While flipping through the newspaper on a Sunday morning, many of us have seen the advertisements for government auctions—cars, homes, art, and more, all at fire sale prices. Most people who attend these auctions, if they think about the former owners at all, probably assume that these bargains are the result of the government’s seizure of property from some worthless criminal who never deserved to own this stuff in the first place. Not only do the purchasers get a bargain, but they can feel, in essence, that their purchases do a service for the community because the profits go to law enforcement to fight more crime.
But how many readers or purchasers really stop to think about whose property is being sold? After all, the government must have had a good reason to take these things away from their owners, right? How many readers or purchasers stop to question the incentives this system creates when the people who "obtain" all that property for free get to sell it and keep the profits—so that they can use that money to obtain more property that will bring in even more money?
Unfortunately, the current civil asset forfeiture system is structured in such a way that these auction advertisements may not necessarily reflect the belongings of worthless criminals, which should spark concern in every property owner and responsible citizen. This report asks the questions that many of these auction readers or purchasers may neglect. The answers should give everyone pause.
Civil liberties are being swept up in the fervor of the "war" against crime and drugs being waged by a burdensome regulatory apparatus that seeks to manage every part of society. Mass confiscation, unleashed under the banner of "law and order," has come instead at the expense of the innocent. Politicians have created a system that grants government officials broad power and discretion to seize private property and which leaves owners virtually powerless in the face of arbitrary and capricious behavior. Abdicating their role as the watchdogs of liberty, courts have placed very few checks on the government’s power to seize property through forfeiture laws.
For example, Republican Congressman Henry Hyde of Illinois has reported that 80 percent of the people whose property is seized by the federal government under drug laws are never formally charged with any crime, yet the government maintains a power, often employed in practice, to keep the seized property. The concern over this "asset forfeiture," in fact, transcends party divisions. For example, Democratic Representative John Conyers of Michigan has summarized American forfeiture law as "designed to give cops the right to confiscate and keep the luxury possessions of major drug dealers [but which] mostly ensnares the modest homes, cars, and hard-earned cash of ordinary, law-abiding people."
Currently, hundreds of statutes give law enforcement agents the power to seize property even without proof of guilt at a criminal trial. Many seizures are the result of relatively recent laws, while some result from applications of older ones. According to the Washington, D.C.-based Institute for Justice, the number of federal seizures of property under asset forfeiture laws increased by 1500 percent between 1985 and 1991. There is little evidence of change since 1991, and given the recent Supreme Court decisions upholding broad forfeiture powers, the trend of increasing forfeiture is likely to continue. Similar trends exist at the level of state law enforcement. Stories of abuses abound across America, and many of these tales are taking place close to home here in Michigan.
On October 3, 1988, Detroit police found Royal Oak resident John Bennis engaging a prostitute in the front seat of his car. Bennis was convicted of indecency and fined $250. The police also obtained a civil court order to seize his car as a public nuisance. As if she had not been harmed enough by her husband’s indecency, Tina Bennis was further victimized by the state’s seizure of the vehicle. Despite the fact that she held half ownership of the vehicle, used it to transport her five children to and from school, and had purchased the car with her babysitting fees, the state refused to recognize that Tina Bennis had any interest in the vehicle. In 1994, the Michigan Supreme Court ruled against Mrs. Bennis in a suit alleging that the seizure violated her property rights and rights to due process by punishing an innocent party. Worse yet, the United States Supreme Court in 1996 agreed with the Michigan high court and allowed the state to punish Tina Bennis for the acts of her
husband. Neither a lack of knowledge nor even efforts to prevent the illegal use of her vehicle could protect her from state confiscation.
In December 1997, 70-year-old Joseph Puertas’s Oakland County home and business were raided by 100 law enforcement officers on the suspicion that Puertas was running a major cocaine operation. The businesses and homes of Puertas’s family members were also searched. The police found no drugs, drug paraphernalia, or records of drug transactions and drug-sniffing dogs failed to respond to the drawers where cocaine was allegedly stored. Law enforcement officers seized large sums of cash found in the raids based solely on an informant’s tip and a line of reasoning best summed up by one prosecutor who asked, "If this isn’t dirty money, why didn’t they put it in the bank?"
