Tuesday, July 17, 2007

The government wants your cash

About a year ago, I wrote about the case of a motorist who was found carrying a large sum of money. The police seized it, arguing that it just had to be drug money. They were allowed to keep it without ever bothering to prove an underlying crime, thus establishing the cherished legal principle that police can take your money anytime they like as long as the sum is large enough and the defendant is poor enough.

Now it's happened again, this time in Michigan. But there's a twist: the search that uncovered the money was illegal, which turns this into a case with broader civil-liberties implications.

No matter.

The Michigan Supreme Court on Tuesday denied the appeal of a motorist who had to forfeit nearly $181,000 that was found in a backpack during a traffic stop, even though the money was seized illegally....

Tamika Smith, who was stopped by a Michigan State Police trooper, lost the money when a judge ruled prosecutors presented enough other evidence to show it was intended to buy illicit drugs.

That evidence involved such legal activities as being poor, in possession of a large sum of money, while driving a rental car in a known drug-trafficking area.

Some details from Detroit Free Press columnist Brian Dickerson:

Five years ago, the 33-year-old Detroit woman was driving her boyfriend and her two small children to Chicago when a state trooper stopped her for speeding on I-94 outside Paw Paw. A license check revealed that the boyfriend had been arrested for cocaine possession and weapons offenses. In a subsequent (and apparently unauthorized) search of the couple's trunk, the trooper discovered a backpack containing $180,975 in cash.

Smith and her boyfriend denied the money was theirs and speculated that someone had left it in the car they had rented just a few hours earlier. But when prosecutors petitioned the state to keep the money, Smith contested the seizure, arguing that the search in which Trooper James Lass discovered the cash was illegal.

Van Buren County Circuit Judge William Buhl agreed, but eventually ruled the prosecutor's forfeiture suit could proceed, so long as the cash was never offered as evidence. When Smith, who had never earned more than $14,000 in a year, offered vague and unconvincing accounts of the money's origins, Buhl concluded that she was most likely a drug courier and ordered the money forfeited to the state.

Now I agree that Smith acted suspiciously and couldn't provide a good explanation of where the money came from. I'll even agree that she's most likely a drug courier. She also lost some standing by first denying that the money was hers.

But that's not the point. Before the government can seize private property, they should have to prove that it is tainted or ill-gotten. It's not up to the individual to prove the money is legitimately theirs; it's up to the government to prove it's not.

Question Smith about the money? Sure. Prosecute her if a crime can be established? Of course. I'd even support putting the money in the state's unclaimed funds account on the grounds that Smith denied it was hers, so she doesn't have a claim to it.

But taking property simply because, in a judge's opinion, someone is "most likely" a drug courier should offend anyone who believes in civil liberties or property rights.

You don't even have to go that far. Justice Stephen Markman, the state Supreme Court's most conservative member, wrote a stinging dissent on the narrow grounds that illegally obtained evidence cannot be used as evidence to support the seizure of said evidence. Here's the full opinion in the case (pdf); Markman's dissent begins on Page 30. In it he notes the bizarre logic used in the main opinion, which asserts that "while the cash itself was excluded from evidence, the trial court could properly consider the implications of the presence of such a large amount of cash in the vehicle." In other words, though the cash itself was excluded from evidence, the cash itself could be included as evidence.

The upshot:

Oak Park attorney Karri Mitchell, who represented Smith in her unsuccessful appeal, said the high court's ruling leaves every Michigan resident's property rights in jeopardy.

"This means that John Q. Public can be stopped for a traffic violation and, if the policeman thinks he can't afford the watch he's wearing, it becomes the property of the state unless he can prove he came by it legitimately," Mitchell said.

But Van Buren County Assistant Prosecutor Michael Bedford, who at one point offered Smith about $30,000 to drop her claim to the $180,000, called Mitchell's scenario far-fetched.

"Theoretically, a person could be forced to prove they came by an [illegally seized] asset legally," Bedford conceded.

"But hopefully, we don't have anybody out there abusing the forfeiture statute and putting people in a position where they have to do that."

Oh, I feel safer already, knowing that the state's best defense is that "hopefully, nobody will abuse the statute."

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4 Comments:

Blogger David said...

I'm not quite sure I agree with your analysis of this case:

If we assume that the couple was telling the truth when first stopped, then the money is not theirs.

At that point, they have no claim on it either, and the only group other than the state who might have a claim on it would be either the prior renters of the car or the rental car company themselves.

I'd have to say that "not being clear on the provenance of $180K" which one has in one's possession would have to be considered probable cause for some wrongdoing. After all, that amount of cash is substantial, and isn't the kind of thing you could accidentally pick up (or forget was in the backpack).

The wristwatch comparison is not valid because the couple denied ownership of the money: if a cop asked me "where did you get that nice watch you're wearing?" and I replied "I don't know, it's not mine" then he would be perfectly within his rights to inquire further and presume I had acquired it illicitly.

7/20/2007 11:21 AM  
Blogger Sean Aqui said...

Thoughtful points!

If we assume that the couple was telling the truth when first stopped, then the money is not theirs.

At that point, they have no claim on it either, and the only group other than the state who might have a claim on it would be either the prior renters of the car or the rental car company themselves.


Agreed, as I mention in the article. I would have no problem with a ruling that said "sorry, you denied ownership; you can't now assert ownership without proving your case." But that's not what occurred here.

I'd have to say that "not being clear on the provenance of $180K" which one has in one's possession would have to be considered probable cause for some wrongdoing. After all, that amount of cash is substantial, and isn't the kind of thing you could accidentally pick up (or forget was in the backpack).

My attitude is a libertarian one: unless it can establish that a crime has occurred, it is none of the government's business how you came into possession of the cash. As a general rule, citizens are not required to explain their personal possessions to the government.

I'm all for asking questions, both to establish ownership of the cash and to determine if a crime occurred. But in the end, if the government cannot prove either a crime or lack of ownership, they should not be able to seize the money.

And that doesn't address the fact that the search was illegal in the first place.

If a cop asked me "where did you get that nice watch you're wearing?" and I replied "I don't know, it's not mine" then he would be perfectly within his rights to inquire further and presume I had acquired it illicitly.

Fair enough. But he would not be within his rights to seize the watch unless he could prove it was acquired illegally.

Point is, the standard for large sums of cash is the reverse: the government can seize it unless the citizen can prove the money is his.

That's simply wrong. The burden of proof should be on the government, not the citizen.

Consider the simple case of a person who saves $50 a week in cash in a jar under their bed (a surprising number of poor people don't trust banks). After 30 years they take the $78,000 they've accumulated and head out on a lengthy vacation they've anticipated for decades.

Along the way, they're stopped for speeding, and the officer finds the cash.

Under the theory of law outlined above, the government could seize that money because the citizen would have no way to prove the money was theirs.

7/20/2007 11:37 AM  
Blogger xfervor said...

You're absolutely right, Sean. In a similar story, a trucker from Texas was stopped in Philadelphia by two patrol cops. They called in the K-9 patrol when he was acting "suspiciously" whatever that means. They found no drugs, but 1 million and 72 thousand in cash. They simply seized it without any other leads. And I quote Narcotics officer Chris Werner, "At this point, we're unsure of what criminal organization could be connected to the money."

If that's the case, aren't they obligated to give it back? You can't be held in prison without charges (except in Guantanamo), so why is cash different? And who says what it gets to be used for?

5/17/2008 4:49 PM  
Anonymous Anonymous said...

If it was illegal seized, then it should be put back where it was found.

Very simple.

6/03/2010 11:59 PM  

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