Friday, January 30, 2015

Cops and Robbers

On January 16, 2015, Attorney General Eric Holder made promising changes to the policies regarding federal adoption of property seized by state or local law enforcement under state law in order for the property to be forfeited under federal law (“federal adoption”). Prior to this press release, federal law enforcement agencies could adopt property seized by state or local law enforcement agencies to prevent property from being returned to criminals. However, in order to seize the property, law enforcement officers only need to show that the property is related to criminal conduct by the preponderance of the evidence. Permitting law enforcement agencies to keep these assets potentially incentivizes many asset forfeitures. This may explain the findings of a recent Washington Post investigation, which revealed that law enforcement agencies have seized $2.5 Billion since 2001 from people who were never charged with a crime.
Holder’s new order prohibits warrantless federal adoption in most cases. Holder left a public safety exception permitting federal adoption for firearms, ammunition, explosives, and property associated with child pornography. Because Holder’s order was limited to federal adoption cases, law enforcement agencies still have avenues to pursue civil asset forfeiture. Holder gave four situations where asset forfeiture is not prohibited by the order: 1) seizures by state and local law enforcement working with federal law enforcement on a joint task force; 2) seizures by state and local law enforcement resulting from joint state-federal investigations or coordination with federal law enforcement as part as an ongoing federal investigations; 3) seizures pursuant to a federal warrant; and 4) forfeitures sought by state and local authorities under their respective state law.

It is not clear whether this order was issued from the altruistic intentions of trying to protect the citizens or a lack of need for federal adoption, but the circumstances suggest both. According the Department of Justice, the states used federal adoption because few states had laws permitting forfeiture of seized assets. Today however, every state has a law permitting civil or criminal asset forfeiture, which makes federal abandonment less necessary. To the Department of Justice’s credit, they do briefly indicate a desire to protect civil liberties. Regardless of the purpose, civil asset forfeiture remains a harsh reality.

The Washington Post details the following interaction between Officer Frye and John Anderson. Anderson was coming from California when he was pulled over in Nebraska. Frye issued Anderson a traffic ticket for failing to signal properly. Although Frye told Anderson that the stop was over, Frye later noted several things that made him suspicious: an air freshener, a radar detector, and inconsistencies in Anderson’s description of his travels. Frye called a canine unit after Anderson denied that any drugs or large sums of money were in the vehicle. After almost 40 minutes, the canine unit arrived and alerted to the presence of drugs. Although no drugs were found, Frye did find $25,180. Frye told Anderson that Anderson would be charged and go to jail unless he disclaimed the money, so Anderson disclaimed the money. Anderson has since gone back to challenge the forfeiture, but that puts him in the minority. According to the investigation, only one in six seizures is ever challenged. This is likely due to the cost of going to court. Of those one in six seizures challenged, the government returned the money in forty-one percent of the time, and litigation usually took over a year to complete.

Despite Holder’s order, citizens are still not protected from the bully who takes their school lunch. Law enforcement officers know that they generally get to keep the money from asset forfeiture. They also know that challenging the forfeiture is very costly. Therefore, it is imperative that citizens know their rights and have the help of an experienced attorney when faced with civil asset forfeiture.

Jonathan Yunes

Deputy Managing Editor, Criminal Law Practitioner

Photo by Conollyb via Wikimedia Commons

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