have their been cases of this nature to illustrate modern American police handling of such cases?
can police "civil asset forfeit" your car if you pick up hitchhiker with contraband in his backpack?
I would imagine they could, civil asset forfeiture laws are some of the most questioned laws on the books. I will give some examples, a gentleman refused police presence at his hotel, he had on site security and made other efforts to make sure drugs were not being dealt on his property. He was not charged with any crimes his hotel however was taken from him because he may have been aware of the drug dealing going on. He I believe won the case, but others are not always so lucky.
Another case a man sold his car, had 4k or so in cash on him, pulled over with his partner. No drugs, nothing wrong except his cash. They took it, he contacted an attorney who would have wanted more than they took (which seems to be a common theme) luckily for him the ACLU stepped in.
I can dig up the links for them but to answer your question…
So if you have an expensive car, it may get more expensive getting a lawyer to get it back.
yep, The burden is usually on the claimant to establish he didn’t know there were drugs in the car. And you usually don’t get a jury, so some administrative law judge, perhaps appointed by the chief of police, gets to judge your credibility.
How did this sort of case come to be excepted from normal “due process” rules?
I have no clue, but I do know they tightened the federal version I think in the 90’s. The States however well they got aboard the free gravy train. I would hope someone with far more clout would someday fight this and turn it into purely convicted=forfeiture.
Because they’re not suing you, they’re suing the property. The property is actually listed as the defendant in a case like these. Property doesn’t have rights.
These forfeiture laws were enacted during an unfortunate but little-known time in the late 19th century when 6-year-olds held a majority in Congress and the Supreme Court. They also enacted a law that made it legal to beat up one’s brother, using the defense that you weren’t hitting him, you were just waving your fists in the air and he happened to be there.
I’ll take a crack at this, since I used to do this kind of work for a federal law enforcement agency.
In short, yes - it can be “abused” (depending upon one’s definition of “abuse”) and has been in the past. As mentioned in a previous post, the owner of the asset is not being prosecuted; instead, this is in rem prosecution - prosecuting “the thing.” For example, one’s vehicle might be searched by the police and contraband found in the vehicle. Lacking sufficient evidence (or initiative) to proceed with a criminal arrest and prosecution, the authorities can effectively prosecute the asset. So basically, “you’re not a drug dealer, but your car is.”
The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) did quite a bit to protect asset owners. Promulgation (like putting notices of intended forfeiture in widely-read newspapers) became important to protect the property rights of stakeholders. It also significantly reduced the instances of podunk police departments seizing fancy cars because they “detected an odor of marijuana,” and then giving said fancy car to the Lt., Chief, Mayor, or whoever (there are documented cases of this type of thing).
It’s worth noting that contraband doesn’t need to be present. If you’ve never had a job, but happen to own several pricey assets (houses, cars, wads of cash, etc), and are a target of investigation revealed to be involved in illegal activity, those assets are assumed to be ill-gotten gains and subject to forfeiture. I’ve been involved in taking loads of this kind of stuff (the “drug war” isn’t about drugs - it’s about money; intercepting a boat-load of cocaine is less effective from an enforcement perspective than intercepting a boat-load of cash).
The process is heavily audited along the way. The LEOs make a seizure (not a forfeiture), which is then processed by an asset forfeiture entity and passed along to forfeiture specialists for processing. The USAO then performs a review and decides whether or not to proceed with prosecuting the asset. Appeals process are available, with the opportunity for “innocent owner” status to be established (for example, “you seized my car because it had drugs in it, but I purchased the car for my sister because her credit sucked - you got her with drugs, but let me have the car I bought back.”).
All in all, I never really saw any abuse worth mentioning. Bear in mind though, that this was at the federal level, and the state/local level may work differently. I don’t think we ever seized anything from someone who didn’t deserve it.
But if a person legally owns that thing, how can the 5th amendment be shrugged aside?
The same question the ACLU, Institute for Justice and others have asked and are asking quite frequently.
I do not want to take GQ off the tracks, I think the by state summary in that link should answer the OP as a solid yes in many states.
I saw a lot of it, in the mid 1990s. Abuse that is. I’ve heard that additional protections have been passed since then. At the time, it was something out of Kafka, I swear. “Prove you didn’t buy that car with drug money.” “Prove you didn’t know you son was growing marijuana 500 yards behind your house.”
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have their been cases of this nature to illustrate modern American police handling of such cases?[/QUOTE
There is very little beyond good public manners to stop any law enforcement agent from seizing any private, personal property if the officer alleges that there is something more than mere suspicion promoting a theory that the property is facilitating illegal activity or facilitated by illegal activity. Whether law enforcement can keep the car is a different matter but still a matter unlikely to warm your heart towards our justice system.