None of the marked bills used in the fake drug buys that allegedly occurred at Puertas’s business appeared in any of his safes, and Puertas’s fingerprints were never found on any bags of drugs that were allegedly purchased by the undercover informant. Prosecutors appear to have no evidence to connect the seized assets to illegal activity other than the testimony of an informant whose credibility is described by the judge of the case as follows: "[O]n a scale of zero to 10 . . . [the informant’s credibility] comes close to zero."
Despite the lack of evidence, the Oakland County prosecutor charged Joseph Puertas with dealing in illicit drugs. Most charges against Puertas, as of June 1998, have been thrown out of court; only the charge of dealing less than 50 grams of cocaine remains. But that hasn’t stopped the County from seizing the Puertas family business, a bowling alley estimated to be worth around $3.2 million; nearly $2 million in cash; and thousands of dollars’ worth of coins and jewelry belonging to various Puertas family members. All of this property could be subject to forfeiture whether or not Joseph Puertas is guilty of the charge against him.
The family claims that the money was from their legitimate businesses. Joseph Puertas owns the bowling alley, his wife owns a vending company, and his three sons have their own businesses in Oakland County. While neither his sons nor his wife are charged with any crime, each stands to lose hundreds of thousands of dollars they had stored in their safes if the County’s forfeiture of these assets is approved in a civil trial scheduled for November 1998. The same holds true for several partners in Puertas’s bowling alley, who could lose their investment and future profits if the seizure of the bowling alley stands.
Because assets can be seized without actually proving criminal guilt beyond a reasonable doubt, even an acquittal in Puertas’s criminal trial—scheduled for October 1998—will not protect Joseph or his family members from losing their assets to the County. Puertas may or may not be innocent of all charges against him; but whether he is or not, his case reminds us that criminal guilt need not be determined before a family’s assets are lost under civil asset forfeiture laws.
Not even art is safe from civil asset forfeiture. Judy Enright’s Michigan backyard was a haven for birds. In September 1993, she added feathers collected from the ground in her yard to an old painting she had done in art school. While showing the newly altered painting at an art fair, U.S. Fish and Wildlife officials from Ann Arbor seized the painting. As justification for the seizure, they cited the Federal Migratory Bird Act of 1918, which makes it illegal to sell these feathers.
Simply carrying cash can make one a candidate for positive detection of drugs and possible seizure of the cash. A seven-year study of paper currency by Toxicology Consultants, Inc., revealed that, "An average of 96 percent of all the bills . . . analyzed from 11 cities tested positive for cocaine." The fibers in paper currency, after being in contact with drugs, become ingrained with drug residue. This money has the ability to "infect" other bills it comes in contact with (such as at the bank or in a store’s cash register).
Apparently, the problems don’t stop with just cash. A Virginia State Police agent, involved in the training of detection dogs, has stated that the odor can also permeate luggage. The odor from a suitcase filled with marijuana and placed with a hundred other bags in a compartment runs the risk of permeating those bags in a matter of hours. Despite the apparent unreliability of drug sniffs, they are often relied upon to provide the police with the requisite cause to seize property implicated by the detection.
For example, in December of 1988, police in Detroit raided Joseph Haji’s Sunshine Market to make a drug arrest. The officers failed to find any drugs. After police dogs reacted to three one-dollar bills in the cash register, however, the police seized the entire contents of the register and the store’s safe, totaling $4,384. Though Haji was never charged with a crime, a Michigan court, arguing that the sniff was sufficient evidence that the seized money was tied to illicit drugs, allowed the government to keep the money and ordered Haji to pay court costs.
In November of 1988, DEA agents in Detroit Metropolitan airport observed what they considered suspicious behavior on the part of Andre Edwards, a resident of Detroit arriving from Cleveland. The agents stopped Edwards, asked for his ticket and identification, then proceeded to question him. He volunteered that he was carrying a large sum of cash, approximately $13,000, from the recent sale of his van. Though no contraband was found, the agents informed Edwards that they would detain the cash overnight so a dog could examine it in the morning and gave him a receipt. The next day, the dog reacted to the presence of drugs on the money. A United States district court found that the police had reasonable suspicion to approach Edwards and that the dog sniff established probable cause that the cash was linked to illegal drug activity. Edwards was then unable to meet the burden of showing, by a preponderance of the evidence, that he had a legal claim to the cash. The court failed to find that his contention of the van sale met this burden. Thus, his cash was forfeited.
