Houston Prosecutors Are Keeping Cash Seized From Defendants Whose Cases Were Compromised by Police Corruption

Even in cases that hinged on the trustworthiness of demonstrably untrustworthy cops, people are still waiting to get their money back.

In response to the scandal that engulfed the Houston Police Department's Narcotics Division after a lethal 2019 drug raid based on a falsified search warrant, Harris County prosecutors dropped dozens of pending cases and recommended the reversal of at least five convictions. They said those cases were irredeemably tainted by the involvement of Gerald Goines, the officer who lied to obtain the 2019 warrant that led to the deaths of Dennis Tuttle and Rhogena Nicholas, or similarly dishonest colleagues. But that judgment did not necessarily mean that the defendants recovered cash or cars seized by Houston's corrupt cops under the pretext of enforcing drug laws.

Even in cases that hinged on the trustworthiness of demonstrably untrustworthy cops, The Houston Chronicle reports, prosecutors so far have chosen to keep nearly all of the property seized from defendants. That striking contradiction illustrates the lax rules governing civil asset forfeiture, which allows police and prosecutors to pad their budgets by confiscating allegedly crime-tainted property.

The Chronicle identified "three dozen instances in recent years in which an indicted member of the Squad 15 narcotics unit swore to the facts used to justify a search leading to a cash or vehicle confiscation." The loot, collected over a five-year period, included about $75,000 in cash and several cars. "Records show some or all of the money confiscated during the busts was returned in five cases," the Chronicle reports, "typically after defendants hired lawyers to challenge the forfeitures." But the county has kept the rest of the money and the cars, even though prosecutors consider the evidence that led to the seizures unreliable because it was offered by cops with a record of making stuff up.

In 2018, for instance, Goines and his partner, Steven Bryant—both of whom face state and federal charges in connection with the operation that killed Tuttle and Nicholas the following year—participated in the raid of a "suspected drug house." They arrested Andrew Hebert, claiming they had seen him selling drugs outside the house, and seized $11,000 from him.

Prosecutors decided to drop the case against Hebert in light of Goines et al.'s unreliability. "Circumstances in this case impacted the credibility of material witnesses," they told his lawyer. But Hebert did not get his money back.

Also in 2018, Bryant and his colleagues arrested Christopher White and seized $2,465 from his car, claiming they had "observed him make a crack cocaine sale outside a barber shop." Prosecutors ultimately dropped the charges because of Bryant's involvement but again kept the money.

In 2016, Goines and his colleagues searched a house based on a fictional crack purchase. They seized $2,700 from Andre Thomas, who likewise never got it back.

"Prosecutors are currently reviewing several cases related to Squad 15 to determine if they involve assets that should be returned to members of the community," a spokesman for the Harris County District Attorney's Office told the Chronicle. But  they are under no obligation to return anything, because the rules for civil asset forfeitures are much looser than the rules that apply to criminal cases.

To seize property under civil forfeiture laws, police typically need nothing more than probable cause to believe it is somehow connected to criminal activity. The government does not have to charge the owner with a crime, let alone convict him. If the owner does not challenge the forfeiture in court, which frequently costs more than the property is worth, a vague allegation of a criminal nexus is enough to keep the loot.

Prosecutors have voluntarily returned seized property to at least one of Goines' victims. The Chronicle says they "quietly" returned $1,668 to Otis Mallet, whom Goines arrested on crack cocaine charges in 2008. Mallet always maintained that Goines had invented the crack purchase that was the basis for the arrest, which would be consistent with what investigators later discovered about Goines' fabulism. Mallet's conviction was overturned in 2021, after he had served two years of an eight-year sentence.

While keeping Mallet's money would have been plainly unjust, it also would have been perfectly legal. Except in states that require a criminal conviction to complete a forfeiture, the fact that the government does not have enough evidence to prove someone committed a crime is no barrier to confiscating his property.

