March 30, 2015

Florida Uses a Broad Interpretation of its Money Laundering Statute

In Florida, a person commits the crime of money laundering when he/she conceals the nature, source or location of proceeds of specified unlawful activity. Money laundering in Florida only applies to money or other property that comes from "specified unlawful activity", but that term is defined very broadly and certainly includes just about any form of theft. "Conceals" is given its ordinary definition and includes any action done to try and avoid disclosure or detection.

When most people think of money laundering cases, they think of some elaborate scheme where a suspect moves money around through different banks and countries or moves the money through a legitimate business to make it difficult for the police to discover where the money went and where it came from. However, much less movement is needed to meet the concealment element of a money laundering crime. In fact, we have seen a money laundering charge where a suspect has merely moved money from one account to another in the same name at the same bank.

In a recent case near Jacksonville, Florida, a church maintained four separate bank accounts, and donations were deposited into those accounts depending on the particular charitable intentions of the members. The pastor had exclusive control over the benevolent account which was supposed to be for donations benefiting needy people in the community. The other three accounts were for other, specific charitable purposes. Over a couple of years, the pastor transferred money from the other three accounts into the benevolent account and then used money from that account for personal expenses. The pastor was ultimately charged with theft for stealing money that was meant for charity and money laundering for moving money from the other accounts into the benevolent account which he controlled on his own.

The criminal defense lawyer defended the money laundering charges with two arguments. First, the criminal defense attorney argued the pastor did not commit money laundering because the money that went into the church's bank accounts did not come from "specified unlawful activity." In fact, the money came from donations which clearly are not unlawful sources. However, the court interpreted the money laundering statute very broadly and ruled that as soon as the money was transferred from one account to another, it became "proceeds from specified unlawful activity" because the money was being improperly moved from its intended account to a different account and different purpose.

The criminal defense lawyer also argued the pastor really made no attempt to conceal the money as the funds were merely moved from one account to another at the same bank, except for some money that was moved to a different bank, but that account was in the pastor's name. It made more sense that the pastor was moving the money to make it easier to access rather than to conceal the source of the funds. However, the court ruled that because the pastor moved the money to a different account, that was sufficient to satisfy the concealment element of money laundering.

The Florida money laundering statute was designed to address criminal schemes where people were making money from some illegal activity and needed to find ways to conceal, or launder, the cash that came from such illegal activity. Two obvious examples would be selling drugs or gambling. Those are businesses that produce a lot of cash, and criminals would need to figure out some way to process that cash and make it appear legitimate. Hence, the money laundering statute was enacted to punish that practice. This is not the kind of case the money laundering statute was intended to address. However, as is often the case, as government gets bigger and bigger, when they get a new law to use, they use it whenever they can, despite the intended purpose of the law.

March 22, 2015

Florida Stand Your Ground Law Cannot Be Used Against Police Officer Engaged in Official Duties

As many people are aware due to some recent high profile cases, Florida has the Stand Your Ground law which provides that the state cannot prosecute a person who used justifiable force under the circumstances. When a defendant properly defended himself with reasonable force under the circumstances, the Stand Your Ground law establishes an immunity for the defendant so that the state cannot move forward with its prosecution of the defendant.

However, the Florida Stand Your Ground law does not apply in certain situations. For instance, a defendant cannot attempt to use the Stand Your Ground immunity when the alleged victim is a police officer engaged in the performance of his/her official duties as long as the officer either identifies him/herself as a police officer or it is clear from the circumstances that the defendant knew he/she was an officer.

In a recent case near Jacksonville, Florida, a police officer was responding to a robbery call at night. The police officer was led to the defendant's residence and observed the defendant outside. The officer claimed to have identified himself, pulled out his gun and pointed the gun and his flashlight at the defendant. The defendant shot the police officer in response.

