Ohio Supreme Court Says There’s Nothing Wrong With Cops Seizing A $31,000 Truck Over An $850 Criminal Offense

Legal Issues

from the guess-it-all-depends-on-what-'excessive'-means dept

In 2019, the Supreme Court of the United States resolved a long-running lawsuit over asset forfeiture. Indiana resident Tyson Timbs had his $42,000 Land Rover seized by law enforcement following his sale of $260 of heroin to an undercover officer.

The basis of his challenge were the 8th and 14th Amendments of the US Constitution, both of which have been long-adopted by the state of Indiana. The Eighth Amendment’s Excessive Fines Clause came into play here, folded in by the 14th Amendment’s Due Process Clause. The Supreme Court held that seizing a $42,000 vehicle was excessive (in terms of fines) when the criminal offense maxed out at $10,000 in fines.

That decision has been pretty much ignored by Ohio’s top court, which has decided $31,000 is not an excessive fine when the underlying offense tops out at $850 in fees.

After being convicted of drunk driving for the third time in 10 years, the government took away Medina County resident James O’Malley’s 2014 Chevy Silverado, which was worth $31,000 and was his only significant asset.

O’Malley challenged the state law that allows the government to seize vehicles used in crimes. He argued it violated the Eighth Amendment to the U.S. Constitution by requiring him to pay an excessive fine and vehicle owners face forfeiture while non-owners don’t face the same penalties.

A divided Ohio Supreme Court on Thursday upheld the state’s forfeiture law.

Three DUIs is serious business. That much cannot be argued, even if they were spaced out over the course of ten years. Following his no contest plea, O’Malley sought the return of his vehicle. O’Malley’s challenge was likely inspired by the Timbs case, which resulted in a decision finding some forfeitures unconstitutional.

The trial court said the fine was not “excessive” because the vehicle was involved in the crime, O’Malley had previous criminal convictions for the same violation, that his current situation would not be made worse by lack of access to a car (he was unemployed at the time), and that he had a good chance of re-offending, something that would be minimized by removing the vehicle from the equation. It said the fact that the value of the vehicle was more than 11 times the total maximum fine still didn’t make it excessive, given the other factors in play. The state appeals court arrived at pretty much the same conclusion.

Unfortunately for O’Malley, his seizure occurred about eight months before the Supreme Court delivered its decision. Even more unfortunately, the state Supreme Court has its own ideas about what is or isn’t “excessive,” in terms of constitutional rights.

The decision [PDF] says the end justifies the means, what with so much public safety being at stake. What’s a $31,000 truck when there’s plenty of justification for the government to do pretty much whatever it wants to get drunk drivers off the road?

It appears that the General Assembly meant to deter vehicle owners from engaging in drunk driving or furnishing their vehicles to those who would engage in drunk driving—the thought being that the loss of a vehicle would be a significant deterrent that would keep more drunk drivers off the road. It was also reasonable for the General Assembly to think that taking away a repeat offender’s vehicle would make it harder for those inclined to drink and drive on a regular basis to commit those offenses in the future. […] Accordingly, there are many sound policy reasons for the classification, and the statute thus survives a rational-basis analysis.

But the state also suspends drivers licenses, fines people, and imprisons them for multiple violations. All of those are deterrents as well, but none of those are 11 times more excessive than the maximum penalty for a third violation.

The court at least agrees some forfeitures of this sort could violate the Excessive Fines Clause. But it says this isn’t one of them. The state Supreme Court notes the US Supreme Court’s decision, acknowledging that some sort of balancing test is needed to determine whether a fine is excessive. Since the US Supreme Court didn’t actually craft rules of its own, but rather provided a list of factors to be considered, the state Supreme Court is free to craft its own reasonableness test. Except that it chooses not to do that.

The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus. Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood. While we appreciate the allure of a seemingly airtight checklist that ideally would—but in practice may not—address all future contingencies, we do not believe—for both practical and principled reasons—that it is necessary or appropriate for us to establish the multifactor test sought in this case.

The state court says it won’t be setting a standard, which means it’s free to pick and choose whatever factors it wants to recognize on a case-by-case basis, turning constitutional questions into a roulette wheel. All forfeiture victims can do is put their money down and spin the wheel.

O’Malley loses here.

In balancing the value of the forfeiture and the gravity of the offense, we conclude that O’Malley has not proven by clear and convincing evidence that the forfeiture is grossly disproportional to the gravity of the offense. The legislature chose to punish repeat OVI offenders with the forfeiture of the vehicle that was used in the offense. The legislature’s choice of punishment is entitled to significant weight. O’Malley chose to engage in drunk driving for a third time in ten years on one of the busiest travel days of the summer. This too is entitled to weight. Further, although his vehicle was clearly of value and was important to him, he did not demonstrate that the loss of this vehicle would be significant. Though O’Malley was unemployed during the duration of his trial, he is, by all accounts, a young, able-bodied adult. And at the time of the trial court’s forfeiture order, O’Malley had few expenses, given that he lived with his grandmother. The value of the vehicle and its importance to O’Malley are simply not enough to overcome the gravity of the offense. Therefore, O’Malley has not demonstrated that the forfeiture of his $31,000 vehicle was grossly disproportional to his offense.

The court does, at least, point out that limiting a balancing test to the value of seized property in relation to the criminal penalties imposed lends itself to a two-tiered justice system where poorer people with cheaper vehicles would more often find seizures of their vehicles declared reasonable while richer people with more expensive vehicles could see themselves retain possession because their value is far greater than the severity of the crime.

And, while that’s a good point, that’s not the only factor to be considered. There’s the financial impact it will have on the arrested person, which lends itself to better protecting poor people from excessive fees. That’s why it’s a multifactor test. But the biggest factor in this court’s decision appears to be the government’s interest: the legislature authorized mandatory seizures of vehicles on a third offense, and, because it addresses a public safety concern, that’s pretty much all that needs to be discussed.

