A North Carolina man is fighting to get back $39,500 in cash after police in Phoenix, Arizona, seized the money from him at an airport on suspicion that it was drug money, despite never charging him with a crime.
The Institute for Justice, a libertarian-leaning public interest law firm, filed an appeal Monday in the Arizona Court of Appeals on behalf of Jerry Johnson. Johnson owns a trucking company and says he flew to Phoenix last August to possibly purchase a semi-truck at auction.
"I flew to Phoenix thinking I could get a good deal on a truck that would allow me to expand my business," Johnson said in an Institute for Justice press release. "But instead, the police took my money without ever charging me with a crime. It's been a struggle to lose my savings, and now my business is barely getting by. I'm fighting for my money, but I'm also fighting because this should never happen to anyone else."
The Institute for Justice is currently litigating a separate class-action lawsuit on behalf of people whose cash was seized by the Drug Enforcement Administration (DEA) at airports. One of the lead plaintiffs in that case, Stacy Jones, had $43,167 in cash seized by the DEA as she was trying to fly home to Tampa, Florida, from Wilmington, North Carolina. Jones says the cash was from the sale of a used car, as well as money she and her husband intended to take to a casino.
Although it is legal to fly domestically with large amounts of undeclared cash, police have a habit of seizing currency from travelers under civil asset forfeiture laws. This practice allows law enforcement to seize property—cash, cars, guns, houses—suspected of being connected to criminal activity, even if the owner is never charged or convicted of a crime.
The DEA and local police regularly snoop on travel records and maintain a network of travel industry employees who act as confidential informants. A 2016 USA Today investigation found the DEA seized more than $209 million from at least 5,200 travelers in 15 major airports over the previous decade.
Law enforcement groups say civil forfeiture is an important tool for disrupting drug trafficking and other organized crime by targeting its ill-gotten gains. However, civil liberties groups say there are too few procedural protections for innocent owners and too many perverse profit incentives for police.
More than half of U.S. states have passed some form of asset forfeiture reform because of such concerns. The Arizona House passed a bill in February that would require law enforcement to obtain a criminal conviction before a defendant's assets could be forfeited. If it passes the state senate, Arizona would join New Mexico, Nebraska, and North Carolina in essentially eliminating civil asset forfeiture.
The state already passed reforms in 2017 to raise the evidentiary threshold for forfeitures from "a preponderance of evidence" to "clear and convincing evidence," but that did not help Johnson.
After Johnson challenged the seizure and presented bank statements and tax returns to establish ownership of the money, the judge in his case ruled that because of inconsistencies in his story and circumstantial evidence offered by prosecutors—an old criminal record, buying a last-minute ticket with a quick turnaround, his nervous appearance in the airport, having three cell phones, and the alleged odor of marijuana on the cash—he hadn't established a legitimate interest in the cash.
"In Arizona, prosecutors are required to prove through clear and convincing evidence that money is connected to criminal activity before the property can be forfeited," Institute for Justice senior attorney Dan Alban said in a press release. "But instead of holding the state to its burden of proving guilt, the court required Jerry to prove his own innocence."
The Institute for Justice believes the outcome of Johnson's case could have broader implications for Arizona's efforts to reform asset forfeiture. If the forfeiture is allowed to stand, Alban said, "it would create a dangerous loophole, undermining Arizona's efforts to protect property owners."
The Phoenix Police Department did not immediately return a request for comment.