Forfeiture Law Blog

Posted By Brad Frye on April 7, 2012

How does a police officer turn an encounter about a “traffic violation” into justification for a full-blown vehicle search for contraband, without your consent?

There are two ways to look at the techniques officers employ: either the officer is trying to manufacture a reason to justify a search or, the officer questions you in a manner calculated to confuse you or frustrate you to the point that you say “go ahead and search.”

The following video provides justification for both points of view. Listen carefully to the officer’s conversation after he shakes hands with the motorist and, supposedly, the encounter for the “traffic stop” is over.

What is the bottom line takeaway lesson from this video? Do not engage officers in “friendly conversation” and ask, and keep asking, “am I free to go?”

We will explore in a later post the conversational style and tactics that officers are trained to use to get you to give them justification for a search for contraband which could lead to a forfeiture action against your property. It’s just a few short steps from “may I ask you a question?” to the State filing a Notice of Asset Seizure and Intended Forfeiture.

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Posted By Brad Frye on July 7, 2011

What are the risks of transporting large sums of cash when you’re traveling? Obviously, you could get robbed or get involved in an accident and lose the money. Your car could catch on fire while you’re buying gas and your currency could go up in smoke. A number of bad things could happen if you carry a large amount of cash on you when you travel. But, one risk that many folks never consider is that a law enforcement officer could decide to seize your cash, even if you are not committing a crime and the officer cannot show any reason to believe that you have committed a crime.

If you’ve never had a law enforcement officer stop you for a traffic violation and then ask for your “consent” to search your vehicle, you probably find it difficult to believe that you or any other “law abiding citizen” could become embroiled in a criminal case or a forfeiture lawsuit just because you happen to be carrying a large amount of currency. But, it can, and does, happen.

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Posted By Brad Frye on July 5, 2011

In Texas, the Fort Worth Court of Appeals wrote an opinion in December of last year that seems to fix something of a mathematical formula in considering whether a forfeiture is “excessive” under the Constitution. As you know, the Constitution prohibits the imposition of “excessive fines” in the Eighth Amendment, and that prohibition extends to asset forfeiture cases. Or, at least that’s what we argue. Even that basic proposition is under attack and not yet well-settled, according to the prosecutors and some courts.

Basically, the theory of this defensive argument in asset seizure and forfeiture cases is that even if the property is otherwise subject to forfeiture under the law and the facts, the court should restrict the forfeiture because it is “excessive.” However, the law is somewhat unsettled, as is mentioned in the case we discuss below, and, as I mentioned above, there is the threshold argument as to whether the Eighth Amendment argument applies to asset forfeiture cases at all.

Justice Lee Gabriel of the Fort Worth Court of Appeals wrote the opinion of the court released two days before Christmas, 2010, in a case styled “$27,877.00 Current Money of the United States vs. The State of Texas.” Here are the facts from Justice Gabriel’s opinion:

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Posted By Brad Frye on June 29, 2011

Asset seizures and forfeitures have long been used to supplement law enforcement budgets across the country. But now, in lean economic times, those funds are becoming more and more important.

In Pennsylvania, at a time of budget-cutting and belt tightening, at least one county account is flush with cash as Northampton County District Attorney John Morganelli announced recently that forfeitures and seizures of cash, cars and real estate related to drug arrests last year totaled $283,000, the most in the county’s history. The funds were funneled into county coffers through direct cash grabs of $150,000 and real estate and car sales of $133,000, Morganelli said. The record year came as a result of big busts in Bethlehem and Easton, according to Morganelli, and a countywide crackdown on gang activity.

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Posted By Brad Frye on June 28, 2011

Lawyers in every type of case want to believe that who the judge is shouldn’t matter to the outcome of their case. We want to believe that the facts and the law will decide the case, not the personality of the person in the black robe on the bench. That’s what we want to believe, but it’s not always true.

In forfeiture cases, the judge’s philosophy is supremely important in a number of ways. Some judges approach the case as a direct adjunct to a criminal case – “punishing” a criminal by taking property or, at the very least, denying a “criminal” the proceeds of their unlawful acts. Some judges approach the case as a balancing act – balancing the State’s interest in obtaining contraband against the respondent’s interest (sometimes innocent interest) in the property. Some judges don’t want to fuss with all of the rules of a civil case, and some judges are scrupulous about putting the State to its proof. And then, rarely, there are judges who mistrust the State and its motives and take nothing at face value in the State’s case.

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Posted By Brad Frye on March 18, 2011

This general memorandum should provide you a basic understanding of the area of law defining proper “inventory searches” of motor vehicles by law enforcement officers. Should you have questions about how a search of your vehicle may affect your legal rights – or how it may affect your rights in a pending criminal case – you should consult with an experienced criminal defense attorney.

Very often, when law enforcement seizes a vehicle and intends to initiate a forfeiture action, the vehicle is “inventoried.” When the contents of the vehicle are inventoried, law enforcement may find additional evidence of a crime or “contraband.”

