Court Says Gov't Has To Do More Than Say It Doesn't Believe The Property Owners If It Wants To Keep The Cash It Seized
from the so-much-for-the-K-9-unit-as-star-witness dept
The federal government thought it had laid an easy claim to someone else's cash, but the DC Court of Appeals is telling the government it's not quite as easy as it makes it out to be.
The court lets everyone know things aren't entirely normal with the first sentence of the opinion [PDF]:
This is a civil-forfeiture case, which is why the plaintiff is the United States of America and the defendant is a pile of cash.
From that starting point we arrive at two sets of claims. First, the government's:
The government claims that the cash is subject to forfeiture because it is connected to the “exchange [of] a controlled substance,” i.e., drug trafficking.
And here is the government's sole basis for this conclusion:
This case traces its roots back to March 28, 2014, when an Amtrak passenger mistakenly removed another person’s backpack from a train at Washington’s Union Station. Later that day, he opened the backpack to find a shopping bag containing $17,900 in cash.
Commendably, he turned the backpack over to Amtrak police. In addition to the money, Amtrak police officers found inside the bag a student notebook and other personal effects. One of the papers contained the name Peter Rodriguez, as did the train manifest. A police narcotics dog alerted to the backpack, suggesting the presence of drug residue.
That's basically it. A dog said it smelled drugs. Or, rather, an officer said a dog said it smelled drugs. The only other thing the government has to offer is that it doesn't believe the appellants' story about the legality of the money.
Using a contact number from the manifest, a detective with the Metropolitan Police Department called Peter Rodriguez, who gave a detailed description of the contents of the backpack—except for the money. Twice asked whether there was money in the backpack, Peter said no. Later, the detective called Peter to inform him that currency was found in the backpack, and that the bag—sans cash—could be recovered from Amtrak, though the money would remain with the MPD Asset Forfeiture Unit.
Shortly thereafter, appellant Angela Rodriguez, Peter’s mother, contacted MPD, explaining, according to the government’s verified complaint, that the cash belonged to her and her domestic partner, appellant Joyce Copeland, who lives with her in New York City. The couple, she recounted, had left the money in a bag in Peter’s apartment, but neglected to tell him that it contained currency. When Peter later announced that he was coming to New York to visit his mother, she told him to bring the bag along. Unconvinced by Ms. Rodriguez’s story, the police formally seized the currency and turned it over to the DEA, which initiated administrative forfeiture proceedings.
The government says the appellants' story is unbelievable -- that someone wouldn't just stash $18,000 in someone's backpack and not tell them about it. The court points out it really doesn't matter what the government believes.
In this case, the couple has offered sworn testimony detailing how they amassed the money, why they transported it to North Carolina, and how it ended up in Peter’s hands. In fact, there is little in the record other than their declarations. Certainly, nothing in the record directly contradicts the pair’s sworn account—no evidence that they did not travel to North Carolina, for instance, nor evidence that the cash had another source. Given our responsibility to “view[] the evidence in the light most favorable” to the couple and to “accept . . . uncontroverted fact[s],” Johnson, 823 F.3d at 705, we have little trouble concluding that the couple has asserted ownership and offered “some evidence” of ownership sufficient to withstand summary judgment.
It also points out why cash seizures in particular raise these issues, and why the government shouldn't be so quick to assume every story told by appellants is bullshit.
[B]ecause the case concerns cash, it demonstrates how challenging it can be to document ownership of property seized by law enforcement. Indeed, the very qualities that make paper money useful for illicit activity—in particular, its untraceability—often make it difficult to prove that any cash is legitimate, no matter its source. This is especially true for those in our society who rely on cash to the exclusion of banking and other financial services. As Justice Thomas has recognized, it is “the poor and other groups least able to defend their interests in forfeiture proceedings” who bear the brunt of civil asset forfeiture. Leonard, slip op. at 4 (internal citation omitted). And it is these same groups that are “more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture.” [...] So especially when cash is at issue, requiring more than “some evidence” of ownership would be onerous, unfair, and unrealistic.
The court also has nothing good to say about the government's singular insistence that the appellant's money story is made up, despite being unable to produce any evidence to the contrary. Taking the government at its word eliminates any remaining shreds of due process left in the forfeiture process.
