Asset Forfeiture

Appeals Court Rejects Cops' Hunch-Based Theft of $271,080

The 7th Circuit demands actual evidence of drug trafficking to justify the forfeiture of two brothers' savings.

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Metro Lock and Safe Inc.

Early in the morning on June 9, 2012, police responding to a report of a home invasion in North Chicago, Illinois, found $271,080 inside a safe in a minivan parked outside the house. If you are familiar with civil asset forfeiture, you can guess what happened next: The cops took the cash, alleging that it had something to do with drug trafficking. But you might not guess what happened after that: Last week a federal appeals court took a stand against government-sanctioned robbery, saying assumptions cannot take the place of actual evidence when police claim property is tainted by crime.

Pedro and Abraham Cruz-Hernandez, brothers who lived at the North Chicago house with six other people, said the money was their savings from 12 years of legitimate work. Pedro, who owned the minivan, said he had moved the safe there because he was worried that whoever had broken into the house would come back. Unmoved by the brothers' protests, U.S. District Judge Joan Gottschall approved the forfeiture without a trial, saying they had not established that the money was theirs and that in any case the govenment "pointed to substantial circumstantial evidence indicating that the claimants' interest in the money is not legitimate and that the money is connected to criminal activity."

Nonsense, said the U.S. Court of Appeals for the 7th Circuit in a ruling issued last Thursday. In fact, writes Judge Diane Wood on behalf of a unanimous three-judge panel, "the government has presented virtually no evidence that the brothers are involved in drug trafficking." While police found "a handgun, a digital scale, and a small amount of marijuana" in one of the bedrooms of the house, the government did not establish whose bedroom it was or show any connection between those items and the cash in the van. A drug-sniffing dog supposedly alerted to the van, on the strength of which police obtained a warrant to search the vehicle, and a second dog supposedly alerted to the safe, but no drugs were found in either place, and "the government did not submit to the court any evidence of the dogs' training, methodology, or field performance." 

Although it might not be obvious from the way cash-hungry cops routinely behave, the fact that someone has a large amount of currency is not enough by itself to justify a seizure. "Absent other evidence connecting the money to drugs," Wood writes, quoting an earlier 7th Circuit decision, "the existence of money or its method of storage are not enough to establish probable cause for forfeiture," let alone meet the "preponderance of evidence" test for keeping the money. Doing the math, she concludes that the owners' explanation of where the money came from is plausible:

There is evidence in the record that supports the brothers' testimony that they earned the money legally. They documented income since 2000 that between them totaled just over $680,000. After subtracting the money found in the safe and all other expenses described in their depositions and other records, the brothers had approximately $320,214—roughly $1,026 each per month—left to cover living expenses. The government pointed to no evidence suggesting that any of the brothers' evidence of income is fabricated or that they have lavish spending habits. Because the brothers realistically could have saved the $271,080 at issue, there is a genuine dispute of fact that precludes summary judgment for the government.

Given the weakness of the government's case and the plausibility of the brothers' story, Wood says, Pedro and Abraham Cruz-Hernandez deserve their day in court. "There is a genuine dispute over whether the money in this case is substantially connected to drug trafficking," she concludes, and "a jury reasonably could believe that the government has failed to meet its burden to prove that connection." The 7th Circuit therefore sent the case back down to the district court, where the government will have to try a bit harder if it wants to keep the cash.

That may not sound like a resounding victory for due process and property rights, but the scrutiny the appeals court applied to this case is a refreshing change from the rubber stamp employed by other circuits. In 2006, for example, the U.S. Court of Appeals for the 8th Circuit, reversing a more skeptical federal judge, upheld the forfeiture of $124,700 that a Nebraska state trooper took from Emiliano Gonzolez after pulling him over for speeding. Gonzolez said the money was intended to buy a refrigerated truck for a produce business, but the cops figured all that cash must have come from selling drugs, or maybe it was intended to buy drugs. The details were not important, as long as the result was more funding for the Nebraska State Patrol. As in this case, there was no evidence that Gonzalez had ever been involved in drug trafficking.

[Thanks to Nick Sibilla for the tip.]

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  1. ‘Cash is bad,m’kay?

  2. Somewhere George III is laughing his ass off.

    1. Yeah, he had to deal with an actual revolution for far, far less.

      1. Sadly, a revolution today would almost certainly leave us with something much worse.

  3. Libertarian Moment ? and…it’s gone.

    1. To their credit, the do call it a moment and not the dawn of a new libertarian era or something.

  4. They’re just trying out those new negative interest rates. The gubmint hates saving.

  5. “Stand and Deliver!”

