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In One Missouri County Alone, $2.5 Million Seized in 24 Traffic Stops but No Criminal Charges Filed

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highway-828985_1920-300x200Between 2016 and 2017, police officers in Phelps County, Missouri seized over $2.5 million during traffic stops along a 20-mile stretch of I-44. For none of these seizures did law enforcement file any criminal charges.

The property was taken using a legal procedure known as civil asset forfeiture. This is where law enforcement is able to seize an individual’s property if it is suspected of being involved in a crime. In criminal procedures, proof “beyond a reasonable doubt” is required to gain a conviction. As civil asset forfeiture is a civil and not a criminal process, the standard of proof required to permanently take property is usually lower. In Missouri, all that is required is “a preponderance of the evidence.”

According to filings with the Missouri State Auditor, no charges were filed against the drivers in the 24 seizures in this two-year period. This happened despite state law saying that law enforcement may not take property without a criminal conviction.

Missouri law also says that the proceeds of civil asset forfeitures are to be “distributed annually to the schools.” The idea behind this is to ensure that Missouri law enforcement cannot be accused of “policing for profit.” In many states, police departments may keep a majority or all of the profits from forfeitures. This has led critics to argue that law enforcement in those areas is incentivized to carry out forfeitures.

Although state law states the proceeds from civil asset forfeiture must go to public schools, less than 2 percent of the money from forfeitures statewide has actually made its way there. The vast majority of the $19 million from civil forfeitures has been spent by law enforcement agencies on themselves. Over the last two years in Phelps County alone, forfeitures have provided $2.3 million for a new jail in the county seat, Rolla, more than $100,000 for technology and equipment, and about $80,000 for salaries.

Agencies in Missouri are circumventing state law by partnering with the federal government, using a program known as “equitable sharing.” This is where the feds “adopt” a forfeiture conducted locally. The federal government retains 20 percent of the proceeds of these forfeitures while the local law enforcement agency receives the remaining 80 percent. According to the program’s terms, this money must be spent by the law enforcement agencies on themselves.

Phelps County Sheriff Richard Lisenbe feels that the proceeds from asset forfeiture are essential to fund his department’s operations. “Most departments don’t have much income,” he said. “Before we got in this asset-forfeiture thing, we were driving cars that had 300-400,000 miles on them.”

Attempts to reform state law to reduce the number of cases being sent to the feds have stalled in committee. State Rep. Shamed Dogan (R-Ballwin) is working on a new measure which would only allow forfeitures valued at above $100,000 to be eligible for the equitable sharing program. Law enforcement agencies favor a lower bar of $50,000. While only 19 percent of forfeitures are valued above $50,000, they amount to 80 percent of the money from forfeitures.

While this may be a palatable compromise for law enforcement, the Missouri School Boards’ Association argues that, according to the state constitution, all the money should come to them. With many schools buildings over a hundred years old, the association argues the money would be better spent on education rather than law enforcement.

Civil Asset Forfeiture Attorney

If your lawful property has been seized, then you should hire a lawyer. Contact us to set up a free initial consultation and work with one of Florida’s most experienced civil forfeiture defense attorneys.

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2019-20-27 Seizing Suspects’ Assets Like ‘Pennies From Heaven

Braden Carlisle of South Carolina Fought Police Seizure of Cash and Won

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squad-car-1209719_1920-300x162In May 2016, Braden Carlisle was traveling with friends from Charlotte, South Carolina to Myrtle Beach for the weekend. Carlisle was pulled over by police who then arrested him and seized the $6,600 in cash that was in the car with them.

“It scared the heck out of me,” said Carlisle. “I was like this is insane. This is insane. This is worse than the stuff you see on the movies.”

Carlisle had planned on having a fun weekend with his friends. “We decided to go gambling,” he said. “Usually we go to the Big M Casino boat that is down there by the Myrtle Beach area. In the meantime, we were just going to enjoy the beach and a few bars in that area.” Since Carlisle and his friends were bartenders, they had decided to take their cash tips with them—along with their recent tax return money—to spend at the casino.