The defendant was arrested and charged with aggravated battery on a law enforcement officer. The criminal defense lawyer asserted the Florida Stand Your Ground immunity and claimed that he did not know the victim was a police officer and shot him to defend himself. The court did not allow the defendant to assert that claim. Since the court found that the victim was a police officer, he was engaged in his official duties by responding to a robbery call and he identified himself as a police officer, the Stand Your Ground immunity was unavailable to the defendant. If the police officer did not identify himself or was off duty or it was otherwise unclear he was a police officer, the defendant would be able to attempt a Stand Your Ground claim. However, in this case, the court found that the police officer met the conditions of the exception outlined above so Stand Your Ground could not apply.

The defendant was still able to use a self defense claim at trial. He could argue he did not know the victim was a police officer and thought someone in the dark was going to shoot or attack him so he fired first. The key difference is that a self defense claim like that would be decided by a jury. If the jury does not buy that defense, the defendant may very well get convicted of the crime. The Stand Your Ground claim is an immunity asserted with a motion to the judge. If the judge grants the motion, the case is over and never gets to an unpredictable jury.

March 19, 2015

Be Careful in Florida Driving Someone Else's Vehicle if That Person Might Have a Legal Problem

In Florida, a lot of criminal cases are initiated based on fairly routine traffic stops. What might start out as a speeding or red light violation can easily turn into a DUI, felony drug or driving with a suspended license arrest. Additionally, a lot of arrest warrants are served based on traffic stops.

Police officers have a lot of leeway to make traffic stops. If a police officer says a driver violated a traffic law, he/she will be able to pull that driver over, and any attempt to contest it will be a difficult credibility contest between the suspect and the police officer. A police officer in Florida can also use the information he/she obtains from the computer when running a license tag to make a traffic stop. For instance, police officers will often run tags on their computer to determine if the registered owner of the vehicle has a suspended license or outstanding arrest warrant. A police officer can stop a driver if the officer runs the tag to the vehicle in the computer and learns that the owner of the vehicle has a suspended license or outstanding warrant. This is so even though we all know a vehicle owner is not necessarily the current driver.

In a recent case near Jacksonville, Florida, a police officer ran a tag and learned that the owner of a vehicle had a suspended license. The officer conducted a traffic stop and asked for the driver's license. The driver was not the owner of the vehicle, but he also had his driving privileges suspended. He was arrested for driving with a suspended license.

The criminal defense lawyer filed a motion to suppress the evidence of the stop because the defendant was not the owner of the vehicle and was not the person the officer was looking for based on the information in his computer system. The court disagreed. A police officer is allowed to stop and detain a person if he/she has reasonable suspicion or probable cause to believe the person is committing a crime. The law in Florida provides that when a police officer learns that a vehicle owner may be committing a crime (i.e. driving with a suspended license) or may have committed a crime (i.e. has an outstanding warrant), this is sufficient to allow a traffic stop for further investigation. As long as the driver sufficiently matches the description of the owner, the police officer can make the traffic stop and investigate further.

Of course, this does not mean the police officer can pull anyone over based on incriminating information about the owner from the computer system. If the police officer runs a tag and learns that the Asian female owner has a suspended license or outstanding warrant, the officer cannot stop the vehicle or detain the driver if he/she can see that the driver is a white male.

However, police officers do have some leeway in making stops and investigating drivers when they are driving cars owned by someone with a warrant or a suspended license. Therefore, if you are borrowing someone's vehicle or drive a vehicle titled in another person's name, be aware that you may be subject to traffic stops for no apparent reason.

March 16, 2015

Odor of Alcohol and Beer Cans Found on Boat WEre Not Sufficient for Boating Under the Influence (BUI) Investigation

In Florida, most alcohol related criminal cases are DUI cases, however it is not uncommon for us to see boating under the influence, or BUI, cases as well. There are some similarities between DUI and BUI cases as well as certain differences. As to the similarities, it is illegal to drive a boat while impaired, and the police will try and get the boat driver to submit to field sobriety exercises and a breathalyzer test just as with a DUI. Additionally, the penalties for BUI and DUI cases are similar.

There are also some key differences. Some of the observations the law enforcement officers make trying to prove impairment are obviously different when a person is on a boat versus in a vehicle. Additionally, it is not illegal to drink alcohol on a boat, while it is illegal for any occupant to have an open container of alcohol in a vehicle on the road.

