Asset Forfeiture and the Need for Forfeiture Reform
How $1,400 Worth of Drugs Put $155,000 in the State’s Pocket
Just call it “habeas grabus.”
Habeus grabus is the phenomenon that occurs when law enforcement officials presume that property belonging to an accused individual is connected to criminal activity. For example, during a drug search many officers presume that jewelry and cash is fruit of crime even though there are no affirmative links to any drug deal. – Attorney Steve Jumes
Civil asset forfeiture is a legal tool that allows the government to seize and keep money and property believed to be linked to illegal activity – even if the property owner is never charged or convicted of a crime.
The original, intended purpose of civil asset forfeiture was to cripple crime bosses and drug lords, but the reality is that it has evolved into a money grab for law enforcement who often target low-level drug dealers or even motorists just passing through town. The disproportionality between the value of drugs that are recovered and the amount of cash and property taken and kept by the government is astounding.
To illustrate, we examined sixteen local drug forfeiture cases handled by the asset forfeiture defense team at Varghese Summersett in the past two years. Of those cases, five involved drugs with a street value of less than $500 apiece — and in one case, no drugs were found at all. (The total street value of all five drug cases combined was $1400.) Despite recovering a minimal amount of illegal narcotics, the government kept more than $155,000 in cash and cars from these five investigations alone.
Yes, you read that right. Five investigations. Street values of less than $500. $155,000 forfeited by the state. Oh – and out of the seven arrests tied to these forfeitures, four resulted in non-convicting probations and two ended in dismissals.
Civil asset forfeiture has become a hot topic recently and the issue continues to gain momentum. Just last week, U.S. Supreme Court Justice Clarence Thomas weighed in on the controversy, issuing an opinion about a Texas case, Leonard v. Texas, which the Supreme Court refused to hear but Justice Thomas expressed strong feelings about.
Like so many forfeitures, the case stemmed from a traffic stop on the side of the road. Police searched a vehicle and found a safe in the trunk, which contained $210,100 and a bill of sale for a Pennsylvania home. The money was seized because law enforcement believed it was connected to the transport or sale of narcotics along a known drug corridor — even though the driver told police the contents belonged to his mother, Lisa Leonard.
During forfeiture proceedings, Leonard asserted that the money was hers from a sale of a home and that she was an “innocent owner.” She lost, and after failed appeals, asked the U.S. Supreme Court to compel Texas to return her money. The Supreme Court refused to hear the case on technical grounds but Justice Thomas sharply criticized civil asset forfeiture laws and suggested it’s time for the Supreme Court to take a look at the widespread practice. Justice Thomas expressed regret that Leonard’s attorney chose the wrong basis for appeal, depriving Justice Thomas of the opportunity to address civil asset forfeiture.
“This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses,” Thomas wrote in his opinion.
Currently, (in most states) property may be seized and forfeited to state prosecuting authorities if it can be shown by a preponderance of evidence that the property was either used to facilitate a crime (facilitation theory) or is proceeds of crime. Recently, such laws have been highly scrutinized due to concerns of abuse and prosecutorial over-reaching.
A preponderance of evidence standard is the legal burden of proof used in normal civil disputes such as breach of contract claims. Alternatively, criminal convictions can only be based upon a higher standard of proof known as beyond a reasonable doubt. Put simply, a preponderance of evidence is a 51% standard which merely requires that a plaintiff’s allegations need only be ‘more likely than not.’ However, in most jurisdictions, a ‘beyond a reasonable doubt’ standard requires prosecutors to establish that the state’s proof exclude all reasonable possibility that an accused is in-fact not guilty of the crime charged.
The fact that most forfeitures need only be established by a preponderance of evidence allows a significant disparity between the proof needed to convict a perpetrator and that which is needed to take a property-owner’s property. This is seen as highly controversial given the fact that property forfeitures deprive persons of assets that may be necessary for their livelihood. It is also highly criticized because it acts as a punitive measure on top of already existent punishments such as fines and imprisonment terms.
