A line stood out in Radley Balko’s post about another forfeiture outrage.
It took Nelson nearly five years to get back his money and property. I don’t know if his attorney took his case pro bono, but if he didn’t, Nelson won’t be reimbursed for his legal costs. Nor will be reimbursed for any money he had to spend traveling to Nebraska for hearings or depositions. He also won’t be paid any interest he might have earned while the Nebraska State Police held on to his money.
The post is about a 22-year-old kid from Cedarburg, Nebraska, John Nelson. He took his life savings of $48,100 and headed for Colorado. A few weeks later, after buying some personal use pot and learning that Denver didn’t love pit bulls, he decided to turn his RV around and head back to Nebraska. Stopped along the way, bad things happened.
During the stop, the trooper began to suspect Nelson was transporting a large amount of high grade marijuana. Specifically, the trooper reacted to Nelson travelling in a large, uneconomical vehicle from Denver, a marijuana transportation hub city, to Milwaukee, a distribution city. The trooper also found suspicious Nelson being nervous, under-representing his criminal history, and falsely claiming snowboarding had been his reason for having traveled to Colorado.
After issuing Nelson a traffic citation, the trooper asked Nelson if the RV contained drugs or guns. When Nelson told him it did not, the trooper asked to search the RV. When Nelson refused permission, the officer detained him and called in a canine unit for a sniff search. While awaiting the canine unit, the trooper told Nelson possessing only a “personal use” amount of marijuana would merely be subject to a fine. Nelson then admitted having a small amount of marijuana in the RV. Concluding he then had probable cause to search the RV, the trooper began to do so.
The trooper found some personal use quantity pot and the cash. He kept both and Nelson was let go. The government claimed Nelson had the cash to make a drug buy. Despite the inability to see into the future, the government had the usual evidence to support its position.
Much of the affirmative evidence in this case could support either party’s position. Nelson’s travel with a large amount of currency is by itself suspicious. See $124,700 in U.S. Currency, 458 F.3d at 826. Equally suspicious is the way Nelson bundled the money and carried it in a plastic bag inside his backpack, because doing so is consistent with the possibility of it being drug money. See id. (“[W]e have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking.”).
This has been an article of faith in forfeiture law for decades; there are ways that drug dealers bundle money. It’s not exactly unique, though you can always tell a criminal defense lawyer who defends drug dealers by the pile of rubber bands on his desk. It may sound crazy to the uninitiated, but not to the government.
Adopting the government’s theory, the magistrate judge concluded it was more likely than not the $48,100.00 was subject to forfeiture for being substantially connected to a planned, but unconsummated, drug transaction.
Nelson did something unusual. He fought for the return of his money. He lost, but he fought. Most don’t. Most can’t, either because they can’t afford to, particularly given the low probability of success, or can’t withstand the scrutiny. Then Nelson did something really unusual. He appealed. And he won before the 8th Circuit.
In the end, this case may be more about what was not found in the RV. As we have noted, the government’s theory about Nelson’s alleged plan to obtain a large amount of marijuana to sell in Milwaukee is not supported by any affirmative evidence. This is not by itself dispositive.
The government’s case, however, falls short. As the trooper testified, there are several things missing here which he would typically expect to find if Nelson had been planning to purchase and transport a large amount of drugs cross-country to sell. Nelson’s phone, which was seized and examined, contained no texts or voice mail recordings referring to a plan to engage in trafficking. Nelson also had no firearm, the possession of which the trooper testified often goes “hand in hand” with drug trafficking. The marijuana Nelson possessed was small, consistent with personal use, and the paraphernalia in his possession was far more consistent with personal use than distribution. In the end, the government’s theory about a planned transaction relies on mere speculation rather than circumstantial evidence.
Notably, the trooper’s inspection of Nelson’s cellphone, which worked in his favor here, would no longer be constitutional under Riley. Even so, this reversal was by the skin of his teeth. Circumstantial evidence is a nice name for rank speculation, and that’s all that’s needed. Had the circuit affirmed, no one would have been surprised, no less outraged. If anything is shocking, it’s that the circuit cut the kid a break.
And throughout this morass of the legal system, the underbelly that produces billions of dollars in free money under conditions that make it nearly untenable to fight, no less win, was a lawyer. Back to the line from Radley’s post that caught my eye:
I don’t know if his attorney took his case pro bono, but if he didn’t, Nelson won’t be reimbursed for his legal costs.
Why would his attorney have taken his case pro bono? Is it because we’re all so fabulously wealthy we can spend our days carrying truth and justice on our back to dish it out for free to the unfortunates? Is it because we, and we alone, are the only ones in this society who give a damn about the impropriety of government actions that are fundamentally wrong? Is it his lawyer’s fault that the government engages in forfeiture, that judges find the routine speculation of cops and prosecutors adequate to rule against kids like Nelson? Did the lawyer do this to him?
Whatever the lawyer was paid to represent Nelson, it wasn’t enough. Enough would have been a multiple of the total amount seized, and that would make no sense for Nelson to pursue. But the lawyer took the case and ultimately won. He won’t be buying a Ferrari on the fee. It’s unlikely he could pay his rent on the fee. But he did it.
Where were the rest of you, carrying the weight of this outrage perpetrated by the government on this 22-year-old kid named Nelson? Where were you for the past 30 years while the government perfected its story to justify forfeitures? Where were you when judges waved their hands and approved this wild speculation that allowed cops and agents to seize at will?
There were lawyers there, doing their job, fighting to stop this from happening. This is how they earned a living, fighting for people when the rest of the nation couldn’t give a damn. Or, truthfully, applauded the government’s war on crime, drugs, whatever.
Pro bono? When is the last time you walked up to a criminal lawyer in a bar and bought him a drink to thank him for all the good he’s done for society? For you? But the lawyer should do it pro bono so when it’s your turn on the wrong end of the government’s wrath, you not only get zealous representation, but you get it for free.
You don’t like the fact that our legal system is filled with systemic flaws that force people to pay lawyers to defend them? Maybe, just maybe, you should speak out before rather than bemoan the “injustice” of it all afterward. There’s another battle going on with moralists screaming about the terrible hurt feelings they endure, demanding new crimes to end their suffering, which will sweep in innocents who will have to pay lawyers.
Yet, aside from a very small handful of folks, including me, trying to prevent this moralist zeal to create an entirely new category of crimes that you will come to recognize as a travesty and despise in a decade or two, most of you are dead silent. But you will want lawyers to defend you pro bono someday, when you are outraged because it touches you and want so desperately for someone to save you at no cost to yourself.