In Rare Win, Man Arrested On Bogus Drug Charges Gets Everything Back, Including $150,000 The Government Really Didn't Want To Give Up

from the asset-forfeiture:-adding-insolvency-to-injury dept

Wed, Nov 16th 2016 1:32pm — Tim Cushing

Here's a pretty encouraging story about fighting asset forfeiture and winning. The convoluted laws surrounding marijuana use are being exploited by California cops as revenue streams. A raid of a legal cannabis collective resulted in a whole lot of forfeited assets.

[I]n Oceanside, CA, [attorney Michael] Cindrich’s client Shaun Smith endured a home invasion, a SWAT-style raid where law enforcement took 3 ounces of cannabis concentrates, 55 pounds of cannabis and over $43,000 of his medical marijuana collective’s cash on-hand.

Not content with the massive cannabis haul, officers then took everything else it could find.

They also took what they felt were his assets, including a Toyota truck, guns, ammunition, and a motorcycle, then rode to the bank and confiscated the $110,000 from his bank account.

It appeared to be open-and-shut, especially as forfeiture is purposely extremely difficult to challenge, no matter what state you're in. Weed dealer busted. Assets obtained. Nothing left to do but decide how to split up the proceeds.

Fortunately for Smith, his lawyer quickly unraveled the very questionable case against him. The jury reached a not guilty verdict on the manufacturing and distribution charges in less than ten minutes. One of the key pieces of evidence in the prosecution's case -- a small extraction tube often used for butane extraction of cannabis oil (still illegal in the state) -- worked against it.

The prosecution tried to claim the tube showed Smith was engaged in illegal extraction efforts. Smith's lawyer, however, obtained documents from the DEA showing the extraction tube had never been in use. The lab notes on the seized evidence stated that there were spiderwebs inside the tube -- something that suggested it had been stored for quite some time, rather than being part of an active extraction effort.

From there, Cindrich went on to challenge the forfeiture. Once its case fell apart, the state was unable to successfully challenge Smith's motion for return of property. However, that didn't mean it actually returned all of the seized property. It gave him back all of the seized marijuana, weapons, and other miscellaneous items, but refused to hand over the $150,000 in cash or the motorcycle it took.

But in its haste to turn all of Smith's assets into its own, local law enforcement screwed up. It failed to process the forfeiture of these items in a timely manner. All hail "technicalities."

Since state agents seized the property pursuant to a state search warrant, the state statute of limitations of one year began on the date of seizure, not the date feds turned it back over to state. Since the one year statute of limitations had lapsed, Cindrich argued that the property return was required.

The District Attorney’s office said that the federal government seized the money initially, claiming the law enforcement authorizes involved in the raid were acting as federal agents.

The judge found in favor of Smith, noting that while the officers were cross-sworn as federal and state agents, the original seizure occurred under the state's authority, and the belated shift of the assets to the feds (as part of the DOJ's equitable sharing program -- a favorite loophole exploited by local law enforcement agencies to route around more restrictive state laws) didn't change the underlying facts. The attempt to reset the clock on the forfeiture failed and the DA's office is now in the process of returning the last of Smith's property to him.

A closed-loop collective that grows and distributes medical marijuana to members is fully legal in California. Obviously, law enforcement wishes this weren't the case. The same goes for the prosecutors who get fed questionable cases like this by overzealous drug warriors. A medical marijuana activist who attended some of the hearings in Smith's case points out that local prosecutors do everything they can to prevent juries from being made aware of this fact. Other cases covered by this advocacy group suggest this technique hasn't been working too well, what with juries returning not guilty verdicts in record time.

However, the loss of a prosecution does not automatically result in the return of seized assets. Convictions are not required in cases where the value of assets seized tops $40,000. And this stipulation doesn't go into effect until the beginning of next year -- which will also trigger a tightening of the equitable sharing loophole to prevent law enforcement from routing around the new conviction requirement. The sad fact is that, more often than not, citizens can walk away from bogus charges, but still have nothing to show for it in terms of returned assets.

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Filed Under: asset forfeiture, asset seizure, oceanside, shaun smith

25 Comments

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I.T. Guy, 16 Nov 2016 @ 1:41pm

"It gave him back all of the seized marijuana"
OMG!!! I would have loved to have been there when cops gave back the weed. I'da plucked out a big ass bud and fired it up right there.

Everybody knows somebody that smokes weed. The Reefer Madness days are falling behind us, thankfully.
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Jordan Chandler, 16 Nov 2016 @ 1:52pm

Thieves
How does this not make the police out to be scumbag thieves?
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Robert Beckman, 16 Nov 2016 @ 1:54pm

Federal Assets
If the state handed the cash over to the Feds so that they could claim it under equitable sharing, then they no longer have it, right?

