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Posted on 08/20/2006 8:57:44 PM PDT by FreedomCalls
Eighth Circuit Appeals Court ruling says police may seize cash from motorists even in the absence of any evidence that a crime has been committed.
A federal appeals court ruled yesterday that if a motorist is carrying large sums of money, it is automatically subject to confiscation. In the case entitled, "United States of America v. $124,700 in U.S. Currency," the U.S. Court of Appeals for the Eighth Circuit took that amount of cash away from Emiliano Gomez Gonzolez, a man with a "lack of significant criminal history" neither accused nor convicted of any crime.
On May 28, 2003, a Nebraska state trooper signaled Gonzolez to pull over his rented Ford Taurus on Interstate 80. The trooper intended to issue a speeding ticket, but noticed the Gonzolez's name was not on the rental contract. The trooper then proceeded to question Gonzolez -- who did not speak English well -- and search the car. The trooper found a cooler containing $124,700 in cash, which he confiscated. A trained drug sniffing dog barked at the rental car and the cash. For the police, this was all the evidence needed to establish a drug crime that allows the force to keep the seized money.
Associates of Gonzolez testified in court that they had pooled their life savings to purchase a refrigerated truck to start a produce business. Gonzolez flew on a one-way ticket to Chicago to buy a truck, but it had sold by the time he had arrived. Without a credit card of his own, he had a third-party rent one for him. Gonzolez hid the money in a cooler to keep it from being noticed and stolen. He was scared when the troopers began questioning him about it. There was no evidence disputing Gonzolez's story.
Yesterday the Eighth Circuit summarily dismissed Gonzolez's story. It overturned a lower court ruling that had found no evidence of drug activity, stating, "We respectfully disagree and reach a different conclusion... Possession of a large sum of cash is 'strong evidence' of a connection to drug activity."
Judge Donald Lay found the majority's reasoning faulty and issued a strong dissent.
"Notwithstanding the fact that claimants seemingly suspicious activities were reasoned away with plausible, and thus presumptively trustworthy, explanations which the government failed to contradict or rebut, I note that no drugs, drug paraphernalia, or drug records were recovered in connection with the seized money," Judge Lay wrote. "There is no evidence claimants were ever convicted of any drug-related crime, nor is there any indication the manner in which the currency was bundled was indicative of drug use or distribution."
"Finally, the mere fact that the canine alerted officers to the presence of drug residue in a rental car, no doubt driven by dozens, perhaps scores, of patrons during the course of a given year, coupled with the fact that the alert came from the same location where the currency was discovered, does little to connect the money to a controlled substance offense," Judge Lay Concluded.
The full text of the ruling is available in a 36k PDF file at the source link below.
Source: US v. $124,700 (US Court of Appeals, Eighth Circuit, 8/19/2006)
And, as a response to that, Congress passed CAFRA 2000. Now what?
He did. He and his friends pulled their hard earned cash together to buy a truck.
In this case, the money was seized on two groups of evidence: 1. the drug dog alerting, which has been proven dozens of times in court to occur with ANY large sum of cash. 2. the 'suspicious' circumstances of the individual. We have the completely absurd and twisted logic of making a case against the money itself, with the evidence being the behavior/explanation of the owner of the money. The money can't defend itself, and the owner is in the generally untennable position of having to prove a negative. This is pure extortion or State robbery at worst, insane law at best.
He did. He and his friends pulled their hard earned cash together to buy a truck.
In this case, the money was seized on two groups of evidence:
1. the drug dog alerting, which has been proven dozens of times in court to occur with ANY large sum of cash.
2. the 'suspicious' circumstances of the individual. We have the completely absurd and twisted logic of making a case against the money itself, with the evidence being the behavior/explanation of the owner of the money. The money can't defend itself, and the owner is in the generally untennable position of having to prove a negative.
This is pure extortion or State robbery at worst, insane law at best.
When I said he had "no" explanation I didn't mean that literally. I meant he had no reasonable explanation as to why, when he was arrested in Nebraska, he was driving home to California from Chicago in a rental car not under his name with $125,000 wrapped in aluminum foil in a cooler.
"The route and circumstances of Gonzolez’s travel were highly suspicious. Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture, and he gave a vague explanation, attributed to advice from an unidentified third person, about why he elected to return by car."