In a recent case near Jacksonville, Florida, a Fish and Wildlife Department officer observed the defendant violating the wake free zone with his boat. He asked the defendant to pull his boat over to the officer's boat. The defendant was able to maneuver his boat over to the officer's boat. The officer then conducted a safety inspection which required the defendant to retrieve certain items such as a life vest, boat registration and other items required to be on the boat. The defendant had to balance himself while obtaining these items. The officer then indicated that he noticed an odor of alcohol coming from the defendant and saw two empty beer cans in the boat. Based on these observations, the officer requested the defendant submit to field sobriety tests and the breathalyzer test. Once those were completed, the officer arrested him for BUI.

The criminal defense lawyer filed a motion to suppress the evidence of the field sobriety exams and the breathalyzer. The law, which applies to BUI and DUI cases equally, says that a law enforcement officer may not detain a suspect for investigation including field sobriety tests and a breathalyzer test without reasonable suspicion that the driver was committing a crime. In other words, the officer needed to have specific evidence that the driver was impaired from alcohol. In this case, the officer relied on the fact that the defendant was unsteady while retrieving items on the boat, smelled like alcohol and had two empty beer cans on the boat. However, the court found this evidence to be insufficient evidence of impairment.

If this was a DUI case, it might have been different. Police officers are always testifying that drivers are swaying and/or unsteady on their feet. On land, this can be a difficult factor for a defendant to refute. However, on a boat, while trying to find items for the officer, being unsteady is understandable without regard to impairment. Smelling like alcohol may be evidence that a person has had alcohol to drink, but it does not mean that person is impaired. It is not illegal to have a drink or two and drive. It is only illegal to drive while impaired. Finally, the court did not find that the evidence of the beer cans was sufficient to support illegal activity. It is not illegal to drink on a boat. Also, there was no evidence that the driver was the one who drank those beers, or if he did, when he drank them.

Ultimately, the state did not establish that the officer had sufficient and specific reasons to suspect the defendant was impaired and committing a BUI offense. As a result, the evidence of the field sobriety tests and the breathalyzer test was suppressed, and the BUI case was thrown out.

March 1, 2015

Florida Appellate Court Awards Attorneys Fees to Claimant After Money is Forfeited Without Evidence of Criminal Activity

As we have mentioned many times before on this website, we have seen many cases where a Florida law enforcement agency has taken money or other property from a person without any indication that the person or the property was involved in criminal activity. The Florida forfeiture laws allow the police to take property from people in a variety of circumstances, even when the police do not have sufficient evidence to make an arrest. In these situations, it is important for the property owner to contact a forfeiture attorney to assert his/her rights and take the proper steps to recover that property. We have represented people who have been the victims of outright theft of hundreds of thousands of dollars by the police under the forfeiture laws in Florida, and we often do it at no upfront cost to the claimant.

It looks like the Miami Dade Police Department is no different than many others in Florida that will take a person's cash without any regard to a lack of evidence and perhaps ask those questions later. In a recent case in South Florida, an individual was traveling to Miami from Colombia with about $120,000 in cash. When he went through customs, the police stopped him and asked him questions about the cash. He said he was coming to Miami to buy cell phones to resell at his store in Colombia. The police took his cash anyway and initiated forfeiture proceedings to keep the cash. In the forfeiture pleadings, the state alleged that the individual was using the cash to buy illegal drugs. However, the state offered no specific evidence to support that allegation, and no criminal arrest was ever made.

On the other hand, the claimant was able to present witnesses who would testify that the claimant was in the electronics business and had purchased cell phones in the past from legitimate electronics businesses in Miami for resale in his home country. The claimant also presented receipts for past purchases of cell phones for resale in Colombia. In any case, it was the state's burden to establish probable cause that the cash was the proceeds of illegal activity or used in connection with legal activity. The state failed completely in doing so.

After approximately eight months, as the forfeiture case was slowly moving through the system, the state still had not produced any evidence that the individual or the money was connected to illegal drugs in any way. Finally, a judge dismissed the case, and the individual received his money almost nine months later (minus what he had to pay his criminal defense/forfeiture lawyer after recovering the money).