So the State seized $150k, handed it to the Feds, then was ordered to pay $150k back to the person they took it from....but where is that money coming from? Doesn't this mean that the local jurisdiction is now out $150k, since they no longer have the funds?
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Mark Wing, 16 Nov 2016 @ 1:58pm

When weed was legalized in WA state, the local police stopped co-operating with the feds on matters that relate to cannabis for the most part. Here's hoping that CA has the same philosophy!
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Zonker, 16 Nov 2016 @ 2:46pm

Re:
I'm surprised he got any of his stuff back at all, instead of being told it all somehow "went up in smoke".
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orbitalinsertion (profile), 16 Nov 2016 @ 3:28pm

Yes, all hail technicalities. What is beyond ridiculous is that they can seize and successfully keep perfectly legal goods and cash normally. I would not be surprised to see them move wholly to a forfeiture model where they can trump up charges so egregiously bad that it gets thrown out of court straight off, if not the prosecutor's office, but they don't care because they got everything they wanted.
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Painted, 16 Nov 2016 @ 3:31pm

Curious
It's curious that the cops were, "Well, you can have your marijuana and weapons back, but we're keeping the cash because you might be a criminal"...
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Norahc, 16 Nov 2016 @ 4:33pm

Re: Curious
Not curious at all. They have to be able to fund their Stingrays, drones, and other off budget equipment somehow. Cash is much easier to do this with since cops selling weed on the corner as a fund raiser might attract unwanted attention from the media.
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Oninoshiko (profile), 16 Nov 2016 @ 4:37pm

Re: Thieves
It's not making them out to be scumbag thieves; being scumbag thieves is what's doing that!
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art guerrilla (profile), 16 Nov 2016 @ 6:45pm

Re: Re: Thieves
sure, you and i can do that:

steal a bunch of shit, and when called out on it, say, 'oh, i thought i could, but i still shouldn't have to give it back, i mean, regardless of what the *snort* law says, unless you really make me, and then i will as little as possible, unless you make me give back the rest, which i really, Really, REALLY hate to do...
i love that motorcycle, dude ! ! !
oh, and we're all square, now, right ? ? ?'

yeah, you and i walk away from that all square: in a square cell in the graybar hotel...
special klasses, special laws...
democracy at work, kampers...
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Anonymous Coward, 16 Nov 2016 @ 7:12pm

Re: Federal Assets
who gives a shit
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peter, 17 Nov 2016 @ 2:44am

Re: Curious
Only curious if your mindset starts with 'cops are there to prevent crime/catch criminals'

When you realise that cops are there to boost the coffers, then it makes sense.
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Hairy Drumroll (profile), 17 Nov 2016 @ 4:24am

Mildly entertaining story
But I don't really see the 'Tech' angle.
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Anders, 17 Nov 2016 @ 4:25am

Guilty, but not really?
Wait, how can this be legal, how can someone go to court and get a "not guilty" verdict, and still the cops keeps what they took?? What is the justification for this, that's just plain theft! He is not GUILTY! He might not be innocent, but the court has ruled that the cops was in the wrong, so why the hell are they not required to return EVERYTHING they took from him??
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Michael, 17 Nov 2016 @ 7:37am

Re: Mildly entertaining story
All hail "technicalities."

Not sure how you missed that.
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Michael, 17 Nov 2016 @ 7:41am

Re: Guilty, but not really?
In case you are not keeping up, civil forfeiture does not even require having charged the individual with anything.

It started out sounding like a good idea: find a bag of drugs and cash and take them - leaving the drug dealer with fewer resources. Find a car with a trunk loaded with heroin and keep the car - so it cannot be used to transport drugs again. This was fine, but then they decided to effectively give what was confiscated to the police. This gave them an incentive to take things that did not really meet the spirit of the law and we slipped down that slope to this point where they are simply stealing things.
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I.T. Guy, 17 Nov 2016 @ 7:47am

Re: Re:
Love it!!!!
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Anonymous Coward, 17 Nov 2016 @ 12:44pm

Why is it called forfeiture when it was clearly stolen by the POS cops?
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Rekrul, 17 Nov 2016 @ 1:21pm

Re: Re: Federal Assets

who gives a shit

The taxpayers?
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Rekrul, 17 Nov 2016 @ 1:25pm

A closed-loop collective that grows and distributes medical marijuana to members is fully legal in California. Obviously, law enforcement wishes this weren't the case. The same goes for the prosecutors who get fed questionable cases like this by overzealous drug warriors. A medical marijuana activist who attended some of the hearings in Smith's case points out that local prosecutors do everything they can to prevent juries from being made aware of this fact.

How is it in any way legal to prevent a jury from knowing what the actual law is? What's to stop a prosecutor from just making up any law they want and preventing the jury from knowing that it's bullshit?
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Anonymous Coward, 17 Nov 2016 @ 4:22pm

And how much did the government waste sending a SWAT team in for the raid?

I guess if they think they're going to get to steal $150k, it's worth it.
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Anonymous Coward, 17 Nov 2016 @ 4:23pm

Re:
Did they weigh it to make sure none of it disappeared from the evidence locker?
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Anonymous Coward, 17 Nov 2016 @ 4:25pm

Re: Curious
Usually the logic is "The cash is criminal."
And money doesn't have the right to a lawyer so we get to assume it's guilty.
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Derek Kerton (profile), 17 Nov 2016 @ 5:21pm

Re:
Uh...yeah...um..."knows" somebody.
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Coyoty (profile), 17 Nov 2016 @ 10:54pm

They didn't have time for that constitutional bullshit.
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