Carlisle was stopped by law enforcement soon after arriving at Myrtle Beach. Police officers searched the car after Carlisle had passed a sobriety test. In addition to the cash, officers
also found 3.6 grams of cannabis and pills they claimed were MDMA (the drug known as Ecstasy). The pills, said Carlisle, were his friend’s sexual enhancement supplement and not Ecstacy.

Police were able to seize Carlisle’s cash using a procedure known as civil asset forfeiture. This is where law enforcement is allowed to take possession of an individual’s assets if they are suspected of being involved in a crime. In most states, no criminal charges are needed for property to be taken. In South Carolina, the standard of proof required to take property is just “probable cause.” This is far below the “beyond a reasonable doubt” required in criminal cases.

Carlisle fought the seizure in court. Unlike in a criminal case—where the accused has a right to counsel—in civil cases innocent owners either have to pay for an attorney or they have to navigate the complicated legal system themselves.

Even though he had the right to fight for his money back, Carlisle said the officers at the time had told him the money would never be returned to him. “They said it was kind of a forfeiture just because there was drugs involved—that I wasn’t going to see the money back,” he said.

“I’ve seen situations where my clients tell me that they are being told on the side of the road, ‘Hey if you sign this over to us, we won’t charge you with X crime. We, instead, will charge you with this other crime,’” explained Doward Harvin, an attorney based in Hemingway, a city close to Myrtle Beach. “The process for attempting to get the money back is not one that is made public.”

In the end, Carlisle won his case. The charges against him were dismissed, and he won the money back. Carlisle, nonetheless, feels he lost. “It was more of a loss than anything. I mean, almost $10,000 total through this whole ordeal, so the victory, yes, of this not being on my record or anything and everything being dismissed and dropped,” explained Carlisle. “But still this fiasco of the money being lost. I mean that’s something that I’m never going to see back.”

Once he had paid attorney fees and bond, Carlisle received less than 25 percent of the money that had been taken.

Civil Asset Forfeiture Attorney

If your lawful property has been seized, then you should hire a lawyer. Contact us to set up a free initial consultation and work with one of Florida’s most experienced civil forfeiture defense attorneys.

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2019-03-27 Do Civil Forfeiture Cases Always Hit Their Mark?

Laurie Snyder Cleared of All Criminal Charges, yet Law Enforcement Kept Her Car

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seedling-1062908_1920-300x200In 2013, Laurie Snyder was stunned when police raided her home. Living in a small town a little way north of Grand Rapids, MI, it was the last thing she was expecting to happen. Back then, Snyder was a caregiver who used medical marijuana—something which had been legal in Michigan since 2008. She grew it for herself as well as three others.

Never having been in trouble with the police before, Snyder was shocked. “I just was blown away that the police—it was like they came in and robbed me and said, ‘Have a great day!’ and left, and I was like—what just happened?”

The police took Snyder’s cannabis plants, her growing equipment, and the money in her purse—which came to $72. They also took her car. Law enforcement had not even filed criminal charges against her before a judge cleared her property to be sold at auction.

The police used a process known as civil asset forfeiture to seize Snyder’s possessions. Civil asset forfeiture is a legal process that allows law enforcement officers to seize an individual’s property if that property is believed to have been involved in a crime. Since it is a civil procedure, police do not have to file criminal charges against the property owner in most states.

At the time Snyder’s property was seized, police only required “a preponderance of the evidence” to be able to seize property. Critics of civil asset forfeiture argue that while it is often relatively easy for police to seize property, it can be difficult for innocent owners to get it back. Not only must citizens navigate the complicated court system, but they must also pay for their own lawyer. Unlike in a criminal case, property owners have no right to counsel.

In addition, Snyder faced a $500 bond—10 percent of the value of the seized items—in order to be able to challenge the forfeiture. As she lives on disability checks, this was not something she could afford. Snyder’s property was auctioned off.

“It took me close to seven months to save up the money to buy another vehicle of my own,” said Snyder. “Part of that was because during that time I had to pay other people to come pick me up take me to the grocery store to run my errands. So, yeah, it set me back.”