The disparity in proof also allows forfeitures in cases where no underlying criminal charges are ever filed, or even in cases where a jury acquits a defendant of a related criminal charge.
Perhaps no one would agree with that statement more than Senator Konni Burton, R-Colleyville. She is the lawmaker leading the charge for civil asset forfeiture reform in Texas. Senator Burton has sponsored Senate Bill 380, which would prohibit the state from keeping property without a criminal conviction. Burton’s bill would also prohibit the state from forfeiting cash under $200 and vehicles valued at less than $10,000.
Senator Burton’s Forfeiture Reform Bill Applied to Five Texas Drug Forfeiture Investigations
Senator Burton’s bill, which would require a criminal conviction before property may be forfeited, has been passed in the Senate and is under consideration in the House. This legislation is part of a larger national trend seeking to reform civil asset forfeiture laws.
Under our interpretation, Senator Burton’s bill would have prohibited the state from seizing assets in four out of the five referenced drug forfeiture investigations, which uncovered minimal amounts of illegal drugs (or no drugs at all). Her legislation would have disqualified at least 63 percent of the assets seized from forfeiture consideration. Here’s a look at the investigations and our takeaway from each case:
Officers stopped a vehicle occupied by two women on U.S. 81 in Decatur, Texas, a heavily patrolled highway that runs through rural Wise County. Suspicious, they obtained a search warrant for the vehicle. Inside the trunk, they found a safe which contained bundled cash amounting to $70,020. Because officers smelled what they believed to be marijuana and found air fresheners in the car, they suspected it was drug money. Although officers found only rolling papers and some remnants of marijuana, they seized the cash and the car and arrested the women. Both women were later charged with money laundering, under $20,000, and sentenced in state court to deferred adjudication probation (non-convicting probation.) After settlement negotiations, the state gave back $17,505, but kept more than $52,000 plus the car.
Our Takeaway: Senator Burton’s bill likely would not have impacted the outcome of this case. However, it’s interesting to point out that both occupants used court-appointed counsel for their criminal cases and did not have the financial wherewithal to withstand a full-fledged civil forfeiture trial, so settlement was the best option.
Police stopped a female motorist as she pulled into the driveway of her home in White Settlement, a small town next to Fort Worth where the median income for a family is less than $37,000. She was driving her husband’s vehicle, which had been left to him by his late father. Armed with a search warrant, police found 2.6 grams of methamphetamine in her purse, with a street value of about $130. Saying she used the vehicle to transport and sell illegal narcotics, police seized the vehicle, valued at $5,006. After hiring an attorney, her husband “bought back” his vehicle from the government for $4,200. She was sentenced to deferred adjudication probation for drug possession. The husband, who owned the vehicle outright, was never arrested or charged in connection with his wife’s case.
Our Takeaway: Senator Burton’s bill likely would prevent the government from forfeiting the vehicle due to the fact that value of the vehicle was less than $10,000. While the vehicle was valuable to the owner (not to mention the sentimental value), it pales in comparison to the cost of civil litigation. The fact that the vehicle was worth almost 40 times more than the user amount of drugs in the driver’s possession and that the vehicle was predominately used for lawful purposes has very little effect on current asset forfeiture laws.
Acting on a tip, Tarrant County law enforcement began conducting surveillance of a suspected drug dealer and initiated a traffic stop for outstanding warrants as he left a house in Fort Worth. Police found cocaine and marijuana, which had a street value of about $400, along with $2,666 in cash. Police seized the cash and the vehicle, which belonged to his parents and was valued at $5,005. After hiring an attorney, his parents bought back their vehicle for $4,200. The government agreed to give back $770 of the cash. Defendant was prosecuted federally and went to prison. His prosecution was primarily built on other evidence unrelated to this forfeiture action.