Generally, law enforcement authorities who have lawfully acquired possession of a vehicle have the right to inventory its contents as part of their “caretaking responsibility.” Often, law enforcement authorities use the “caretaking responsibility” as an excuse to get around the probable cause and warrant requirements for searches. The issue of probable cause is irrelevant to a true inventory search. This is because the supposed “good faith administration” of “reasonable police regulations” relating to inventory procedures satisfies the requirements of the Fourth Amendment to the United States Constitution.

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Posted By Brad Frye on December 4, 2010

While it hasn’t happened in Texas – yet – the Federal Government is seeking to seize a 350 campground that it alleges has been used as a drug users’ and dealers’ playground.

Filed in U.S. District Court in Missouri, the U.S. Attorney’s Office is filing suit to try to seize Camp Zoe, a 350 acre campground that hosts music gatherings – most notably Schwagstock – after a four year long investigation allegedly found widespread drug use and sales on the property. The Government’s allegations are supposedly supported by investigations conducted by the Drug Enforcement Administration and the Missouri State Highway Patrol.

According to a complaint filed in early November the United States District Court for the Eastern District of Missouri, “over the past several years law enforcement agents have specifically observed the open sales of cocaine, marijuana, LSD (acid), ecstasy, psilocybin mushrooms, opium and marijuana laced food products by individuals attending the music festival and made multiple undercover purchases of illegal drugs.”

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Posted By Brad Frye on November 9, 2010

From the Edwardsville Intelligencer (theintelligencer.com), this article published Monday, November 1, 2010 11:47 a.m., CDT: “Man may lose $22,870 to law enforcement after recent stop,” by Steve Horrell, we learn that yet another wayward traveler has had their currency seized from their vehicle after what started as an otherwise routine traffic stop.

“One day last month, Jerome Chennault was pulled over by a Granite City police officer for following another car too closely. Chennault told the officer he had spent two weeks visiting his son in Philadelphia and was on his way home to Henderson, Nev.

“But in court records that were filed later in the case, the officer wrote that he became suspicious “due to his inappropriate laughing and his changing story as to his route.” The officer asked for permission to search Chennault’s 1992 BMW, and in the back seat he discovered $22,870 in the side pocket of a black travel bag.

“Since then the Madison County State’s Attorney’s Office has filed paperwork to have the cash forfeited, and to get his money back Chennault will have to return to Edwardsville, probably several times, and fight the case.”

“After the money was found, Chennault told the officer that he had been in South Carolina intending to use it to buy a house, according to a Verified Complaint for Forfeiture issued by the State’s Attorneys’ Office. A narcotics dog was brought in, which “gave a positive response to the bag . . . and on the currency itself.”"

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Posted By Brad Frye on November 3, 2010

In the February 12, 2010,online issue of Police magazine, Joseph Petrocelli’s article “Asset Forfeiture – You can use criminals’ ill gotten gains to help fund your department’s war on crime,” gave law enforcement departments some useful (for them) tips about using seizures and forfeitures to help fund their organizations. (The article is here: www.policemag.com/Channel/Patrol/Articles/2010/02/Asset Forfeiture.aspx)

Mr. Petrocelli writes:

“While primarily designed to weaken criminal organizations by striking at their economic foundation, as an ancillary effect these laws have allowed police departments to generate revenue from the seized assets. These revenues have then been repurposed to fight the war on crime. As we all know, fighting crime, specifically drugs, is time consuming, labor intensive, and expensive. Forfeiture can help your agency offset these costs.”

I have two issues with Mr. Petrocelli’s view as set out in the article. First, if civil forfeiture laws were, in fact, “primarily designed to weaken criminal organizations,” then those laws would actually be specifically directed at “criminal organizations.” The civil forfeiture statutes are not directed at those organizations though they can be used against them and, for some time now, everyone involved in these kinds of cases has dropped the pretense that forfeiture statutes are “primarily” designed to combat criminal organizations. Forfeiture statutes are “designed” to raise money, first, and deprive criminals, second, of alleged “contraband.”

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Posted By Brad Frye on September 30, 2010

If you’re interested in learning more about asset seizure and forfeiture laws, and especially the efforts to reform those laws, I recommend that you read the Institute for Justice report on civil forfeiture laws titled “Policing for Profit.” It provides a good overview of the current state of the law in various states and grades each state’s forfeiture statutes in a variety of areas. You can read the report http://www.ij.org/index.php?option=com_content&task=view&id=3117&Itemid=165

Also, the organization Americans for Forfeiture Reform www.forfeiturereform.com is working to report on and reform forfeiture laws at both the state and federal level. Americans for Forfeiture Reform is a non-profit research organization that works to catalogue and describe the extent of forfeiture practices in the United States.

In Texas, the issues regarding reform of the forfeiture statute are varied, but the two most urgent areas in the statute and its application that cry out for reform are the lower burden of proof in forfeiture cases and the burden of proof concerning “innocent owners” when their property is seized by law enforcement.

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