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. They charge your property as if it were a sentient, culpable entity.

    They literally could charge your dog as a defendant in a civil forfeiture case, e.g.: “United States vs. Rover (a dalmatian canine)”.
    Things like that haven’t happened in the Western world since the days of hunting down witches.
    In the Islamic countries and in witchcraft infested African countries, they still do accuse animals of crimes, and will punish or kill them for those crimes.

    I wrote about this in a short article:

    An Open Letter to my CongressCritter on Civil Forfeiture

  2. well, let’s hope this is the beginning of the end for this law, this behavior and anything resembling either one. Total police state practice.

  3. Our current AG, Loretta Lynch, was the Queen of Forfeitures when she was US attorney in NY.

    1. Justice Sotomayer seems to have some real life experience with “pretext traffic stops” and ethnic profiling.
      She had an energetic exchange with Chief Justice Roberts on these issues……Roberts said he has NEVER been pulled over.
      My guess would be that Justice Thomas has had some experiences of “driving while Black”, but I’ve never heard him speak about it.
      Justice Roberts and others have givdn the green light to pretext stops and searches.
      But SCOTUS ruled that officers need a warrant to search a cell phone’s contents.
      The situation, as I understand it, is that officers have wide latitude to pull you over in pretext traffic stop, and wide latitude in searching the vehicle and all of its contents.
      All without warrants, sometimes based on questionable “probable cause”.
      But they need a warrant to search your phone.
      My guess is that Roberts has a lot of sensitive information on HIS phone, and doesn’t get around much as far as driving around the country.
      His particular situation may have influenced his opinions, maybe subconsciously, about what and how law enforcement can search.
      Pawing through the contents of one’s vehicle is OK without a warrant, but don’t take and look at cell phones without a warrant.

  4. Thank you Seveth Circuit! Civil Foreiture has become a money maker for law enforcement at all levels. It is nothing less than third world corruption. Law enforcement benefits directly from these forfeitures thus setting up a conflict of interest that taints the process and the seizure. The fact that the trial judge up held the forefeiture is truly disturbing and bears not only a severe rebuke by the Seveth Circuit but an investigation.

    1. Pinand puller……glad to see that a TV station is investigating the apparent “profiling/targeting” of certain motorists.
      I have found that the few independent investigations are not generally very comprehensive…..i.e., they may collect anecdotal stories, but they won’t place a camera in such an areafor an extended period of time.
      Generally, the media will rely on “statistics” provided by law enforcement itself.
      In at least some jurusdictions, those statistics are not reliable.
      e.g., if 100 motorists are stopped an search in a given area, and illegal substances are found in 5 vehicles, then it’s a 5% successful “interdiction” rate.
      If the agency only reports and records 10 of these pretext traffic stops and searched, then they can report a 50% successful interdiction rate.
      This is probably an extreme hypothetical example, but what I’ve read and experienced is that the media relies primarily on statistics provided by law enforcements, and those statistics can be manipulated.

  5. Elmer Fudd, good suggestion. If such an action ever comes to fruition, I’d find it far more entertaining than the current presidential election.

  6. Law enforcement know their actions are enabled by government parasites like District Judge Joan B. Gottschall, a Clinton appointee. Get rid of the Gottschalls and you go a long way to get rid of RICO-crazed LE.

    One can make a good argument that corrupt courts are responsible for most of what is wrong in our country. And now BO wants to put a Gottschall on the Supreme Court.

    DOJ finds Ferguson targeted African-Americans, used courts mainly …

    Mobile-friendly – Mar 5, 2015 – Report says Ferguson police and courts targeted blacks with traffic … MORE: Examples of alleged abuse cited in DOJ report … Rick Rosenfeld of the University of Missouri-St. Louis said …

  7. It is never too late to fix a thief. Here the thieves are the pigs. Civil suit is a good way to curb behavior. A lawyer in this Circuit where the decision came down should find some square clients who had some item or cash seized and file a civil rights lawsuit under 42 U.S.C. Section 1983. Go after a municipality, the cops who stole and those who participated as :agents” or “co conspirators” of the state actors who stole. Acting under color of state law is the prime element. A victim needs to find a lawyer who has done this litigation and done well. There are not many lawyers out there skilled in this. There are some books on this adventure. Steve Ryals, Nuts And Bolts of Civil Rights Litigation. See the cases under 42 U.S.C. Sections 1983, 1984, 1985 and 1988, under Westlaw. Go to a law library. The best type of seized asset would not be a large amount of cash because a large amount of cash looks suspect. A smaller amount of cash from a safe taken from a home would be better. You can recover from the perps not only the cash stolen from you which is actual damages, but punitive damages and attorney fees. You cannot get puns out of a turnip (municipality).