The dissent calls out the contradictory reasoning of the majority:

Judging from the historical pedigree of the Excessive Fines Clause, I conclude that the confiscation of a defendant’s sole financial asset in O’Malley’s circumstances is an automatic violation of that provision. It recalls England’s “ ‘forfeiture of estate’ ” of 300 years ago, when the Crown confiscated all the real and personal property of a felon. Fried, Criminal Law: Rationalizing Criminal Forfeiture, 79 J.Crim.L. & Criminology 328, 329 (1988), fn. 1. But here, O’Malley has not committed a felony.

[…]

Surely, if the Excessive Fines Clause means anything, it means that the government cannot confiscate a defendant’s entire net worth when the maximum fine set by the legislature is less than one-tenth of the value of the forfeited asset.

O’Malley can still appeal this, sending it to the same court that gave Tyson Timbs a victory. If this lightning strikes twice, the US Supreme Court may have to suss out a multi-factor test to be applied in lower courts. Otherwise, state courts will continue to cherry pick factors that lend themselves to the desired outcome.

Filed Under: asset forfeiture, civil asset forfeiture, james o'malley, legalized theft, ohio

Surprising Absolutely No One, Kansas Law Enforcement Can’t Accurately Track Forfeitures

Legal Issues

from the we-only-expect-accuracy-from-the-governed dept

Cops love laws when they’re using them against people, no matter how esoteric or misunderstood (by cops) the laws are. When laws are applied to them, they’re far less concerned about being law-abiding.

Kansas implemented a law in July 2019 that required all law enforcement agencies to track and report forfeiture amounts. This hasn’t gone well for the dozens of agencies now expected be just a little bit more accountable, as Duane Schrag reports for KCUR. (via FourthAmendment.com)

A review of nearly 2,000 reports filed so far found widespread inconsistencies in the way seizures are reported. More than half of the law enforcement agencies have failed to report some of their seizures as required and have done so with the blessing of the Kansas Bureau of Investigation, which is charged with gathering and posting the information on a publicly accessible website.

The Kansas Bureau of Investigation is part of the problem, and is yet another law enforcement agency that seems to believe it’s not required to follow the law.

A KBI spokesman said the website is typically updated weekly, but as of late January the last update appeared to be five months old.

Called out for its lack of attention to detail and duty, the KBI swiftly responded by dumping in hundreds of reports, including some dating back to 2019.

If the KBI isn’t regularly posting reports, that means it’s not making much of an effort to collect them or, as the law specifically requires, review them to make sure everything adds up. The KBI is supposed to flag any discrepancies and ensure they’re corrected by the reporting agency. Any agency failing to do this is supposed to be declared noncompliant and prohibited from performing seizures until everything adds up.

To date, the KBI has only declared one agency noncompliant due to annual report discrepancies. This agency — the Clark County Sheriff’s Department — managed to make this single-name list twice in consecutive years. But, as the KCUR report points out, reports are considered to be “substantially” accurate, even if they’re off by $5000 or 10% of the total.

But there were far more violators than the single agency flagged by the KBI:

A review of the incident reports shows more than two dozen agencies don’t substantially match totals in annual reports filed for 2019 and 2020. None was flagged as failing to match.

For example, based on the 2019 incident reports posted by the KBI, total net forfeitures in state court by the Kansas Highway Patrol that year were $318,831. However, the KHP’s annual report put the figure at $275,825. The KBI did not flag the report as failing to match.

The KHP’s excuse for this mismatch? It claimed some stuff from 2020 was actually reported under 2019. But that only narrowed the gap in the 2019 numbers. And it expanded the discrepancy in 2020. Others with similar large discrepancies offered other excuses, like some of the cash being retained as evidence or, alternatively, that being accountable (in both senses of the word) was too complicated for small agencies with no accounting staff.

If money appears to have gone missing with no explanation when the reports roll in, the KBI has already proven it’s not all that concerned about seized cash that just wanders away from the agency that seized it.

In January 2017, $72,020 in cash was seized by Dickinson County sheriff’s deputies during a traffic stop on Interstate 70 near Abilene. Five months later, officials discovered the cash was missing from the evidence room. The cash has never been located, nobody has been charged, and in 2020 the KBI closed its investigation into its disappearance.

If there’s any upside to the new reporting, it’s this: some agencies have just decided to stop stealing stuff from citizens.

Is the KBI’s reporting system too complicated? Neosho County attorney Linus Thuston thinks so.

“There are some places that have stopped doing forfeitures because of the complicated nature of the way they are supposed to file reports with the state,” Thuston said.

Gotta love an inadvertent deterrent. Some cops have apparently decided they’ll dial back on their abuse of the public because the resulting paperwork is too much of a headache. It’s that blend of laziness, opportunism, disdain for accountability, and refusal to respect the laws that apply to them that has made them America’s Sweethearts for the last 150 years running.

Filed Under: asset forfeiture, civil asset forfeiture, kansas, kansas bureau of investigations, seizures, transparency

FBI Invites Public In On Its Forfeiture Racket, Promises Them A Cut Of The Take

Legal Issues

from the [extremely-Beatles-voice]-take-a-bad-thing-and-make-it-badder dept

There aren’t many ways to make something as objectively awful as civil asset forfeiture worse, but the FBI has found a way to do it. As it stands now, forfeiture allows law enforcement to take cash and property from people under the (unproven) theory that it was illegally obtained. The rest of the process does nothing to prove the theory. The burden of proof is often shifted to people who had their stuff taken by law enforcement and the process of seeking the return of property is so expensive and counterintuitive, most people just take the L and move on.

The FBI wants to make asset forfeiture even shittier. It’s rolling out what appears to be a pilot program in Charlotte, North Carolina — supposedly a major hub on the East Coast drug distribution chain. Behold these (also unproven) claims the FBI has deployed to justify its new forfeiture ride-along program.

The FBI Charlotte Field Office is offering cash rewards for tips that help agents intercept drug trafficking shipments through Charlotte. With multiple interstates running directly through the Queen City, the route is appealing to traffickers who deliver their products and transfer the cash proceeds up and down the East Coast. While law enforcement agencies are effective at intercepting many of the shipments, the FBI recognizes the value the public can offer to our investigations.

