Asset Forfeiture (split from the Trump thread)

[Gray222]

What person could not get a conviction after they take away the persons ability to defend themselves before it goes to court ? The theft is to keep a person from mounting a defense along with monetary gain for government. Hiding behind a badge does not make it right no matter how legal it looks or how much the original intent of the founders is twisted.

Read the document you took an oath to honor.

Indulge us for a moment, show us where asset forfeiture is in the Constitution?

While you are at it, show us where it says anything you just posted is written in the Constitution?

Before you look, I'll give you a hint, these are tools development afterwards, based on case law, court precedence and legislation by the people you elected. Directing your anger and frustration over things you cannot change on the people who actually swore an oath to do good and not just complain about it online, is not helping your cause.

[GuanoLoco]

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

...

https://www.law.cornell.edu/constitu...urth_amendment

Fourth Amendment
The Fourth Amendment originally enforced the notion that “each man’s home is his castle”, secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.

[Gray222]

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

...

https://www.law.cornell.edu/constitu...urth_amendment

Fourth Amendment
The Fourth Amendment originally enforced the notion that “each man’s home is his castle”, secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.

Bold and underlined for educational purposes.

[State]

Patrick, I'm a fed so I can't speak to how things are done at the state and local level so I answer your question from that perspective. A search and seizure warrant for evidence just requires PC as does an arrest warrant, which is a seizure of a person. My statement was only in regards to your IMO imprecise wording (or is it understanding?) regarding how a seizure (which I'm defining to be of any type from property to people and evidence) is theft without a conviction. There are instances albeit rare in fed land where cases are dropped by the AUSA after search warrants have been executed. For example, and I won't get into details, one reason could be due to local politics. The items unless contraband are generally returned to their owner if the case is ultimately declined for prosecution. Does that mean the agents committed theft? The courts and USAO certainly don't think so.

I rarely post here and have no idea who you are just like you have no idea who I am but your "advice" for me to read the document I took an oath to honor is a bit presumptuous. I work within the confines of that document daily, in the 9th circuit of all places. I'm very familiar with con law and as others have mentioned, there are professional and sometimes personal consequences when we fail to adhere to the constitution.

[blues]

What person could not get a conviction after they take away the persons ability to defend themselves before it goes to court ? The theft is to keep a person from mounting a defense along with monetary gain for government. Hiding behind a badge does not make it right no matter how legal it looks or how much the original intent of the founders is twisted.

Read the document you took an oath to honor.

Patrick, I had my say yesterday on the subject of seizures and forfeiture so I simply want to address the portion highlighted above.

No one is deprived of the right or ability to defend themselves in court either by their own retained counsel or one provided by the court.

In federal court, which is where I spent the vast majority of my time, the counsel provided by the court when someone did not have the means to pay for representation ordinarily proved quite as competent as the high priced shiny attorneys that those with deep pockets would frequently turn to.

Also, it is beyond my experience to have ever witnessed or participated in any seizure of property motivated by monetary gain for the government.

I offer this to you with all due respect and as plainly and honestly as I can based upon my own years of experience in this arena.

[luckyman]

...
The cases that people's money were taken and they had to prove where they got it have not been as common as the media would have you believe. Just like the protein scenario I had to explain here before, it is not common for the average person to drive around with 50k cash on their person and not have any proof of where they got it or where they are going. In some states with some loose regulation that would warrant the officer to take that money into their possession.

...
Furthermore when these situations do allegedly occur there has to be a court hearing and if the person can prove the legit source of the money then they get it all back no issues. What legimate person with tens of thousands or hundreds of thousands of dollars in cash will not be able to prove where the money came from? It just isn't reasonable to believe people would have that much money which they never had a single record of, especially in 2017.
...
.

Even as a proponent of civil forfeiture, I would be 100% on board with this.

The issue in the past, at least in my state, was that there was really no way to charge someone you traffic stopped and found with hundreds of thousands or even millions of dollars in a trap or purpose-built hidden compartment, someone that was obviously trafficking drug proceeds. As I said earlier, the money laundering statute has been updated and given more "teeth" in the last couple of years, for this reason.

I'm confident that 100% of the officers posting here and 99% of officers throughout the US are behaving the way most of us would desire. To me, this debate isn't about the behavior of individual officers, it is about the potential of the law to be abused. To put it in second amendment related terms, I'm not worried about the current state of things so much as what things could turn into given the wrong people get into power in the future.

I've personally never carried more than probably 1000$ in a car with me. And I fully admit the chances of someone carrying hundreds of thousands of dollars in a car being above-board are vanishingly slim. Having said that, I worry mightily about the concept of punishing someone for an otherwise non-illegal based on the logic of "well there is no way he could have gotten to this point legally, especially 'this day in age' ". You used to hear about "misers" who would die with a fortune stuffed in their mattress. The fact that one would have to go way out of their way to legally amass large sums of money without an electronic trail doesn't mean to me that we should assume guilt. I have sympathy for the people that don't want electronic trails just because they are uncomfortable with "big brother" and potential hackers knowing everything about them.

