Utah's Top Court Says Cops Can't Use Federal Loophole To Dodge Criminal Charge Requirement For Forfeitures

from the 500,000-reasons-to-try-this-endaround dept

A win for at least one resident -- and victim of shady forfeiture practices -- has been handed down by Utah's top court. Kyle Savely had $500,000 taken from him by Utah law enforcement during a traffic stop. No charges were filed and Savely was never arrested, but a dog told the Utah Highway Patrol it could search the vehicle and seize the cash, even though the search failed to produce any drugs. (h/t The Newspaper)

An early forfeiture reform initiative, voted into law by Utah residents in 2000, says the government must return forfeited property if no criminal charges are filed within 75 days. The Utah Highway Patrol apparently had no charges to file, but rather than return the money when Savely requested it back, it chose to hand it over to the DEA via equitable sharing. Equitable sharing with the feds allows state agencies to bypass more restrictive state laws and help themselves to 80% of whatever's seized.

The DEA pitched in, too, hoping for 20% of the seized cash, further demonstrating the perverse incentives of the federal forfeiture loophole. From the decision [PDF]:

On February 10, 2017, seventy-five days after UHP’s seizure, Mr. Savely filed a petition in state district court seeking the release of his property. In a hearing on February 21, 2017, the state district court ruled in favor of Mr. Savely, concluding that UHP was required by the Act to procure an order from a state district court that authorized UHP to release the seized cash to the DEA and, thus, that UHP had unlawfully transferred the funds. Additionally, the state district court concluded that UHP had failed to take one of the actions required by Utah Code section 24-4-104(1)(a) and therefore ordered UHP to return the funds to Mr. Savely.

UHP immediately stopped payment on the January 24, 2017 check sent to the DEA. In response, the DEA served UHP with a second federal seizure warrant on February 23, 2017, after which UHP requested that the state district court reconsider its initial ruling.

Savely challenged this move, claiming the state had jurisdiction over the seized cash and could not use equitable sharing to route around state law. The court agrees for the most part, but notes the initiative isn't the "model of clarity" and the government can present plausible arguments for federal jurisdiction over the cash, even with the lack of required charges at state level.

That being said, the court sides with Savely. It points to one clause of the law, along with its intent -- "to protect property owners" during forfeiture proceedings -- as evidence the state government (and its residents) were seeking to close the federal loophole that would have erased the protections it had enacted.

Importantly, the transfer provision expressly prohibits a district court from “authoriz[ing] the transfer of property to the federal government if the transfer would circumvent the protections of the Utah Constitution or of this chapter that would otherwise be available to the property owner.” UTAH CODE § 24-4-114(1)(d). This provision, along with the grant of in rem jurisdiction to the state district court over property held for forfeiture, ensures that the authority to seize and hold property for forfeiture under the Act is limited by the protections provided in the Act. This comports with the legislative intent and purpose of the Act.

The court concludes the state has jurisdiction over the seized cash, despite the DEA's belated involvement. As such, the cash must be returned to Savely because the state government failed to bring charges in 75 days.

A state district court has in rem jurisdiction over any property held for forfeiture under the Act. And property becomes property held for forfeiture, at the very least, when a seizing agency serves a notice of intent to seek forfeiture under the Act. Because Mr. Savely was provided with a notice of intent to seek forfeiture long before any federal seizure warrant was issued, we conclude that the state district court was the first to properly exercise in rem jurisdiction to the exclusion of any other court. Therefore, we reverse the state district court’s conclusion that it lacked in rem jurisdiction and remand for further proceedings consistent with this opinion.

"Consistent with this opinion" adds up this way: 1 seizure + 0 criminal charges = $500,000 returned to Savely. The intent of the state law is clear: protecting citizens whose property has been seized by the government. If the government can't find a reason to criminally charge the property's owner, the property has to be returned. Asking the feds to take over circumvents state protections.

Local law enforcement knows this. The law's effect was very noticeable. As Radley Balko notes in his post about Utah's back-and-forth forfeiture reform efforts, the elimination of federal forfeiture adoption hit local agencies right in the pocketbook.

The year before it passed in FY 2000, Utah received $226,524 from the federal Asset Forfeiture Fund (AFF). In FY 2002, that number plunged to $3,357. The very next year, it was $0.

