by Leo Castaneda and Brad Racino | inewsource
On July 21, San Diego sheriff’s deputies in Vista pulled over a 2003 Ford Fusion with a busted taillight. The deputies soon noticed the car had a hollowed rear bumper and a spare set of keys in the car’s door. The console and air filter box were both loose and missing screws.
In their minds, those were all signs of a car being used to smuggle drugs.
The driver, Adrian Lopez, didn’t have a license, but in his wallet were cards of “saints associated with narcotics trafficking,” along with a handwritten prayer referencing Santa Muerte — a narcotics trafficking saint. To the deputies, these were yet more signs of drug trafficking.
Although a drug-sniffing dog “gave a positive alert,” deputies only found a padlocked backpack in the trunk which they opened with the set of keys in the door. Inside was a plastic bag with a sock. Inside the sock, wrapped in a skull and crossbones bandana, was $9,000 in cash.
Deputies seized the cash, which they can do under federal and state asset seizure laws without having to charge Lopez with a crime. Under a federal asset forfeiture program, the federal government can then “adopt” those assets and share the money with the local cops.
On Jan. 2, the office of U.S. Attorney Laura Duffy filed a formal complaint in the case, arguing that based on the evidence and their “training and experience,” “narcotics detectives formed the opinion … that the defendant currency represents the proceeds from the sale and distribution of controlled substances.”
However, the complaint wasn’t filed against Lopez. It was filed against the money itself, in “United States of America vs. $9,000.00 in U.S. Currency.”
That’s because Lopez had not been charged. By suing the money and seeking a civil forfeiture, the government can keep the money without having to prove a crime was committed.
Types of Federal Forfeiture:
Administrative: The government declares assets forfeited without a judge.
Criminal: Assets are forfeited during the course of a criminal prosecution.
Civil: Action is brought against the asset, no criminal charges or convictions of owner needed.
That was one of the ways the process worked until Attorney General Eric Holder ended the federal “adoption” of assets seized by local law enforcement agencies earlier this month. But it doesn’t mean local police are going to come up short.
Law enforcement can still forfeit assets under California’s laws or under federal laws in joint investigations — now there are just a few more hurdles.
In the past, federal prosecutors only needed a “preponderance of the evidence” connecting the $9,000 in the backpack to a crime in order to keep it.
Since Holder’s announcement, local law enforcement agencies will have to rely on California’s asset forfeiture laws. Under those rules, the Sheriff’s Department will need a criminal conviction against Lopez before it could forfeit the $9,000.
However, the more money an individual has when apprehended the fewer protections he or she has. If Lopez had been pulled over with more than $25,000 in his backpack, law enforcement wouldn’t need a criminal conviction for a civil forfeiture of the money. In fact, the law enforcement agency seeking the forfeiture wouldn’t even need a preponderance of evidence of a crime, just “clear and convincing evidence.”
San Diego police and prosecutors have netted about $30 million since 2007 under the federal asset forfeiture process, called Equitable Sharing.
Local law enforcement agencies get as much as 80 percent of forfeited money. They used it for equipment such as mobile command vehicles and “throwbots,” as well as overtime and salaries for electronic surveillance investigations.
inewsource organized San Diego County records of those purchases, including line item descriptions of major purchases and expenses supporting community-based programs here. Those records were released by The Washington Post earlier this month.
Cases like “U.S.A vs. $9,000” are a subset of asset forfeitures where the federal government “adopts” seized assets. According to an estimate by Reason magazine, adoptions account for less than 14 percent of the money local law enforcement agencies received from the program. The other 86 percent are forfeitures from sources like assets seized during joint operations or shared task forces.