After winning the case, the forfeiture lawyer filed a motion to recover attorney's fees from the state. The Florida forfeiture statute does allow the prevailing party to recover attorney's fees, but the standard is fairly high. It is not enough for the prevailing party to show he/she won the case. The prevailing party must also show that the state did not act in good faith in any stage of the forfeiture proceedings or that the seizing agency grossly abused its discretion when seizing the property. This is a high standard, and it can be difficult to get a local judge to make such a finding against a local district attorney's office and/or a law enforcement agency.

However, the award of attorney's fees in such blatant abuses of the forfeiture laws is critical as it is the only deterrent to prevent government agencies from stealing people's property under the Florida forfeiture laws. Otherwise, the state can seize property, file forfeiture pleadings in court, force the claimant to hire an attorney, if he/she can, and drag the case out through the normal litigation process in the hopes of getting a good result or a settlement. That process can be demanding, expensive and time consuming for innocent owners of seized property. If the worst thing for the state would be the return of property at the end of the process, that provides no disincentive to steal property from people under the forfeiture laws. If anything, it encourages the state to take property without evidence of criminal activity and abuse the system as some people may not be able to afford a forfeiture lawyer or may be forced to settle before the process ends due to financial pressures. The prospect of the state having to pay large attorney's fees for the claimants in the many abusive cases that occur in Florida is at least some deterrent against forfeiture abuse. It is important that judges award those fees where appropriate as the forfeiture statute allows.

February 26, 2015

Florida Police Officer Was Justified in Stopping Vehicle Where Window Tint Was Too Dark to See Driver

In Florida, a police officer can stop a vehicle if the vehicle's window tinting is too dark. The Florida statute provides that the side windows on a vehicle must have a light transmittance of at least 28% in the visible light range. This can be measured by certain devices after the initial stop is made. Of course, the initial issue is whether a police officer is permitted to stop a vehicle based on his/her opinion that the window tinting is too dark and illegal. A person cannot usually make that determination for certain based on looking at it from another vehicle.

A police officer is allowed to stop a vehicle if he/she has probable cause to believe a crime is being committed or a traffic law is being violated. In a recent case near Jacksonville, Florida, a police officer stopped a vehicle during the day because he could not see the driver through the side window due to the window tinting. He stopped the driver and found marijuana and cocaine inside. The driver was arrested for possession of marijuana and cocaine. The criminal defense lawyer filed a motion to suppress claiming that the police officer did not have a legal basis to make the initial traffic stop. The police officer testified that he pulls drivers over if the window tinting is too dark for him to see the driver. The court allowed this. Since the police officer has no way of determining for certain if window tinting is too dark as the vehicles are driving, if the police officer can establish in good faith that he had probable cause to believe it was too dark, it was a valid stop. The court found that the testimony that the police officer could not see the driver in the daylight was sufficient to establish a good faith basis that the window tinting was not legal.

February 20, 2015

Can the State Use a Defendant's Pre-Arrest Silence Against Him/Her at Trial in Florida?

Most people are aware that the United States Constitution affords people the right to remain silent. This means that a person does not have to give any statement to police that might be incriminating, and a defendant cannot be compelled to testify at his/her own trial. If a person chooses not to speak with police and/or chooses not to testify at trial, the state cannot use that choice against the person. For instance, a prosecutor could never tell the jury to infer that the defendant is guilty because he/she did not testify and defend him/herself at trial.

When a person is arrested in Florida, he/she should be read Miranda warnings. The Miranda warnings inform a person of certain rights, including the right to remain silent and the warning that if the suspect does make a statement, it can be used against him/her in court. That is fairly well known at this point. If a person is arrested and decides not to make a statement, he/she is exercising his/her constitutional rights, and the state cannot mention that silence at the defendant's trial to try and use it against him.