Did you get that? Multiple interstates leading to a large city is all the “evidence” the FBI needs to call literally any city with a network of accessible roads a hotspot for drug trafficking activity. Everything is a hub and every road is an artery. That’s how the interstate highway system works. And because it works, every road must be a drug trafficking route and every city must be simultaneously a source for drug distributors and the home to thousands of drug customers.

All of North Carolina is suspect, according to the FBI. To clean up this southeastern drug paradise, the FBI is asking the public to contribute to its government theft program.

If a drug/cash shipment is successfully seized, the tipster could receive up to 25% of the seized money. FBI Charlotte will use the Department of Justice Asset Forfeiture Program to pay tipsters. Currently, the new program is only active in the Charlotte metro area with plans to expand across North Carolina in the future.

The FBI has set up an SMS accessible tip line in addition to its normal field office phone numbers. Tipsters who know where some drug cash might be found can directly profit from providing information that points agents in the direction of seizable property.

Unlike other tip lines with reward offers like CrimeStoppers, there’s no need to wait around to see if the tip results in arrests or convictions. The civil asset forfeiture process doesn’t require arrests and convictions, only nebulous accusations about the cash itself, which is named as the “defendant” in forfeiture proceedings as though it committed criminal acts all by itself.

And while it might be tempting to flood the tip line with bogus reports, keep in mind making false statements to federal agents is a federal crime, one that can lead to real, in-fucking-federal-prison sentences. It isn’t like filling out a false police report, which may lead to little more than a few months of probation and local cops treating future reports as highly suspect. Federal crimes are no joke and the FBI loves to catch people lying because it allows the DOJ to add to its prosecutorial wins even when agents are unable to find evidence of any actual criminal activity.

The hard rule (DON’T!) about talking to federal agents without a lawyer present applies here as well. Think about it. You provide a tip, thinking you’re doing a good deed by sending agents to seize the ill-gotten gains of an alleged criminal enterprise. But if any entity is capable of ensuring no good deed goes unpunished, it’s the FBI.

Agents may decide the submitted tip indicates the tipster is involved in drug trafficking or, at the very least, may be able to provide even more tips on criminal activity. This may lead to some in-person “interviews” with agents who — as noted above — can always accuse a tipster of lying if they believe they’re not being fully honest about their relationship to the seized cash or the people who formerly possessed it. They may also attempt to pressure a tipster into becoming a federal snitch and make their lives miserable if they refuse to play ball.

No good can come of this. No good comes from civil asset forfeiture and this invitation for the public to skim the federal government’s take makes it much, much worse. If the FBI’s going to be this stupid, it’s time for federal lawmakers to take this abusable revenue stream away from it by requiring forfeitures to be tied to convictions.

Filed Under: asset forfeiture, cash rewards, civil asset forfeiture, doj, fbi, legalized theft

California Sheriff, US DOJ Sued For Seizures Of Cash Generated By Legal Pot Businesses

Legal Issues

from the putting-the-'joint'-back-in-'joint-task-force' dept

A lawsuit filed against both California and federal law enforcement agencies claims the San Bernardino County Sheriff’s Department is exploiting the disagreement between state and federal marijuana laws to stop and seize cash being transported from legal marijuana dispensaries.

Marijuana is legal in many forms in multiple states. Unfortunately, the federal government has yet to legalize marijuana in any form, putting purveyors of legal products at risk of being prosecuted by the federal government despite their adherence to local laws.

Empyreal — a cash transport business — has experienced the SBSD’s abuse firsthand on multiple occasions.

The driver of an armored car carrying $712,000 in cash from licensed marijuana dispensaries was heading into Barstow on a Mojave Desert freeway in November when San Bernardino County sheriff’s deputies pulled him over. They interrogated him, seized the money and turned it over to the FBI.

A few weeks later, deputies stopped the same driver in Rancho Cucamonga, took an additional $350,000 belonging to legal pot stores and gave that cash to the FBI too.

The transport company says it complies with all federal laws pertaining to handling of cash generated by legal pot businesses — something that is supposed to allow the cash to travel unmolested to banks willing to handle this cash. The banks also have to perform their own due diligence, which encompasses those entrusted with moving the cash from businesses to banks and vice versa.

Despite everything being on the apparent up-and-up, this particular sheriff thinks his department is doing the right thing by targeting vehicles officers can safely assume are full of cash and walking away with that cash while mumbling things about drug trafficking and money laundering. The department also sends out drug dogs to guarantee deputies have “permission” to perform warrantless searches, since it’s highly likely proceeds from marijuana businesses will smell like marijuana.

(On top of that, a large percentage of cash in circulation contains trace amounts of drugs, which would logically be detected by drug dogs. This should be seen as evidence of nothing more than a bill being in circulation, but cops pretend it means the cash could only have come from drug sales. It’s all extremely — and conveniently — stupid.)

San Bernardino Sheriff Shannon Dicus (one of the defendants in Empyreal’s lawsuit) and his department are some of the main beneficiaries of cash seized during operations like these — ones that involve federal agents to sidestep local marijuana legalization laws and ensure the retention of a majority of every dollar seized. That’s because his department heads the Inland Regional Narcotics Enforcement Team (IRNET). IRNET’s relationship to federally adopted forfeitures is extremely profitable.

Through the U.S. Department of Justice’s equitable sharing program, the Sheriff’s Department’s participation in IRNET enables it to receive up to 80% of the proceeds recovered from civil forfeitures, he said.

IRNET has obtained nearly $18 million in equitable sharing funds since 2016, according to the Department of Justice.

If these seizures were made without federal adoption, they’d be illegal. But with the FBI’s help, the Sheriff’s Department can continue to make millions a year by taking legally earned cash from cash transport trucks.

All this adds up to a suin’, one being handled by the Institute of Justice, which has been instrumental in securing dozens of returns of property illegally seized by law enforcement. The lawsuit [PDF] notes that the San Bernardino sheriff isn’t alone in his targeting of Empyreal cash trucks. The same Dickinson County (KS) deputy, Kalen Robinson, stopped Empyreal drivers twice and seized over $165,000 during the second stop, turning it over to the DEA.