The government’s argument perfectly illustrates why credibility determinations and the weighing of evidence are left to juries rather than judges. Government counsel may well be able to convince judges that it is inconceivable someone would choose to keep sizeable cash savings, to travel with cash, or to pay for routine expenses using cash rather than a credit card, but a jury of laypeople with different and more diverse life experiences might view these very same choices with considerably less suspicion. We are thus especially reticent to circumvent the jury process and throw out sworn testimony because it is out of line with our own lived experiences.
The appeals court reverses the lower court's decision. The government will have to do something it explicitly tries to avoid by using civil asset forfeiture rather than criminal asset forfeiture: taking a case to trial and actually having to provide more definitive evidence than "the dog said it smelled like drugs."
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Filed Under: cash, civil asset forfeiture, dc circuit appeals court, law enforcement
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Rights Violators
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The thing with that, though, is... you may be (wrongfully) arrested, but you can't be convicted for the smell of drugs. Go find the damn drugs. Investigate whomever. Watch them as much as investigation of a suspicion is warranted (or even allowed by superiors, given priorities and the quality of the case presented).
That is assuming the dog alerted to something more than the scent concert venue left on the bag, or a fireworks display, or maybe burgers or donuts... or nothing.
If there is no investigation after "seizing" the money, at the very least, then we know they are full of it. There is a good chance that if it were actual drug money, someone may be scrambling any way they can to cover that amount.
But no, they just want to trawl everyone's communications and send people to prison for years over crumbs found under a floor mat. Call that law enforcement, because I don't.
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Dogs will alert on the cash drawers of every teller station of every bank in the United States. They will alert on every grocery store cash register. They will even alert on the money in their handler's wallet.
A dog alert is not the evidence of wrongdoing the police like to claim it is.
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"..they should have had the bag tested in a lab."
I'm pretty sure that if you went to any bank, withdrew $17K (or any amount over $100) and immediately had it tested for drugs, you'd get a positive result.
Prevalence of Drug-Tainted Money Voids Case
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Re: Rights Violators
Clever Hans was a horse that could do arithmetic and answer yes/no questions.
Even its owner was convinced - truly - that the horse did it.
All the horse was really doing, of course, was picking up on cues from its owner. Asked "what is 3 + 4?", the owner would show relief after Hans stomped his hoof seven times. So Hans stopped stomping.
A famous case.
Police dogs? Same? Who can prove otherwise?
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This is free money for both the Government and it's law enforcement partners and they have purposely tried to obfuscate how and why they seized assets or funds and make it as obstacle filled as possible to get those funds or assets back to the rightful owner and those tactics are all be design to delay and frustrate a victim into giving just giving up trying to get the funds or assets back.
I find it amazing that agencies that are sworn to uphold the law frequently flout it and break it at will and with no consequences to be had.
Never mind that a person hasnt even been been charged with a crime nor found guilty of one but its lets get those cash or assets at all cost so we can all get a taste.
Used to be as a child you were taught that the policeman is your friend and is there to help you, nowadays you have to be wary of said policemen because they are out to steal your money or assets if they can, cant tell who is the good guy and the bad guy anymore
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I find it amazing that agencies that are sworn to uphold the law frequently flout it and break it at will and with no consequences to be had.
That isn't really what amazes me. What I find surprising is that only a few people care about civil forfeiture until it (or other BS behavior) effects them personally; and if you mention it to someone, three times outta four you'll get labeled a conspiracy-theory-spouting libertarian anarcho-hippie. Is social evolution selecting for sociopathy?
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You are wrong in the first point. The government creates currency by fiat. They never ever have to steal it as free money.
However, your unrelated second point is correct as it is a easy way to control what happens to select portions of society. If you take away the wealth of the people, you control how they can interact.
The fiction that currency is money is also a means of controlling a population. The US dollar is backed by nothing just like most if not all other currencies worldwide.
