These are laws that, in effect, make it illegal to carry or hold large amounts of currency. The government basically says that the cash is from the proceeds of illegal activity and seizes it. If the person wants their money back, it’s up to them to challenge the seizure in court and prove that the money was legitimately earned. These seizures seem to blatantly violate the 4th amendment, protection against unreasonable seizures, the 5th, no property shall be taken without due process of law, and probably the 6th, right to trial by jury.
I’m not sure how you see forfeiture proceedings violate the Fourth Amendment. If police actually seize property during a search, Fourth Amendment rules apply to the admissibility of evidence. And a trial governs whether the government gets to keep it. The burden of proof is a bit tricky, but civil forfeiture proceedings are civil and in rem, so the rules are different.
These are civil cases–not criminal ones. In federal court, the Seventh Amendment requires jury trials http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=u10205 ibecause the Seventh Amendment right to jury trials has been held not to be incorporated by the Fourteenth Amendment, the right to a jury trial in state courts is a matter of state law.
This man has not been charged with a crime, nor is there any indication that Mr. Ricks got the money through illegal activity. Regardless, an indica of illegal activity is not a conviction of illegal activity. If, for example, Mr. Ricks were accused of dealing drugs and arrested, he would be given an attorney and the government would be forced to prove their case against him. He wouldn’t sit in jail until he could afford an attorney, and he wouldn’t be required to prove his innocence.
It’s true that he’d have more rights if he was prosecuted. And it would be more work for the prosecution to win the case. That’s probably why the government elected not to prosecute. It’s a very common strategy. Civil forfeiture is easier and cheaper.
The right to appointed counsel only applies to the indigent. There’s no evidence that he qualifies. And even if he did, appointment of counsel doesn’t guarantee bail. And a pretty good percentage of those who get bail aren’t able to post it. http://straightdope.com/mailbag/mprisoners.html
Federal law generally requires the government to show probable cause in forfeiture cases, after which the burden shifts to the property owner. This allocation of burdens has been upheld. http://www.ca11.uscourts.gov/opinions/ops/19962545.MAN.pdf
The system isn’t especially fair, I agree. That doesn’t make it unconstitutional.
Thanks for the link, but my question is more about what happens after the seizure. Why can’t the defendants simply go in front of a judge and force the government to prove their case beyond a reasonable doubt?
The 4th amendment doesn’t just apply to admissibility of evidence. It’s a blanket protection against unreasonable seizures. Seizing someone’s cash because they are in possession of marijuana seems pretty unreasonable to me.
I think this quote is referring to the public use section of the 5th amendment.
The state has the right to sue individual citizens?
Because neither the forfeiture statutes nor the Constitution require it.
Right. The cases that I cited in the previous thread talk about what counts as probable cause to seize cash. A large amount by itself is dicey. Here there was a large amount and illegal drugs. You disagree with the courts. I don’t know what else I can tell you.
The due process clause requires notice and an opportunity to be hear. He knows they’ve got his cash, and there is a procedure for getting a hearing. As I’ve pointed out, he can get a jury trial. The due process clause does not guarantee him victory–nor does it offer him the procedural rights afforded criminal defendants. The courts have held that this is a civil matter.
I note that one of the aspects to the “article” (and the associated editorial) in the Lima News that troubles me is that no where is there a discussion of the probable cause factor. At some point, the government is going to have to show a probable link between the money seized and an illegal activity (presumably in Mr. Ricks’ case, traffic in marijuana). And yes, I understand that Mr. Ricks is now without funds to pay for an attorney, but in that case he should qualify for legal aide and even a pro bono attorney should be able to force a hearing on the probable cause aspect.
Something doesn’t add up, here, and I’m not encouraged to believe the story much by the fact that it seems that most every anti-government blog and website has taken the story and the editorial and repeated them in usual web propagation fashion.
I actually walked away from the computer before this started me laughing out loud. “Oh, no, mister Chrisk - we’re not suing you. We’re suing your money.”
