Civil Asset Forfeiture

Phoenix Police Seized $40K From Him at the Airport, but Never Charged Him With a Crime

Arizona passed a law raising the standard of evidence for asset forfeiture. That didn't help Jerry Johnson when Phoenix police seized his cash.

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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.

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Civil Asset Forfeiture Institute for Justice Drug War Arizona

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28 responses to “Phoenix Police Seized $40K From Him at the Airport, but Never Charged Him With a Crime

  1. “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,”

    Why don’t they say that the only “clear and convincing evidence” is a criminal conviction?

    1. The essence of civil asset forfeiture is that it uses civil judicial processes rather than criminal ones. There’s a good argument that asset forfeiture should only happen through criminal process, but the public got sufficiently upset over drug lords and similar criminals living in mansions that politicians created civil asset forfeiture.

      1. but the public got sufficiently upset over drug lords and similar criminals living in mansions that politicians created civil asset forfeiture.

        I thought the original justification was to use civil asset forfeiture to take prevent those drug lords from using ill gotten gains to pay their high priced defense lawyers.

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          1. Well don’t travel with it.

            1. Don’t travel with what? Cash? Have you ever been to an auction? They generally don’t accept checks and credit cards or your good looks as payment methods.

      2. The origins of civil asset forfeiture are procedures against maritime smuggling operations where the owners were generally unknown (because they abandoned the shipment rather than be arrested). So you only had the goods to ‘prosecute’. The original point of civil asset forfeiture was to make the owner come forward (so you could charge him with smuggling) or forsake his goods. That version of civil asset forfeiture has some sense. The modern version of it, where the owner is known, does not.

      3. It is an expression of the states helplessness, and out of anger it starts hitting around at random. IMHO that is incompatible with the rule of law. The goal does not justify the means, since it will erode trust in the rule of law, which is even worse.

      4. the public got sufficiently upset over drug lords and similar criminals living in mansions that politicians created civil asset forfeiture.

        This is a lie. The government invented a loophole they could use to rob people in violation of the 5th amendment, and the courts naturally failed in their duty to uphold our human rights. There was no public demand for this.

        -jcr

        1. Well, to be fair, there was public outcry by prosecutors that couldn’t obtain convictions based on evidence and there was public demand by police departments that wanted more toys but couldn’t get taxpayers to approve budget increases.

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  2. 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.

    Just so you can all keep up, this is exactly why New Mexico, Colorado and New York haven’t “revoked” qualified immunity.

  3. Obviously Mr. Johnson is guilty of “flying while Black”. Be a shame if Phoenix had a few nights of mostly-peaceful protest.

    1. Mr. Johnson is almost certainly a law-abiding, tax-paying citizen. Who is going to protest for him? He needs to attempt armed robbery and get shot during an arrest first.

      1. Screw him! Does he have a lengthy rap sheet and was he on a near fatal dose of fentanyl? I think not!

  4. Who are these people who travel with large sums of money? Not to suggest there is something nefarious going on here, but it seems quite ridiculous to move bags of cash. Bagmen get rolled, in this case by the federal government, the biggest gangster of all.

    1. Sometimes the $500/day limit on a debit card isn’t enough.

      1. You can go inside a bank and withdraw larger amounts. Or you can wire money. There are ways to do these things without physically handling large sums.

        1. Some people are just naive, unaware, and/or relatively simple. You want to buy something, you use cash. You want to buy something expensive, you use a lot of cash. Wiring money is beyond the comprehension of, I’d guess, about 25% of the population.

          There also another incentive. Many transactions are made in cash so the seller can get away with not reporting the sale and avoid taxes. The buyer will then be given a discount.

        2. Not so easy for that amount. Banks only have so much cash on hand so they may tell you that you can’t get that much today. They do report anything over 10 grand to the federal government.

  5. Feds (DEA) can seize large quantities of US Currency at an airport like this, but they have to show a drug nexus. Typically it involves a profile (one way trip, ticket purchased the day before, no checked or carryon baggage, traveling to a known drug location-usually MJ), in addition to something like a drug K-9 giving a hit on your money and bags. If you don’t have those things, it’s not likely to happen.

    1. Since dogs can be trained to give a “hit” on anything convenient, I don’t find that a compelling enough limitation.

      1. Also, given the sums involved, a lot of US cash has probably been involved in a drug transaction at some point. And no one literally launders money (at least not intentionally, although my wife is occasionally guilty of it).

        1. Measures of cocaine residue on US bills finds it on 80-90% of US currency.

          Other drugs, including heroine, meth, speed, and PCP, are also found on bills at respectable frequencies.

          “The discovery that cocaine is so prevalent in U.S. banknotes has a legal application that reactions by drug-sniffing dogs is not immediately cause for arrest of persons or confiscation of banknotes. (The drug content is too low for prosecution but not too low to trigger response to drug-sniffing dogs.),[12] though this has been contested legally in a number of U.S. states[12] as a standard of what constitutes ‘unusual’ levels of contamination remains to be achieved (see below).”
          https://en.wikipedia.org/wiki/Contaminated_currency

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