The United States Court of Appeals for the Seventh Circuit has issued an unanimous opinion overturning a district court that had forfeited $271,080 in cash seized by the federal government, even though owners brothers, Pedro and Abraham Cruz-Hernandez, were never criminally charged. Pedro and Abraham contested the forfeiture under 18 U.S.C. § 983(a) and submitted affidavits attesting that the money is their joint savings. The entire panel rejected the decision of United States District Judge Joan B. Gottschall to uphold the abusive forfeiture. Judge Diane Wood (left) wrote the opinion below for the Court. I wrote a column on the increasing use of our roads by police to mine for cash and property to seize from vehicles. We have also discussed this trend in various blog columns.
The case began when the Chicago police responded to a home invasion at the house where the brothers lived with six other people. Here is the background statement used by the district court:
At about 1:00 a.m. on June 9, 2012, North Chicago Police Department (NCPD) officers responded to a 911 call reporting an apparent home invasion at 2124 Kemble Avenue in North Chicago, Illinois. Upon their entry into the residence, NCPD officers discovered that the apparent intruders were not present. While inside the residence, NCPD officers say they observed in plain view a 9mm handgun, plastic bags, canna residue, a knife, and zip-tie plastic fasteners.
The officers observed three vehicles parked in the driveway behind the residence, including a red Chevrolet minivan. A Lake County Deputy Sheriff, who is also a K-9 handler, and a canine owned by the Lake County Sheriff’s Department, conducted a narcotic-odor investigation of the exterior of the three vehicles. The canine alerted to the presence of narcotics on the van.
Within the rear of the minivan, NCPD officers observed a black safe in plain view through the windows. A circuit-court judge in Lake County issued a warrant to search the residence and minivan and seize evidence, including cash and safes. In addition to the search warrant, claimant Pedro Cruz-Hernandez and a co-resident of 2124 Kemble signed a consent form for NCPD officers to search the residence.
Officers conducted a search of the residence, minivan, and safe. The officers found $271,080 in cash in the safe, bundled together with elastic ponytail rubber bands in increments labeled “$5,000.” NCPD officers found a handwritten ledger inside the safe that appears to contain dollar amounts, dates, and names.
Outside, a police drug dog alerted to Pedro’s van. Officers obtained a search warrant and, once inside the vehicle, found a safe containing the cash. Police also found “two pages of handwritten notes” which they took for a “drug ledger”; the brothers instead said that the “handwritten notes relate to money sent to Mexico to build a home there.”
So, no drugs were found. No crime was charged. Yet, Gottschall still said that the government could keep the money. She found that, under federal civil forfeiture laws, prosecutors need only show a connection between a seized property and alleged criminal conduct by a “preponderance of the evidence.” That was enough for Gottschall. It was not enough for any of the appellate judges who not only reversed Gottschall but expressed shock at the sweeping claims of the government.
After setting aside claims of inconsistent statements from the brothers, the court noted:
It is also telling that the government has presented virtually no evidence that the brothers are involved in drug trafficking. There was nothing to indicate past or current drug dealing by the brothers or anyone else living with them in the house, nor was there any suggestion that either brother used the bedroom where the apparent drug paraphernalia was found. Though drug dogs had alerted to the safe and currency, the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance. Neither did the government point to evidence (e.g., an experienced drug investigator’s opinion) to substantiate its assumptions that the notes found in the safe were a “drug ledger” or that counting and bundling currency is something that only drug dealers would do. “Absent other evidence connecting the money to drugs, the existence of money or its method of storage are not enough to establish probable cause for forfeiture,” much less enough to meet the now-heightened standard of a pre-ponderance of the evidence.
What is so disturbing is that not only would Justice Department attorneys argue this abusive case but clearly supervisors signed off on the case, which went to the federal appellate court. There appears no repercussions for the government officials in maintaining such positions in court.
Here is the opinion: Seventh Circuit Opinion