usually "settle" the case with the DA without trial or prison.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 14 Sep 2017 @ 2:23am

      Re:

      Wealthy people tend to pay protection money regularly. Uh, I mean, they tend to do campaign contributions and retirement funds and such and/or are networked with those who do. Additionally trying to shake them down might be counterproductive.

      reply to this | link to this | view in chronology ]

      • identicon
        any mouse cow word, 14 Sep 2017 @ 5:45pm

        Re: Re:

        Being able to afford lawyers on retainer and even file lawsuits on a whim might have something to do with it too.

        reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 13 Sep 2017 @ 2:22pm

    What Is Seen and What Is Not Seen*

    The government will get a third chance to take $11,500 from the Guerreros, unfortunately. But it won't be able to argue quite as vehemently that a drug user's cash will only be spent on drugs.

    How many tax dollars has US government already squandered in it's brazen attempt to steal the Guerreros $11,500?

    How much have the Guerreros been forced to spend on legal fees to protect their property?

    The resources squandered during two trials and a turn through an appellate court greatly exceed the value of the $11,500 that the US government is blatantly attempting to steal from the Guerreros in an overt act of malice.

    Frederic Bastiat, What Is Seen and What Is Not Seen*:

    In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.

    http://www.econlib.org/library/Bastiat/basEss1.html

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 13 Sep 2017 @ 2:27pm

    World Turned Upside Down?

    > As it noted during its first pass, there were genuine questions about the origin/destination of the $11,500, but it needed far more than the government's speculative assertions to make this call.

    What bizarre world of justice and common sense does this court live in? Truly not in the same fantasyland as inhabited by most of the Law Enforcement Agencies and prosecutors who think that simply finding money means it can be seized.

    One wonders why they didn't also argue that the money was possibly also made by selling hot dogs without a license?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Sep 2017 @ 3:21pm

    The black coat kill more than 1000 a year

    Molest you and your children, and steal anything they want, the US government already daily perpetrates crimes far far greater that the red coats did in all of the previous history of the colonies, and it is going to get much much worse

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Sep 2017 @ 3:31pm

    "alerted to a drug odor on the money"

    Contaminated currency
    From Wikipedia, the free encyclopedia

    Most banknotes have traces of cocaine on them; this has been confirmed by studies done in several countries.[1] In 1994, the U.S. 9th Circuit Court of Appeals determined that in Los Angeles, out of every four banknotes, on average more than three are tainted by cocaine or another illicit drug.

    http://www.cnn.com/2009/HEALTH/08/14/cocaine.traces.money/

    The money in each of our wallets has been subjected to one or more drugs including marijuana. Does that mean that if a cop has a dog sniff my money it automatically becomes his property, ever though I do no drugs of any kind.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Sep 2017 @ 3:36pm

      Re:

      Does that mean that if a cop has a dog sniff my money it automatically becomes his property, ever though I do no drugs of any kind.

      They only bring out the dogs when they want an excuse to seize property, or carry out a search just because they want to.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2017 @ 4:44pm

      Re: Most banknotes have traces of cocaine on them

      Bitcoins also have traces of cocaine on them;
      the sniffer dogs can detect bitcoins, as well.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 13 Sep 2017 @ 3:35pm

    No. Just no.

    On remand, the government restated its assertions about the $11,500, claiming the Guerrero's had no proof the money had been obtained legally.

    Ah robbery at badge-point, where you are required to prove not only that the property in question wasn't the result of illegal actions or involved in them, but won't be used for them at some point in the future, both a complete reversal of the idea of 'innocent until proven guilty in a court of law', and one almost impossible.

    reply to this | link to this | view in chronology ]

    • identicon
      Dingledore the Mildly Uncomfortable When Seated, 14 Sep 2017 @ 3:40am

      Re: No. Just no.

      Surely if he doesn't have proof the money wasn't obtained legally they can't prove that the money was his - so how can they claim it was his money to confiscate?

      reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 13 Sep 2017 @ 3:50pm

    Alert Tom Cruise

    The authorities are guilty of an IP violation for trying to create an office of Pre-Crime!

    reply to this | link to this | view in chronology ]

    • icon
      stderric (profile), 13 Sep 2017 @ 9:40pm

      Re: Alert Tom Cruise

      This case is chock full of copyright violations: thoughtcrime from Orwell, pre-crime from Dick, and a justice system straight out of Kafka. The IP lawyers are gonna have a field day with this dystopian hat trick.

      (Hell, maybe even the MPAA can get in on the action with some Brazil infringement...)

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 13 Sep 2017 @ 5:26pm

    Dog Jurisprudence

    Maybe they should let the dogs loose in the court, Appeals or District, it does not matter, and when the dogs alert on judges wallets, the answer will become clear.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Sep 2017 @ 6:01pm

    Maybe instead of asking for a cop's badge, we need to start asking for their Letters of Marque.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Sep 2017 @ 11:39pm

    Mike can you change the name of Techdirt by adding, and "stuff that matters?" I liked that about /..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 2:50am

    Can they take my computer because I might at some stage be tempted by the thought of downloading a movie?

    reply to this | link to this | view in chronology ]

  • icon
    drewdad (profile), 14 Sep 2017 @ 6:12am

    Crimethink

    "Does § 881(a)(6) reach either back in time to unrealized intentions or forward in time to speculative, inchoate plans? We think not."

    Time to resurrect George Orwell and have him debate Jeff Sessions....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 9:38am

    This crap is just more reasons why all drugs should just be 100% legal. What someone does to their own body is on them! After all isn't that the case with Abortion? Which to me is worse as you're killing a living thing that had no choice in the matter.

    The war on drugs like the so called war on poverty will never end. You can't stop people. Now it's a whole Industry with the Drug Lords, and the Corrupt police, and the Jails. They're all the same.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 9:50am

    Add this as more fuel to the fire as to why we need to treat drug abuse as a health crisis and not as a criminal offense. These people need help, and the system's failing them miserably because it's setup to see them as monsters instead of people.

    reply to this | link to this | view in chronology ]

    • identicon
      any mouse cow word, 14 Sep 2017 @ 5:52pm

      Re:

      Wish I could vote for this one more than once.

      Not that I condone vote rigging, but I do have some Russian friends. Maybe "something" can be arranged...

      reply to this | link to this | view in chronology ]


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