I originally thought of this while watching LOST but getting back from the US I saw I had to declare amounts over $10,000 (I wish I had to) or it would be confiscated. I understand the whole money laundering thing, but it seems that just not declaring money wouldn’t be probable cause to violate the Fifth Amendment for due process. How is that sort of confiscation legal?
Just guessing here but I’d imagine it’s the “War on Drugs” that allows it. They automatically assume that undeclared cash in large amounts is drug money or, these days, terrorism money. They may seize it and have no obligation to return it at all if it cannot be proven that you legally own the money. I’m totally talking out of my ass; I have no cites whatsoever.
The “war on drugs” does not magically make the Constitution go away. The question is about whether the confiscation of cash entering the US runs afoul of the due process protections in the Constitution.
If you don’t declare it, that means you don’t fill in a 4790 form. The 4790 is issued by the IRS . Lying to those guys is bad juju and will get you into world of legal hurt.
Like I said, I was talking out of my ass. However, I will now answer the question with facts and citations.
The legal mechanism at work here is civil asset forfeiture. This is a contentious and controversial law in which the gov’t is suing the property, not the [alleged] owner, therefore the person whose property is taken has no legal right to due process. The burden of proof in this case is on the claimant, not the gov’t. Basically an intentional legal loophole allowing the government to circumvent individual constitutional rights.
Here is a thread in which we discussed the constitutionality of forfeiture laws: Forfeiture Laws, How are they constitutional? - Great Debates - Straight Dope Message Board
It’s also a crime to fail to declare cash over $10,000 when entering or leaving the U.S. Examiner is back - Examiner.com
Here is another story: Mistake costs dishwasher $59,000 - CNN.com
And here is the statute: 31 U.S. Code § 5316 - Reports on exporting and importing monetary instruments | U.S. Code | US Law | LII / Legal Information Institute
Also Fourth Amendment search and seizure provision offer the least protection at the border. The Supreme court has repeatedly recognized expansive authority to conduct border searches and seizures. http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=March&artYear=2010&EntryNo=851
It certainly is a crime. The cash is often taken. it’s not impossible to get it back, however. If you plead ignorance (or in the case of Mexico dire circumstances, i.e. you can claim that it’s too dangerous to fill out any paperwork, as you’ll be killed for the money as there are info leaks in the system), and you can show a legit source and application, you will get the cash back. Now, in the case of Lost, it was likely illegal source income being brought in for a criminal purpose, so no, that cash is gone.
As I understand the legal argument, IANAL, the authorities aren’t doing anything to you-the person with the constitutional rights-they are seizing the money. You, the one with the rights, are free to go on your merry way. The money isn’t a person and so does not have any constitutional rights. No rights, no problem.
If you want your property back, it is up to you to prove that you deserve it.
others have said this far better than I. Thanks
Plus, if it’s a crime to bring over $10,000 in cash into the US without declaring it, then when someone does that, the money is the evidence of a crime. Warrants are not always needed to seize evidence, if the initial search was lawful.
I realize the constitution is a quaint document that has only the legal force the supreme court says it does, but it does have something about depriving you of life, liberty, or property without due process of law. If seizure is not deprivation of property because they are suing the property then they could with equal logic, sue your life, not you, and summarily execute it.
There is due process. If you want your cash back there is a hearing. Why do you think there’s no due process?
The cash is evidence, etc. Now let us say you shot someone, but said it was in self defense. You don’t think the police would confiscate your gun until the court ruled in your favor?
So let’s say I do declare that I have $50,000 in cash on me while crossing the border.
- Would customs start asking me about it right then and there in front of everyone or otherwise make it public I have that much cash on me?
- What would the Feds do with the info? Stamp my form and move on? Record it? Put me on some “probably a drug mule” list? Audit may last 10 years of taxes?
I don’t know the current practice, but I believe it depends on the details of your trip. If you are traveling to an auto auction holding a catalog with pictures circled you might be OK. If you are traveling to Mexico without any luggage and a return ticket the same day, I doubt you and your money would complete the trip. If you are coming from Pakistan with a tourist visa, you probably won’t complete your trip. Under US law, the guy or gal at the border has a lot of discretion in what happens.
The obvious next question in any such event is “where did the money come from”?
If you don’t answer that question to the satisfaction of the customs people, they will hold the money until you do satisfy them it is not illegally obtained. Since the money is about to leave (or enter) the USA relatively untraceable and never to be seen again perhaps, they probably have more discretion than in most other situations.
Similarly, you can be asked to account when you deposit large sums of cash into the bank - usually around $10,000. The bank must report the transaction, and the government will want to know why and how you got the money.
Just telling the government “haha, you can’t prove I did anything illegal” usually does not cut it. A “reasonable person” should be able to provide evidence that their cash was obtained legally.
Whether it sounds right or not, the onus will be on you to prove the money is legitimately obtained. (Is there some silly rule about legal tender being property of the government, in the same way that your passport is their property too?)
So, if the government sues the property, then the government is the plaintiff, yes?
So I’m curious, if that’s the case, why do people keep saying that you have to prove anything. Isn’t the burden of proof on the plaintiff?
Before 2000, the federal government only had to establish “probable cause” and could do so with hearsay evidence. After CAFRA (2000) was passed, the government had a more substantial burden. Asset Forfeiture: Practice and Procedure in State and Federal Courts - Dee Edgeworth - Google Books So, yes, but not as high a burden as the ordinary plaintiff in a civil case.
The link above also has a chart of state law burdens.