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Humor
See other Humor Articles

Title: The DEA seized her father’s life savings at an airport without alleging any crime occurred, lawsuit says
Source: The Seattle Times
URL Source: https://www.seattletimes.com/nation ... y-crime-occurred-lawsuit-says/
Published: Jan 17, 2020
Author: Justin Jouvenal (The Washington Post)
Post Date: 2020-01-17 10:11:03 by misterwhite
Keywords: None
Views: 1912
Comments: 78

Every dollar Terry Rolin had saved over a lifetime was stacked in a large Tupperware container: $82,373. At 79, he was aging and worried about keeping so much cash on hand, his daughter said, so during one of her visits he asked her to open a joint bank account.

Rebecca Brown was catching a flight home from the Pittsburgh airport early the next day and said she didn’t have time to stop at a bank. She confirmed on a government website that it’s legal to carry any amount of cash on a domestic flight and tucked the money in her carry-on.

But just minutes before departure in late August, a Drug Enforcement Administration agent met her at the busy gate and questioned her about the cash, which showed up on a security scan. He insisted Brown put Rolin on the phone to confirm her story. Brown said Rolin, who is suffering mental decline, was unable to verify some details.

“He just handed me the phone and said, ‘Your stories don’t match,’ ” Brown recalled the agent saying. ” ‘We’re seizing the cash.’ “

Brown said she was never told she or her father were under suspicion of committing any crime and neither has been charged with anything. A search of her bag turned up no drugs or other contraband. Neither she or her father appear to have criminal records that might raise suspicions.

Brown and Rolin filed a federal, class-action lawsuit Wednesday against the DEA, Transportation Security Administration and agency officials, claiming the agencies violate the Constitution’s ban on unlawful search and seizures by taking cash from travelers without probable cause. The lawsuit claims the only criteria the DEA has for seizing cash is if it finds amounts greater than $5,000.

The lawsuit, filed in federal court in Pennsylvania, seeks the return of Rolin’s money and an injunction against the practice.

Both the DEA and TSA declined to comment on the lawsuit’s allegations.

“We can’t comment on ongoing litigation,” said Katherine Pfaff, a DEA spokeswoman.

“As a matter of policy, TSA does not comment on pending litigation,” TSA spokeswoman Jenny Burke wrote in an email.

Brown said the loss of the savings has prevented Rolin from getting treatment for painful tooth decay and gum disease and kept the family from fixing up his pick-up truck, which is his only means of transportation. Rolin is living on retirement benefits from a job as a railroad engineer.

Brown said her grandparents kept their savings in cash because they lived through the bank runs of the Great Depression, and her father adopted the habit.

“I get they are trying to quash drug distribution, but this is a blatant overreach,” Brown said. “This is a working person, a taxpaying citizen of the United States trying to take care of her elderly parent, and they took the money.”

Dan Alban, a senior attorney for the Virginia-based Institute for Justice, which filed the lawsuit on behalf of Brown and Rolin, said the family’s story is not unique.

“This is something that we know is happening all across the United States,” Alban said. “We’ve been contacted by people who have been traveling to buy used cars or buy equipment for their business and had their cash seized.”

The DEA made more than 8,850 seizures worth $539 million in 2017, according to the latest agency statistics for a full year. A 2016 USA Today investigation found DEA agents seized at least $209 million in cash from travelers at the nation’s 15 busiest airports over the previous decade.

Federal law gives the DEA and other law enforcement agencies power to seize cash and property linked to drug and criminal activity, a process known as civil asset forfeiture.

The agencies say it is an important tool to undermine the financial viability of criminal networks, deprive organizations of illicit proceeds and confiscate property like cars and houses that might be used to carry out or harbor crime.

But the practice has come under increased scrutiny in recent years. Critics argue local police departments and federal agencies have used asset forfeiture as a cash cow to fatten budgets. In the DEA’s case, the agency feeds seized assets into a Justice Department fund that disburses the money to agencies and victims of crime.

A 2017 review by the Justice Department inspector general found only 44 of 100 seizures by the DEA were related to an ongoing investigation or resulted in a new investigation, arrest or prosecution. Most of the seizures occurred at transportation facilities like airports or bus stations.

The Supreme Court limited the power of local state agencies to seize property in an important ruling last year.