Our Takeaway: Senator Burton’s bill likely would prevent the government from forfeiting the vehicle due to the fact that the value of the vehicle was less than $10,000. It is important to recognize that there is no connection between the asset and the proceeds of drug trafficking. Rather, the parents were forced to buy their vehicle because, even though it was in no way adapted for drug trafficking, it was driven a short distance with user amounts of drugs inside.
Police responded to an alarm call at a home in Arlington, where they found the back door slightly open. For security reasons, they did a sweep of the residence, where they found a 3-year-old in the living room. They continued to check the rest of the house and saw a digital scale and drug paraphernalia in a bedroom and stacks of cash in a closet. Shortly after, the child’s father pulled into the driveway. Police subsequently obtained a search warrant for the residence, where they found a total of $104,934 cash located in various locations, including in the garage and in the closet. Although they only found a small amount of marijuana, with a street value of about $400, they seized all of the cash. After settlement negotiations, the state gave back $12,500. The Defendant was arrested on a charge of abandoning/endangering a child and possession of marijuana under two ounces. He was no-billed on the charged of abandoning and the drug charge was dismissed.
Our Takeaway: Senator Burton’s bill likely would prevent the government from forfeiting the cash due to the fact that there was no conviction in the case. There was a significant question as to whether the police could re-enter their home before a warrant was executed, but they did so anyway. Under current law, property owners wouldn’t even be allowed to challenge the search. The Texas Supreme Court recently found that illegal searches and seizures do not stop the state from keeping the property it took illegally. (See One 2004 Lincoln Navigator.)
Police stopped a vehicle occupied by a driver and a passenger in Keller, a growing suburban city in the Dallas-Fort Worth metroplex. When approaching the vehicle, the officer detected an odor of marijuana. During a subsequent search, police found the driver to be in possession of a small amount of marijuana, with an estimated street value of $290, as well as $510 cash. The officer searched the passenger’s purse and found $105 cash and Adderall and Xanax pills, with an estimated street value of $187. The officer took the cash from both of the vehicle’s occupants, as well as both of their Iphones, valued at about $150, which the officer claimed yielded text messages about drugs sales. Both occupants were arrested and charged with drug possession. The passenger later received deferred adjudication probation. The driver’s case was dismissed.
Our Takeaway: Senator Burton’s bill likely would prevent the government from forfeiting cash from the driver, who was never convicted. The passenger’s cash also likely would not have been forfeited under Burton’s proposed legislation since it was less than $200. This case illustrates the depths the government will go to take a small amount of property. No drug deals were observed, and with this amount at stake, not even the flimsiest of accounting insinuates connecting the $600 to drug dealing. Nonetheless, the government began full-fledged legal action against low-income defendants to pursue two phones and $600.
In step with Texas’ current legislation, the State of Indiana is considering Senate Bill 8. Just as Senator Burton’s bill requires, the Indiana legislation mandates that forfeiture would only be available if a criminal conviction is obtained. It also would raise the standard of proof from preponderance of evidence to clear and convincing evidence.
Unlike a preponderance standard, a plaintiff’s case could only meet this burden if its proof created a firm belief in the minds of jurors that the plaintiff’s contentions were valid. Put simply, instead of seeking a 51%, or greater weight, threshold as is contemplated under a preponderance standard, clear and convincing evidence needs to create a firm belief. Clear and convincing, while still a lower standard of proof than beyond a reasonable doubt, is the standard used in Texas in cases where the State seeks to deprive a parent of child custody.
Ultimately, Senator Burton’s legislation and Indiana’s Senate Bill 8 seek to restrict asset forfeiture to cases where underlying criminal charges are brought and successfully prosecuted. In practicality, such legislation categorizes forfeitures as quasi-criminal as opposed to akin to normal civil disputes.
Do you agree or disagree with asset forfeiture reform? Let us know in the comments below. If you’ve have received a Notice of Intended Forfeiture, contact us at (817) 203-2220 or online: