Seventh Circuit Reverses Forfeiture Of $271,000 Seized From Brothers Who Were Never Charged With A Crime

200px-Diane_Wood_in_2008.JPGThe 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

39 thoughts on “Seventh Circuit Reverses Forfeiture Of $271,000 Seized From Brothers Who Were Never Charged With A Crime

  1. It appears the police officers committed perjury in their “probable cause” search warrant. Risk of criminal penalty for police chiefs and police leaders would create a deterrent effect (if enforced).

    There appears to be no real probable cause of a past crime in this case. “Plain View” searches are supposed to be exercised exclusively by “happenstance” – if an officer spotted something likely illegal accidentally in his routine duties or travels (ex: actual bag of drugs, clearly illegal weapon in a car, etc.). Intentional pretext stops aren’t happenstance searches.

    • RB……This is my understanding……The Supreme Court has given a green light to pretext traffic stops….I can’t cite the case(s) offhand, but I’ll check later when I gave more time.
      Once that pretext traffic stop has occurred, it isn’t only “plain view “searches or plain view observations that officer can perform.
      There are miriad reasons for manufacturing “probable cause”…….in my particular case, they had no reason to call in a K-9, but can do it anyway within certain time constraints.
      Once the dog “alerts”, a motorist can’t stop a search, because the “alert”…..while often bogus….is considered probable cause.
      Not sure if we are on “the same track” here with regard to the case cited in JT’s column, but I understood you to say that the officers could not legally go beyond a plain view search after a pretext stop.
      Maybe Darren, as a former officer, could weigh in on this.

  2. Karen S. I think we had discussed the Idaho Jack Yantis case months ago…..he was the rancher shot and killed by deputies on November 1st, after a dispatcher called him about his 2500 lb. bull hit by a Suburu.
    The bull was badly injured….and charging people at the scene of the accident….Mr. Yantis went out, near his home, to put the bull down, and was shot and killed by two deputies already on the scene.
    The family witnesses….his wife, who suffered a heart attack at the scene after her husband was killed….and a nephew have both given detailed accounts.
    An update……nearly 5 months after this incident, ISP has finished their report, and forwarded it to the Idaho Attorney General.
    No details have been released re the conclusions of that ISP investigation.
    The seperate FBI investigation still appears to be ongoing….no news on when they will be done.
    The family has hired lawyers who presumably did another investigation, maybe an independent autopsy as well.

  3. Tnash sorry you fouled out. But you remember it from 1960….that’s awesome!

    As far as this case….200 k probably builds a pretty nice pad in mexico? And it was their joint savings. Probably took years to earn. Thing is why not put it in the bank? Of course if you put your money in the bank it can be froze on less evidence than caf. Money is like a two edge sword….always “evidence” of something. Be it hardwork or opposite. The problem is our gov thinks having any must per se be evidence of a crime. At this time they are tossing around ending the fifty and $100 bills……so ppl can’t bank out of the back of their minivans. While the big time laundry mats (hsbc) never do time.

  4. J
    …..only game I ever fouled out of. And to this day I still maintain that two of those fouls called were bogus calls!
    I don’t really think that Homeland Security has that in there database, but these days, who knows?

  5. In 1968, the U.S. Supreme Court’s dissenting opinion in “Terry v. Ohio” warned about perverting the letter & spirit of the 4th Amendment as it was written. The opinion warned that it was a step toward “totalitarianism” in the United States and should have required a constitutional amendment.

    Today federal law that defines and clarifies the meaning of the 4th Amendment is about 180 degrees away from the actual wording of the amendment.

    Maybe it’s time for today’s U.S. Supreme Court to correct the perverted “War on Drugs” rulings in the 1960’s and 1970’s -OR- require a constitutional amendment?

  6. Tnash it could be in the database….who knows who the sentinels were back then. 😉 Today some fouls in highschool sports carry a fine…..a red card in soccer in alabama cost the player $300 billable to the parent…and a criminal record. Hell – yelling at the ref is a twenty year felony. I shit you not. But ppl still yell at refs…..its part of the game. Just like giving your representatives is part of the game. Of freedom.

  7. Tnash i’ll direct…you aren’t a spring chicken. Yet you have a trap memory, while most ppl your age are not “on line” “enlighting” others. I don’t want to encouage you to a life online….but ppl my age (mid forty) respect your age…and think you all have wisdom. Maybe your heirs will write a book…maybe their dolts. Maybe you are part of the solution. Maybe you got a webpage ” how it used to be”…..but i for one don’t want your wisdom or witness squandered. What do i know? I know at the same age i’ ve been around the block ten more times than rubio or cruz my age”peers”… I figure trump must have at least the street smarts of my folks. So you fouled out…and got hosed on two of them. There is more to life than basbetball. And i’ll be watching for your posts…for wisdom you ole mind like a trap you….i want to know not filtered but from horses mouth.

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