In Search of Loot

The travesty of civil asset forfeiture isn’t exactly a new issue, but when law enforcement’s objective is so flagrantly directed at seeking out random cash to  seize that it appears to everyone, save anyone on the government nipple, to be cynical theft, it can’t be ignored.  Joseph Rivers, a 22-year-old out to make a music video, found that out.

Rivers changed trains at the Amtrak station in Albuquerque, New Mexico, on April 15, with bags containing his clothes, other possessions and an envelope filled with the $16,000 in cash he had raised with the help of his family, the Albuquerque Journal reports. Agents with the Drug Enforcement Administration got on after him and began looking for people who might be trafficking drugs.

Why they say that the DEA agents were looking for people “who might be trafficking drugs” isn’t clear, but it seems likely that this comes from the official police version of events because people find it palatable to have the DEA out there looking for drug traffickers. 

Rivers said the agents questioned passengers at random, asking for their destination and reason for travel.

Yes, it sounds exactly like “papers, please,” from Casablanca.  A Terry analysis could be inserted here, but what’s the point? They’re allowed to ask, as could any citizen, and random passengers are allowed to tell them to stick up their butts, which will never happen because most people justifiably fear what will come next.  Not Supreme Court justices, but most people.

When one of the agents got to Rivers, who was the only black person in his car, according to witnesses, the agent took the interrogation further, asking to search his bags. Rivers complied.

Did the agents go further because Rivers was black? Young? Because they could?  Rivers likely found the intrusion unpleasant and annoying, but not extraordinary, and assumed he had nothing to hide. After all, he had no drugs, and this is America.

The agent found the cash — still in a bank envelope — and decided to seize it on suspicion that it may be tied to narcotics.

What makes this detail fascinating is that the cash was “still in a bank envelope.” For those who may not be aware, there is a familiar method used by drug dealers to bundle cash, and that’s why criminal defense lawyers never ran out of rubber bands. But bank envelopes are the sign that the funds came from a bank account, not from a hand-to-hand on a street corner.

Rivers pleaded with the agents, explaining his situation and even putting his mother on the phone.

There was $16,000 in cash, and a young man who saw his world about to disappear for no better reason than some guys with government badges decided to take away his savings, and with it, his future.  So he tried to reason with them. He tried to explain to them.  What he likely didn’t realize was that America made the possession of cash itself proof of a crime.  Not enough to be convicted, but enough to seize and forfeit the cash.

They have a great slogan to go with the theft, “take the profit out of crime,” which was more than sufficient during the formative years to sway the American public to accept it.  After all, most people didn’t walk around with thousands in cash, and the streets were littered with drug dealers back in the 1980s, so why not?

“We don’t have to prove that the person is guilty,” Sean Waite, the agent in charge at the DEA’s Albuquerque’s office, told the Journal. “It’s that the money is presumed to be guilty.”

The key word there is “presumed.”  There is no need to offer any proof whatsoever to link the cash to an illegal source.  Not even a little bit.  It is presumed to be the proceeds of crime, the instrumentality of crime, because it’s cash.  Cash is presumed to be guilty.

It’s not that Rivers can’t fight the forfeiture, even though the government need only show probable cause, which is satisfied by the presumption because tons of judges have already said so.  The burden shifts to the claimant, Rivers, assuming the agents remembered to get his name and give him a receipt when they walked away with his money, to prove the innocence of his money.

But he won’t have that money to make his music video.  And he will have to spend money to retain a lawyer to representing him in claiming the money, and fighting the civil forfeiture. And this happened in Albuquerque, where he happened to be for a moment in his life, rather than Hollywood, where he was heading, or Michigan, where he came from and has since returned to.

When the Supreme Court speaks to the authority for law enforcement to do its job, to ask questions when they have no reason to hassle someone, or to seek consent to search because the person happens to be a 22-year-old black kid with his life savings in a bank envelope, they think of bad dudes and not kids like Rivers.

But by now, civil forfeiture law is so firmly established due to years of decisions directed at seizure from drug dealers, or at least people the public and judges could hate enough as drug dealers, that this flagrant theft is perfectly lawful.  That’s the law, and everyone yelled “hooray” because it took the profit out of drugs and was only being used against people who were smeared as drug kingpins.

So what if they couldn’t prove the defendant was dirty. The money was presumed guilty. And now it’s 22-year-old Joseph Rivers’ turn to have his money presumed guilty, because that’s how law happens.  The DEA will continue to take the train, and whatever other conveyance they can find, because it allows them to search for money. Guilty, guilty money, until a claimant proves otherwise.

 

24 thoughts on “In Search of Loot

  1. Ted Kelly

    I hope the tide is turning. If this keeps up it won’t be long before they board trains, randomly ask people to whip out their smart phone and open their banking app, and then PayPal the whole to the local precinct. After all, Silk Road was all digital.
    Ps I tried answering the skill testing question as =4+1 but it wouldn’t let me.

  2. syme

    I don’t suppose either the local cops or our fearless DEA heros would like my idea:
    All forfeiture funds would go not to the cops, but rather to the local/federal public defender programs.

  3. Dean Boland

    I had never heard of this right of civil forfeiture until about two years ago. I am shocked this is legal anywhere. And, what took so long for this practice to be publicized? Surprising.

    1. SHG Post author

      Criminal defense lawyers have known about this for decades. I’ve written about it here many times. That you didn’t is something you will need to figure out.