However, there are times when a police officer is investigating a crime and is not sure whether a person is a suspect. In those early stages, before any arrest, if the police officer asks a person questions and the person remains silent, can that silence be used against him/her at trial? Technically, before an arrest or a detention where the person is not free to leave, Miranda warnings and the constitutional right to remain silent are not implicated. What if a police officer arrives at a crime scene, has no idea who the suspect might be, asks a person some questions, that person remains silent and then is later developed as a suspect? Can the state use that silence against him/her?

This came up in a murder case near Jacksonville, Florida. The police came to the scene of what appeared to be a suicide and asked questions of the victim's wife. The wife stayed silent. The police officer did not give the wife Miranda warnings because he did not have any indication the wife was a suspect at that point. Later, the wife was arrested and charged with murder. At the trial, the defendant did not testify, but the state brought out the fact that she failed to answer the police officer's initial questions at the crime scene. The prosecutor argued that her silence was evidence of her guilt in his closing arguments. The wife was convicted of murder.

The criminal defense lawyer appealed the conviction arguing that the state violated her constitutional rights by commenting on her silence when the police came to the scene. The appellate court agreed and reversed the conviction. The current law in Florida says the state cannot comment on a person's silence in response to police questions either before arrest and Miranda warnings or after. The state can use that silence to impeach a defendant at trial. For instance, if the wife testified at the trial and said she told the police officer this or that, the state could bring the police officer in to testify that she was silent, contrary to her trial testimony. However, if the defendant does not testify at the trial or does not say anything at the trial that is contrary to her pre-arrest silence, the state cannot use her pre-arrest silence against her and cannot tell the jury it is evidence of guilt.

February 8, 2015

State Failed to Prove a Violation of Probation with Hearsay Evidence From Probation Officer

When a defendant in Florida is arrested and charged with a crime and then decides to enter a guilty or no contest plea, or has a trial and is found guilty, he/she will be sentenced by the judge. The judge will likely have a few options when sentencing the defendant. The judge can sentence the defendant to incarceration, probation, both or neither (time served). If the defendant is sentenced to a term of probation, there will be certain conditions that the defendant must follow. If the defendant fails to comply with one or more of the conditions of his/her probation, the judge may issue an arrest warrant for a violation of probation. If it is determined that the probationer violated his/her probation, the judge will likely sentence him/her again to incarceration and/or more time on probation.

There are a few conditions that are fairly standard for anyone on probation. For instance, a person on probation will likely be required to avoid possessing or using any drugs, except those prescribed by a doctor. If the original charge was a drug related charge, the probationer might have to have to take random drug tests. If the probationer is found with an illegal drug like cocaine or marijuana in his/her system, a violation of probation warrant is likely. If the probationer is found with a drug like Hydrocodone or Xanax in his/her system, the probationer should be safe as long as he/she can show that he/she has a valid prescription for the drug. Normally, the probationer will inform the probation officer of all of his/her prescription drugs at the beginning of the probation. However, if the probationer cannot produce a valid prescription, it will likely be treated as if the probationer is using any other illegal drug.

In a recent case near Jacksonville, Florida, a defendant received a probationary sentence and was required to avoid possessing or using any drugs, except a prescription drug with the appropriate prescription from a doctor. After a random drug test, the probationer's sample tested positive for opiates and Oxycodone, according to his probation officer. A warrant for a violation of probation was issued. At the probation violation hearing, the state's only witness was the probation officer. He testified that he performed an informal field test on the probationer's urine sample that resulted in the positive results. The sample was then sent off to a drug testing lab for more formal testing. At the hearing, the probation officer brought the more thorough lab test result document that also indicated the probationer provided a urine sample positive for opiates. Finally, he testified that he received an anonymous call indicated he should drug test the probationer because he was using drugs he bought off the street.

None of this evidence was sufficient to establish a probation violation. It was all hearsay evidence and evidence from someone who was not competent to interpret lab and drug tests results. In order to properly establish that that the probationer provided a urine sample that was positive for illegal drugs, the state needed to present a witness who was qualified to perform drug tests and interpret the results to properly show the probationer had drugs in his system. For instance, the state should have had an expert from the drug testing lab to testify at the hearing. Since the probation officer was not qualified to provide the expert drug test testimony, the court found that the state did not meet its burden to prove a probation violation.