"Gonzolez purportedly carried $125,000 in cash with him on his flight, for the purpose of buying a truck that he had never seen, from a third party whom he had never met, with the help of a friend whose name he could not recall at trial. This testimony does not inspire confidence in the innocence of the conduct."
"When he was stopped by the Nebraska State Patrol, Gonzolez was driving a rental car that was leased in the name of another person who was not present, another circumstance that gives rise to suspicion. Then, when Gonzolez was questioned by officers, he lied about having money in the car and about the names of his friends, thus giving further reason to question the legitimacy of the currency’s presence."
I especially liked this part: "The court did observe that the explanations of the claimants were “plausible and consistent,” but this is different from a finding that the court actually believed the testimony."
BWAHAHAHAHA!
Prove a negative? This guy couldn't prove anything he said! Nameless friends? Disappearing trucks? Driving a rental car from Chicago to California? $125,000 in aluminum-foil-wrapped cash, in a plastic bag, in a cooler?
Now what? -- As you said earlier, we have a Congress out of control. -- I suggest that socialists, like you, -- should be made aware that supporting prohibitions are unconstitutional.
In this case the government had no evidence that the money was acquired illegeally. None, much less a preponderance.
He did explain it. Read the decision:
The claimants, however, argued that the cash was acquired legitimately. Manuel Gomez testified that he had given Gonzolez $65,000 in cash, which was a combination of money that he had borrowed from his father-in-law and his own personal cash savings, with the expectation that Gonzolez would help him buy a refrigerated truck for the produce business. Gonzolez testified that he gave $40,000 of his own money, plus $20,000 from a friend, Andres Madrigal Morgan, as an investment in Gomez’s truck. Consistent with Gonzolez’s account, Andres Madrigal Morgan testified that he contributed $20,000 in proceeds from a vehicle sale to Gonzolez’s investment in the truck. Gonzolez testified that after he had pooled the cash from Madrigal Morgan and Gomez with his own cash, he heard from a friend in Chicago that a truck might be available there from a friend of the friend, and he set out for Chicago by plane, taking the cash with him in a small carry-on bag. Gonzolez said, however, that when he arrived in Chicago and his friend picked him up from the airport, he learned that the truck had been sold. In addition, the unidentified friend alerted Gonzolez that it was “bad” to carry more than $10,000 in cash on your person. Newly fearful of carrying his cash back to California by plane, Gonzolez testified that he decided to rent a car rather than flyAnd be careful of referring to him as a "drug dealer". He has neither been convicted of being a drug dealer, nor has he even been charged with being one. He could sue you for libel.
They had nothing. The fact that a dog alerted to the cash is not unusual given that the dog would probably alert to any large stack of cash. See Judge Lay's dissent where he makes this point. That's it. That's all they had. That's their whole case. I'd say the needle was pegged in Mr. Gonzolez's favor.
Pffffft! They had everything they needed. Hell, if they had just a little more they could have filed criminal charges, seized his money, AND thrown him in prison for drug trafficking.
"he heard from a friend in Chicago that a truck might be available there from a friend of the friend ... a third individual rented the car for him".
One would think that with $125,000 at stake, he might be able to come up with these names. And if some of that "investment" money was mine, I'd be screaming for him to give the names so I could get MY money back.
He couldn't.
I could. You could. But he couldn't. Yet you believe him.
It is not enough for there to be suspicion of illegal activity for a forfeiture. It must be traceable to an offense that allows forfeiture, such as drug crimes.
I think there were probably some immigration issues going on here, accounting for being able to amass funds in cash rather than accounts. And an immigration violation does not give rise to forfeiture.
Sure, that means it belongs to the gov't, liberal thinking, that
I would think that if the $125,000 could have been linked to a specific crime, such as a drug crime, he would have been criminally charged with that crime.
Like I said, this probably was drug money. The problem is that the Court is requiring so little proof of a connection to drugs, no proof really, and in effect shifting the burden onto the party carrying the money to come up with some sort of clear and convincing evidence that the money he was carrying came from a legitimate source. The easier we make it for the government to seize money without proof of drug activity, the more it will happen that money is seized that was in no way connected to drug activity. I don't have a problem with the government seizing drug money if there is proof that it was drug money. I just think it is reasonable to ask that the government have to actually prove that the money was drug money so that we don't have situations come up where money is wrongfully seized.
