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Saturday, August 26, 2006 

Sue the Money

Asset forfeiture is one of those weird areas of law that many people don't know about. The people who do know about it invariably have strong opinions about it. Here we have a case involving a man, his rental car, and a hell of a lot of cash. The article is fairly slanted but here is the basic story...
On May 28, 2003, a Nebraska state trooper signaled Gonzolez to pull over his rented Ford Taurus on Interstate 80. The trooper intended to issue a speeding ticket, but noticed the Gonzolez's name was not on the rental contract. The trooper then proceeded to question Gonzolez -- who did not speak English well -- and search the car. The trooper found a cooler containing $124,700 in cash, which he confiscated. A trained drug sniffing dog barked at the rental car and the cash. For the police, this was all the evidence needed to establish a drug crime that allows the force to keep the seized money.

Associates of Gonzolez testified in court that they had pooled their life savings to purchase a refrigerated truck to start a produce business. Gonzolez flew on a one-way ticket to Chicago to buy a truck, but it had sold by the time he had arrived. Without a credit card of his own, he had a third-party rent one for him. Gonzolez hid the money in a cooler to keep it from being noticed and stolen. He was scared when the troopers began questioning him about it. There was no evidence disputing Gonzolez's story.
The lower court sided with Gonzolez, saying that there was no evidence of drug activity. The Eighth Circuit Court of Appeals reversed. Their opinion is link at the bottom of the page. I love the case title: US v $124,700. I wonder if the money used some of itself to hire an attorney.

But seriously, let's talk about what is going on here. There was no crime alleged here, so how did the government get the money? They filed a civil asset forfeiture lawsuit against the money itself. If the government can establish probable cause that the property is subject to forfeiture (ex. it was drug money), then the owner has to prove by a preponderance of the evidence that it isn't subject to forfeiture. These are very low standards of proof because it is a civil case, not a criminal case. The government has the option of bringing a criminal forfeiture case, but that usually happens after a criminal conviction. The money and property then goes to the US Marshals. The property ends up sold at auctions with the proceeds going to law enforcement agencies.

Where did this come from? Well, asset forfeiture has very old roots in admiralty law, not criminal law. It was a way to push ships for offenses. Take the cargo. We didn't want to send our citizens across the ocean to strange, foreign courts and hope to heaven that they get justice from foreign shipowners. Of course, we are a long way from the high seas now. The practice and case law has grown and changed greatly. Look at the factors that the appeals court found crucial in the forfeiture. Gonzolez possessed a large sum of cash, which is viewed as strong evidence of a connection to drug activity. The money was concealed in aluminum foil inside a cooler, and the courts have developed a view that bundling and concealing large amounts of money, when combined with other suspicious circumstances, supports a connection between money and drug trafficking. The drug dog also supports the connection. The route and circumstance of Gonzolez's travel was viewed as highly suspicious (the one-way ticket).

All of these factors are supported with existing case law: United States v US Currency in the Amount of $150,666.00, $84,615 in US Currency, and $117,120 in US Currency. As a matter of law and procedure, the appeals court probably didn't do anything wrong. The problem is that existing case law, when applied, can lead to absurd results. The absurd results come from the old law not fitting the new situations well. We went from naval incidents covered under admiralty law to modern applications under Prohibition. Those Prohibition decisions stayed on the books and are now a part of the War on Drugs. In the eyes of the law, the War on Drugs is viewed as basically a big customs/smuggling matter, so we are stuck with that old case law applying here. That's where the law is, like it or not.

Well done, Steve! If people knew more about these laws, and their MIS-USE, they might get pissed enough to get them changed. Then again, given the state of American society today, what was I thinking? I've know about these laws for about 6 or 7 years. Pols don't want to hear about it. It's too much the cash cow.

It is a cash cow. It's a great way for law enforcement agencies to bring in funding.

I just learned that one of my professors co-authored a book about asset forfeiture law a few years ago: The Law of Asset Forfeiture by Jimmy Gurule, Sandra Guerra Thompson, and Michael O'Hear.

I'll take a look at it in the law library and maybe pick Professor O'Hear's brain about it when I've got some free time.

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  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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