The Washington Post Offbeat column has a piece about a recent Eighth Circuit decision on a case involving a man driving through Nebraska with $124,700 in case contained in a cooler in the back seat of his car. The Eighth Circuit reversed an earlier finding for the defendant, one Emiliano Gomez Gonzolez, who saw his cash confiscated by the government.
The WaPo piece makes it sound like anyone driving with large amounts of cash in their car has that money potentially open for seizure. However, like many mainstream reports on legal issues, the actual text of the decision has a few more gray areas to it.
For one, Gonzolez lied to the police about his criminal history, what he was doing, having the cash, and was driving a rental car that was not in his name. Furthermore, a drug sniffing dog alerted the police to the same area of the car as where the cash was being stored. It’s not as though this guy was driving through Nebraska with a crapload of cash, there was also some circumstantial evidence that would tie him to the drug trade.
However, Judge Lay has an interesting dissent. He notes a Ninth Circuit decision (United States v. U.S. Currency, $30,060.00, 39 F.3d 1039, 1044 (9th Cir. 1994)) which holds that the “mere suspicion of illegal activity” was in itself insufficient to justify a seizure. The police found no drugs, no drug paraphernalia, and no evidence that Mr. Gonzolez was in fact involved in any illegal drug activity. While there’s reason for suspicion, is it merely enough for there to be strong (or arguably strong, as the case may be) circumstantial evidence for drug activity to justify a seizure? As Judge Lay notes, it was a rental car, which could have been used by dozens of people, any one of which could have been the source of drug residue that would have alerted the dog.
Despite the fact that Civil Asset Forfeiture Reform Act of 2000 tried to reform an increasingly out-of-control asset forfeiture system, there are still many cases in which the government can and does seize the assets of individuals without providing a reasonable level of due process, especially on the local level. Because law enforcement agencies directly benefit from assets seized, they have reasons of self-interest to get as much as they legally can. CAFRA was an excellent first start towards reforming civil forfeiture rules, but as long as the courts loosely interpret the rules on the government’s burden of proof in asset forfeitures, we are likely to see more incidents such as this.