The story of how cops stole $20,000 from Guillermo Espinoza, a construction worker with no criminal record, is sadly familiar in most respects: In July 2013, while driving through Arkansas on his way to Texas, Espinoza was pulled over by a state trooper who discovered a large amount of cash in the car, which he viewed as inherently suspicious. The money was seized and eventually forfeited based on vague allegations of drug-related activity. But there's a twist: There was so little evidence of such activity that local prosecutors decided to drop the forfeiture case. The judge would not let them, and last week a state appeals court declined to review that astounding decision because Espinoza had missed a filing deadline.
It's not clear why Arkansas State Police Sgt. Dennis Overton decided to stop Espinoza, who was traveling with his girlfriend, Priscila Hernandez. The legal justification for pulling Espinoza over was missing from the state's September 2013 forfeiture complaint, which referred without explanation to "the traffic stop," and from Circuit Court Judge Chris Williams' September 2014 order authorizing permanent confiscation of the money, which said only that the stop was "proper." In his response to the forfeiture complaint, Espinoza argued that the stop was illegal, so it would be nice to know what the rationale for it was. While police have no shortage of excuses for pulling motorists over, they are supposed to settle on at least one.
After the stop, Judge Williams said, a "State of Arkansas drug dog was transported to the site in order to conduct a search of the vehicle." That's a revealing way of putting it, since according to the Supreme Court walking a drug-sniffing dog around a car does not qualify as a search. But if the dog "alerts" to the car, the Court says, that alone supplies probable cause for a search. So what Williams evidently meant was that Sgt. Overton requested a drug dog on the assumption that it would give him the permission he needed to search the car. But according to Williams, "It is obvious from the tape [of the traffic stop] that the dog did not alert on the vehicle at the scene of the stop."
Undeterred, Overton asked for permission to search the car, which Espinoza supposedly granted—a pretty suspicious sequence of events. Why bother bringing in a drug dog to justify searching a car if the driver is willing to give his consent? In any case, Williams said, "the dog alerted on a computer bag," inside which Overton found $19,894 in cash, mostly wrapped in $1,000 bundles. Overton found no contraband, drug paraphernalia, or any other sign of illegal activity. But as far as he was concerned, the cash itself was conclusive evidence that Espinoza was involved in drug trafficking.
"I've worked this interstate for the last eight years," Overton told Espinoza, according to the transcript of the dashcam video, which Williams appended to his order. "Half of my career I've spent out here. OK? Nobody—nobody—carries their money like that but one person. OK? People that deal with drugs, and deliver drugs. That's it. Nobody else. Nobody." In other words, Overton always treats people who carry large amounts of cash as criminals, which proves that only criminals carry large amounts of cash.
Espinoza, who had no criminal record and was never charged in this case, said the money came from years of construction work, and he later presented checks, receipts, and tax forms to substantiate that income. He said he took the money with him to Memphis because he was planning to buy a 4×4 truck there. But he was not happy with the advertised vehicle, so he did not complete the purchase. He offered to show Overton text messages he had exchanged with the truck seller and said his boss, whom he offered to call, would vouch for him. Overton, already convinced of Espinoza's guilt, was not interested.
Aside from the existence of the cash and the police dog's purported alert to the computer bag, the forfeiture complaint offered no evidence that Espinoza was dealing or delivering drugs. It simply asserted that "the currency was being used for drug trafficking, to further the manufacture of a controlled substance or…to facilitate the violation of Arkansas Code Annotated Section 5-64-536," which criminalizes possessing with intent to deliver marijuana or any other "Schedule VI controlled substance." In other words, prosecutors not only had no real evidence that Espinoza had committed a crime or was planning to do so; they could not even be bothered to specify the crime.
Although vague charges supported by meager evidence are par for the course in civil forfeiture cases, someone at the Hot Spring County Prosecuting Attorney's Office had second thoughts about this case. "The Plaintiff has decided not to pursue the forfeiture of the currency," Deputy Prosecuting Attorney Teresa Howell said in a May 2014 motion, "and the In Rem Complaint should be dismissed without prejudice." Amazingly, Judge Williams went ahead with the forfeiture anyway, making the state's case for it by citing snatches of Spanish conversation between Espinoza and Hernandez that can be heard in the dashcam video.
The transcript of that conversation shows Espinoza was anxious that Overton would find the cash, which is either evidence of his criminal culpability or perfectly understandable in light of what ultimately happened to his money. It also shows Espinoza talking to his girlfriend about their trip to Graceland and his plan to buy a truck in Memphis, which Williams read as rehearsal of a cover story but which could also be taken at face value. Williams also made much of "inconsistent statements" by Espinoza and Hernandez, which could be explained by their limited English skills and nervousness.
Williams counted that nervousness as additional evidence of Espinoza's involvement in drug trafficking. After all, why would an innocent person be nervous when confronted by an armed agent of the state intent on searching his vehicle, implicating him in drug crimes, and seizing anything of value he might find? At the same time, Williams suggested that Espinoza was not nervous enough: "It is very obvious that Mr. Espinoza, during the whole stop which was filmed, was very stoic." Williams concluded that the state, which was no longer trying to prove its case, nevertheless had succeeded by meeting the "preponderance of the evidence" standard for civil forfeiture in Arkansas, meaning it was more likely than not that the money had something to do with illegal drugs. Williams rejected Espinoza's argument that the stop, detention, and search leading to the seizure were unconstitutional.
On appeal, Espinoza argued that Williams abused his discretion by refusing to let prosecutors drop the case, that the state had not met its burden of proof, and that the traffic stop was illegally extended to facilitate the canine inspection and search. The state appeals court declined to consider any of those issues because Espinoza missed the 30-day deadline for challenging Williams' decision and the 10-day deadline for extending the 30-day deadline. While concurring in that result, Judge Waymond Brown wrote separately to highlight the injustice Espinoza had suffered:
After exhaustive research and effort, I cannot see why the trial judge would decide to follow through with the forfeiture of Mr. Espinoza's $19,894, when the charging agency moved to dismiss without prejudice, believing it lacked the evidence to confiscate the money….
In his order, the judge noted statements such as, "What are we going to do? They just found the money," and "Please don't find it, please don't find it" in determining that both Mr. Espinoza and his companion "knew that this illicit money was hauled down the road." Absent from the same order was the obvious language barrier that existed between Mr. Espinoza and the arresting officer, the officer's insistence that he had been a state trooper for sixteen years and there was only one reason someone would carry that much cash in his vehicle, the officer's apparent refusal to be shown text messages between Mr. Espinoza and the person from whom he said he wished to buy a truck, or even Mr. Espinoza's companion's statement, "You didn't tell me you had that money. You just told me we were coming to buy a truck."
Meanwhile, Mr. Espinoza presented the trial court with numerous paychecks from various construction jobs, as well as tax documents evidencing his argument that the money was lawfully earned. Nevertheless, the trial judge ordered forfeiture of the nearly $20,000. In response to Mr. Espinoza's motion for reconsideration, the judge simply stated, "The Defendant's Motion to Reconsider is denied and without merit." He gave no further explanation. I am of the belief that unsubstantiated suspicions are not just cause for circumventing established judicial practices.
Nor should unsubstantiated suspicions be cause for taking someone's property, even when prosecutors decide to give it a try. As state legislators around the country are beginning to recognize, laws that allow forfeiture without a criminal conviction (or even criminal charges) are an invitation to highway robbery.
[Thanks to Nick Sibilla for the tip.]