  8. Tin

    You may want to avoid I40 thru Tennessee.

    Several years ago I drove thru Arkansas to Ft Sill Oklahoma and didn’t see any cops.

    Last year I drove thru NC to Charleston, SC and saw some cops but it wasn’t bad.

    Here the cops of the whatever Judicial District Drug Interdiction Team toss people’s cars every day on the dide of the interstate-usually from Texas. Funny thing is they stop eight times as many cars in the westbound lane as they do the right.

    I think channel five in Nashville has done some investigations.

  9. Tin….you’re welcome. I’ve posted a few hundred comments on the internet since my stops, and studying the ROSEEN lawsuit.
    After bashing their politicians, police, and their potatos, for good measure, they’d probably lock me up for life if entered Idaho.😊

  10. The annoying thing about Civil Asset Forfeiture (CAF) is that the vast majority of people think it’s an outrage when they hear of it and prominent politicians with both Ds and Rs behind their names have supported reform bills and still nothing gets done. I first heard about this in the early 1990s and then, keeping an eye out for news about it, I saw that both John Conyers (D) and Henry Hyde (R) – both senior members of the House of Representatives – were working on the issue. Hyde even published a book about the abuses of CAS (_Forfeiting Our Property Rights_ ,1995). That continues to this day (this has been a recent issue for Senators Paul, Grassley, and others).

    Although local law enforcement initiates much of the seizure, the federal government is really a big part of the problem here. Many states have passed reform laws (Florida just passed a bill of mixed value this month), but the locals get around that by, in essence, bringing the feds onto the case so that the federal rules are the ones that matter. So, reform at the state level is too easy to circumvent.

    The reality is that law enforcement simply should not be involved in *Civil* Asset Forfeiture. CAS is properly a remedy in civil suits. But, when law enforcement claims that it serves a key role in separating criminals from their money, the obvious question is “What criminals? Where is the criminal conviction?” If the government proves that someone committed a crime and this or that asset was instrumental in enabling the crime or was an ill-gotten gain from the crime, then Criminal Asset Forfeiture may be part of proper punishment. But, if the government can’t get a conviction (and often doesn’t even bother with an arrest), then how is it okay for law enforcement to take people’s property? This en rem legerdemain of convicting the inanimate assets (which, of course, basically have no rights) is nonsense. CAF becomes a way for police to say, “We can’t prove beyond a reasonable doubt that this person broke the law, but you should take our word for it and let us punish them for that unproven crime by taking their stuff. And please pay no attention to the fact that we get to keep the loot…”

  11. I’m planning a cross-country driving trip this summer. My route can be flexible. If anyone has any experience with highway harassment and/or law enforcement shakedowns, can you suggest which states should I stay out of? Thanks for your input.

    1. Tin…….in my experience, Idaho is the worst state.
      There was a lawsuit….ROSEEN V. IDAHO…that shows their special “Welcome to Idaho” behavior.
      Unfortunately, that lawsuit was dropped about 15 months after it was filed.
      Neighboring states have legalized recreation pot….both Washington and Oregon have legalized it.
      Colorado, Alaska, Washington D.C., and maybe one or two other states have legalized it too.
      People from those states are subject to “license plate profiling”………it’s a fishing expedition.
      If they stop enough vehicles from these states on pretext traffic stops, they figure they will eventually find something.
      I called an attorney in Boise to let him know about my experiences……he represented Mr. Roseen, and the attorneys had just filed the lawsuit about 6 weeks before.
      I thought he should know about it. When he did a public records request, the response was that they had “no record of any encounter” with me.
      Two stops, 3 officers involved plus a K-9, a vehicle search, and “no record of any encounter”.
      A Mr. Paul Dungan of Spokane had similar experience…..the Spokesman Review filed a public records request, and they “just couldn’t find anything”.
      I think that’s in the April 10, 2014 Spokesman Review.