San Bernardino Sheriff Dicus hasn’t offered much in support of these stops and seizures — none of which were accompanied by citations or criminal charges. What he has offered is something that exists solely within the boundaries of pure speculation.

In response to the lawsuit over the armored cars, Dicus released a statement claiming that more than 80% of the marijuana sold in licensed dispensaries is grown illegally, but he provided no evidence that any of the eight businesses whose cash deputies seized from Empyreal’s vans were selling black-market cannabis.

“My deputies are professional, and I am confident we will prevail,” Dicus said.

No one’s doing any due diligence here, least of all Sheriff Dicus. His department isn’t researching dispensaries and targeting them with searches and criminal charges. Instead, his department has decided to do the easiest and most profitable thing: allow dispensaries to sell allegedly illegally grown marijuana and then take their cash once it’s conveniently located in the back of a transport van. This shows the department is far less interested in disrupting illegal drug sales and far more interested in profiting from illegal behavior it seemingly has no desire to stop.

Filed Under: armored cars, asset forfeiture, asset seizure, california, legalized theft, san bernardino, san bernardino sheriff's department, sbsd

Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps

(Mis)Uses of Technology

from the cops-are-upstanding-individuals-who-play-by-the-rules dept

Asset forfeiture is just cops going shopping for things they want. The analogy — one prompted by statements made by Sean McMurty, the head of a county forfeiture unit in New Jersey — works on multiple levels. McMurtry encouraged cops to seize stuff they wanted or needed.

Mr. McMurtry made it clear that forfeitures were highly contingent on the needs of law enforcement. In New Jersey, the police and prosecutors are allowed to use cars, cash and other seized goods; the rest must be sold at auction. Cellphones and jewelry, Mr. McMurtry said, are not worth the bother. Flat screen televisions, however, “are very popular with the police departments,” he said…

Mr. McMurtry said his handling of a case is sometimes determined by department wish lists. “If you want the car, and you really want to put it in your fleet, let me know — I’ll fight for it,” Mr. McMurtry said, addressing law enforcement officials on the video. “If you don’t let me know that, I’ll try and resolve it real quick through a settlement and get cash for the car, get the tow fee paid off, get some money for it.”

That’s direct shopping, utilizing law enforcement’s version of the five-finger discount. Take what you think you can use. Convert the rest to cash.

With cash in hand, cops can once again go shopping (albeit without the discount) for things they want. Even better, they can hide this shopping from the public and their oversight, stocking their cupboards with surveillance tech they don’t want the public to know about and make purchases that would never be approved by those holding the rest of their purse strings.

We’ve seen this happen (obviously months or years after the fact thanks to the secretive source of funds) in some of the largest police departments in the country. Both the Chicago and New York City police departments have used secret funds to buy surveillance tech. In Chicago’s case, the secret slush fund was powered by forfeitures. In New York, it was a fund the city gave explicit permission to the NYPD to spend as it wanted.

Now it’s the Boston Police Department being caught… well, not in the act, but, I guess, after the fact(?), thanks to local journalists.

[I]n 2019 the Boston Police Department bought the device known as a cell site simulator — and tapped a hidden pot of money that kept the purchase out of the public eye.

A WBUR investigation with ProPublica found elected officials and the public were largely kept in the dark when Boston police spent $627,000 on this equipment by dipping into money seized in connection with alleged crimes.

There are plenty of funds to work with. Law enforcement agencies and prosecutors in the state directly profit from forfeitures, encouraging cops to perform more seizures and district attorneys to initiate as many proceedings as possible. What’s supposed to be draining organized criminal enterprises of much needed cash is instead a slush fund for both entities. District attorneys get to buy what they want and cops get to do their own, off-the-books shopping to obtain controversial tech.

According to the documents obtained by WBUR and ProPublica, the only interaction the city had with this Stingray purchase was confirming there was enough in the forfeiture fund to buy it. When reached for comment, Boston city reps had no idea the Boston PD had bought itself a cell site simulator.

The Boston PD obviously knows it made this purchase but it isn’t talking. No comment from the BPD spokesperson. No comment from any PD official.

And this sort of secrecy will remain normal, at least for the immediate future. There is no mandated reporting on spending of forfeiture funds and nothing forcing the Boston PD to run all purchases past its city oversight, no matter what funds it’s spending. A proposed ordinance would change that, requiring explicit permission from the city to purchase surveillance gear but it’s not law yet.

But a better solution would be to end the practice of civil asset forfeiture, which allows law enforcement to take money from alleged criminals but without having to actually prove the person formerly in possession of the money was actually engaged in criminal activity. An acceptable stopgap would be to take the seized money out of law enforcement’s hands, as state rep Jay Livingstone suggests, and reroute it to a state general fund less likely to be abused or the source of secret purchases.

For now, law enforcement agencies are still free to spend off-the-books forfeiture funds on whatever they want. Until that incentive goes away, forfeiture programs will be still be heavily abused.

Filed Under: asset forfeiture, boston, boston police, civil asset forfeiture, surveillance, transparency

DEA Racks Up Two Forfeiture Losses In One Week, Returns $100,000 In Stolen Cash To Victims

Legal Issues

from the real-loser-here-is-still-US-citizens-and-their-tax-dollars dept

In the past week, the federal government has twice(!) been forced to return money it stole from travelers just because it could. In both cases, American citizens were trying to board domestic flights at US airports. And in both cases, despite it not being illegal to carry large amounts of cash on domestic flights, the government decided the cash had to have been illegally obtained, and moved forward with forfeiture proceedings.

The first case involves 58-year-old Kermit Warren, a New Orleans native who was accosted by federal agents at the Columbus, Ohio airport. Warren had $30,000 on him which he had planned to use to buy a tow truck for his scrap metal business. Unfortunately, the sale fell through, forcing him to purchase a one-way flight back home.