February 5, 2015

President Obama's Proposed Budget Allocates More Money to the War on Drugs

While there seems to be some growing recognition that the war on drugs is criminally wasteful and counterproductive, with more states legalizing marijuana either for recreational purposes and/or medicinal purposes, clearly we still have a long way to go before we approach a reasonable and fiscally responsible state of affairs. The federal government has taken some limited steps to reign in the massive war on drugs. For example, the federal sentencing guidelines did partially rectify the extreme disparity between prison guideline sentences for crack cocaine cases versus powder cocaine cases. The federal government also does not appear to be interfering when states legalize marijuana, at least not as often as it did before.

However, much of the rhetoric from the federal government about the ineffective war on drugs and tremendous amount of money wasted on it is just that- rhetoric. President Obama recently released his proposed budget for fiscal year 2016, according to a recent article. Unfortunately, more and more money is being allocated to the war on drugs and the federal prison system. The budget proposes $3.7 billion for the Bureau of Prisons (an increase of $187 million), $2.46 billion for the Drug Enforcement Agency (an increase of $90 million) and $293 million for the Office of Justice Programs (an increase of $50 million). That last allocation is a significant 20% increase that goes towards drug tasks forces that are specifically designed to perpetuate the war on drugs and feed the bloated and expensive prison system.

Of course, as the article notes, this is just a proposed budget. Congress can make all sorts of changes to it. These war on drug expenditures can get better or, more likely, worse. In any case, it is hard to take the federal government seriously when it negatively mentions the war on drugs and then proposes hundreds of millions of dollars in increases to make more drug cases. In this case, as usual, money talks.

January 30, 2015

Senators Propose New Law to Curb Forfeiture Abuse

Over the years, handling asset forfeiture cases in Florida and Georgia, we have seen some eye-opening practices of police and other law enforcement agencies designed to take property from people for their own benefit. It is not uncommon for law enforcement agencies to take large amounts of money or other property from people when there is virtually no evidence a crime was committed and no hint of criminal charges. The forfeiture laws allow law enforcement agencies to do this, and they do so with the idea that they can either work out a settlement down the road or, in the case of smaller amounts of cash, the claimant will not bother to pursue the property or will not know how to pursue it. We have even seen cases where the police seize bank accounts without having a basis to arrest anyone but threaten arrests later for leverage during settlement negotiations.

Why do law enforcement agencies squeeze citizens this way and take their property with little to no regard for the laws and Constitution? Profit. Few things excite a police officer more than the prospect of forfeiting a nice car that is paid off that can be used as an undercover vehicle or some other purpose by that law enforcement agency. As long as these law enforcement agencies can directly profit from taking property away from people, they are going to do it. A lot.

Therefore, the obvious remedy to curb these abuses is to attack the motive, the profit motive. If it is so obvious, why hasn't this happened yet? Well, it is difficult to get the government to limit itself, particularly when the thing they desire most ($$$) is at stake. In the past, federal law enforcement agencies were not allowed to directly profit from their seizures and forfeitures. That changed in the 1980's, and as expected, the number of forfeitures increased significantly.

Two senators (Rand Paul and Tim Walberg) have proposed a law designed to limit the exorbitant number and value of forfeitures that are occurring today. The law would address the profit motive federal agencies have to seize and forfeit property. Under the proposed law, if a federal law enforcement agency forfeited someone's property, the property would go into a general federal treasury fund that would not directly benefit that particular law enforcement agency. Since law enforcement agencies would not get to drive that nice car that is paid off or see that cash go directly into its account, they would be less likely to overreach and take people's property for forfeiture without regard to whether a qualifying crime had been committed related to that property.