On June 6, 1988, DEA agents approached Gregory Brunson and Willie Dixon based on four observations: Brunson was shaking nervously; both were waiting in a departure area of a plane headed for Dallas, a known narcotics source city; they were carrying only small gym bags; and they had isolated themselves from the crowd. After being approached by the agents, Brunson and Dixon allowed the agents to search their bags. During the search, they volunteered that together they were carrying $45,000 in their socks. Without asking the travelers for permission, the agents brought in a dog that reacted positively to the money. The cash was seized and forfeiture proceedings were instituted. The District Court found that there had been a seizure without probable cause since the travelers were told that the money would be subjected to a dog sniff instead of asked if they would allow it. The Court ruled that the sniff was inadmissible at the forfeiture proceeding, thus no probable cause to forfeit was present. The Sixth Circuit affirmed that ruling.
Returning from a vacation to Canada, a Michigan couple had their 1987 Mercury Cougar confiscated by customs agents after those officials found two marijuana cigarettes. Though no criminal charges were ever filed, the government kept the car.
Suspecting a Michigan family of engaging in a loan fraud scheme, federal agents raided the homes of James Fouch and his two sons on the morning of October 6, 1992. Armed with search warrants and a civil forfeiture order, the agents seized hundreds of thousands of dollars’ worth of property that they alleged were proceeds of an embezzlement scheme. By June 1994, all of the property had been sold at auctions, putting over $500,000 in the pockets of the federal government, and the credit union owned by the family was liquidated. The forfeiture was justified solely on the basis of alleging behavior—that is, providing probable cause that a crime might have been committed. The government was permitted to keep the items or the profits from their sale despite the fact that no criminal charges were filed against any member of the family for the alleged criminal activity. In other words, no finding of guilt is required for the government to snatch away—and keep—a citizen’s property.
Even when there is proof that an individual committed an act currently labeled criminal, the amount of property seized is often disproportionate to the degree of the criminal offense. This can often be devastating to an individual. In late 1992, federal authorities raided the Flint, Michigan home of James Rivett. They found 36 marijuana plants. Rivett worked out a plea bargain with the U.S. Attorney’s office. He would forfeit his house and business (or make a flat payment of $75,000), pay an additional fine of at least $10,000, and spend 24 to 30 months in prison. The federal probation office, however, subsequently recommended that Rivett forfeit his properties, pay the fine, and also be sentenced to more than 5 years in prison. Unable to accept the magnitude of the punishment and finding it too late to withdraw his guilty plea, Rivett attempted to take his own life. He set his house on fire, put a rifle in his mouth, and shot himself. Though he survived and was allowed to withdraw his guilty plea and negotiate a new deal, James Rivett’s psychological plight illustrates that forfeiture can have an effect beyond the "mere" loss of material possessions.
In May 1989, Oakland County’s Narcotics Enforcement Team and the West Bloomfield Police Department executed a search warrant on the home of Robert Hawkins and his family based on the tip of an informant who indicated that he had seen cocaine in the Hawkinses’ basement. The search revealed weapons, a suspected drug ledger, and a large amount of cash. A canine unit picked up traces of cocaine on the cash and in several areas of the house and car, though no drugs were actually discovered. Prosecutors initially suspected drug activity based on Robert Hawkins’s financial status, combined with the fact that, a year earlier, Hawkins had been convicted of attempted possession of 25 grams of cocaine. They felt he was living beyond the means of a legitimate income.