Warren’s cash caught the eye of a TSA screener. Screeners are supposed to look for threats to transportation security (that’s right in the agency name) and/or contraband. US currency is not contraband but it is definitely on the TSA’s radar, thanks to the DEA’s purported “anti-drug” efforts. The DEA actually pays screeners to search for cash. Screeners have responded by locating cash far more frequently than explosives or contraband.

The TSA alerted the DEA. Agents showed up and questioned Warren. They didn’t like his answers — some of which were untruthful (he falsely claimed to be a retired cop). But it really wouldn’t have mattered what Warren’s answers were. The DEA wanted the cash and even sworn affidavits from multiple family members and business associates wouldn’t have changed what happened next.

The DEA brought in a drug dog as a seizure permission slip. The dog (completely unsurprisingly) “alerted” on the money, having “detected” the odor of drugs. Almost all cash in circulation has drug residue on it. That should not be considered probable cause, much less reasonable suspicion. Despite making vague allegations Warren was involved in the illicit drug trade, the DEA let him go. But it kept the money.

Warren fought back, a move the government clearly didn’t anticipate. It lost spectacularly.

[P]rosecutors eventually backed down after Warren’s lawyers presented them with several pieces of exonerating evidence, including text messages with the owner of the truck and financial documents showing his income over the years.

In addition to returning all of the seized money – $28,180 – prosecutors agreed to dismiss the case against him with prejudice, meaning they cannot go after the money at a later date.

However, it wasn’t a total loss for the government. It managed to deter any future losses from this case by getting Warren to agree not to sue agents for violating his rights.

As part of the deal, Warren agreed not to pursue legal action against the government.

And, even though the government agreed to return his money, it still hasn’t. Apparently it needs a few more weeks to find the money it took from him. On top of that, the government has no apology for stealing a citizen’s cash and then sticking him with the burden of proof. All the government needs is an unproven allegation to take cash, which is completely the opposite of the way the judicial system is supposed to work.

The second case involves the same elements: a US airport, a domestic flight, some cash, the TSA, the DEA, unsubstantiated claims about drug dealing, and the theft of tens of thousands of dollars from an innocent citizen.

On January 7, 2020, [New York filmmaker Keddins Etienne] was flying from John F. Kennedy International Airport to California, where he planned to work on two projects: a documentary about the impact of forest fires on cannabis producers in Mendocino County and a remake of Takeshi Kitano’s 2000 film Brother, about a Japanese gangster who flees to Los Angeles after his boss is killed in a battle with another Yakuza clan. Etienne had lined up interviews for the documentary, and he had about $69,000, mostly in hundreds and fifties, to hire crew members, rent equipment, and cover other expenses.

Because his work would take him to some “shady places,” Etienne says, he stashed the money inside an old, broken Xbox that he put in his carry-on bag. “I didn’t want anyone to suspect that I had any type of cash on me,” he says. “I was hiding the money from the usual suspects, so to speak.” Instead, the money was snatched by a DEA agent, Antonio LoGrande, who arrived at the Transportation Security Administration (TSA) checkpoint where Etienne was screened after Etienne told a TSA officer what was inside the Xbox.

Agent LoGrande then made some coy remarks (“You know what this looks like, right?“) and then sent Etienne packing, albeit without the cash he had packed.

Etienne fought back. He secured the representation of longtime TSA critic/current lawyer Jon Corbett, who started the process of recovering the stolen money. The government fought back as well, digging through Etienne’s bank accounts, apparently in hopes of finding transactions to hang a “structuring” charge on, since it was unable to find anything linking the seized cash to illegal sources.

The DEA also offered to give Etienne some of his money back if he would just walk away from the forfeiture after the feds took their 10% skim ($6,852) off the top. Etienne and Corbett rejected this offer, maintaining their original assertion that the government was entirely in the wrong. Shortly before the deadline to move forward with its forfeiture, the government decided to return all of Etienne’s money to him — eight months after it helped itself to his cash at an airport checkpoint.

Unlike the Warren case, the government wasn’t able to talk Etienne into not suing the government over this bullshit forfeiture. The government tried to escape from that, too, but — for once — the attempt to dodge a civil rights lawsuit failed. DEA Agent LoGrande argued he should be immunized from the suit by qualified immunity, but federal judge Frederic Block wasn’t willing to entertain the government’s specious rationalizing.

According to Corbett, Block “made it clear that he did not like the government’s position at all” and “basically told the government that they really want to consider settling.” Through mediation, the government agreed in August to pay Etienne an additional $15,000, a bit more than the $13,749 in “legal fees and costs” that the lawsuit said he “spent defending against the abusive process instituted against him.”

With two failures in one week, you’d hope the government might be slightly deterred from seizing people’s cash just because they tried to board a plane while carrying it. But it’s likely this will have no effect at all. First off, the government is taking money that belongs to citizens and, at best, occasionally returning the same amount it seized. The percentage of cases that end with the government shelling out for legal fees is probably less than a rounding error. And even when the government is forced to pay for screwing over US citizens, it’s US citizens who end up picking up the tab.

At no point is the government playing with its own money, so without intercession from Congress or court precedent finding forfeitures completely unmoored from criminal charges unconstitutional, the TSA and DEA will engage in business as usual. And that “business” does nothing to make travelers more secure or curtail the buying and selling of illicit drugs.

Filed Under: asset forfeiture, cash, civil asset forfeiture, dea, jon corbett, keddins etienne, kermit warren, legalized theft, tsa

Institute For Justice Survey Shows How Philadelphia's Forfeiture Program Preyed On Poor Minorities

Studies

from the I-guess-the-gov't-feels-minorities-just-haven't-been-oppressed-enough dept

The Institute for Justice managed to kill off most of Philadelphia’s severely abused civil forfeiture program in 2018. Litigation resulted in a consent decree that banned law enforcement from seizing cash amounts less than $250 and seizures of less than $1,000 were forbidden unless accompanied by criminal charges or if the seizure was to be used as evidence in a trial.

