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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.

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