Since then, things have been loosened up a bit by legislators, but the 2000 initiative still prevails 18 years later. Local cops can't use the federal government to launder forfeitures in exchange for a 20% cut. If the state seizes the property, it still has to bring criminal charges if it hopes to keep it. That's the way it should be. Fortunately, the unclear law is being interpreted by the state's highest court as a bulwark against government abuse. Closing the federal loophole and requiring criminal charges fulfills the intent of the law and makes it far less likely forfeiture programs will be abused.


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  • icon
    That One Guy (profile), 7 Sep 2018 @ 1:49am

    Telling numbers

    The year before it passed in FY 2000, Utah received $226,524 from the federal Asset Forfeiture Fund (AFF). In FY 2002, that number plunged to $3,357. The very next year, it was $0.

    If the only thing that preventing them from keeping the money was the requirement for criminal charges(not even a conviction according to the article, simply charges), and the money they had coming from the program dropped by over two hundred thousand over the course of three years, that says a lot about how incredibly weak even they knew their cases were where they were robbing people.

    The only way a requirement for a conviction or charges is a problem to keeping the money is if they lack sufficient evidence to secure a conviction and/or link the money they stole to an actual crime('they' in this case being any department or government agency making use of 'asset forfeiture' laws). As such for a requirement that low to result in such a significant drop in only a few years says volumes of how rampant robbery-at-badgepoint was in the state, and apparently continues to be, even if they got almost-kinda-sorta slapped down this time.

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

    • identicon
      Anonymous Hero, 7 Sep 2018 @ 9:08am

      Re: Telling numbers

      I think that a conviction should be a minimum requirement when the presumption of innocence is taken into account.

      Perhaps the property can only be seized once the defendant has exhausted all legal paths (because, presumably, the defendant will have to pay a lawyer).

      If law enforcement takes someone's property (cash, for example), and no convictions, or charges even, are made, then law enforcement should have to return the property PLUS interest.

      Without some disincentive for taking innocent citizens' money, there's no reason not to.

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

      • identicon
        Anonymous Coward, 7 Sep 2018 @ 9:10am

        Re: Re: Telling numbers

        Their logic says the money is guilty and money has no presumption of innocence - or something like that.

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

      • identicon
        Anonymous Coward, 7 Sep 2018 @ 9:58am

        Re: Re: Telling numbers

        >then law enforcement should have to return the property PLUS interest.

        At a minimum, they should get the property and any legal costs required to fight for it back. You could blow tens of thousands on a lawyer to get it back.

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

      • icon
        That One Guy (profile), 7 Sep 2018 @ 10:30am

        Re: Re: Telling numbers

        Two simple changes would absolutely devastate robbery-at-badgepoint:

        1) Require a conviction, of the person rather than the property, before transfer of property is allowed. No more 'you're guilty and you have to prove your innocence to get your stuff back', if they can't demonstrate in court that the accused is guilty and that the property was involved in, or resulted from, the crimes they are found guilty of the police don't get to keep a single bit of it.

        2) At no point should there be a financial incentive linked to how much the police and/or a government agency sieze. There should be no difference on their end between $10 of 'suspect' money and $100K of it other than what's written out on the paperwork.

        As such make it so that none of the money and/or good from a seizure following a successful conviction of the person goes into their pockets. Instead route any proceeds elsewhere to some other beneficiary(if you really want to twist the knife make it a bonus for public defenders, so the more they grab the better defense those they accuse get).

        There are more things you could go to make the process better and less prone to abuse(your 'plus interest' one is a very good example), but I suspect that those two changes, a requirement of a conviction and a severance of a financial incentive to grab as much as they can would vastly decrease their interest in doing so and all but eliminate the practice other than a very few, exceptional cases.

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

        • identicon
          Anonymous Coward, 7 Sep 2018 @ 11:34am

          Re: Re: Re: Telling numbers

          "Instead route any proceeds elsewhere to some other beneficiary(if you really want to twist the knife make it a bonus for public defenders, so the more they grab the better defense those they accuse get)."

          Maybe it goes into a fund for education or health care for the poor!