Once seized, the car is administratively forfeited to which ever agency ends up claiming custody of the forfeiture unless the owner of the car contests the forfeiture in which case it is no longer an administrative forfeiture but becomes (almost always) a civil forfeiture (it could become a criminal forfeiture but then the property owner is afforded criminal due process rights, guilt has to be shown, etc)
The law enforcement agency that initially seized the car may no longer be the agency that has custody of the seizure because a lot of states put in laws to try to curb asset forfeiture abuse. For instance in Missouri, the proceeds of asset forfeitures are supposed to go to schools. To get around these restrictions, the initial seizing agency shares custody of the case with a federal law enforcement agency. Then through a program called equitable sharing, the federal agency writes a check to the initial agency that took the car (usually for about 80% of what the proceeds represent to the federal agency). That way, none of the money goes to the schools and law enforcement gets all of the money. In Missouri, less than 2% of asset forfeiture money goes to the specified education fund. Last year, I believe it got down to 0.5%
If you contest the forfeiture, you have to prove that your car is innocent. And if there is contraband, that is really hard to do. Especially, since your acknowledged innocence isn’t proof that your property is innocent but rather a factor in an arena that assumes the guilt of property. Cash is almost always presumed to be guilty of money laundering or facilitation of narcotics trafficking.
Interestingly, the assistant AG, Lanny Breuer, testified (http://www.justice.gov/criminal/pr/testimony/2011/crm-testimony-111101.html) on Tuesday that amongst other things, the DOJ is now seeking to include the use of classified information to weigh judge’s decisions on the legality of seizures. Soon, you may no longer be able to refute evidence against you or your property, perhaps even know that evidence exists justifying the seizure regardless of whether it is a simple mistaken identity (a mistake that you’d have no access to know about). They also seek to dramatically expand wiretap authority over all supposed money laundering charges. For some reason, giving law enforcement the ability to know who has cash and who doesn’t when cash is presumed guilty strikes me as a bad idea but maybe no one will abuse that power.
As to cases, hundreds happen every day. The 3 main organizations that deal with asset forfeiture in this country are the Institute for Justice (IJ), Americans for Forfeiture Reform (AFR), and Forfeiture Endangers American Rights (FEAR). Other news organizations like the Economist, Forbes, and the Wall Street Journal will occasionally pick it up and/or offer assignments to people like me that get upset at such things. CATO and Reason do a tremendous amount to push the issue as well.
Here a few links if your interested in background
forfeiture | Wex | US Law | LII / Legal Information Institute (good background on pre-CAFRA {2001}) CAFRA changed a lot of the procedural hoops law enforcement had to go through but actual reforms were gutted in the House Judiciary Committee. Forfeiture abuse is now worse than it was before CAFRA
http://www.fear.org/ The prime voice behind FEAR, Brenda Grantland, just released a new book, Asset Forfeiture: What To Do When Police Seize Your Property Smashwords – Asset Forfeiture: What To Do When Police Seize Your Property
forfeiturereform.com / Redirecting... Americans for Forfeiture Reform covers news in forfeiture, lobbies for legislative/policy reform. collaborates with a lot of other activist organizations.
ij.org Institute For Justice - The nation’s only libertarian, civil liberties, public interest law firm.
Maybe this is a stupid question but how can an inanimate object be guilty of a crime? If I shoot someone, can the bullet be charged?
Unless your bullet is significantly valuable for some reason, your bullet is unlikely to find it’s name on a case. And if it did, it’d presumably be a civil proceeding to acquire the bullet but charging the bullet is kind of how it all started
Modern Studies in Property Law - University of Reading. Centre for Property Law. Conference - Google Books
While searching the “Innocent owner” exception, I came across this 2009 case from the State of Washington. IO is just as it connotates.
I am assuming most states have similar Motions/Petition’s as a remedy.
As a off shoot example, in Maryland v. Pringle, the SC stated when a car is stopped with contraband in it, and no one admits ownership, ALL can be charged criminally.
In a reverse instance of this case, I once got a ride from a guy – into Mexico, where guns are illegal – and then found that he had a gun in his glove boot. I very politely got out of his car and walked! I don’t know if the police would have considered me as criminally liable or not…but I was damned if I’d take that chance!
The driver of the vehicle is assumed to have control over it. That is why if a car is stopped and the MJ “happens” to end up in the back seat, where nobody is sitting, the owner is just as responsible as the passenger.
“I didn’t know it was there,” is NOT a defense.
If the passenger admits the MJ is his/hers, the driver MAY be dismissed.
The driver who is stopped and says, “I loaned my car to a friend, the contraband isn’t mine,” doesn’t work.
In the case of picking up a hitchhiker who has a backpack full of weed, it was YOUR choice to pick him up. YOU take the risk by letting him into your vehicle.
~VOW