Defend the Right to Carry Cash and Travel Unmolested

Wednesday, September 19th, 2012

Eapen Thampy, Americans for Forfeiture Reform

Thanks to the hard work of Americans for Forfeiture Reform policy analyst Scott Meiner, AFR has been asked to submit an amicus brief in an asset forfeiture case that is being appealed to the 11th Circuit Court of Appeals. Below is a brief video I’ve made describing the case (yes, I know the video quality isn’t great; we haven’t had the money for a HD camera yet):


Meiner describes the Terrence Durr seizure and litigation in his post, “A Peculiar Idea of Proof“:

United States District Judge Clay D. Land has ordered the forfeiture of $21,175 seized from two ex-convicts by Deputy Drew Crane, of the Harris County, Georgia, Sheriff’s Office.

Neither of the men were convicted, arrested, or charged. No drugs or drug paraphernalia were reported on the men from whom the currency was seized. The claimant of the currency, Terrance Durr, has a 1996 felony drug conviction and a subsequent parole violation. Durr also has documented gainful employment–including an 8 year work history as a draft technician with Adam’s Beverage, an Anheuser Busch distributor.

The government presented no specific cognizable evidence of any drug transaction (or intended drug transaction) linking the currency to any specific illicit behavior. Durr presented evidence of why he had a substantial amount of cash on his person. The court found Durr’s evidence, and reasoning, unpersuasive.

What the ruling appears to boil down to is

  1. Durr is an ex-con;
  2. Durr had a fairly large amount of currency;
  3. The police wanted his currency;
  4. The police found his currency;
  5. Police recorded a positive K9 alert on his currency and on his companion’s vehicle;
  6. The officer said that the vehicle smelled of alcohol and marijuana;
  7. Durr cannot prove that his money was not intended, or derived from, something to do with drugs to the satisfaction of the court; and
  8. Thus, the government has “proved” that Durr’s cash constitutes proceeds traceable to an exchange for a controlled substance.

This is utter nonsense.

Durr may have intended to use the money for narcotics. Or perhaps he was going to do something else. We do not know. Nobody else knows either–except maybe Terrance Durr.

Durr presented evidence that he intended to travel to Atlanta, GA to negotiate with a bank on the imminent foreclosure of a dilapidated rental property that he owned. Prosecutors easily poked holes in the sensibility of his plan. However, they failed to offer evidence that the money was drug related–unless we are to assume that the means, a criminal record, and unreliable evidence meet the burden. Following this standard of proof would add a lot of forfeiture victims.

There are infinite possibilities as to how he got the money and to what he intended to do with it–whether they be licit or illicit.   But reasonable jurisprudence ought to tether forfeiture to a showing of substantial connection between specific articulated criminal acts and proof beyond a reasonable doubt.

AFR’s amicus brief will likely focus on the insufficiency of the nexus issue (that is to say, the complete government’s inability to establish a nexus between any crime and the seized cash and Judge Land’s breathtaking leaps of logic to justify the forfeiture).

Please donate to support AFR’s efforts on this front!

Digg it |  reddit |  del.icio.us |  Fark

40 Responses to “Defend the Right to Carry Cash and Travel Unmolested”

  1. #1 |  M | 

    I don’t get why criminals are always rubbing their cash and drugs together.

  2. #2 |  croaker | 

    @1 Currency is generally used as a straw to snort cocaine.

  3. #3 |  Bergman | 

    The judge hearing the case could not prove that the contents of his own wallet would not be used to purchase illicit drugs were he called upon to do so.

    Nor could any member of the jury, the prosecutor, the bailiffs, the defense attorney or the court clerk. Nor could any spectators.

    By that standard, no one has any lawful right to the money they possess.

    Madness!

  4. #4 |  el coronado | 

    It’s nice to see people are trying to fight back against this shit, but I wouldn’t get too too excited just yet. Durr is asking an arm of the government to a) stop grabbing free money for themselves and b) give him his money back. He’s asking the *same government that stole it from him* if he can have it back. Doesn’t work on schoolyard bullies, won’t work here.

    25-to-1 against.

  5. #5 |  Burgers Allday | 

    O, hi, Eapen.

    In good news on the asset forfeiture front, Utah has stopped its bid to take Matthew David Stewart’s house.

  6. #6 |  samsam von virginia | 

    Burgers:

    Actually, it sounds like the cops did so much damage to the house, its market value is less than the mortgage. In other words, they would lose money by taking it.

    I don’t think you can call this a win.

  7. #7 |  Burgers Allday | 

    I can see why people think that, but I don’t agree.