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

      • icon
        Bergman (profile), 8 Sep 2018 @ 3:21pm

        Re: Re: Telling numbers

        Defendants in civil asset forfeiture cases are inanimate object or bodies of land -- they cannot hire lawyers due to being inanimate.

        That's the nasty thing about civil forfeiture -- human defendants have rights and interests that are protected by law. Cars and land and money do not. So all sorts of things that would be illegal if applied to suing a person usually aren'y illegal when suing a piece of property.

        What you're describing is known as criminal asset forfeiture, but the issue here is civil asset forfeiture.

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

  • icon
    That Anonymous Coward (profile), 7 Sep 2018 @ 3:41am

    Why investigate real crime & do your job when you can just mug people for their stuff & split it witht he feds to make it all tidy and legal.

    Something something gang with badges...

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

    • identicon
      Anonymous Coward, 7 Sep 2018 @ 6:17am

      Re:

      But we are a nation of laws, law and order, tough on crime, zero tolerance ... to serve and protect, good members of the community - it is not even funny anymore.

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

      • icon
        Anonymous Anonymous Coward (profile), 7 Sep 2018 @ 6:59am

        Re: Re:

        "...nation of laws, law and order, tough on crime, zero tolerance..."

        Except when it's someone in power, like law enforcement, or a politician, or with lots and lots of money.

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

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 7 Sep 2018 @ 7:24am

          Re: Re: Re:

          That is the "literal" privilege of those in power and why you deserve what you get when those you elected to power abuse you.

          It's just a fact of life. The leader of the pack gets special privileges and unless you go and challenge the leader of the pack to take their privileges away you need to shut up and get in line.

          The rules of the jungle do not stop just because you put a few million different ones on a piece of paper.

          You know what else? I notice you guys spend a lot of time creating power structures and then bitching about them. How about you start appreciating the government structures you call for instead of bitching about them? You literally got what you asked for, perhaps not "exactly" what you asked for but through the collective voice of you and everyone else that should have a say in who rules over them did.

          If you don't like the fact that people in power get special privilege, stop giving them power or stop putting those that would abuse it in power.

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

          • icon
            Anonymous Anonymous Coward (profile), 7 Sep 2018 @ 7:40am

            Re: Re: Re: Re:

            You know, for a fact, that I voted for any incumbent? How is that possible? How is it that we, but not you, created these "power structures" and that we, but not you "got what we asked for"?

            You 'get what you deserve' guys just crack me up. Remember, when you point your finger, there are three other fingers pointing back at you.

            I don't like the fact "that people in power get special privileges" and I do what I can to make changes, to the system, as it is the system that allows this, not individuals. What have you done? What are you doing? Argue for changing the system (I have expressed my thoughts on that many times, go read) and tell us how you are going about it. I feel no need to reiterate anything just because YOUR lazy.

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

            • This comment has been flagged by the community. Click here to show it
              identicon
              Anonymous Coward, 7 Sep 2018 @ 8:08am

              Re: Re: Re: Re: Re:

              "You know, for a fact, that I voted for any incumbent? How is that possible? How is it that we, but not you, created these "power structures" and that we, but not you "got what we asked for"?"

              Let me repeat again...

              ---You literally got what you asked for, perhaps not "exactly" what you asked for but through the collective voice of you and everyone else that should have a say in who rules over them did.---

              This means that you participated, just like I did, and for better or worse this is what we "collectively" got. If you see room for a ruler then you did ask for it, you might not have gotten "exactly" what you asked for but you do "literally" ask for it.

              "I don't like the fact "that people in power get special privileges""

              And yet you want people to have power, how do they get that without getting special priviledges? Power is and is directly equal to privilege.

              "and I do what I can to make changes, to the system, as it is the system that allows this, not individuals."

              But you do it from a self imposed disadvantage, what is the logic in that? First you decided someone needs to have power over you, then you turn around and try to call them out over the privilege that power brings. You just don't get one without the other.

              "What have you done? What are you doing? Argue for changing the system (I have expressed my thoughts on that many times, go read) and tell us how you are going about it. I feel no need to reiterate anything just because YOUR lazy."

              I don't think you understand what you just did do you? It's perfectly normal for the guilty to try to turn the argument against the accuser.