Plus there is the question of where do you stop? Let's say millions is ridiculous and authorities should be able to confiscate that much. Well, why shouldn't I be allowed to carry around enough money to purchase a house or plot of land with cash? Or more likely, say a nice used RV? Or money for a high stakes poker game? (although I personally don't gamble, so I have no idea what I'm talking about on this one.)
And please, there should be no logic connected to a person hiding the money! If I was legally carting around $10k+ in my car you better believe I would hide it to the best of my ability.

[Wondering Beard]

I think an important way to look at any law is to imagine its application in the hands of your enemies.

[ssb]

I think an important way to look at any law is to imagine its application in the hands of your enemies.

This.

When I said earlier in the thread something to the effect of, "I don't give a shit if everything you've ever done has been above board," I meant that. The issue here isn't about what the guys I know and respect are going to do, or even the LEOs here are going to do. It's about whether and how the law enables a good ol' boy in a twelve-man department whose job description has in practice become revenue generation to apply the tool. You don't have to be the police to understand that.

---

"You can get it back if it's legit" misses the point also. You shouldn't have to spend thousands of dollars of your own money on counsel in order to make that happen because the practice allows for seizures based on dubious reasoning. Spending $2K to get back $2.5K isn't a good deal for the guy in the right, and to Joe Six Pack, you may has well have stolen that $2K from him; in effect, you're telling him, "I think you're a criminal; I'm not going to arrest you, but I am going to take your stuff, and if you want you can come prove to us that you got it legally." Yes, you can represent yourself. Most people have, in some capacity, dealt with that guy -- whether in a traffic stop or in a bar -- who "knows what the law says." An ADA six months out of law school will curb stomp that guy because Joe Six Pack doesn't know procedure and the ADA does. Joe Six Pack probably isn't getting court-appointed counsel in a civil matter, either; the PD's office works criminal cases, not civil matters (generalizing).

[TC215]

Plus there is the question of where do you stop? Let's say millions is ridiculous and authorities should be able to confiscate that much. Well, why shouldn't I be allowed to carry around enough money to purchase a house or plot of land with cash? Or more likely, say a nice used RV? Or money for a high stakes poker game? (although I personally don't gamble, so I have no idea what I'm talking about on this one.)
And please, there should be no logic connected to a person hiding the money! If I was legally carting around $10k+ in my car you better believe I would hide it to the best of my ability.

Like this?



There is case law saying that carrying large sums of currency can be used as an "indicator" of drug trafficking. It cannot be the only indicator. In fact, it takes many of these court-recognized indicators to add up to probable cause for a seizure. Just having a bunch of money won't do it.

Now, has that ever been used as the only reason to take money? Of course, and it's wrong

[Kukuforguns]

So, my research indicates that there are jurisdictions where the filing fee (e.g., $175) to recover seized property is significantly larger than the amounts of cash frequently seized. That appears to be a recipe for abuse.

My research also indicates that there are jurisdictions where unsuccessful petitioners for recovery are required to pay the expenses incurred defending the seizure, but not vice versa. Again, a recipe for abuse.

My research indicates that many agencies get to keep the cash seized. Again, a recipe for abuse. For example, my research indicates that there have been agencies that allow traffickers to sell contraband before arresting the trafficker in order to seize the cash in preference to interdicting the contraband.

My research indicates that the vast majority of jurisdictions allow the jurisdiction to seize and keep property using a lower level of proof (e.g., probable cause) than for a criminal conviction (beyond reasonable doubt).

My research indicates that in most jurisdictions, the property owner has the burden of proving that the property is not the fruit of illegal behavior. In other words, the property owner is considered guilty until the property owner spends the money to successfully establish innocence. This is especially troubling when combined with the standard of proof enjoyed by "probable cause" jurisdictions. The property owner has to effectively prove that there is no basis for the jurisdiction's belief that the property is fruit of illegal activity. See United States v. $124,700, 458 F.3d 822 (8th Cir. 2006) for an example of this situation.

My research indicates that multiple jurisdictions that are legally required to keep data regarding seized property but refused to disclose the data pursuant to freedom of information requests.

All of the above are systemic problems with civil forfeiture and not anecdotal evidence. There are, of course, extensive examples of abuse arising from the systemic problems reflected above. Google is your friend if you want to see some of the truly egregious abuses committed by various jurisdictions/agencies. I mean, how can you defend a jurisdiction trying to seize the home of a dying person because drug dealers dumped contraband in the home while fleeing law enforcement officers?

I don't want criminals to keep their ill gotten gains. I do want some level of confidence that the seized property actually is actually an ill gotten gain. Andy by some level of evidence, I don't mean that a drug dog alerted to cash.