The DEA seized her father’s life savings at an airport without alleging any crime occurred, lawsuit says

Brown said she initially encountered issues when going through the TSA security checkpoint at Pittsburgh International Airport on Aug. 26. Brown was flying to Boston, where she lives outside the city.

A TSA screener noticed the cash in Brown’s carry-on during a scan and pulled her aside for questioning, Brown said. The screener asked what the money was for, photocopied her ID and travel documents and held her luggage until a Pennsylvania state trooper arrived. The lawsuit claims the TSA exceeded its authority in holding Brown’s bag.

Brown said she repeated the explanation that the money was her father’s life savings to the trooper and then retold it to his superior.

Finally, she said she was allowed to proceed to the gate, where she was met by the DEA agent.

Brown said it was humiliating to be questioned by the agent in front of other travelers at the gate. When he seized the money, she said he put it into a plastic bag and told her someone would be in touch with her.

Brown said she stumbled onto her flight in shock as the doors were closing. She didn’t have time to fully explain to her father what had happened before takeoff, and he left seven frantic messages while they were in flight. In October, she received a notice that the DEA planned to permanently seize the cash, citing its authority to make such moves to combat crime.

“I was shaking the entire time,” Brown said of the flight. “I was embarrassed. I was afraid.”

– – –

The Washington Post’s Alice Crites contributed to this report.

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#1. To: All (#0)

Brown said the loss of the savings has prevented Rolin from getting treatment for painful tooth decay and gum disease and kept the family from fixing up his pick-up truck

Ummm, he had $82,373 in cash and could have done those things any time.

But no. Let's give the cash to this dimwit daughter so she can fly home with it and open a joint bank account in another city.

misterwhite  posted on  2020-01-17   10:16:44 ET  Reply   Trace   Private Reply  


#2. To: All (#0)

He insisted Brown put Rolin on the phone to confirm her story. Brown said Rolin, who is suffering mental decline, was unable to verify some details.

Like, "Rebecca who?" "Cash?"

misterwhite  posted on  2020-01-17   10:21:30 ET  Reply   Trace   Private Reply  


#3. To: misterwhite (#1)

Ummm, he had $82,373 in cash and could have done those things any time.

But no. Let's give the cash to this dimwit daughter so she can fly home with it and open a joint bank account in another city.

Ummm, those things could not have been done because they took his money. How do you know his truck was broke before they took his money? Oh you don't.

How do you know when he got his toothache?

They need to prove he committed a crime to get the money before they go taking it. In a just society they would do that. Meaning you support tyranny and injustice.

Why do you hate innocent until proven guilty?

You support the government saying you are guilty now prove your innocence. Why do you support thieves?

A K A Stone  posted on  2020-01-17   11:02:16 ET  Reply   Trace   Private Reply  


#4. To: A K A Stone, misterwhite (#3) (Edited)

Why do you support thieves?

Bad parenting?

Did his mother not teach him as a child that stealing from others is wrong.

Perhaps she tried, but he laughed at her, stuck his fingers in his ears, and ran off to hide.

watchman  posted on  2020-01-17   11:19:28 ET  Reply   Trace   Private Reply  


#5. To: watchman (#4)

Bad parenting?

Did his mother not teach him as a child that stealing from others is wrong.

Perhaps she tried, but he laughed at her, stuck his fingers in his ears, and ran off to hide.

That isn't the case. Misterwhite isn't a thief. I doubt he would ever steal. My opinion is misterwhte thinks it is drug money and they made it illegitimately. So he wants it seized.

It may be drug money but I honestly doubt it. If it is they should have to prove their case before seizing it. That is my take and opinion.

A K A Stone  posted on  2020-01-17   11:56:20 ET  Reply   Trace   Private Reply  


#6. To: A K A Stone (#5)

Misterwhite isn't a thief. I doubt he would ever steal.

I'm certain you are right. Misterwhite would never steal, but he seems to support a government that does.

If it is they should have to prove their case before seizing it.

Exactly. Where is the due process.

And a quick search does affirm the right to travel domestically with unlimited cash.

watchman  posted on  2020-01-17   12:06:37 ET  Reply   Trace   Private Reply  


#7. To: misterwhite (#0)

My take: the Constitution is clear about unreasonable searches and seizures, about due process and about takings.