              I don't accept your rules, I am also not a sovcit, and I don't have a problem with government. I just do not accept your bullshit and contrary, self destructive rules.

              You are the epitome of a self destructive whine bag that will only seek to install the very things that will oppress them and destroy them. And the entire time you do it, you will espouse for yourself, liberties and freedoms that you would happily deny others that you do not agree with.

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

              • icon
                Anonymous Anonymous Coward (profile), 7 Sep 2018 @ 8:14am

                Re: Re: Re: Re: Re: Re:

                But you're not? Quite the demented imagination you have there. You see yourself above all others, but have no leg to stand on. I think your self-imposed air of superiority is causing you altitude sickness.

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

                • This comment has been flagged by the community. Click here to show it
                  identicon
                  Anonymous Coward, 7 Sep 2018 @ 8:32am

                  Re: Re: Re: Re: Re: Re: Re:

                  No, it is you with an inferiority complex. If I thought myself above you all I would not even grace you with my thoughts or insults. I would only sit in silence and laugh at you and like a king I would just send my people to crush you at the point you have annoyed me to much.

                  I am not superior, I just have figured out life more than you have and it seems to have pissed you off to no end.

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

                  • identicon
                    Anonymous Coward, 7 Sep 2018 @ 8:52am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "I am not superior"

                    Contrary to your posts which claim otherwise.
                    Ridiculous prattle only goes so far.

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

                  • icon
                    Stephen T. Stone (profile), 7 Sep 2018 @ 9:25am

                    If I thought myself above you all I would not even grace you with my thoughts or insults.

                    Please, by all means, think of yourself as above us.

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

          • icon
            Stephen T. Stone (profile), 7 Sep 2018 @ 7:59am

            The leader of the pack gets special privileges and unless you go and challenge the leader of the pack to take their privileges away you need to shut up and get in line.

            How about we challenge the leader, then keep challenging them to do better by making a shitload of noise instead of shutting up like a gutless coward? You do you, son, but I’ll be over here not being quiet.

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

            • This comment has been flagged by the community. Click here to show it
              identicon
              Anonymous Coward, 7 Sep 2018 @ 8:13am

              Re:

              You don't challenge leaders to do better, you challenge them to replace them. Only a fool would allow a leader to remain after making a mistake that caused them to being a challenge.

              The only think you get by making a shitload of noise is to only get the leaders to back off long enough until they can figure out how to deal with you.

              "You do you, son, but I’ll be over here not being quiet."

              The squeaky wheel gets the grease.

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

              • icon
                Stephen T. Stone (profile), 7 Sep 2018 @ 9:14am

                You don't challenge leaders to do better, you challenge them to replace them.

                “Challenge” can mean multiple things. I can challenge our leaders to do better by reminding them that they can (and ultimately will) be replaced. If they refuse to do better, I can challenge them to prove why they should not be replaced with someone who will at least make an effort at trying.

                The only think you get by making a shitload of noise is to only get the leaders to back off long enough until they can figure out how to deal with you.

                That is why we keep making noise even when our leaders seemingly capitulate: They must learn that they cannot and should not expect us to sit down and shut up once we seemingly get “what we want”.

                Having marriage rights extended to gay people was a hell of win for the LGBT community, but that alone was never the endgame for the LGBT civil rights movement. That movement has continued to fight for greater civil equality by petitioning lawmakers and the courts for changes to the law. Non-discrimination ordinances and bans on the fradulent and torturous practice of so-called “conversion therapy” are just two of the battles still going on after Obergefell.

                You can give up when the boot comes down across your throat, or you can shout and yell until your lungs give out. You can cynically assume lawmakers will only ever pay lip service to a cause, or you can sincerely pressure them to stand up for that cause. You, me, and everyone else in the country can do one of two things when we find a cause worth fighting for, even if no one else will: sit down and shut up, or stand up and fight. Would you rather be a fighter or a good man doing nothing?

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

          • icon
            Gary (profile), 7 Sep 2018 @ 8:08am

            Re: Re: Re: Re: Coward

            I notice you guys spend a lot of time creating power structures and then bitching about them.

            Who is "you guys" in this context? Anyone that isn't in your ill defined "movement"? Which is what again?