    /Highwayman taking actual risk and not hiding his intentions

    “Uh…drugz!”

    /Cops

  6. A drug-sniffing dog supposedly alerted to the van, on the strength of which police obtained a warrant to search the vehicle, and a second dog supposedly alerted to the safe, but no drugs were found in either place, and “the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance.”

    Scalia is rolling over in his grave.

    1. How dare they doubt the skill it takes to train a dog to sniff out stacks of Benjamins!

      1. Drug dogs have a slightly smaller chance of a real hit than do mediums that speak to the dead relatives of an audience… granted the mediums cheat, but its a close call.

  7. This is probably a stupid question, but I don’t understand US courts:

    So, one judge rules on something using only brain farts, and it gets overturned by a higher court. Does anything ever happen to the judge who spewed that BS in the first place? Those three judges essentially said that the first judge is a moron, so… nothing? She just keeps her job?

    “U.S. District Judge Joan B. Gottschall approved the forfeiture without a trial, saying the brothers had not established that the money was theirs…”

    There aren’t enough lamp-posts or woodchippers.

    1. If only for the assumption that the burden of proof is somehow on the accused, rather than on the government in accordance with the 5th Amendment.

    2. Or Esso gas stations.

    3. The govt did not establish it was theirs either, in fact, they admitted to theft.

      Yeah, a rusty woodchipper for Gottschall.

    4. The Constitution protects federal judges from any consequences other than impeachment. Which in most cases is a good thing.

      Personally, I think it would be better to give them fixed 10-year terms with no possibility of renewal. This would mitigate the possibility of bias or intimidation while also minimizing the impact of a single judge.

      1. I like that idea. Elected judges always seems like a bad idea. But lifetime terms has big problems as well.

      2. but impeachment should be employed when a judge fails to exhibit “good behaviour”, and trashing a CITIZEN”s rights to due process IS bad behaviour. There certainly IS good cause to impeach such a judge. But, the “thin black line” amongst the BrotherHood of Black-Robed Attorneys is even stronger than the “thin blue line” amongst the bebadged and begunned cadre of “law enforcement” officers of the sort that heisted this money. THEY should face consequences, as well… say, a few years in the ol CrowBar Hotel” for grand larceny, or theft under colour of law, or some such serious charge… sufficiently serious as to render the convicted individual unable to work in law enforcement at any level, ever.

    5. Does anything ever happen to the judge who spewed that BS in the first place?

      Not directly, but judges hate hate hate being overturned on appeal. In a high-profile case like this, you can add “with the white hot heat of a thousand suns”. For a judge, its probably comparable to getting a nastygram in the HR file.

  8. That may not sound like a resounding victory for due process and property rights, but the scrutiny the appeals court applied to this case is a refreshing change from the rubber stamp employed by other circuits.

    You know what another term for “a refreshing change” is? Reversible error. It’s nice to think a court settled the issue in a manner closer to how it should have been settled (“how it should have been settled” involves introducing drug warriors to woodchippers) but that’s not how precedent works. The cops are allowed to seize assets under the flimsiest of excuses and keep them absent an impossible standard of proof that the assets are innocent. That’s settled law.

    1. I remember when expanding and loosening asset forfeiture laws was being debated. The proponents of doing so swore and swore that this sort of thing would never happen, that we could trust them with expanded powers. I asked then, if you don’t intend to do things like this, why do you want the laws loosened and expanded?

      I usually got silence or stammering.

      A year after it was approved a former friend of mine who was working on a drug task force called me up.

      “Hey, you know anyone that has an airplane?”

      “Uh…why do you ask?”

      ” We (task force) want one.”

      “Just because someone has an airplane doesnt mean they are running drugs and you can take it.”

      “Yeah, it doesnt matter. We can take anything we want.”

      “No (lying my ass off). I don’t know anyone who owns a plane.”

      A month later some poor bastard was on the news standing next to his former airplane on the tarmac of the local small airport watching the drug task force steal it from him. They claimed he had flown in a suspicious manner to avoid radar. No drugs were found but they kept the plane.

      1. That’s disgusting. And people wonder why I despise the people who seek out jobs in law enforcement.

      2. Woodchippers are too good for those assholes.

        1. But burning them at the stake would get us an EPA citation for air pollution.

          Ditto the boats for contaminating groundwater.

          1. woodchippers are indiscriminate. They work on EPA hooh hahs, too.

  9. But their name is “Cruz-Hernandez”. THAT’S not sufficient evidence that money wasn’t theirs? Unless they play pro baseball.

    But otherwise – come on.

    1. Two men living in a house with six others, with their entire life savings in cash, working jobs that pay about $20k per year each. I’m going to go out on a limb and say that about $100k of that total is owed to the SSA for missing FICA taxes.

