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Wednesday, August 23, 2006

Driving with Money

We've all heard of the crime of "driving while black," there are a number of derivations of it. But now according to the 8th circuit court, driving with money can get your money taken away.

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 last week 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.
One of the judges dissented:

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.
This is a frightening extension of forfeiture laws. Basically, any item obtained from funds derived illegally is subject to forfeiture, whereby the police can come and take the property. Unlike a criminal proceeding, where the state has the burden of proof and must prove beyond a reasonable doubt that you committed a crime, in forfeiture, the individual has the burden of proof and has to prove with a preponderance of the evidence that one has come to the money or property through legal means. Essentially, with no proof of any crime being committed, you can lose your property through forfeiture.

In this case, a guy was driving his car, was pulled over ostensibly for speeding. It's interesting to note that the Nebraska state police didn't even charge Gonzalez with a speeding violation, even though that was their probable cause for stopping him. They found him with money, the dogs seemed to indicate that the money had drug residue, they confiscated the money. Now they lacked evidence to charge the man with a crime, but nevertheless could seize his money.

While the appeals court may be correct in concluding this was drug money, I'm concerned by the propensity of our law enforcement structure to impose civil financial penalties in situations where the burden of proof is not sufficient to support criminal convictions. That gives too much incentive for police officers to fabricate evidence. I am not suggesting they did in this case, but the reason for the presumption of innocence, burden of proof, and other protections under the law are designed to protect the individual from such situations. As courts extend the rights of law enforcement to act outside of the criminal system, they give them a great deal of power and a great deal of discretion.

---Doug Paul Davis reporting

A couple of notes:

I've now returned from vacation and there is a busy agenda ahead on the People's Vanguard of Davis. Beginning tomorrow we will have a multi-part series that examines the issue of police oversight in Davis and examines the remedy that the Davis City Council chose to implement. In addition, as a way of a teaser, we are in the process of negotiating the release of previously unreleased taped recordings that shed an entirely different light on the handling of the Halema Buzayan case. The DA's office chose to release selective recordings that they claim show the actions of Officer Ly in better light, but those are not the end of the story.