Asset Seizure and Forfeiture are Government Big Business
Asset Seizure and Forfeiture are Government Big Business
Road Kills: Government Agencies are Feasting on Way More than Unlucky Highway Critters
It’s not necessarily news that government seizures are big business. In fact, asset seizure and forfeiture is one of the fastest growing areas in the law. For example, the Department of Justice holds more than $1 billion in its asset forfeiture fund (AFF). Having an asset seizure and forfeiture attorney who understands property seizure laws is necessary when it comes to protecting your property.
What may not be as obvious is just how much money law enforcement agencies make from traffic stops. The term “road kill” is a common term of art in some law enforcement or prosecution circles. A road kill is accomplished whenever a traffic stop results in a large seizure of money. For example, if a person is driving from Nebraska to California and stopped for speeding, the traffic officer may ask questions about the traveler’s destination. If such answers seem suspicious the officer may run the driver’s (or even passengers’) criminal history. Or maybe the officer thinks he smells marijuana. Or maybe the officer has some other type of hunch. Whatever the reason, that officer may ask the occupant to search the vehicle. According to property seizure laws, if that search uncovers that the vehicle contains a large sum of money, the officer may seize it as suspiciously connected to drug trafficking or some other offense.
For those of you reading who think that the moral of this story is to simply decline the request to search… think again. Typically when a driver does not give consent to search the police will simply request a canine to sniff the outer perimeter of the vehicle. If the dog “alerts” to the odor of a scent associated with narcotics (a precursor chemical of some sort), then the officer has the right to search the vehicle.
Cash and Property Seized for Drug Trafficking Connection
So how can cash be said to be connected to drug trafficking? Understand that federal caselaw and that of most states have precedent that dictates that such accusations may be proven circumstantially. For example, if cash is kept in smaller denominations or bundled in a certain way it can be said to be consistent with how drug traffickers package money. Such bases have been legitimized by multiple prosecutions and case precedents as sufficient to establish probable cause to seize money.
Civil Asset Seizure and Forfeiture: Property Seizure Without a Criminal Arrest
Some reading this may assume that such seizures are always accompanied by an arrest… think again. Many times seized money will become the basis of a civil asset forfeiture action but no arrest is ever made of persons connected to that money. This is because criminal convictions require proof beyond a reasonable doubt whereas forfeitures can be accomplished with a much lower proof threshold, that is, proof by a preponderance of the evidence.
How Much Money Does the Government Make from Asset Seizure and Forfeiture
Well just how widespread is this activity? Massive. Since 9/11 more than $2.5 billion has been seized from motorists and others without search warrants.
To be sure, asset seizure and forfeiture is an important aim within the arsenal of law enforcement. We all agree that drug cartels shouldn’t be allowed to own yachts, mansions, Ferraris, and diamonds. As another example, few people would question if some (or all) of Bernie Madoff’s property was taken to repay victims.
Does the Government Have Enough Evidence to Seize Your Property?
Further, most police officers and agents are honest, hard-working public servants that perform their duties with honor and in good faith. However, their training and experience leads to them be suspicious of people acting consistently with other criminal behavior and, like it or not, many drug mules travel with large sums of money after making deliveries.
However, it would be hardly fair to assume that everyone who travels by vehicle with a large amount of cash is committing a crime. For example, some are suspicious of the banking system. Others may be traveling to purchase a car or give money to a loved one. To some these examples may seem suspicious, and let’s be honest, many people traveling our roadways are transporting drugs or the proceeds of drug deals.
Nevertheless, roadside seizures seem troubling because they are based on patterns and inductive reasoning. Remember, in many road kills the seizing officer has no evidence of an actual recent drug deal. Instead, the statements of passengers, criminal histories, and packaging of currency, and oh yes, sometimes, a canine hit, is all the officer needs to legally seize the currency.
Can You Get Your Seized Money and Property Back from the Government?
Compounding the concern is the fact that it is difficult to pursue getting money back. Under federal law and Texas law, property seizure laws provide that persons whose property has been seized have a duty to claim that money within a short period of time or the money becomes the Government’s or State’s by default.
Under federal law, a claimant must file a claim within about a month or else it becomes the property of the seizing agency. See 18 U.S.C. 981 and Rule G: Supplemental Rules for Admiralty Actions under the Federal Rules of Civil Procedure. For example, if the DEA is conducting an investigation and requests a local traffic stop of someone leaving a suspected drug house, that stop may result in a seizure. This money could very well be shared between the federal agency and the local department if a successful forfeiture occurs.