Do I know of cases where money was seized that shouldn't have been seized? Heck yes. It happens all the time. Police around here at least tend to take all the money a person might have when they are arrested, whether there is a legitimate reason for them to have that money or not. Now, I'm a public defender and technically I cannot represent people on these cases because these are civil actions as opposed to criminal cases and thus those who have had their money taken are not entitled to court appointed counsel. While I never get involved with forfeiture actions where there hasn't been an arrest, many of my clients have had their money or other assets taken. Sometimes the money is drug money but often it's their rent money, their pay for the week from their legitimate employer, a check they just cashed from a legitimate source, etc. It's easy to prove that in many cases, but people rarely fight these asset forfeitures because most can't afford lawyers and they don't know how to properly respond to a Civil Complaint that is filed. In most cases the State wins by default. I have a boilerplate Answer on my computer I'll give a lot of these people to file Pro Se if they come in before their time to respond runs out. Of course most don't make it in that soon and often nothing in my paperwork indicates that anything has been seized from them so I couldn't give them a "heads up" anyway. In cases where my clients file Answers, more often than not I find plenty of evidence for them to prevail in the forfeiture actions, and we'll use that to get a better plea deal on their criminal charges. Usually it's only a few bucks we're dealing with, but sometimes it can be a couple of grand or more. Agreeing to forfeit cash tends to help in plea negotiations. In fact, those with resources to do it will often come up with a few grand to forfeit after their arrest. That's often enough to keep people out of prison. I always try to tell my clients when I first talk to them to be raising as much money as possible to pay a big fine up front, and/or an asset forfeiture or "restitution" to the drug task force or something like that. The simple fact is that money is what makes the world go 'round, and good deals from prosecutors are often "bought."
I don't know why you are even arguing about this. I thought you weren't a big fan of asset forfeitures either. I guess you just want to bug me. As always, I'd just as soon not have any dealings with you. If you haven't noticed by now, I never post to you except to respond to your posts to me. If you would be so kind as to reciprocate the favor you and I would never have the displeasure of interaction with one another. That would suit me fine.
Especially if you know the Mexican culture. Many of them don't trust banks and some never have checking accounts. They pay their bills with money orders. This is very prevalent in this area of the country and a good reason to stay away from any business that sells MOs on payday.
And if they'd had another $2, they could have ridden a CTA bus.
The only reason they had "everything they needed" is that a couple of judges decided that practically nothing was required.
How many people can really account for everything they own? Probably not very many. Sure, most will have records of paychecks (for tax purposes) and major purchases (for warranty/insurance purposes) going back a few years, but almost nobody keeps a perpetual record of everything they've ever earned, spent, bought, sold, or otherwise acquired or disposed of. Further, many types of property are often sold without the seller receiving any proof of sale (other than the money, of course). If the guy showed the government a record, written in his own handwriting, "Sold XYZ Machine for $40,000 cash", would they have accepted that?
"You just had an attorney explain the difference to you several posts above." What part did you not get? Yes, I had a neighbor arrested for altering controlled substance RX's. He admitted he did it a mere seven (7) times. I asked him, "did anyone hold a gun to your head and make you do it?". The reply was "no." In short, no attorney will deal with brokes. They expect to be paid just like you do.
It's not as though the court was going back 20 years asking for receipts.
He accounted for the sources of the money. And they testified and perjured themselves said the money was theirs to be used for a truck. Now, why can't he say who the friend was? What about the truck owner? The one who rented the car?
$65,000 cash of the total belonged to a Mr. Gomez, some of which he borrowed from his father-in-law (no less). Could YOU come up with $65,000 cash? Wouldn't you want it back? Real bad? I bet the father-in-law wants his money.
The court would have returned all the money had Mr. Drug Dealer Gonzales simply provided the names of those involved in this legitimate truck purchase.
If I was Mr. Gomez, I'd insist on it. Strongly.
War (among the people) is peace (to the government)
Ignorance (among the people) is strength (to the government)
Freedom (of the people) is slavery (to the government)
Legal tender is illegal tender, to the 8th circuit of the judicial branch of our government.
I wonder who is going to get the money?
I hear the government has lots of money. I bet it's up to no good.
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