IANAL, but as I remember it, the courts have held that those rights apply to people not objects. The Gov’t is seizing objects, such as money, and leaving the person free. They have set up procedures, such as the owner having to prove a negative, in order to retrieve the object.
Not exactly. The first burden is on the government, to prove by probable cause that the monbey is fruit of illegal activity. That’s been done here.
Now that they’ve done that, the burden shifts to the owner to show differently. He doesn’t have to prove a negative so much as explain the damning evidence already adduced against him.
The article quotes the ACLU director saying a useful claim might be “He had the money through a lifetime of savings.”
I bet you $100 to your favorite charity, though, that an examination of the cash seized won’t find old-style $100s, $50s, and $20s in the mix along with new, as you would expect if he really had slowly and painstakingly accumulated the cash over years and years of work and savings. If it does, of course, that’s excellent evidence for his claim, and I daresay he’d already have it back if he could offer such evidence.
Actually, a case like that probably does fall through the cracks. Legal Aid works on grants, which usually specify the kind of case that they can help people with. At least the office that I worked at in Ohio would not have had funding to assist with a civil forfeiture case–nor would any of the attorneys have training in civil forfeiture law, unless they happened to have it from a previous job. He might be able to get pro bono help from a volunteer attorney (maybe a member of one of these blogs you mention ) but Legal Aid lawyers sort of serve two masters, and one of them tells them what they can do and what they can’t.
Thanks!
Though I would disagree, if I had a say in the matter, that having both money and illegal drugs in the same house proves by probable cause that the money has anything to do with the drugs. Certainly it is possible, but the house itself is undeniably there and one could argue that the ownership of the house/car/etc could be the result of illegal drugs. Since the government makes the connection between the presence of illegal drugs and property, why don’t they have to show by probable cause when that connection is not made? I understand the argument that people obtain money for drugs far more often then they obtain houses or cars, but people obtain money by legal means far more often than they obtain money by selling drugs.
It comes down to “probable”. I agree that it is possible that large amounts of money in the same location as illegal drugs implies a connection. But without some estimate of the magnitude of the probability, punishing someone by seizing their property is more than I would do.
The government has to show probable cause in any civil fofeiture case.
Mortgagees’ interests are usually protected under civil forfeiture laws; the protections can make the case more complicated for the government. http://boards.straightdope.com/sdmb/showthread.php?postid=9302220#post9302220 And if the homeowner has little or no equity in the property, it might not make sense to proceed against the real estate. Also, a more cynical possibility exists–as I pointed out above, a real estate forfeiture entitles the homeowner to appointed counsel. If the government wanted to make sure the guy couldn’t defend himself, it’d be wise to avoid real estate forfeitures unless there was a big payoff in it. I have no idea whether they even consider that factor when considering forfeiture of real property.
We talked a lot about the probable cause issue in the earlier thread. I cited cases on what it takes in addition to bare possession of lots of money in order to establish probable cause.
When? As far as I can tell there was no warrant for the seizure of the money, and there has been no judicial review whatsoever.
I still don’t understand why this is the case. If I’m arrested on probable cause, I don’t have to prove my innocence to get out of jail. I get a speedy trial, at which the government must prove their case against me. I can sit there and say no words in my defense, provide no evidence, and call no witness, yet still be found not guilty. The fact that this man must prove his innocence goes against everything I know about the constitution.
I think we’ve exhausted the factual portion of this discussion. I’ll move it from General Questions to Great Debates so **treis **and others can debate whether it’s good policy to handle civil forfeiture in the manner that we do.
**Gfactor **
General Questions Moderator
As a poster I’ll add that courts ought to be able to appoint counsel in these cases, and that the procedure seems unfair at times. In fact, as a law student, I made many of the claims that **treis **does. But that was in the early 90s, when there was a lot less guidance from the courts.
) but Legal Aid lawyers sort of serve two masters, and one of them tells them what they can do and what they can’t.