    2. Mark Draughn

      The first time you hear about civil forfeiture, it’s shocking. (Heck, a lot of people don’t believe it. They explain that people shouldn’t commit crimes if they don’t want their property taken. They don’t get that no crime is necessary.) There’s this horrible thing going on, and you think, “My God, we’ve got to expose this! As soon as it gets out that law enforcement is pulling this crap, people will be angry, and someone will put a stop to it!”

      That was twenty years ago for me. It’s a weird feeling. You can’t imagine that this has been going on for so long without triggering public outrage. But it has. There have been some reforms, but for the most part civil forfeiture is a firmly established practice, and not many people seem to mind. Outside of some small circles, hardly anyone seems to talk about it any more. Welcome to the club.

      1. SHG Post author

        Dean has been a criminal defense lawyer in Cleveland for more than 15 years. It was very kind of you to take it upon yourself to explain this to him, but it really shouldn’t be necessary.

  4. Marc R

    The whole concept is disgusting. It was meant for police to go after large traffickers to seize assets because they’d never be caught holding narcotics. I’ve seen so many cases of stop and frisks turning into cops taking any cash over $500 and sending a 21 day notice of hearing if the owner wants to contest the seizure. If they can’t get their work receipts, bank statements, friends and family who loaned the money, etc. to come to court and prove the legitimacy of the money then it’s forfeited. There’s no burden on the police to show why they believe the money is tainted; as you said above the burden shifts.

    I’d like to see someone file suit on 5th amendment grounds and see how that plays out. Meanwhile smarter drug dealers accept checks and even credit cards and have corporate bank accounts they use and they pay taxes as “mobile car detailers” or “personal trainer” or anything other than “drug dealer.” It’s always harder defending the innocent person where the sole evidence is jailhouse snitches versus a guilty person who can give you background involving the event to let you develop a defense without knowing of your client’s guilt-status.

    1. SHG Post author

      I’d like to see someone file suit on 5th amendment grounds and see how that plays out.

      That legal battle over the constitutionality of civil forfeiture was fought many years ago, when it was just drug dealers’ cash, and everybody hated them and loved forfeiture. Now we’re stuck with the outcome.

      1. JD

        Are we really stuck with it? There at least appears to be some steps in the right direction. I just wonder if a) Holder’s action can be just as easily undone by a subsequent AG and b) if states will react by loosening up their own civil forfeiture laws.

        “Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges.”

        1. SHG Post author

          We’re never “really stuck with it,” but it’s a policy issue that needs to be fixed by changing the laws. The public is finally beginning to see what civil forfeiture can do to people, and they’re seeing what an outrageously improper process it is. But it is such a huge money maker for government that real change is going to be very hard to accomplish.

        2. Patrick Maupin

          > without warrants or criminal charges.

          That was an extremely cynical way to make it look to Most People like he did something positive. Most People are beginning to understand that when the local cops strip a few thousand off an itinerant, it is quite literally highway robbery, but the substantive abuses such as Kaley, perpetrated by Holder’s own minions and rubber-stamped by the Supremes, have not yet seeped very far, if at all, into the consciousness of Most People.

        3. John Thacker

          The new Attorney General, Loretta Lynch, appears to be more civil forfeiture friendly than Eric Holder, going by her statements and responses to the Senate Judiciary Committee. Holder’s reforms could easily be overturned.

          The only way to get a reform that cannot be easily overturned is Congressional action. State action is helpful, but federal Supremacy comes into play (the feds deputize state officers as well as use “equitable sharing” to get them to play along.) Note that New Mexico had barred civil forfeiture five days before this seizure, but it didn’t matter since it was the DEA doing it.

          There are some worthy bipartisan bills to reform it, though there was a reform attempt about 15 years ago that didn’t seem to do that much.

    2. Prosecutor

      The smart drug dealers are not using checks or bank transfers. As a prosecutor, I wish they would. It who’d make my job that much easier. When it comes to obscuring monetary transactions, cash is still king.

      1. Marc R

        They definitely are. It’s not under their names though. They have corporate accounts. You should focus on hearings to determine how the attorney was paid. You’ll find the companies. Cash is king for small deals but the ones who aren’t getting caught are using stacking of checks in $2-4K range from other corporations to deposit in banks that don’t run SA reports. Obviously this is more in the federal realm and regular dealers still ride with a few grand cash but those aren’t the guys moving real weight which is wholesale over $25K and street values ten times that amount.

        1. SHG Post author

          If you have some account names and numbers to prove that you’re accurate, this would be a good time to put them on the internet. What are you thinking?

  5. lawrence kaplan

    Thanks to my reading Simple Justice the legalized theft known as civil forfeiture is all too well known to me. But there was one element I was not aware of. I cite from the article:

    DEA agents may choose to ask the person whether his or her possessions can be searched in what is called a “consensual encounter.” If the subject refuses, the bags – but not the person – can be held until a search warrant is obtained, he said.

    Is this, even granted the farce of civil forfeiture, legal? What about the fourth amendment?

    1. SHG Post author

      They can’t execute a search warrant if the bags are gone, and that would deprive the government of its overarching duty to protect us from crime. We can’t have that.

  6. John Thacker

    This case is a big example of the federal grass not being greener, as you mentioned. New Mexico had, five days prior to this seizure, completely eliminated civil forfeiture at the state level, requiring a conviction. However, the DEA is federal, so that law doesn’t apply.

    1. SHG Post author

      Why yes, the DEA is federal. And no, the New Mexico law doesn’t apply. Lawyers everywhere thank you for pointing this out.

      1. John Thacker

        Maybe it will keep a few of them from pretending that “federalize everything” is a solution to our policing problems.

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