Hawkins accounted for his income, claiming that it was a result of several rental properties in Detroit he had owned since he was 19, his ownership of a beer and wine store, some gambling profits and interest from private loans he had made, and a $2 million personal injury lawsuit settlement in Macomb Circuit Court. The trial court found that the explanation was not credible and that the lawsuit was really nothing more than a money laundering scheme. Thus, trial court Judge Michael J. Talbot of the Wayne County Circuit Court ordered forfeiture of the West Bloomfield home, the cash found in the home, jewelry, weapons, cars, a computer and printer, a boat, property in Florida, and several different bank accounts, annuities, and life insurance policies.
What finding was required to order such a forfeiture? Under Michigan law, the state needs only to show, by a preponderance of evidence, that the assets were connected with a criminal activity. No finding of guilt of the underlying criminal activity is necessary, because a forfeiture proceeding is considered civil, not criminal, in nature. Furthermore, because the forfeiture suit is technically against the property (in rem) and not against an individual owner (in personam), the Hawkinses were not entitled to have a jury determine whether, or how much of, their assets should be forfeited. The court also determined that Hawkins’s wife had no claim to the property, presuming that Mrs. Hawkins was aware of the illegal conduct of her husband and arguing that she shared in illegitimate wealth.
Judge Talbot’s motives for imposing such a sweeping forfeiture and his actions during the forfeiture trial were called into question by Hawkins. Talbot had sent a letter to the federal government regarding an "opportunity to serve at the federal level in a position" fighting the war on drugs. The Michigan Court of Appeals found this personal ambition of no consequence. In a dissent, however, Judge Doctoroff found that this personal interest supported the assertion that a fair trial was not conducted.
In May 1989, Thelbert Crossland was carrying over $26,000 on his person in Detroit Metropolitan Airport. Detroit DEA agents received a tip that someone matching Crossland’s description would be traveling that day with a large amount of cash that was involved in the drug trade. After being searched by agents, Crossland stated that the money was for investments in a music production venture. Crossland worked for an entertainment production company in California. The money was subjected to two independent sniffs by a dog that reacted to the scent of narcotics on the currency. Agents seized the currency and the government subsequently initiated forfeiture proceedings. Edwards was never arrested or charged with a crime. The court, finding Edwards’s testimony about the source of the money to be dubious, ordered him to forfeit the money to the government. The court argued that, "The remote possibility that this money originated from legitimate ventures does not vitiate a strong probability, nor will it create a preponderance of evidence against a more reasonable conclusion."
Federal Immigration and Naturalization Service (INS) officials seized a total of 117 vehicles in Detroit in 1989. According to the INS, 43 of these were later returned for a variety of reasons, including that the owner was innocent of any wrongdoing. But even in cases where vehicles were mistakenly seized, the INS still billed each owner as much as $500 for procedural costs and vehicle storage, while those whose vehicle seizure was justified under current law were also forced to pay the procedural and storage costs in addition to a fine up to the value of the car.
In documents obtained under the state Freedom of Information Act, officials of the Michigan Association for the Preservation of Property (MAPP) discovered that the use of civil forfeiture in Michigan is widespread. Congressman Henry Hyde (R-Illinois) summarizes their findings in his book, Forfeiting Our Property Rights. In Michigan in 1992, for example:
Michigan law enforcement agencies used civil forfeiture in 9,770 instances and confiscated an average of $1,434 worth of property per seizure.
A total of $14,007,227 in cash and property was seized, up from $11,848,547 in 1991.
Property taken included 54 private homes (up from 29 homes in 1991) with an average value of $15,881.
Auto seizures totaled 807, with an average value of $1,412.
A total of 8,909 seizures produced $9,225,515 in cash and other negotiable instruments and $2,754,818 in personal property. An examination of the records indicated these seizures often went uncontested because the value of the property confiscated was normally less than the cost of recovery (attorney and court fees, time lost, etc.).
As one example, the Muskegon police, one of the 123 separate reporting police agencies, seized cash 72 times, totaling $31,199, with an average for each seizure of $433.
No police department gave any evidence of convictions associated with the seizures and only the Muskegon Police Department was able to offer any detailed accounting of the number of arrests made.
Both the selected illustrations and the data above illustrate the problems that arise under forfeiture laws. Virtually no due process is afforded to citizens whose property is seized and punishment is often imposed regardless of whether criminal guilt has been established or not.