Snyder’s friends paid for a lawyer to fight the criminal case against her. All charges were dropped, but it was too late to get her property returned.

Several reforms to civil asset forfeiture in Michigan have been enacted since 2013. The standard of proof for seizing property is higher, although it still remains short of the standard of proof required in a criminal case, “beyond a reasonable doubt.” Property owners no longer have to pay a bond worth 10 percent of the seized property, and law enforcement now has to document seizures.

State Senator Peter Lucido (R-Shelby Township) has long been a critic of civil asset forfeiture. Last month, he introduced legislation which would require a criminal conviction before property could be permanently taken as long as the property was worth less than $50,000.

“I’m really happy that our legislature now is looking at changing that [civil asset forfeiture law],” said Snyder, “because it does really need to be changed.”

Civil Asset Forfeiture Attorney

If your lawful property has been seized, then you should hire a lawyer. Contact us to set up a free initial consultation and work with one of Florida’s most experienced civil forfeiture defense attorneys.

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2019-02-28 Michigan Lawmakers Vote to Limit Civil Asset Forfeiture

Honda Takes Massachusetts City to Court Over Property Seizure

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honda-2453746_1920-300x225The American Honda Finance Corporation has filed a lawsuit against the city of Revere, Massachusetts, alleging its constitutional rights were violated in 2016 when the Revere Police Department seized a Honda Civic using civil asset forfeiture.

Civil asset forfeiture is the legal procedure where law enforcement agencies may take possession of property if it is suspected of being involved in a crime. In most states, neither a criminal conviction nor even criminal charges are needed before property is taken. While there are few restrictions or oversight on the procedure in most of the country, Massachusetts is one of only two states—the other being North Dakota—to earn an F grade from the libertarian Institute for Justice for its civil asset forfeiture laws.

In Massachusetts, only a very low standard of proof—probable cause—is needed for property to be seized. Up to 100 percent of the profits from seizures are retained by law enforcement agencies who use it to fund their own operations. This, critics argue, gives police a monetary incentive to seize property. Finally, law enforcement agencies are not required to produce comprehensive reports of property seized, meaning there is little oversight or transparency on the state’s forfeitures.

Michael Lushan of law firm Lushan, McCarthy, and Goonan in Brookline, Massachusetts filed the case for American Honda. Lushan argues that the actions of Revere PD violated the Fourth and Fourteenth Amendments. The Fourth Amendment prohibits seizures and searches that are unreasonable, while Lushan argues that the vehicle was seized without due process in violation of the Fourteenth.

The Honda Civic was seized in December 2016 and was sold and retitled in May 2017. At the time of seizure, American Honda held a lien on the vehicle. When the Civic was resold, American Honda’s lien was not recorded on the title.

“It is beyond debate that the government cannot deprive plaintiff (or anyone) of property by unreasonable seizure and/or without first providing for notice and a hearing,” wrote Lushan. “Yet, that is exactly what occurred here, and exactly what is sanctioned by an outdated, facially unconstitutional Massachusetts State statute, which does not recognize that duly perfected security interest and lien in a vehicle is a constitutionally protected property right.”

In his filing, Lushan writes that Revere PD “detained it [the vehicle] without notice to HONDA and without a warrant or exception to the warrant requirement.” Lushan argues that a lienholder is constitutionally entitled “to notice and an opportunity to protect its rights.”

This case was filed just a week before the U.S. Supreme Court issued its unanimous decision that may rein in the use of civil asset forfeiture across the country. In that decision, the Supreme Court ruled that the Excessive Fines Clause of the Eighth Amendment applies to states, meaning that the police can no longer, for example, seize someone’s house if a small amount of narcotics were sold on the premises.

American Honda is seeking a judgment that says Revere is liable “for all damages and attorney’s fees suffered and incurred by HONDA” as well as seeking a declaration that finds “Revere’s seizure to be in violation of the Massachusetts and U.S. constitutions.”

Civil Asset Forfeiture Attorney

If your lawful property has been seized, then you should hire a lawyer. Contact us to set up a free initial consultation and work with one of Florida’s most experienced civil forfeiture defense attorneys.

