Forfeiture In Theory: TAKING DOWN DRUG LORDS! Forfeiture In Practice: Taking A Guy's TV And PlayStation During A Drug Raid

Legal Issues

from the can't-make-a-drug-war-without-breaking-a-few-home-electronics dept

Asset forfeiture means taking everything that isn’t nailed down. Why bother being selective? In most cases, it’s pure profit for the law enforcement agency that performs the seizure. And since forfeitures are so rarely successfully challenged, it’s pretty much a foolproof way to make a little extra cash. The citizens who happened to be in the wrong place at the wrong time (in their own houses with their own possessions) are acceptable collateral damage.

We’re in the middle of a war against drugs. Collateral damage should be expected. That’s the viewpoint of drug warriors, even when the “acceptable” collateral damage means nothing more than law enforcement officers taking stuff just because they can.

Here’s a rare successful motion for a return of property — one filed against the Bay County (FL) Sheriff’s Office by a person who had his stuff taken even though it was his father being charged with criminal acts. The son — whose father had all charges dropped after passing away — took on the Office and secured a ruling that should finally give him back what was taken from him. (via FourthAmendment.com)

Unfortunately, there are still some hurdles standing between the plaintiff and the 75-inch TV and PlayStation 4 taken by the Sheriff’s Office during a raid of his father’s house. One set of hurdles has already been cleared. But it involved getting the Office to not only admit it was lying about taking the property, but also admitting it had likely liquidated the seized items before it had legal permission to do so.

Here’s how the Florida Court of Appeals details the events [PDF] leading up to its findings in favor of the plaintiff.

The Sheriff’s Office initially denied having taken these items, but ultimately admitted that it had. By the time of the hearing below, the Sheriff no longer had the items and did not know where they were.

So, that’s the first part of the puzzle. The Office lied to the plaintiff, if not the court itself. And it had apparently gotten rid of the seized property prior to giving the deceased’s son a chance to ask for its return. Despite this, the Sheriff’s Office argued it lawfully possessed the property it could no longer locate because the “title” to the seized property would have automatically transferred to the Sheriff’s Office sixty days after the “conclusion of a legal proceeding.” The death of the accused started the sixty-day clock, according to the Sheriff.

Wrong, says the court. That 60-day transfer only goes into effect if the contested items were seized “pursuant to a lawful investigation.” That’s a pretty low bar but the Sheriff’s Office failed to meet it.

At the hearing below, the Sheriff did not address, and therefore did not prove, whether Appellant’s TV and PlayStation were lawfully seized from his bedroom during a search related to his late father’s drug charges.

And that’s where the lower court went wrong. It never bothered to make the Sheriff’s Office establish the items — seized from the plaintiff’s bedroom — were linked to the charges facing his father. Back it goes to the lower court where the Sheriff’s Office will have to offer some evidence linking the property it can no longer locate to the charges no longer pending against the plaintiff’s dead father. Good luck with that. Just because items are inside a house belonging to someone who sells drugs doesn’t mean every item in the house was purchased with ill-gotten gains.

If no tenuous link was asserted then, there’s no link to a lawful seizure, which means the clock on automatic transfer to the cop shop inventory isn’t 60 days, but four years. The items are likely long gone. But the Sheriff’s Office may soon find itself shelling out its own ill-gotten gains to replace the ones it apparently unlawfully took from the plaintiff during its drug warring.

Filed Under: asset forfeiture, civil asset forfeiture, law enforcement, legalized theft, police