    2. Tin…PS…..I’m a Washington resident, but I travel to my Arizona frequently.
      With Washington plates and my experiences, I drive an extra c.135 miles to bypass that state.
      It’s normally the shortest, fastest route. But not the fastest when I’m they keep pulling me over….I hadn’t been pulled over in 35 years, and they stopped me twice within 25 miles right after I entered Idaho.
      The Trooper tore out after MR.ROSEEN as soon as he entered Idaho…..I got about 15 miles into Idaho before they tore out after me the first time.

  12. Feds gotta have money to feed the beast! No different than these cities with their “court costs” scams. Ot the “hot check” fee scams. Sure wish we had a DOJ that was more interested in justice, than in race-baiting and race -pandering.

    Squeeky Fromm
    Girl Reporter

  13. In reviewing SCOTUS decisions re 4th Amendment over the past 15 years or so, it seems that they have gone out of their way to trash protections against unreasonable search and seizure.
    Pretext traffic stops, civil asset forfeitures, bogus “alerts” by K-9s to manufacture probable cause, the “reduced expection of privacy” out- side of one’s home all give law enforcement a LOT of leeway.
    I don’t think that the Warren Court would have ruled the same way in these areas.
    They would have likely recognized that if a jurisdiction or certain law enforcement agency decides to abuse that leeway, it’s like a dagger in the heart of the 4th Amendment.
    I avoid a certain state after 2 “pretext traffic stops” within 25 miles of entering that state.
    There was every opportunity to check my record/ background at the first stop, but I guess no K-9 was
    available at that point.
    So I get ambushed 10 miles down the road, then the K-9 team shows up and “alerts” on my vehicle. Phony as hell.
    ( Nothing illegal was on me or in my car). The background check might have turned up a speeding ticket 35 years earlier.
    If they were tied in with Homeland Security, they might have found that I also
    fouled out of a basketball game in the 1960s.
    That’s it as far as my “record”. I don’t think most jurisdictions pull these stunts, but giving that much latitude to LE is bound to create abuses in some places.

  14. Some good news at last.

    From: JONATHAN TURLEY To: Sent: Wednesday, March 23, 2016 9:40 PM Subject: [New post] Seventh Circuit Reverses Forfeiture Of $271,000 Seized From Brothers Who Were Never Charged With A Crime #yiv0282445928 a:hover {color:red;}#yiv0282445928 a {text-decoration:none;color:#0088cc;}#yiv0282445928 a.yiv0282445928primaryactionlink:link, #yiv0282445928 a.yiv0282445928primaryactionlink:visited {background-color:#2585B2;color:#fff;}#yiv0282445928 a.yiv0282445928primaryactionlink:hover, #yiv0282445928 a.yiv0282445928primaryactionlink:active {background-color:#11729E;color:#fff;}#yiv0282445928 | jonathanturley posted: “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, we” | |

  15. Hurrah! After billions of dollars of legal theft, a white shoe’d gal finally said enough is enough. Cut it out. This goes on every day in every county of America. No coincidence, that the winner was a cartel scumbag, not the average person who had his vehicle or $500 cash stolen by the biggest gang, the Feds. Spare me Jonathan (ever practiced at 26th and California)? I worked with street ripoffs going back to the 80s, and now you finally pay attention. It’s too late, mon frere, way too late. Sounds like a good moot court question for a question that is moot.

  16. There is a side issue here which requires discussion. Hearsay of the dog. Did the cop or cops testify before this district court judge that the dog told him/her/them something? What did the dog say? Objection: hearsay of a dog. No exception to the hearsay rule.
    The prosecution will dance around this. Oh, the dog merely “alerted” us to drugs or whatnot.
    This dog alert scam is a sham on the judiciary.

    Defense lawyers out there: Object. Hearsay of a dog.

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