The proposed law would also provide free, appointed lawyers for people whose property was taken for forfeiture. Since forfeiture law is considered civil law, a person claiming property that has been seized does not have a right to an appointed lawyer. He/she would have to hire a lawyer for assistance. Providing a free, appointed lawyer for forfeiture cases would go a long way towards limiting forfeitures and helping citizens retrieve their money and property from the government. For instance, it is common for a police officer to pull over a vehicle, allege that there is an odor of drugs coming from the vehicle and seize any cash that they find in the vehicle. They will do this even if there are no actual drugs found in the vehicle, and no arrest can be made. If the amount of the cash is in the $5,000 range, the owner of the cash may not be able to hire a lawyer or it might not make sense to pay a lawyer a few thousand dollars in the hopes that he/she might get some or all of the cash back. In other words, police know that if they take a relatively small amount of cash, there is a good chance the owner cannot hire a lawyer or will not take the financial risk to hire a lawyer to assert his/her rights to that money. If owners are provided a free lawyer, as defendants are in criminal cases, many more of these questionable forfeitures of property would be challenged, which would be a disincentive for police to seize the property in the first place.

Keep in mind this is just a new proposal and is a long way from being passed. We are naturally skeptical that the government would pass a law that limits the government in an area where they can do their favorite thing- take money from people with little to no effort. Additionally, this would only apply to federal forfeiture cases. However, it is important for this issue to get attention, and if this proposed law does pass in some form, it is a step in the right direction.

January 22, 2015

Attorney General Eric Holder Issues a New Order Addressing Asset Forfeitures, But it Doesn't Do What Many Seem to Think it Does.

As criminal defense and asset forfeiture attorneys in the Jacksonville, Florida area, we have seen the many different ways the government will take and forfeit someone's property under the state or federal asset forfeiture laws. These cases have ranged from questionable searches seemingly designed to seize and forfeit certain property to cases where property is taken but no criminal arrests are ever made to outright thefts by the government of a person's property. Unfortunately, the government's taking of property is an area that has not received the attention that it deserves. When the police go and take a person's cash because he/she is carrying a large quantity of it without even contemplating an arrest and with no indication that the person committed any crime, that should get some scrutiny. But, it rarely does.

Attorney General Eric Holder recently made an announcement about a rule change regarding certain asset forfeitures. The new rule prohibits federal agencies from adopting state asset forfeiture cases, except for those cases involving public safety, i.e. guns, explosives, child pornography. After the new rule was published, we saw a lot of articles on the Internet indicating this is the end of asset forfeitures, in some form of another. It isn't. Not even close.

First, let's talk about what this new rule does not address. Before we do that, it is important to understand two terms. Seizure - when the police seize one's property, the police are taking possession of that property. Forfeiture - when the police forfeit one's property, they are assuming ownership of that property. If the government successfully forfeits property, that property now belongs to them. Asset seizures and forfeitures are conducted by police and other law enforcement agencies at the local, state and federal levels. State asset forfeitures laws apply to the state and local law enforcement agencies; federal asset forfeiture laws apply to the federal agencies.

The new rule articulated by Mr. Holder does not appear to limit federal asset forfeitures in any way. The federal government is still free to seize and forfeit assets in the same manner they did in the past, which is a lot and often. Additionally, this does not prohibit any local or state agency from seizing and forfeiting assets. This does not, in any way, affect those states that do not have rules that limit how state and local agencies can use the money and other property that they seize and forfeit.

So, what does this new rule do then? Well, we have to go back and understand why Mr. Holder enacted this new rule. One obvious problem with asset forfeitures is that it gives law enforcement agencies a profit incentive to take people's property. If the state agencies can use that property for their own benefit, they obviously have an incentive to take more and more of it. This is why we see cases where police seize property without even arresting anyone for a crime. If there are two things government agencies and officials love more than all else, they are government and other people's money. It is no secret that if a vehicle has an ounce of marijuana in it, the police are more likely to try and seize the vehicle for forfeiture if it is a nice vehicle, it is paid off, and someone in that agency can become the primary driver of that vehicle after forfeiture.