The Texas Supreme Court underlined that distinction in 2016, when it concluded that the exclusionary rule, which bars the admission of illegally obtained evidence, does not apply to civil actions under Chapter 59, a state law authorizing "forfeiture of contraband." The case involved the seizure of a 2004 Lincoln Navigator from Miguel Herrera, who was arrested after police found drugs in the car. Herrera argued that the search was unconstitutional because the cops did not have reasonable suspicion to pull him over and that the drugs they found therefore should not be considered as evidence to support forfeiture of the car.

The trial court and the appeals court agreed. But the Texas Supreme Court did not, saying "an illegal seizure" of evidence does not "require exclusion in a Chapter 59 civil-forfeiture proceeding." That means drugs discovered during an illegal search based on Goines' lies, although not admissible in any resulting criminal case, could still be used to justify the confiscation of cash found during that search, assuming the owner challenged the forfeiture.

The seizures highlighted by the Chronicle represent just a small piece of Harris County's take from this system of legalized larceny. Last year, the Institute for Justice filed a state lawsuit challenging the county's forfeiture practices. The lead defendant is the Harris County District Attorney's Office—the same agency that is trying to assess and ameliorate the damage done by Goines and his cronies.

The lead plaintiffs in the proposed class action are a Mississippi couple, Ameal Woods and Jordan Davis, who were robbed of $42,300 after they were pulled over by sheriff's deputies on Interstate 10 in May 2019. Woods and Davis were on their way to Houston, where Woods planned to spend the money on a tractor and a trailer for his trucking business. The deputies ostensibly stopped them because they were following another vehicle too closely, although Woods, who was driving, was not cited for that alleged offense. Instead, the cops made off with the couple's life savings.

The district attorney's office filed a forfeiture petition the following month. But Woods and Davis were not notified of the pending action until last August, 27 months after the seizure.

According to the Institute for Justice lawsuit, all of the money Woods and Davis were carrying was obtained legally. The largest share, $22,800, came from Woods' savings. He borrowed $6,500 from his wife and $13,000 from his niece, planning to pay them back after his investment in a tractor-trailer allowed him to expand his business.

The forfeiture petition claimed a drug-detecting dog alerted to the money. But no such dog was present during the stop, which means this alleged canine inspection must have occurred after the deputies already had seized the cash, supposedly based on probable cause to believe it was related to illegal activity. Research has found that as much as 90 percent of U.S. currency carries traces of cocaine, which therefore hardly counts as evidence that the current owner is involved in drug dealing.

"What happened to Ameal and Jordan routinely happens to other property owners in Harris County," the lawsuit says. After reviewing 113 civil forfeiture petitions filed by county prosecutors since 2016, the Institute for Justice found that all of them were "based on a form affidavit written by an officer who was not present at the time and place of seizure." Seventy-nine of the affidavits included identical or closely similar language saying "a K-9 Unit gave a positive response for the odor of narcotics" when presented with the property. Eighty affidavits were written by the same officer who supported the petition seeking forfeiture of the money seized from Woods and Davis, and 92 "involved a dog alert that allegedly was obtained after police seized property."

The lawsuit argues that Harris County's racket violates the state constitution in several ways: It involves seizures that are not based on probable cause; it does not give property owners a prompt post-seizure hearing; it relies on "hearsay testimony" and "cut-and-paste allegations"; it gives law enforcement agencies a financial incentive to seize first and ask questions later (if ever); and it requires owners to prove their innocence.

This process is so daunting and burdensome that 60 percent of property owners give up without a fight. That works to the advantage of local law enforcement agencies. From 2018 to 2020, the Institute for Justice notes, "Harris County prosecutors added $7.7 million to their budgets" through civil forfeiture. During the same period, "law enforcement agencies in Harris County added $15.9 million to their budgets," and "more than $7.5 million of that money was used to pay salaries and overtime to police officers—the same officers who make decisions about whether to seize property."

Harris County District Attorney Kim Ogg wants credit for investigating the blatantly corrupt behavior of Goines and other Houston narcotics officers. Meanwhile, her office, which is hardly without blame for prosecuting falsely accused defendants, is eagerly engaged in money grabs that victimize innocent people and make a mockery of justice.