            Ayn Rand: Who holds the money deserves the power. SovCit: Laws are for losers. AltRight: Stop the Jews from taking over! (Based on The rules of the jungle do not stop just because you put a few million different ones on a piece of paper.) I'd say that puts you in the SovCit - so if you aren't currently using your guns to enact the social change you want, you are nothing but a slave so shut your dogma hole.

            I don't see you doing anything but coming here to toss random and baseless insults. And remember - you hate this site because coming here gives us power over you and you hate that anyone can flag your comments. (And everytime we flag you, we demonstrate that You are the slave, right?)

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

            • This comment has been flagged by the community. Click here to show it
              identicon
              Anonymous Coward, 7 Sep 2018 @ 8:22am

              Re: Re: Re: Re: Re: Coward

              "Who is "you guys" in this context? "

              Those that is applies to.

              "Anyone that isn't in your ill defined "movement"?"

              I am in no movement.

              "Which is what again?"

              How about the "sanity" movement? Where people get real about the problems we face and not seek salvation through a false promising seeker of money and power... I mean politicians.

              "Ayn Rand: Who holds the money deserves the power."
              I don't agree with the word "deserves" but it is true that who holds the money "has" the power.

              "SovCit: Laws are for losers."
              There will always be a law "imposed", SovCits are equally as stupid as you are, just not socially accepted as compared to you.

              "AltRight: Stop the Jews from taking over! "
              Those that are more capable usually win. It might be Jews, Asians, Russians, English, Egyptian, French, or whatever you want to dream up. Conquest by the sword is hardly the only way to defeat your enemies or rule over others! Some folks will straight up agree to let you rule over them if you make promises they like to hear!

              "I don't see you doing anything but coming here to toss random and baseless insults."
              Random and baseless huh? Okay

              "And remember - you hate this site because coming here gives us power over you and you hate that anyone can flag your comments. (And everytime we flag you, we demonstrate that You are the slave, right?)"

              I don't hate TD, you guys have your problems just like everyone else. You just need me to hate you so you can scream your petty insults back, but whatever floats your boat, insult as much as you want, I am not like you in this regards. You cannot insult me no matter how hard you try. You can flag my comments all you like, I do not care.

              So flag away, I have found that the more you try to silence people the louder their words become in your head. If you ask me, the moment you flag someone, they have already won. So flag away friend!

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

          • identicon
            Anonymous Coward, 7 Sep 2018 @ 9:14am

            Re: Re: Re: Re:

            "That is the "literal" privilege of those in power "

            Like a child put in charge of the cookie jar.

            If absolute power corrupts absolutely, how does one stop those elected to serve the public from forcibly grabbing and abusing said power? History says this has never happened.

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

          • identicon
            Anonymous Coward, 7 Sep 2018 @ 10:04am

            Re: Re: Re: Re:

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

  • icon
    lucidrenegade (profile), 7 Sep 2018 @ 6:49am

    Even giving the cops every benefit of the doubt, I really don't understand this. The guy was stopped, had $500k in cash. A drug dog hit on his car, but no drugs were found. They still took the cash, then when required by law to give it back after 75 days, they give it to the feds? What possible *legal* reason is there to getting the feds involved? If they refuse to give the money back after 75 days, it's just straight up theft by the police. The officers involved, and whomever got the feds involved should be charged.

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

  • identicon
    Anonymous Coward, 8 Sep 2018 @ 10:08am

    After this ruling the petty cops will have their revenge and make Kyle pick up the cash (no check or bank transfer) at a police station. A undercover DEA agent will follow Kyle for a few minutes when Kyle left the station with his bag of money and the show starts again. This time the money is seized by the DEA thus circumventing state laws. Good luck Kyle.

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

  • identicon
    jbakerjonathan, 8 Sep 2018 @ 10:55am

    The only way to ameliorate the unfairness of civil forfeiture is to abolish those laws. I personally think that those laws should be wiped out. The government seizing property without due process is robbery and is of the most heinous action of government. Remember, the laws were justified in order to be able to seize assets of drug dealers before they had a chance to hide them. Now look at what the government is doing with that power. Power corrupts those yielding it. Giving power to the government should be done sparingly, if that much!

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


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