This consent decree was necessary because the Philly PD had abused the system for years, taking minute amounts of cash off anyone they arrested as part of a catch-and-release program where alleged criminals were free to go but the PD held onto the cash. Officers were also caught buying seized houses at auction, flipping them to turn a profit, and incentivizing even more bogus property seizures.

Of course, the PD took the “evidence” loophole and ran with it, seizing vehicles as supposedly instrumental to prosecutions that never happened before auctioning them off and pocketing the money.

The Institute for Justice has doubled back on the impetus of its lawsuit against the city of Philadelphia, surveying victims of forfeiture programs and coming up with plenty of reasons why residents should be thrilled these programs are now (mostly) dead.

Its report [PDF] on Philly forfeiture surveyed 407 residents, resulting in data that shows the PD targeted minorities frequently and poor minorities most frequently of all.

The demographic characteristics of Philadelphia forfeiture victims look quite different from those of Philadelphians overall. Figure 1 disaggregates the racial and ethnic makeup of the sample, showing the large majority of respondents were Black. Indeed, as Figure 2 shows, Philadelphia forfeiture victims are more likely to be Black than the general population. They are also more likely to earn lower incomes and be unemployed and less likely to have a college degree or own their homes. These results suggest Philadelphia’s civil forfeiture machine disproportionately entangled members of disadvantaged communities.

This is partly a result of biased policing efforts, which continues to be a problem for law enforcement everywhere, not just in Philadelphia. But targeting low income residents also ensured the Philly PD would be more likely to retain ownership of seized property. Residents making less than $50,000 a year had lower amounts taken from them and often lacked the funds to seek their property’s return. With legal fees approaching $3,500 for a successful return effort, most chose to simply walk away from the forfeited property, rather than spend time and money they didn’t have fighting against a system designed to deter them from retrieving seized property.

When it comes to forfeiture in Philadelphia, no job is too small:

Police seized as little as $25 in cash, a cologne gift set worth $20 and crutches.

As the report points out, the median value for seized property was just $600. More than 50% of seizures were amounts less than $600. Nearly 70% were for less than $2,000. Less than one-quarter were for more than $3,000 — an amount that might turn a legal battle for the return of property into a breakeven effort.

But even the initial step in recovering property was often bypassed by the city. You can’t try to reclaim property if there’s no record of the police taking it from you — something police officers appear to have used to their advantage.

More than half of respondents—58%—never received a receipt for their property at the time of seizure, and two thirds did not receive any information from police about how to begin the process of getting their property back. A simple receipt may not sound like much in the grand scheme of the complex civil forfeiture process, but people who received a receipt at the time of seizure were eight times more likely to get their property back than those who did not.

As for the argument that confiscating cologne sets and crutches is essential to fighting crime, the stats don’t back that up. In most cases, forfeitures were completely removed from criminal convictions or even criminal charges.

Of those respondents who ultimately lost their property to forfeiture, more than half (56%) were never charged with a crime, and three-quarters were never found guilty of any wrongdoing—that is, they were not convicted of a crime, nor did they enter into any sort of plea deal with the court.

As we’ve covered extensively at Techdirt, abusive forfeiture programs aren’t unique to Philadelphia. They’re everywhere. It’s only in recent years that legislators have decided to do something about abuses entities like the Institute of Justice have highlighted, reported on, and sued about for years. Things are changing for the better in many places, but more work still needs to be done to push cops back to earning their money honestly, rather than just taking stuff because they can.

Filed Under: asset forfeiture, bigotry, civil asset forfeiture, legalized theft, philadelphia, poverty, racism
Companies: institute for justice

Appeals Court Says Couple's Lawsuit Over Bogus Vehicle Forfeiture Can Continue

Legal Issues

from the you-brought-this-on-yourself,-so-called-'forfeiture-attorney' dept

Another attempted government theft has been thwarted by the courts. The Ninth Circuit Appeals Court has ruled in favor of a couple whose vehicle was carjacked by Arizona law enforcement officers while their son used it for an extended road trip.

Here’s AZ Central’s summary of the events leading to the lawsuit the Ninth has revived:

Terry and Ria Platt had loaned their 2012 Volkswagen Jetta to their son in the spring of 2016 for him to use on a vacation. Their son was driving from the East Coast back to Washington on Interstate 40 when an Arizona Department of Public Safety trooper stopped him in Navajo County for having tinted windows.

Members of the Navajo County Drug Task Force had a K-9 unit search his car and found a small amount of marijuana for personal use and over $31,000 in cash, according to court documents. Law enforcement seized the vehicle and money on suspicion they were being used or planned to be used for illegal purposes. But none of them were ever charged with a crime.

This is pretty much the standard origin story for forfeitures: cops stop car, find some reason to search it, and walk off with whatever cash they can find. In this case, they decided to take the car, too.

But there are few additional wrinkles here, which show just how much the incentives of forfeiture have perverted the process. The Appeals Court decision [PDF] notes the car’s owners tried to challenge the forfeiture using the processes made available by the state, but that was brushed aside by the entity directly profiting from the seizure.

After receiving [a forfeiture] notice, persons with an interest in property subject to forfeiture proceedings face a choice between two avenues for protecting their property rights. They may “file either a claim with the court . . . or a petition for remission or mitigation of forfeiture with the attorney for the state” within thirty days of the notice, “but may not file both.” If a property owner does not pursue either option, then the state’s attorney may proceed in court with “uncontested forfeiture.” In uncontested forfeiture proceedings, the state need only establish probable cause to believe that the property is subject to forfeiture; it need not prove the factual basis for forfeiture by clear and convincing evidence, as required for contested forfeiture proceedings.

The Platts chose the first option: filing a petition for remission or mitigation. This is supposed to be followed by the government conducting an investigation of the forfeiture (to obtain more proof that the seized property is tied to illegal activity) and issuing a written declaration, which then starts the clock (30 days) on the filing of a counterclaim by the property’s owners.

That didn’t happen here. The county’s “asset forfeiture attorney,” Jason Moore, read the Platt’s petition and basically said it never existed.

