Is Ownership of Guns Itself Evidence of Drug Dealing?

At a traffic stop for overly tinted windows, a police officer smelled marijuana, and indeed found marijuana in the car. He also found a lot of cash, which was seized, on the theory that it was likely to be drug proceeds. No, said Chief Judge Martin Reidinger (W.D.N.C.) in U.S. v. Approximately $13,205.54 in U.S. Currency Seized from Rahkim Franklin: "[T]he totality of the evidence presented by the Government fails to establish by a preponderance of the evidence that the Defendant Currency seized during the August 21, 2018 traffic stop was proceeds traceable to an exchange for controlled substances within the meaning of 21 U.S.C. § 881(a)(6)." (Apparently the cash had been intended to be a down payment on a house.) And in the process, Chief Judge Reidinger noted:

In a footnote, the Government points out that Mr. Franklin also owns several firearms, which the Government contends "have long been recognized as being 'tools of the drug trade.'" [Doc. 87 at 6 n.2 (quoting in part United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999)]. It is undisputed, however, that Mr. Franklin owned these firearms legally; he is not a convicted felon or an otherwise prohibited person. Further, none of Mr. Franklin's firearms were subject to forfeiture by the Government.

The Government has not presented any evidence from which this Court could reasonably conclude that these firearms were owned for the purpose of furthering any criminal activity. For the Government to suggest that a citizen's mere possession of firearms implicates that person in illicit drug trafficking is to strain credulity. The Government's argument presents some Second Amendment considerations that counsel has apparently not considered.

Congratulations to James W. Kilbourne, Jr. and Jesse M. Swords of Allen Stahl & Kilbourne, PLLC on the victory.

Comments

[wreckinball]

No

[dwb68]

“UNITED STATES OF AMERICA, Plaintiff,
vs.
APPROXIMATELY $13,205.54 IN U.S. CURRENCY SEIZED FROM RAHKIM FRANKLIN ON AUGUST 21, 2018 IN RUTHERFORD COUNTY, NORTH CAROLINA, Defendant.”

pretty much sums up the problem with civil asset forfeiture.

The defendant is the person who lost their property.

[John F. Carr]

Police officers have guns. Police officers are often involved in illegal drug activity.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

They also wear clothes. I bet more drug deals on the street are by clothed persons than naked ones.

[Noscitur a sociis]

(Apparently the cash had been intended to be a down payment on a house.)

I don’t think the government carried it’s burden here, and I agree that showing the possession of firearms didn’t bring them any closer, but characterization seems awfully credulous.

[Nisiiko]

Of course it is. But fortunately, we don’t have to prove we’re innocent (or that our property is legally ours). They government has to prove otherwise.

What if he just said that he doesn’t trust banks?

[Longtobefree]

Then he would be a republican insurrectionist who believes in freedom, and subject to immediate incarceration for an indefinite term.

[Henry]

Um, no. In fact, that’s one of the major problems with forfeiture. The burden of proof IS on the victim.

[jdgalt1]

It does seem odd that Form 4473 requires every gun buyer to swear he is not “an illegal user of, or addicted to, any controlled substance,” but not to swear he doesn’t make or sell that substance.

[Brett Bellmore]

Not so odd when you consider how broadly they construe “use”; A dealer “uses” the drug to make money.

[Nisiiko]

There was a ridiculous case from the 90s (Smith v. United States) where the Supreme Court ruled that trading a machine gun for drugs constituted “using a firearm during a drug trafficking crime” when Congress clearly intended “use” to mean “to use as a weapon.”

[Brett Bellmore]

That was what I based that remark on, yes.

[John F. Carr]

That statement is based on statutory language. Congress forbade gun possession by drug users and in connection with drug sales, but not by drug dealers “off the clock”.