Source

2019-02-26 Honda Takes on Mass. City in court Over Seizure of its Alleged Property

Fruit of the Poisonous Tree & Motion to Suppress Evidence

In criminal law, illegally obtained evidence is referred to as “Fruit of the Poisonous Tree” and cannot be used by prosecutors in trial. However, to prevent such use a motion to suppress evidence must be filed with the court. While every case is unique, criminal defense and civil forfeiture cases present very similar opportunities for defense. Motions to suppress evidence and other common defenses can be used to address the following:

  • Illegal Stops and Detention
  • Violation of Miranda Rights
  • Illegal Search and Seizure

Power of the Exclusionary Rule

What is Fruit of the Poisonous Tree? What is a Motion to Suppress?

The Exclusionary Rule exists to prevent law enforcement from violating people’s rights and may be useful in your case.

The Rule:  When law enforcement illegally obtains evidence, the evidence cannot be used against you at trial (it is subject to exclusion). Such evidence is called “Fruit of the Poisonous Tree” because it is the “fruit” of an illegal search.

**DEFENSE:  We challenge the admissibility of illegally obtained evidence by filing a “Motion to Suppress” or a “Motion to Exclude Evidence” with the judge. If the motion is won, evidence will be excluded from admission at trial. Depending on the circumstances, this may have a devastating effect on the prosecution’s case. In the best case scenario, it will force prosecutors to drop the case or, alternatively, engage you in meaningful settlement negotiation.

Illegal Stops and Detention

Illegal stops and detention, such as illegal traffic stops, are one of the most common situations where evidence is illegally obtained by police. But for the illegal stop and detention, police would have never discovered the evidence at issue, therefore the evidence is subject to the Exclusionary Rule.

The Rule:  For a stop and detention to be lawful, police must have good reason to believe you committed a crime, were committing a crime, or were about to commit a crime. This includes non-criminal infractions that a person may receive a citation for (i.e. speeding). While police are allowed to engage a person in consensual conversation, there must be a legal basis to stop and detain. If you are not free to leave, you are detained.

**DEFENSE:  If the police stopped and detained a person without a reasonable suspicion that a crime had been committed, was being committed, or was about to be committed, any evidence obtained as a result is subject to the Exclusionary Rule. To challenge an illegal stop and detention, we would file a Motion to Suppress all evidence obtained as a result of the stop. If granted, the loss of evidence may prove devastating to the prosecution’s case.

Violation of Miranda Rights

Your right to remain silent and your right to an attorney are sacred rules in American criminal law.

The Rule:  Before police can question someone in custody, police must advise the person that they: 1) have the right to remain silent, 2) have the right to counsel, and 3) that counsel would be appointed to them if they cannot afford to pay for one themselves.

When police fail to properly advise a person of their Miranda Rights before questioning them in custody, any evidence obtained as a result is subject to the Exclusionary Rule – including incriminating statements and confessions.

**DEFENSE:  If police failed to properly advise you of your Miranda Rights before interrogating you in custody, we may be able to file a Motion to Suppress. If the judge agrees, any evidence obtained as a result of that unlawful interrogation would be suppressed. Similar to suppressing evidence obtained as a result of an illegal traffic stop, suppression of evidence obtained from an unlawful interrogation may also be devastating to the prosecution’s case.

Illegal Search and Seizure

Under the U.S. Constitution, all people have a Fundamental Right to privacy and private property.

The Rule:  Police may only enter upon and search private property with a warrant. However, there are exceptions to this rule, including “exigent circumstances” such as a fire (i.e. police do not need a warrant to search a burning building for people who need help).

Money Seized at Miami International Airport

Another common exception happens during a traffic stop when police smell the odor of cannabis coming from your vehicle. When this occurs, police can search your vehicle to find the source of the odor.

**Defense:  When police conduct an illegal search and seizure, a Motion to Suppress can be filed asking the judge to exclude all illegally obtained evidence. Like the other motions discussed in this section, winning a Motion to Suppress based on illegal search and seizure can be devastating to the prosecution’s case because it causes their evidence to become inadmissible at trial.

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