Radley Balko posts about a car stop in Monterey, Tennessee, where a brave police officer, Larry Bates, caught a heinous criminal.  The person driving the car, George Reby, was no criminal. He wasn’t arrested.  

Reby was stopped for speeding, though it’s unclear whether he was given a ticket. It may have slipped the officer’s mind as he struggled with the vicious criminal, wrestled the criminal until, exhausted and spent, the criminal was subdued.  The name of the vicious criminal in the accusatory charges against it?  $22,000 in United States Currency.

From NewsChannel5 :

A Monterey police officer wanted to know if he was carrying any large amounts of cash.

“I said, ‘Around $20,000,'” he recalled. “Then, at the point, he said, ‘Do you mind if I search your vehicle?’ I said, ‘No, I don’t mind.’ I certainly didn’t feel I was doing anything wrong. It was my money.”

That’s when Officer Larry Bates confiscated the cash based on his suspicion that it was drug money.

“Why didn’t you arrest him?” we asked Bates.

“Because he hadn’t committed a criminal law,” the officer answered.

The reason for the initial question is, sadly, obvious:  forfeiture has long been a mainstay of law enforcement.  The seized monies go to various purposes according to jurisdiction.  In most places, the funds are a prize for law enforcement budgets, providing the wherewithal to purchase cool new stuff like SWAT equipment or tanks to stop the terrorists from invading Tennessee.  In other places, New York City for example, local seizures go to the police pension fund.  And don’t police deserve it for all they do to protect us?

So what makes currency such a heinous criminal that it requires a cop to wrestle it into submission?

Bates said the amount of money and the way it was packed gave him reason to be suspicious.

“The safest place to put your money if it’s legitimate is in a bank account,” he explained. “He stated he had two. I would put it in a bank account. It draws interest and it’s safer.”

“But it’s not illegal to carry cash,” we noted.

“No, it’s not illegal to carry cash,” Bates said. “Again, it’s what the cash is being used for to facilitate or what it is being utilized for.”

If we assume, just for kicks, that Bates was sincere in his suspicion, it places the decision of a nice enough fellow like Reby subject to the sensibilities of a cop like Bates.  Since Bates thought it would be a better idea, if the money was to be used for legit purposes, to put it in a bank account, it struck Bates that Reby was likely to be using it for drugs.  That, under the legal fiction of forfeiture, means the money offends the sovereign, and becomes the criminal.  It’s lucky that Bates didn’t have to tase the money for failure to respond immediately to questioning, but then, what question could there be?

NewsChannel 5 Investigates noted, “But you had no proof that money was being used for drug trafficking, correct? No proof?”

“And he couldn’t prove it was legitimate,” Bates insisted.

The word “proof” here is probably not the best choice.  Proof has nothing to do with it.  The officer was under no obligation to prove anything. Indeed, the burden in forfeiture is probable cause, which requires no probability and cause only limited by an officer’s imagination. 

Bates’ response, that it’s the burden of the person from whom currency was taken to prove it was legitimate, isn’t as wrong-headed as you might think at first.  The trick is that if an officer can articulate any basis of suspicion, the burden to prove legitimacy falls on the claimant.  And the only thing the officer needs to say is that it’s a large amount of currency.

Possession of a large amount of currency in the United States of America is, alone, probable cause to believe that it is contraband, either the proceeds of crime or to be used for criminal purposes.  There exists a tacit presumption that non-criminals do not use cash. Cash was the first victim in the War on Drugs, and the development of the wide variety of monetary tools in common use today was intended to facilitate the tracking of financial transactions by the government, both to end the underground economy that survived on currency and to enable taxation of all transactions.

So cash was once king. Now it’s a criminal. Oh, how the mighty have fallen.

The story from Tennessee offers insight into many of the tricks of the forfeiture trade, from targeting out of state drivers (you can tell by the plates, guys) in order to substantially increase the cost and burden of fighting for the return of the money (Reby was from New Jersey), to the seemingly innocuous inquiries having no bearing on the basis for the stop or any other facially illegal conduct.  Handing out a speeding ticket doesn’t get anyone a medal.  Bringing home $22,000 in currency is a fine day’s work. 

And, of course, the only person worse than the officer taking cash because it’s there is the lawyer hired to fight for its return.

It took him four months to get his money back, but it usually takes a lot longer for most people.

And that, Miles said, works to the benefit of the police.

He had two clients where police agreed to drop the cases in exchange for a cut of the money — $1,000 in one case, $2,000 in another. In both cases, that was less than what they might have paid in attorney fees.

A whole lot less. Like innocent people who can’t understand why they have to pay their lawyer, or guilty people who can’t understand why they aren’t guaranteed a win for their money, the legal fee paid by the wronged claimant whose only mistake was to believe that currency issued by the United States government was legal tender for its return is the glue that holds the scheme together. 

And the final nail in the coffin is that judicial approval of forfeiture is an ex parte proceeding, since the criminal in the currency, prosecuted in rem.  Not until a claimant intervenes, after the seizure and judicial approval, by establishing his bona fides to claim the return of the money (as if it having been taken from him in the first place didn’t suffice), and disproves the presumption that cash is evil, does the money get returned.  And not everybody can prove either the source or purpose of the currency, despite its having nothing to do with crime.

I remember my first forfeiture case, back in the mid-1980s, when we conferenced the proceeding before a federal judge who later went on to the 2d Circuit.  He scoffed at the government for making this very argument, reminding the prosecutor of the age-old maxim, the law abhors a forfeiture.  Those days are only a fond memory.