Here, the Platts allege, no written declaration of forfeiture issued. Instead, Moore unilaterally determined that the petition was defective. Without notifying the Platts of any defect or affording an opportunity to correct it, he proceeded as though the forfeiture were uncontested, representing to the Superior Court in his application for forfeiture that “no timely claim or Petition for Remission has been filed.”

It wasn’t until the Platts responded to this obvious bullshit with a claim of property in an Arizona court that the forfeiture attorney finally said what was wrong with the petition he had ignored — a statement prompted by this new threat to his “uncontested” forfeiture.

[The] Platts proposed to construe Moore’s purported application for forfeiture as the written declaration of forfeiture that should have been issued in response to their petition, which would have afforded them thirty days within which to file a claim against the property. Moore promptly moved to strike that claim, asserting for the first time that the Platts’ petition for remission or mitigation was defective because, although it had been signed, it did not state that it had been “signed under penalty of perjury.”

Sick of all of this (and now represented by the Institute of Justice [working pro bono]), the Platts sued the state, county, and the attorney. They sought a declaration the state’s uncontested forfeiture program violates due process rights. They also alleged Jason Moore himself had violated their rights with his attempted forfeiture.

Most of those claims did not survive the district court’s review of the case. But the “forfeiture attorney” is still potentially on the hook for his actions, which included returning the vehicle to the Platts five months after it was impounded and, more damningly, two weeks after he was sued. So is the state, which will have to continue to defend its forfeiture program, which obviously can be very easily abused.

The court says the program in Arizona has some serious problems. Specifically, it allows this exact chain of events to occur.

This obvious vulnerability in Arizona’s forfeiture regime to a procedural due process challenge cannot be mitigated by interpretative sleight-of-hand. Even if we were to interpret Arizona’s command that those who choose to file a petition “may not file” a claim until a declaration of forfeiture has issued as limited to those who file valid petitions, see A.R.S. § 13-4309(2), it would remain the case that a state’s attorney could unilaterally deem a petition invalid without alerting the petitioner.

The claim against the law is revived. So is the “biased adjudicator” claim against the government’s attorney, since he was directly involved in attempting to short-circuit an already deficient process to gain ownership of the seized vehicle — something his office would directly benefit from.

The district court’s assessment that Moore’s conduct did not delay the return of the Platts’ car likewise does not affect our standing analysis. The district court concluded that the Platts “filed their claim more than a month before the September 20, 2016 deadline that would have applied for Moore to mail a declaration of forfeiture, and before the deadline that would have applied for them to file a claim in response to a declaration of forfeiture.”

First, the district court’s analysis ignores the potential that an unbiased adjudicator would have assessed the merits of the Platts’ petition and issued a declaration of remission, not a declaration of forfeiture, by September 20 (as Moore’s ultimate decision to return the car and abandon the forfeiture suggests is likely). Second, this analysis assumes that the Platts secured procedural due process upon the filing of their claim, not upon the return of their car. The filing of the claim could only provide due process if Moore’s motion to strike would have failed. As we have explained, that is at best unlikely, and cannot preclude the Platts’ standing to challenge the statute.

We accordingly reverse the dismissal of the Platts’ (state law) biased adjudicator claims.

The lawsuit moves forward. Hopefully, it will result in a decision that forces the state to rewrite its forfeiture rules to, at the very least, respect due process rights. And there’s always a chance a rewrite might address the perverse incentives that encourage the behavior seen here.

Filed Under: 9th circuit, arizona, asset forfeiture, civil asset forfeiture, ria platt, terry platt

DEA Returns $87,000 It Helped Nevada Law Enforcement Steal From An Ex-Marine

News

from the 'everything-checks-out,'-they-said-while-they-helped-themselves-to-his-m dept

Another bullshit forfeiture has attracted national press attention. This one has some added bonuses, like local cops stating on (body cam) that the easiest way to get their hands on the seized money would be to ask the feds to come in.

It’s the usual stuff: a pretextual stop, a bunch of questions unrelated to the alleged violation, and the theft of a person’s money based on nothing more than an officer’s speculation about its origin. (alternate link)

The Nevada trooper first told Stephen Lara the highway patrol was educating drivers “about violations they may not realize they’re committing,” and that he’d been pulled over for following a tanker truck too closely. Eventually the trooper admitted having an ulterior purpose: stopping the smuggling of illegal drugs, weapons and currency as they crossed the state.

Lara — a former Marine who says he was on his way to visit his daughters in Northern California — insisted he was doing none of those things, though he readily admitted he had “a lot” of cash in his car. As he stood on the side of the road, police searched the vehicle, pulling nearly $87,000 in a zip-top bag from Lara’s trunk and insisting a drug-sniffing dog had detected something on the cash.

The drug-sniffing dog was wrong, apparently. Or even if it was right, it was detecting something present on almost all cash in circulation: drug residue. No actual drugs were found in Lara’s car.

What was found was $87,000 in cash, but $87,000 supported by a stack of receipts from ATMs, showing Lara had pulled this cash from his own accounts. That lined up with Lara’s story, which the Highway Patrol didn’t even find unbelievable. It also lines up with comments from someone unlikely to burnish the reputation of someone who is (allegedly) $18,000 behind on child support payments. Matt Zapotosky of the Washington Post tracked down Lara’s ex-wife, Kimberly Olson, who confirmed his predilection for having lots of cash on hand.

Olsen said she thought Lara might have kept his money out of the bank in part so he would not have to turn it over in child support. But she noted that even when they were married years ago, Lara “just liked to have his cash” and made frequent withdrawals.

She said Lara did not seem to spend an inordinately high amount but liked to “show off” the cash itself, and spend it on his kids. She said she did not think he was a drug trafficker.

Of course, the trooper who pulled Lara over had none of this information. But he did have a stack of ATM receipts that appeared to indicate the source of the funds. Ultimately, none of that mattered. The Highway Patrol wanted the money, so they found a way to get it. Despite one trooper stating he thought Lara was legit, the law enforcement agency sought outside help to make it easier to retain at least a portion of the $87,000.