A local district attorney’s office may also seek forfeiture of the same seized money under state property seizure laws. These deadlines loom in state systems as well. For example, in Texas, an owner who receives notice of a seizure has until the Monday following 20 days after service of a State’s Notice of Intended Forfeiture to file a claim. If the owner fails to do so, the property may become the State’s by default.
In addition to direct notice to potential owners, state and federal law enforcement officials must also publish notice that property has been seized and is intended for forfeiture. This is typically down via websites that publish such information.
In terms of ownership, who is an owner? Under the law many different stakeholders have statutory and equitable standing to claim seized property. Typically, those who use, possess, or have title ownership over property make claims. Under certain circumstances lenders can make a claim. However they must be secured lenders. Under 18 U.S.C. 981, unsecured lenders have no standing to claim seized assets.
Just recently the federal Government discontinued its practice of ‘adopting’ some local seizures whereby they would pursue federal forfeiture in the absence of any intended or actual federal investigation. Read our previous article for a deeper discussion of adoption and why Holder’s announcement that it will be discontinued should give property owners very little comfort.
A Lawyer’s Suggestions to Avoid Asset Seizure and Forfeiture
Since many law enforcement agencies are literally on the prowl for private property during traffic stops, there are a few suggestions for those traveling so they might avoid the loss of their assets.
- Do not travel with a large sum of cash if you can help it. Most officers and prosecutors will not believe that people live outside the banking system. Some of this is pro law enforcement bias and some of this is cultural unfamiliarity with segments of the population that typically live outside the banking system. Some people just use check cashing establishments instead of opening an account. Given that road kills are as common as they are, people may want to use the banking system as much as possible and avoid carrying large sums of cash. As a corollary, wire money to loved ones if possible. That would avoid such vulnerability.
- Do not package money in certain ways. Do not put money in baggies. Do not coat baggies with some substance that will presumably mask a scent.
- Do not lie about having the money. This is a massive factor within a forfeiture trial. Go ahead and admit to an officer if he or she asks if you’re traveling with a large sum of money.
- If you recently withdrew the money from a bank account take a withdrawal receipt with you. This oftentimes provides critical timing evidence that is critical to establishing claims and certainly will potentially reflect negatively on the seizing officer for discounting such evidence.
- Do not conceal money. Use of trap doors or other concealing mechanisms while the vehicle is in motion is a sure fire way to get property seized. If you are driving then simply keep it within a bag or suitcase. Use of trap doors to secrete money while driving signals that your use of the door is not meant to protect the money from would be thieves but rather that the trap door is to avoid law enforcement detection. Officers and agents automatically assume efforts to keep things and/or information away from them constitutes guilt.
- Have clear travel plans. Know where you are going and who you have been staying with. Oftentimes people travel and stay with a loved one’s friend or family member. Unfortunately, officers will ask drivers who they have been staying with recently. Answers like “I’m not sure” won’t cut it. Even though there is no law against failure to know your innkeeper, officers don’t have to prove a known specific crime. They simply need to articulate circumstantial facts that are consistent with drug dealing to seize your money. Don’t give them ammunition. Know your recent and intended itinerary.
What You Should Do If Your Property is Seized
If however, property is seized, then seek legal advice and make a claim as quickly as possible. That is the number one instruction. Claim. Claim quickly. Do not take your time. Time is not on your side. 18 USC 981 under federal law and Article 59 of the Texas Code of Criminal Procedure do not provide owners much time. Put simply, time is a property owner’s enemy when it comes to seizure and forfeiture.
Right or wrong, road kills are common and a widely used law enforcement technique. As an owner of property simply assuming that the phrase ‘property may not be taken without due process of law’ means an officer will give the benefit of the doubt when it comes to private property is not possible. In the end, people traveling with large sums of money don’t only need to worry about thieves, they need to worry about the police.
Asset Seizure and Forfeiture Attorney in Fort Worth, Texas
Asset Seizure and Forfeiture are Government Big Business. Learn more about how roadside asset seizures and forfeitures are big business for state and federal governments. If your property has been seized, call us at 817-203-2220 and asked to speak with our Asset Forfeiture Attorney Steve Jumes.