  8. #8 |  Charlie O | 

    Un-fucking-believable

  9. #9 |  Eapen Thampy | 

    I’m aware of the Stewart case and plan to blog about it soon.

  10. #10 |  John C. Randolph | 

    The court found Durr’s evidence, and reasoning, unpersuasive.

    Of course he did! The judge is part of the government, and impeding the wholesale looting of the public is contrary to the judge’s self-interest.

    The heart of the problem here is that the first legislator who proposed violating the fifth amendment by pretending that property can be charged with a crime wasn’t immediately impeached, tried, and removed from office for his blatant violation of the people’s rights.

    -jcr

  11. #11 |  Burgers Allday | 

    Sounds good. Make sure to link the Todd Blair video. One underappreciated aspect of that video is that it shows how the Strike Force did not make a practice of announcing as they went from one room to another room. Of course, it is difficult to focus on that because you get distracted by Mr. Blair dying, but it is an important aspect for the MDS case.

    Also, there is more Blair video than what has thus far been released to the public. Hopefully Richards will get his hands on it and also the other videos they shot with the helmet cams. Those should pretty definitively establish the Strike Force’s custon and practice on announcing understandably, which is probably the biggest issue for MDS, given the defense he has thus far posited.

  12. #12 |  Burgers Allday | 

    Of course he did!

    Durr’s evidence and reasoning was unpersuasive. The blogger seems to admit as much as he well should. I think the blogger’s point is that Durr should not have had the burden of persuading anybody of anything.

    I am not particularly a fan of Judge Land’s, but he did correctly decide the case given the facts he had. He correctly applied the law that is on the books and is clear about Durr’s burden.

    It would have been a harder case for Land if Durr had just said: “I take my money when I go on recreational voyages to Atlanta because I don’t trust my family’s visitors not to steal it — when my cash is with me I can defend it against theives.” Not sure what Judge Land would have done with that, but it seems like a more plausible story than the one Durr did tell the judge.

    I mean, Judge Land could have found the forfeiture statute unConstitutional under 4A and/or “due process,” but you can’t expect that kind of a result out of a mere district court judge. Probably can’t expect it out of the 11th Circuit either.

    If the appeal just argues that Durr met the preponderance standard, then the appeal should probably lose. If the appeal focuses on Constitutional issues, it will still probably lose, but it should win — and will at least make it easier to create a circuit split in the future so that SCOTUS would grant cert on the Constitutional issues.

    Then again, if Durr’s counsel didn’t raise the Consitutional issues before Judge Land then the Constitutional issues may be waived in Durr’s case — and that would make Durr’s appeal kind of useless. If the appeal is about how Judge Land incorrectly applied the statute then the appeal is probably detrimental to the cause of asset forfeiture reform in the long run.

  13. #13 |  Robbo | 

    Given that the cash will go to the government at one level or another, Isn’t this really a 5th Amendment case ?

    “…nor shall private property be taken for public use, without just compensation.”

  14. #14 |  David C | 

    I still want to see someone challenge a civil forfeiture as a Taking without just compensation. If the conceit is that the proceeding is against the object seized and not against the owner, and is just to protect the public from the nuisance of this dangerous object, isn’t that just like condemning real estate for seizure under eminent domain?

    It’s pretty easy to determine the fair market value of $21,175 in cash. Make the government give Durr that value in exchange for these specific dangerous dollars that they claim they had to seize, and you’ll see a lot fewer civil forfeitures.

  15. #15 |  egd | 

    Why do we even have takings cases if civil forfeiture is so easy to prove?

    “Nice farm you’ve got there, too bad it’s in the way of our new highway. Prove you didn’t use it in conjunction with a violation of 18 U.S.C. 1030.”

  16. #16 |  AlgerHiss | 

    Each week, the print WSJ has full page notices taken out by the DOJ/FBI/DEA/ATF on property seizures. You know the type of notice, that’s printed in a font size that takes the Hubble telescope to read.

    Thousands of notices each week, listing cash, vehicles and guns. It is truly disgusting.

  17. #17 |  DMS | 

    @12 “Durr’s evidence and reasoning was unpersuasive”

    If he wasn’t charged with a crime, why the hell should he even need to explain what the money is for. It says so right on the money itself: “This note is legal tender for all debts, public and PRIVATE”

    If there is no evidence the the person is engaged in a crime, then it follows that there is no evidence that the money is either. Money is an inanimate object, it can’t commit crimes on its own. It needs a person to facilitate a crime with it.