Video of the stop, recorded on multiple body cameras, shows a trooper and Lara having a genial conversation, with Lara agreeing to be searched. The troopers pull the cash from his trunk and remark that the bills seem to be new. Lara points them to the receipts, which he says prove the money is his.

“As odd as it is, everything lines up,” a trooper says at one point.

In the video, Lara tells the troopers he does not trust banks. At one point, a sergeant on the scene calls someone — apparently a DEA agent — to confirm the forfeiture process.

“It’s too easy to do an adoption,” the sergeant says.

It is too easy. That’s one thing that’s been obvious for years. States have belatedly realized a lot of forfeiture amounts to little more than state-ordained armed robbery. But restrictions deployed at state level can almost always be bypassed by asking the feds to step in. And forfeiture adoption policies require the federal government to kick back a certain percentage of the take to the locals who initiated the seizure.

So, that’s how things went for Lara. Nevada troopers took his cash, called in the DEA, and the DEA initiated the forfeiture. That happened back in February of this year. Lara challenged the seizure. Then he went public with his accusations. And that appears to be what has triggered a belated change of heart by the DEA, six months after it took control of Lara’s money.

It was only after Lara got a lawyer, sued and talked with The Washington Post about his ordeal that the government said it would return his money.

But that’s not the end of it for the law enforcement agencies involved in this. Lara may be getting his money back but he’s not abandoning his litigation. He’s trying to secure a ruling blocking the Nevada Highway Patrol from utilizing the federal adoption option to get a cut of cash it might have trouble securing on its own.

Some of the damage has been undone. But let’s not forget the government kept Lara’s money for six months for no other reason than it was “too easy to do.” That’s unacceptable.

Filed Under: asset forfeiture, cash, civil asset forfeiture, legalized theft, nevada, nevada highway patrol, police, pretextual stop, stephen lara

Forfeiture Case Shows Cops Don't Even Need Drug Dogs To Alert To Engage In A Warrantless Search

Legal Issues

from the EXTREME-SNIFFING-ACTION! dept

Another magical drug dog case has surfaced, showing yet again why cops like having “probable cause on four legs” on hand to turn stops into searches and searches into seizures. This forfeiture motion [PDF] — highlighted by Brad Heath — starts with a stop and quickly devolves into ridiculousness.

A drug investigation involving investigators working with ONSET (Ohio Northeast Smuggling Enforcement Team) culminated in the traffic stop of one of the targets, Emmanuel Trujillo Trujillo. Already suspected of drug trafficking, the stop got a whole lot more interesting for officers once some loose cash was spotted.

Deputy Spires approached the pick-up truck and made contact with the driver, Trujillo Trujillo. While speaking with Trujillo Trujillo, Deputy Spires learned that he did not possess a valid driver’s license.

Deputy Spires observed a large amount of United States currency below Trujillo Trujillo’s feet on the floorboard of the pick-up truck and requested assistance from Franklin County, Ohio Sheriff’s Office Canine Unit Deputy Zach Cooper (“Deputy Cooper”) and his canine partner “Indy” to conduct an open-air sniff of the pick-up truck.

Roughly twenty minutes later, the drug dog arrived. And failed to do what the deputies wanted it to do.

Deputy Cooper arrived at the traffic stop at approximately 6:22 p.m. and approached the pick-up truck with canine Indy. Deputy Cooper noticed that Indy showed an extreme change in behavior when sniffing around the passenger side door and its open window. Indy’s sniffing increased as he stayed and intently sniffed the passenger side door area. As the team moved on, Deputy Cooper noted similar behavior from Indy when he approached the tailgate area of the pick-up truck.

There was no alert from Indy. Just a lot of sniffing. But even the lack of an alert wasn’t going to keep these officers from searching Trujillo’s vehicle. Since the four-legged cop wouldn’t give them permission for a search, the deputies decided to give that permission to each other, with Indy’s apparently implicit consent.

Deputy Cooper advised Deputy Spires that Indy did not indicate on a pure odor source, but he believed that Indy’s extreme sniffing behavior indicated that a narcotic odor was present within the pick-up truck.

And with that the search was on. The deputies discovered more cash, receipts for cash transfers, some paperwork from a Chase Manhattan account, and a non-contractor 1099 miscellaneous income form showing $27,815 in compensation to Trujillo. The search did not, however, turn up any drugs, despite the extreme sniffing allegedly demonstrated by the drug dog.

The deputies took $19,104 from Trujillo at this stop. From there, they went to Trujillo’s storage unit and took another $32,050. Finally, law enforcement — using information gleaned from this extreme sniffing — searched Trujillo’s house, where officers found even more cash as well as the drugs the deputies assumed they would find during their initial search of the truck.

And, as if to prove the deputies were right to assume the drug dog had meant to give them explicit permission to search the truck for drugs, there’s this additional information in the forfeiture motion.

TFO Taylor changed gloves, obtained the bag containing the United States currency seized from the pick-up truck, and opened it. TFO Taylor took a MX908 test strip and wiped it on the rubber bands holding the currency together. TFO Taylor placed this test strip into the MX908 and received a positive result for the trace presence of cocaine.

So what? I’ll bet if TFO Taylor borrowed some cash from someone in the HSI (Homeland Security Investigations) office and tested it, he would very likely have rung up another positive result for the trace presence of cocaine. This is an unlisted “feature” of most US currency. A positive test means nothing more than the bill tested has been in circulation.

This is a stop worth challenging. The deputies admitted they did not see an alert from the drug dog before engaging in a search. That means it’s also a seizure worth seizing. And it’s yet another data point showing cops love drug dogs because their mere presence at a stop can be converted into probable cause. Even better, these “partners” can’t offer up testimony that might undercut assertions made by their handlers. Win-win. Apparently, the drug war needs all the wins it can get, even if certain combatants have to obtain them dishonestly.

Filed Under: asset forfeiture, civil asset forfeiture, drug dogs, emmanuel trujillo trujillo, evidence, legalized theft, ohio, onset