Due to the presence of this obvious profit motive, more and more egregious seizures of property were taking place. Some states decided to try and curtail these unlawful police seizures of property by addressing the conflict of interest, i.e. the profit motive. Some states passed laws saying that most of the money and other property seized and forfeited by state and local law enforcement agencies could not go to the direct benefit of those law enforcement agencies. Instead, the forfeited property would go to the benefit of a general state fund or an education fund. For example, some states have passed laws limiting the seizing agency's asset forfeiture profit share to 20% of the money or value of the property seized. If a county police officer seized $10,000 from someone allegedly involved with illegal drugs, the county police department could only keep $2,000 of that forfeited money for themselves. The other $8,000 would go into a general state fund that did not directly benefit that county police department. Since the police were not seeing the direct and immediate benefit of these forfeitures, they would be less likely to overreach and take people's property.

Unfortunately, as we have come to understand, some law enforcement agencies work under the theory that laws are for other people to follow. To circumvent the state laws limiting how much state and local law enforcement agencies can profit from their asset forfeitures, these law enforcement agencies worked out deals with federal agencies. Since the state laws regarding asset forfeitures do not apply to federal agencies, the state and local law enforcement agencies would seize property just as before, but rather than have a state agency pursue the forfeiture case, the seizing state agency would hand the case over to a federal agency to pursue the forfeiture. The seizing state agency would pass the forfeiture case over to the federal agency with an agreement that the state agency would receive a higher percentage of the profits from the forfeiture than the new limiting state law would allow. In the example above, the county police department was limited to gaining $2,000 if the forfeiture case was pursued on the state level. Alternatively, that county police department could give the forfeiture case to a federal agency, unaffected by state asset forfeiture laws, with an agreement that the county police department receive 80% of the forfeited money. This was clearly done to circumvent the new state forfeiture laws and allow state and local law enforcement agencies to profit from asset forfeitures as in the past and more than the new state laws allowed.

Mr. Holder's new rule prevents federal agencies from taking, or adopting, these forfeiture cases from state and local agencies in order to circumvent state laws limiting how much state and local law enforcement agencies can profit from these asset forfeitures. It is unfortunate that the federal government has to enact a rule preventing the federal government and state and local government agencies from disregarding rules designed to limit how they take property from the people who they are supposed to serve. However, because these government agencies need to be monitored and governed this way, it is a good and necessary rule. On a more global level, it is also encouraging to see the federal government begin to address a clear problem that goes largely unnoticed.

That being said, it is still important to understand this is not some sweeping paradigm shift that will drastically, or even noticeably, change the number of asset forfeiture cases nor the often questionable methods government agencies use when interacting with people in an effort to take and assuming ownership of their property..

January 13, 2015

Court May Decide Classifying Marijuana as a Schedule I Drug is Unconstitutional

One of the myriad problems and idiotic characteristics of the monumentally wasteful and unsuccessful War on Drugs is that the marijuana plant, or cannabis, is classified as a Schedule I drug by the federal government. Schedule I drugs are the most highly restricted drugs and reserved for drugs that are considered the most dangerous. Also, ironically, they are drugs that are considered to have "no currently accepted medical use", despite medical evidence to the contrary. As a result, under this rule, marijuana cannot be prescribed by a physician, despite the fact that medical marijuana is legal in one form or another in many states. Another characteristic of proper Schedule I drugs is that it must be a substance that has a high potential for abuse. As an example, heroin has a high potential for abuse. To classify marijuana and heroin together in such a category is ridiculous and unsubstantiated by any honest measure.

One result, of course, is that we have numerous criminal laws dealing with marijuana, and marijuana arrests are some of the easiest arrests for law enforcement to make to maintain their stats and keep prisons full. However, in a marijuana cultivation case pending in California, the defendants are challenging the classification of marijuana as a Schedule I drug. On its face, to have marijuana as a Schedule I drug with heroin while cocaine, methamphetamine and Oxycontin sit in the Schedule II category with drugs that apparently have "less abuse potential than Schedule I drugs", is completely ridiculous and irrational. Hopefully, a court will see this.

If the court does acknowledge this travesty of common sense, it is unclear what effect it will have on others. While it will likely help the particular defendants in this case, it may or may not reverberate to other locations and other decisions. Hopefully, it, or something, will prompt the federal government and prosecutors and judges to see that marijuana related prosecutions are a waste of time, money and resources as well as being counter productive.