  18. #18 |  SJE | 

    I think that this is the wrong test case to fight asset forfeiture. There are more sympathetic plaintiffs. My concern is that a higher court will see “past drug user” and “unexplained reason to have $21K”, affirm, and we will be in a worse position in fighting for reform.

    The NAACP and SLC was VERY strategic in choosing which cases to bring to public notice and to the Supreme Court. e,g., They waited years in until they found “Loving v Virginia.” The name wasn’t just good luck, it was planned.

  19. #19 |  SJE | 

    Similarly, look at Heller for the 2d amendment.

    Dick Heller was an old white guy, a licensed special police officer for the District of Columbia. For his job, Heller carried a gun in federal office buildings, but was not allowed to have one in his home. Heller had lived in southeast D.C. near the Kentucky Courts public housing complex since 1970 and had seen the neighborhood “transformed from a child-friendly welfare complex to a drug haven.”

    Do you think that the Court would have been so sympathetic if the plaintiff was a young black man?

  20. #20 |  EBL | 

    He may not be the best test case, but so what. We are all presumed to be innocent. If the state wants to take your property, they have to use due process and that was not followed.

    And there are plenty of people with no criminal background who have their cash taken and can’t afford to fight to get it back. End this nonsense now.

  21. #21 |  JLS | 

    EBL “…If the state wants to take your property, they have to use due process…”

    I don’t think they do. Not anymore anyway.

  22. #22 |  Burgers Allday | 

    @12:

    Because the statute says that the burden is different (and placed on a different party) as between civil forfeiture and (most) criminal law.

    Durr may have had a good argument that the statute sets an unConstitional burden of proof for him in the civil. Not sure if he made that argument or not — part of the reson you want to have a lawyer for these things.

    However, to the extent Durr is saying “the burden of proof in forfeiture is a fine-n-dandy burden and I met this burden with my story about the bank” — that is a loser argument. No judge will want to trash the conventional lawyer understanding of how a “preponderance burden” works just to avoid an injustice to Durr. That isn’t up for grabs and Judge Land was right to say that. We don’t want to mess up the whole of civil law just to “save” asset forfeiture law.

  23. #23 |  Scott durr | Istudyweb | 

    […] Defend the Right to Carry Cash and Travel Unmolested | The Agitator […]

  24. #24 |  el coronado | 

    IANAL, thank God, but am pretty sure #20 is right in re ‘no due process to seize’. When this shit was dreamed up along about the time RICO started bringing in big bucks, the standard they chose was the infamous ‘IRS’ standard: guilty until proven innocent. IOW, *you* gotta _prove_ the money/etc seized isn’t tainted or gotten by naughty means. That’s why those cases you see in the WSJ and USA Today are all “US vs. $22,647 in US currency”. *You’re* not on “trial”….the *money* is.

    Oh, and if you want to fight it and get your ass kicked in court, you have to post a bond equal to the value of the seized property. Again, the IRS precedent: you get fucked coming & going. Have a nice day, y’all!

  25. #25 |  Windy | 

    “The judge hearing the case could not prove that the contents of his own wallet would not be used to purchase illicit drugs were he called upon to do so.

    “Nor could any member of the jury, the prosecutor, the bailiffs, the defense attorney or the court clerk. Nor could any spectators.”

    Were I a defense attorney in one of these cash forfeiture cases, I would call for a trained drug dog which had not yet been assigned to an officer to check 5 bills from each person on the jury, the judge, the bailiff and several spectators as part of the defense argument.

  26. #26 |  SJE | 

    #19:
    Yes, its right to be pissed at this sort of thing.

    The problem is that if it goes up to SCOTUS, they might well affirm the current law. Do you really want the SCOTUS to say that there is no due process violation when the police conduct in rem seizures based on such tenuous evidence?

    Once that happens, it is almost impossible to reverse, at least in my lifetime, and the legislature is not going to touch it. This is why the NRA did not bring a 2d amendment challenge for decades, and only signed on to Heller at the last moment: if they lost, they would be screwed. The current court is more conservative than it has been in decades, and already shows it is is highly deferential to government and law enforcement when it comes to 4, 5, 6 and 14th amendment rights. Do you want to chance your freedoms on that?

  27. #27 |  SJE | 

    #23 Windy:

    The problem is that most police dogs tend to alert only when then their handlers signal them to do so. So, you could be royally screwed with that approach.

