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Civil Forfeiture FAQs

Can the police seize cash and take it all in a forfeiture action?

Answer:

Yes, unfortunately, the police can seize cash and take in all in a forfeiture. As a Jacksonville criminal attorney, I have argued that this constitutes an excessive fine under the Eighth Amendment. The Ninth Circuit Court of Appeals decision, on August 21, 2014, in U.S. v. Cyr, is an illustration of what not to do if the police discover a large sum of cash in your possession. Mr. Cyr, a Canadian citizen, crossed the border into the United States by airplane with $132,245. He failed to report the cash on a customs declaration form. While this seems rather minor, it's a federal crime. Nine days later, Cyr was pulled over for speeding; the cop noticed that Cyr was "extremely nervous". He then gave the cop permission to search his car (mistake number one). The cop found a bag containing $132,245. Then, with Cyr's consent, a drug dog was called in and alerted positive to the odor of a narcotic substance on the money (mistake number two). An investigator was called to the scene and began questioning Cyr about the source of the money. Cyr could not provide any documentation as to where the money came from (Cyr talking to the investigator, mistake number three).

The cops naturally seized the cash and arrested Cyr for the failure to report violation. The government filed a civil civil forfeiture action for the entire $132,245., even though they had absolutely no evidence that the money was involved in any criminal transaction. Cyr stipulated that the currency was subject to forfeiture (mistake number four). However, he did retain the right to move to mitigate the forfeiture amount pursuant to the Eight Amendment"s bar on excessive fines. The court ruled that under the totality of the circumstances, Cyr failed to show that the forfeiture of all that cash was unconstitutional.

Ordinarily, in a civil forfeiture action, the government bears the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. But when Cyr stipulated that the currency was subject to forfeiture because he failed to report it when he entered the country he "relieved the government of this burden". So the only question became whether or not the fine was excessive. The courts have generally held that "if the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional". At the end of the day, it's a subjective decision for the court to make. However, the court must consider four factors: 1) the nature and extent of the crime, 2) whether the violation was related to other illegal activities, 3) the other penalties that may be imposed for the violation, and 4) the extent of the harm caused.

This is one that could have, and should have, gone Mr. Cyr's way. First, a failure to report bringing cash into the country is not a serious offense. Second, although the court found that "the currency was probably connected to drug activity", there was no real evidence of this. Drug dogs alert to currency in a vast majority of cases. Third, the court did not need to forfeit the entire amount. And fourth, the harm caused by bringing a large sum of cash into the country is minimal, at best.

Lesson Learned:

This case is a textbook example of what not to do if stopped by the police with a large amount of cash. First, do not consent to having your car, property or person searched. Just say no. Second, do not consent to having a drug dog sniff around your car, property or person. Third, do not answer questions about where the money came from when asked. Assert your Fifth Amendment privilege against self incrimination and say nothing. And finally, do not agree with the government that the money seized is subject to forfeiture. The police and the courts are all too quick to assume criminal activity; the next thing you know, all your money is gone.


Can police keep cash they find in a car stopped for a mere traffic infraction?

Answer:

Unfortunately, yes the police can keep the cash and they do, every day. The law enforcement practice is known as civil asset forfeiture, in which the police seize cash or goods from a person suspected of a crime, even if no charges are ever brought against that person. Since 2001, police have seized a staggering $2.5 billion in cash from people who were never charged with a crime. As a Jacksonville criminal defense attorney, I represent people fighting civil asset forfeitures.

Under civil asset forfeiture laws, the burden of proof is on the owner of the assets to show that they are not related to a crime by the legal standard known as a preponderance of the evidence. In essence, you must prove your own innocence. Why do the police do this? Because it is a significant source of revenue for them nationwide.

Imagine you're driving down the highway on your way to buy a car. Suddenly, police pull you over for allegedly going 37 mph in a 35 mph zone. Upon discovering the $8,500. in cash you have on hand, the officers take you to jail and threaten to charge you with money laundering unless you turn over the money. Frightened, you give it to them. Am I making this up? Actually, it's a true story - it happened to a man named Roderick Daniels. He eventually got his money back, but only after intense legal pressure from a good lawyer and media attention.

Many of the abuses occur at the state and local levels, because the federal government encourages them through "equitable sharing partnerships", a practice that allows police agencies to circumvent state laws that might otherwise tie their hands. Under the program, a local police agency need only call up the Drug Enforcement Agency, Bureau of Alcohol, Tobacco and Firearms, or so other federal agency that then "federalizes" the investigation, making it subject to the laxer federal guidelines for forfeiture. Civil forfeiture is big business for the government. There is even a private for-profit firm named Desert Snow, which trains officers to detect suspicious behavior in people they've stopped in order to justify searches (such notable things as being nervous and having litter in the vehicle). The organization teaches officers how to casually ask drivers to allow for searches after the stop is officially over and the driver has been cited (or not) for unrelated violations.

In response legislation has been introduced by Senator Rand Paul to curb the abuses of these laws - including removing the profit motive incentive. But the law enforcement lobby is pushing hard to keep things the way they are. Currently, the federal government takes it's cut of the money and then returns as much as 80% back to the local agency. It's no more than a legal shakedown.

Lesson Learned:

The practice of police seizing money from drivers without any proof of illegal activity is a national outrage. Only one sixth of asset forfeitures are ever challenged, but when they are, the police end up agreeing to return the money 41% of the time. Even with the low "preponderance of the evidence" standard, often, when challenged, the police are unable to justify the car stops and seizures they made. What does this mean? If this happens to you, hire a lawyer to challenge the taking of your money by the police. You have a good chance of getting your money back.

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