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Just Curiosity
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Yes.
https://www.washingtonpost.com/news/the-watch/wp/2015/08/04/federal-appeals-court-drug-dog- thats-barely-more-accurate-than-a-coin-flip-is-good-enough/
http://national.suntimes.com/national-wor ld-news/7/72/2572167/drug-sniffing-police-dogs-inaccurate-reflect-racial-bias/
http://reason.com/blog /2013/02/27/how-even-a-well-trained-narcotics-detect
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But, good luck finding a service that will give true results because if they disqualify too many (read as ANY) dogs then some enterprising retired officer will start their own independent service and start FISA-ing (rubber stamping) the departments' dogs. Poof, amazingly the department has no disqualified dogs this year!
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Re: Just Curiosity
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Of course the dog alerted
1. Because the officer expected it to alert. Either consciously or not, the officer may have acted in a way that the dog knew it would get a treat if it alerted.
2. I read a story some years back that a lab tested around 10,000 $100 dollar bills and more than 85% tested positive for micro levels of cocaine.
Having been employed in a job in the past that required I carry cash in order to open for business, I can tell you that I had no end of trouble with LE over it. Despite a letter on government letter head explaining that the cash was required by law, and a contact to reach out to confirm that yes, this was legal, it was frequently seized. I always got it back, sometimes later that day, sometimes later that week. In the mean time, the officers involved got a new one chewed for them when the state called up wanting to know why they didn't bother to verify the facts.
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Given that 90% or so of all US paper currency is tainted with enough cocaine residue for a dog to alert on, that would be a fascinating defense exhibit.
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As Dog's my witness ...
I would love to see a drug-sniffing dog take the stand, in a jury trial, and definitively indicate what the government's lawyer has been smoking.
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So in this case it would be important to work with a double blind test where no-one in the court room actually knows about the substance (or its absence) in the sealed letter.
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The Drug War is a hugely duplicitous machine entrenched into society for truly nefarious purposes. Everyone has lost except the government and its associated pi complex. And they're damn near working on a near total loss of street cred these days - and for what seems like a lot of pretty good reasons - so I agree, fuck these guys, find actual proof or fuck off. "We're here to help." Help with what, exactly?
Fuck the Drug War. We've lost more than we're ever going to get back freely. It's high time to stick a cork into that black-hole of freedom sucking suckiness.
Next up: "Terror - How We Won the World" a gripping 14-hour mini-series shot in real time followed by "What Would You Like to Loose Today? One full quarter of your hard earned money or your head?" You be the decider, next week on "Fuck You, We're From the Government." showing on, uhm, all cable channels for your viewing pleasure commercial free for just five more dollars. (* Any use of pirated captions for the hearing impaired will be punishable by the loss of one hand or one eye depending solely upon the remaining parts available to us so that you too can look the part. Have a nice day.)
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In this case, even if the dog correctly alerted to a smell of drugs, the smell could have been residue left from a previous passenger's bag full of coke, or leftover smell from the kid's recent pot party in his house.
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are you telling me that the govt claims a bag of money from god-knows-where having a whiff of drugs proves bad intent?
who the hell handled that money before the present possessor and how many of those people handled drugs, too? money and door knobs are not reliable for anything other than being a great place to pick up a virus. well, ok, that's besides opening doors and making cops giggle.
and that's assuming there really is a trace of drug odor and not just the untested govt assumptions about dogs.
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That doesn't say anything about the veracity of the sniffing-dog idea, but it was fascinating.
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Apparently the dog had a 4-page "resume" of all the certified training/testing hits and all the actual real-life hits it found.
I certainly hope they included all the false positives as well, as one without the other is completely useless at establishing accuracy rates. Ten validated hits is good if you're looking at ten-ish searches, but if it's paired with ten or more false positives then it's no better than a flip of a coin if not worse.
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They Rape, But They Save
Police in Douglas County, Georgia are driving a brightly painted truck around the negro neighborhoods and getting hugs from all the little children in order to help them learn to love the po-po [ http://www.fox5atlanta.com/news/266608109-story ].
The cops are "buying" their hugs with ice-cream. The cherry on top is that the funds for the program come from asset forfeitures of "drug-money." How much more Orwellian could this program be?
Yikes! That last question was sardonically rhetorical when I typed it, and then it occurred to me to wonder...what's in the ice-cream?
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The dog "smelled" drugs?
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