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Court Says Gov't Has To Do More Than Say It Doesn't Believe The Property Owners If It Wants To Keep The Cash It Seized

The federal government thought it had laid an easy claim to someone else's cash, but the DC Court of Appeals is telling the government it's not quite as easy as it makes it out to be.

The court lets everyone know things aren't entirely normal with the first sentence of the opinion [PDF]:

This is a civil-forfeiture case, which is why the plaintiff is the United States of America and the defendant is a pile of cash.

From that starting point we arrive at two sets of claims. First, the government's:

The government claims that the cash is subject to forfeiture because it is connected to the “exchange [of] a controlled substance,” i.e., drug trafficking.

And here is the government's sole basis for this conclusion:

This case traces its roots back to March 28, 2014, when an Amtrak passenger mistakenly removed another person’s backpack from a train at Washington’s Union Station. Later that day, he opened the backpack to find a shopping bag containing $17,900 in cash.

Commendably, he turned the backpack over to Amtrak police. In addition to the money, Amtrak police officers found inside the bag a student notebook and other personal effects. One of the papers contained the name Peter Rodriguez, as did the train manifest. A police narcotics dog alerted to the backpack, suggesting the presence of drug residue.

That's basically it. A dog said it smelled drugs. Or, rather, an officer said a dog said it smelled drugs. The only other thing the government has to offer is that it doesn't believe the appellants' story about the legality of the money.

Using a contact number from the manifest, a detective with the Metropolitan Police Department called Peter Rodriguez, who gave a detailed description of the contents of the backpack—except for the money. Twice asked whether there was money in the backpack, Peter said no. Later, the detective called Peter to inform him that currency was found in the backpack, and that the bag—sans cash—could be recovered from Amtrak, though the money would remain with the MPD Asset Forfeiture Unit.

Shortly thereafter, appellant Angela Rodriguez, Peter’s mother, contacted MPD, explaining, according to the government’s verified complaint, that the cash belonged to her and her domestic partner, appellant Joyce Copeland, who lives with her in New York City. The couple, she recounted, had left the money in a bag in Peter’s apartment, but neglected to tell him that it contained currency. When Peter later announced that he was coming to New York to visit his mother, she told him to bring the bag along. Unconvinced by Ms. Rodriguez’s story, the police formally seized the currency and turned it over to the DEA, which initiated administrative forfeiture proceedings.

The government says the appellants' story is unbelievable -- that someone wouldn't just stash $18,000 in someone's backpack and not tell them about it. The court points out it really doesn't matter what the government believes.

In this case, the couple has offered sworn testimony detailing how they amassed the money, why they transported it to North Carolina, and how it ended up in Peter’s hands. In fact, there is little in the record other than their declarations. Certainly, nothing in the record directly contradicts the pair’s sworn account—no evidence that they did not travel to North Carolina, for instance, nor evidence that the cash had another source. Given our responsibility to “view[] the evidence in the light most favorable” to the couple and to “accept . . . uncontroverted fact[s],” Johnson, 823 F.3d at 705, we have little trouble concluding that the couple has asserted ownership and offered “some evidence” of ownership sufficient to withstand summary judgment.

It also points out why cash seizures in particular raise these issues, and why the government shouldn't be so quick to assume every story told by appellants is bullshit.

[B]ecause the case concerns cash, it demonstrates how challenging it can be to document ownership of property seized by law enforcement. Indeed, the very qualities that make paper money useful for illicit activity—in particular, its untraceability—often make it difficult to prove that any cash is legitimate, no matter its source. This is especially true for those in our society who rely on cash to the exclusion of banking and other financial services. As Justice Thomas has recognized, it is “the poor and other groups least able to defend their interests in forfeiture proceedings” who bear the brunt of civil asset forfeiture. Leonard, slip op. at 4 (internal citation omitted). And it is these same groups that are “more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture.” [...] So especially when cash is at issue, requiring more than “some evidence” of ownership would be onerous, unfair, and unrealistic.

The court also has nothing good to say about the government's singular insistence that the appellant's money story is made up, despite being unable to produce any evidence to the contrary. Taking the government at its word eliminates any remaining shreds of due process left in the forfeiture process.

The government’s argument perfectly illustrates why credibility determinations and the weighing of evidence are left to juries rather than judges. Government counsel may well be able to convince judges that it is inconceivable someone would choose to keep sizeable cash savings, to travel with cash, or to pay for routine expenses using cash rather than a credit card, but a jury of laypeople with different and more diverse life experiences might view these very same choices with considerably less suspicion. We are thus especially reticent to circumvent the jury process and throw out sworn testimony because it is out of line with our own lived experiences.

The appeals court reverses the lower court's decision. The government will have to do something it explicitly tries to avoid by using civil asset forfeiture rather than criminal asset forfeiture: taking a case to trial and actually having to provide more definitive evidence than "the dog said it smelled like drugs."

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