      This is an injustice, but it’s a also another case where stupid policy in one area has consequences in others. We’d all be better off if these guys had stuck their money in the bank like normal people, but enabling them to do so would violate the tender sensibilities of a wide swath of people.

      1. Their next visit will be from the IRS SWAT team…..

    2. Hey,he could be a greens keepers.

  10. Possession is 9/10 of the law… at least after the cops take possession.

  11. The 7th Circuit demands actual evidence of drug trafficking…

    And yet even that is an overstatement, as quantity-based assumptions for allowing trafficking charges have not been overturned.

  12. Given the weakness of the government’s case and the plausibility of the brothers’ story, Wood says, Pedro and Abraham Cruz-Hernandez deserve their day in court.

    Pedro and Abraham deserve to have their rights of property respected and protected by the state.

    In a just country, the disbarred former U.S. District Judge Joan Gottschall and the fired cops who stole the brothers’ money deserve a day in court and lengthy prison terms for their crimes.

    1. ^This

  13. this is good news I hope it spreads.

  14. The government should be forced to pat the plaintiff’s legal fees and a pain and suffering amount from the police department’s budget in addition to returning the money they stole. That would move incentives a bit in the direction they need to go.

    1. ahhh, “pay the plaintiff’s legal fees.”

    2. don’t forget about the “opportunity cost” of being dispossessed that sum of cash. They could have had plans to invest it in their business, purchase equipment, property, etc, and, having been forced to forgo thost plans, have been damaged in the amouht the investment could have benefitted them. That would be actionable under civil law….

  15. For an appeals court to get into sufficiency of the evidence is very rare. A beatdown like this is extraordinary.

    I love the way the cops tried to present false positives from their drug dogs as evidence of wrongdoing.

    The trial court claiming that the victims never proved it was theirs was also ludicrous. It was locked in their safe. What more evidence is their that cash belongs to you, than it is in your possession? It doesn’t come with a chain of title, for fucks sake.

    1. Only police officers are considered innocent until proven guilty. Everyone else is just plain guilty, though they sometimes are able to pay an attorney to get them off. But that can be fixed with public pretenders and asset forfeiture.

    2. It doesn’t come with a chain of title, for fucks sake.

      Which is what makes civil-forfeiture so fun and easy.

  16. OMG A HANDGUN WAS FOUND IN THE HOUSE!!!

    How suspicious that they would want to protect themselves from theft.

  17. Unmoved by the brothers’ protests, U.S. District Judge Joan Gottschall approved the forfeiture without a trial, saying they had not established that the money was theirs and that in any case the govenment “pointed to substantial circumstantial evidence indicating that the claimants’ interest in the money is not legitimate and that the money is connected to criminal activity.”

    “Money ain’t got no owners, only spenders.” — Omar Little.

    1. they had not established that the money was theirs

      So I guess there’s no reason to believe that money in a bank vault belongs to the bank, either? And anybody can just go in and help themselves?

      1. And anybody can just go in and help themselves?

        Anyone with government uniforms and the tacit approval of the folks running that level of government.

        If you think government isn’t functionally equivalent to the mafia, you haven’t been paying enough attention.

      2. nor did they, or anyone else, estabilsh to any standard of proof, that the money was anyone else’s….. not even the coppers.

  18. As I live and breath, uniformed thieves, also known as The Police, come up short re another in an overly long string of what I describe as Theft Under Color of Law cases, such scams sometimes described, in more polite terminology as Civil Asset Forfeiture. Obviously I think that Theft Under Color of Law is the more accurate description of what is an overly long running example of scam ala government.

    While some baby steps have been taken, one continues to wonder as to when,if ever, our vaunted law makers at local, state and federal levels will finally call an end to the sick game of Civil Asset Forfeiture.

  19. What’s the difference between cops and criminals.

    A badge and a gun. Oh wait. The criminals might have guns too.

    Guess it’s just the badge.

  20. Damn! I have a digital scale, several handguns, shotguns ( a great Mosburg pistol grip) and some “medical marijuana “. All I need is a couple Hundred grand for forfeiture. Hope my dog doesn’t bark at the wrong time.

  21. Proof beyond a reasonable doubt?
    What is this, the Dark Ages!
    Hang the Bastards!

  22. about time some court found the spine to go and reread the Constitution and realise it means what it says when it declares we are all innocent until PROVEN guilty. Some dirty drug copper’s “suspicion” is not PROOF. Too bad the Appeals COurt did not address the civil asset forfeiture laws as unconstitutional on their face…… THAT is what must happen.

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