  28. #28 |  el coronado | 

    Ahhh, #24, that’s the best laugh I’ve had in awhile. “The current court is more conservative than it has been in decades”. Suuuuure it is. Let’s start with our shiny new nationalized healthcare abortion-to-be coming onstream right quick. “Conservative”? You mean conservative like…..France? Then, ya got 4 members who will *automatically* vote the statist/lberal position on _every_ meaningful case they see, no matter what. It’s understood by everyone: the liberal wing WILL vote for liberalism/statism in a block, the actual merits of the actual case being completely irrelevant. The goal ain’t Justice. Only children believe that tired old whopper anymore. It’s to increase the scope and power of the State.

    Lastly, your ludicrous notion that conservatism means deference to government and law enforcement. Sorry, pard, that ain’t conservatism: it’s corporatism/statism, and it’s more ‘left’ than ‘right’. Despite what they teach in skuel. I doona think that word means what you think it means.

  29. #29 |  SJE | 

    El Coronado, you can’t judge a court by a single case that was extremely close. Anyway, I meant conservative as in deference to the status quo, and (in particular) law enforcement.

    However you label it, the court has been remarkably weak on civil rights, property rights, and deference to government. You could see the health care decision as the same deference to government. Both left and right have nasty strains of statism, which is why I am libertarian.

    Back to my point: I really don’t give a F*** about how we label the court. The principal is whether we can advance liberty and end these abuses. I think that this case, in this court, would make our lives worse.

  30. #30 |  JLS | 

    Windy “Were I a defense attorney in one of these cash forfeiture cases, I would call for a trained drug dog which had not yet been assigned to an officer to check 5 bills from each person on the jury, the judge, the bailiff and several spectators as part of the defense argument.”

    I thought of that too but with my luck the kind of person that would be on that jury would be the kind of douchebag that never uses cash and is suspicious of those that do.

  31. #31 |  Phil in Parker | 

    I would like to see Mythbusters or Snopes.com challenge the “Cocaine on the money” thing. I heard it forever, but I’ve never seen actual studies.

  32. #32 |  A Cute Pug | 

    Pwease wet the dwaft teknishun have his monies back!

  33. #33 |  Boyd Durkin | 

    @1 Currency is generally used as a straw to snort cocaine.

    Another reason to use Bitcoin! No boogers or coke on your money.

    @#24
    I’d characterize SCOTUS as “statist” rather than “conservative”. Every ruling favors expanding state powers. OH, that’s right…you can “fix” it with amendments from Congress. The system works!

  34. #34 |  Leon Wolfeson | 

    Given paper money is a legal fiction, I don’t see it’s protected at all under your constitution. And even physical cash is only “worth” the metals value for that purpose.

    @26 – It’s perfectly conservative, and you’re simply a far right fanatic who likes to claim a mantel of libertarianism for your support of the corperatist-capitalist complex.

    As usual, you’re labeling anyone not just like you as stateist so you can ignore them.

  35. #35 |  el coronado | 

    And you, Leon ol’ sport, are just a limey loon raised on the mothers milk of the Nanny State and the Dole mouthing just what Teacher indoctrinated you with a skuel. Incapable of critical thought, merely repetition of the slogans drilled into you by your beloved Left. As per usual.

    Damn, this is FUN, Leon! Thanks loads for opening the door to ad hominem comments! SO much easier than making a rational argument, right?

  36. #36 |  Leon Wolfeson | 

    @35 – Ah yes, anyone who doesn’t call for murder as a first resort is always the same to you – you can’t conceive of the vast range of human views. There is only your “acceptable” views and the evil less-virulent statists than you, who think checks on the ability of companies to dictate laws are appropriate.

    You’re chanting the views of your masters over and over, of course.
    And you’re the one who knows all about your ad-homs, I haven’t used one.

  37. #37 |  el coronado | 

    Ah, yes, Wolfenson – *now* I remember you. Just another sorry little internet troll alone in mom’s basement, desperately trying to get attention. ANY attention…..and the last word, of course. I believe I shall ignore you completely henceforth, you pathetic little person.

  38. #38 |  Ariel | 

    #31 Phil in Parker,

    Try this link: http://news.nationalgeographic.com/news/2009/08/090816-cocaine-money.html

    It has been confirmed, and why certain PDs have asked that bail money be only in cash.

  39. #39 |  Leon Wolfeson | 

    @37 – Ah yes, you’re describing your own situation again I see. Yes, you run you yellow-shit Corporatist, run away from the blood on your hands.

    How many million deaths will satisfy your bloodlust?

  40. #40 |  Prosecution and police roundup - Overlawyered | 

    […] Forfeiture: “Defend the Right to Carry Cash and Travel Unmolested” [Eapen Thampy, Agitator] […]

Leave a Reply