[LawTalkingGuy]

There’s lots of old opinions from the 80s, 90s, and early 00s where courts accept all these dumb indications of drug dealing that later become rules of law in later opinions. I mean look at this dumbass sentence from Ward that the government cited:

“When government agents entered Gibson’s apartment, a Rolex watch, a wad of $ 1,055, and a hand gun were located. These items are all indicia of drug dealing.” United States v. Ward, 171 F.3d 188, 195 (4th Cir.1999).

[Longtobefree]

Well, I guess I have conclusive proof I am not a drug dealer – – – – – –
(based on what I do not have)

[ReaderY]

It says something about the sea change that’s happened that judges are starting to show some skepticism of these asorts of arguments, arguments that they bought (pun intended) lock, stock and barrel a decade or two ago.

But a problem here is that Judge Reidinger has basically gone againt precedent. Precedent says to buy these arguments, dumbass, straining credulity, and all. An appeals panel might feel constrained to reverse him.

Heck, there’s president out there that just possessing a lot of cash, by itself, is good enough evidencce of drug dealing to warrant seizing the cash.

[Bored Lawyer]

If guns are legal, then they cannot be used at indicia of illegality. That would seem elementary logic.

[Absaroka]

Crowbars, lock picks, duct tape, and ski masks are all legal, but in the right circumstances may be evidence of crime.

(I’m not addressing the case at hand, just saying the general point ‘if X is legal then …’ goes too far, I think)

[ReaderY]

Once upon a time possessing a pager or a cell phone was pretty strong evidence one was a drug dealer, at least if one wasn’t a senior executive. Ordinary people wimply didn’t have such things.

[Rossami]

Sorry, no, those are not ever indicia of illegality merely because you possess them regardless of circumstances. They might be evidence of a specific crime if, for example, the pattern of your ski mask is the same as the one caught on video, but you cannot simply assume that things possessed legally (but which could be used illegally) will be used illegally. Bored’s logic is correct even in the most general case.

[Absaroka]

The part you italicized makes me wonder if you missed the ‘in the right circumstances’ part of my comment?

I’m not sure that the things are limited to a specific past crime as in your ski mask pattern example. Or perhaps you are stating what you think the law should be, as opposed to what it is?

For example, RCW 9A.52.060 says “…or have in his or her possession, any engine, machine, tool, false key, pick lock, bit, nippers, or implement adapted, designed, or commonly used for the commission of burglary under circumstances evincing an intent to use or employ”.

My reading of that is that means it’s just fine for a hobby lock picker to have picks at home, or for me to have that cordless angle grinder in my garage, but if I get caught, say, driving slowly around parking lots late at night with the grinder, a floor jack, and no plausible explanation a jury might well find the totality of the circumstances sufficient to convict me even if I haven’t stolen a catalytic converter yet.

To be sure, I’m just reading the law and remembering old newspaper articles. I’m all ears if the resident lawyers have case law that disagrees.

[ReaderY]

I think the fundamental shift is that we’ve moved from a mentality that simply assumes ordinary, law abiding citizens don’t possess guns – peoplw who possess guns are raging maniacs and hardened criminals – to one that is starting to accept that they do.

Similarly, we’ve gone from a society that assumes people who possess pot are ragimg maniacs and hardened criminals to one that, where illegal at all, treats it more and more like a traffic violation.

[Brett Bellmore]

“I think the fundamental shift is that we’ve moved from a mentality that simply assumes ordinary, law abiding citizens don’t possess guns – people who possess guns are raging maniacs and hardened criminals – to one that is starting to accept that they do.”

It’s reversion to an earlier standard, as a society where gun ownership was all along a normal thing finally rejects the effort to make gun ownership aberrant.

I’m old enough to remember what America was like before the big push to attack gun ownership. People flying with guns as carry on baggage, shotgun racks in pickup trucks being a normal thing, gun advertisements in the backs of ordinary magazines, ammo being something you’d find for sale in a drugstore.

After the Kennedy assassination the political class made a really serious push to force America to reject guns. That’s finally running out of steam.