And what was done here and in many thousands of other cases clearly violates the plain language and intent of the Constitution.

So, then, why do the courts allow it? Because of the scourge of drugs and the difficulty of stopping the drug trade.

My answer would be: tough titty. We simply cannot have really effective drug enforcement, because the prohibition of unreasonable searches and seizures, the right of privacy, and the due process required in takings all come together to prevent asset forfeiture. The right to be secure and not suffer this sort of takings means that yes, drug traffickers have the same rights of protection, and will get away with much more than they do (and they get away with plenty already). But that's not how the courts see it, so my read of the Constitution is not the law, and we have the takings as they are. Which sucks. So does cancer. Nothing I can do about that either.

Vicomte13  posted on  2020-01-17   15:42:27 ET  Reply   Trace   Private Reply  


#8. To: A K A Stone (#3)

Rebecca Brown was catching a flight home from the Pittsburgh airport early the next day and said she didn’t have time to stop at a bank.

Well, he had the money on one day, and the very next day she went to the airport where the money was seized.

I doubt he got a toothache and broke his truck in that short period of time.

misterwhite  posted on  2020-01-17   16:08:08 ET  Reply   Trace   Private Reply  


#9. To: A K A Stone (#5)

My opinion is misterwhite thinks it is drug money and they made it illegitimately.

That's certainly possible. But all she has to do is show the legal origins of the money and she'll get it back, with interest and with her legal fees paid for.

But ... you'll note that I posted this under "Humor". Because her story is a joke. Her "story" makes no sense and even her own father couldn't verify it.

misterwhite  posted on  2020-01-17   16:14:47 ET  Reply   Trace   Private Reply  


#10. To: Vicomte13 (#7)

So, then, why do the courts allow it? Because of the scourge of drugs and the difficulty of stopping the drug trade.

Because civil asset forfeiture goes back 400 years, way before "the scourge of drugs".

And since the property, not the owner, is charged with the crime, due process does not apply.

misterwhite  posted on  2020-01-17   16:24:31 ET  Reply   Trace   Private Reply  


#11. To: Vicomte13, misterwhite (#7)

My take: the Constitution is clear about unreasonable searches and seizures, about due process and about takings.

And what was done here and in many thousands of other cases clearly violates the plain language and intent of the Constitution.

So, then, why do the courts allow it? Because of the scourge of drugs and the difficulty of stopping the drug trade.

My answer would be: tough titty. We simply cannot have really effective drug enforcement, because the prohibition of unreasonable searches and seizures, the right of privacy, and the due process required in takings all come together to prevent asset forfeiture. The right to be secure and not suffer this sort of takings means that yes, drug traffickers have the same rights of protection, and will get away with much more than they do (and they get away with plenty already). But that's not how the courts see it, so my read of the Constitution is not the law, and we have the takings as they are. Which sucks. So does cancer. Nothing I can do about that either.

- - - - - - - - - -

It's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.

—Reagan attorney general Richard Thornburgh in 1989.

The government simply files a civil action in rem against the property itself, and then generally must prove, by a preponderance of the evidence, that the property is forfeitable under the applicable forfeiture statute. Civil forfeiture is independent of any criminal case, and because of this, the forfeiture action may be filed before indictment, after indictment, or even if there is no indictment. Likewise, civil forfeiture may be sought in cases in which the owner is criminally acquitted of the underlying crimes ...

—Craig Gaumer, Assistant United States Attorney, 2007

The seminal SCOTUS case of Austin v. United States speaks to the history of civil asset forfeiture which predates the Founding back to 17th century English law.

https://www.loc.gov/item/usrep509602/

Austin v. United States, 509 U.S. 602 (1993)

AUSTIN v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 92-6073. Argued April 20, 1993-Decided June 28, 1993

After a state court sentenced petitioner Austin on his guilty plea to one count of possessing cocaine with intent to distribute iKn violation of South Dakota law, the United States filed an in rem action in Federal District Court against his mobile home and auto body shop under 21 U. S. C. §§881(a)(4) and (a)(7), which provide for the forfeitare of, respectively, vehicles and real property used, or intended to be used, to facilitate the commission of certain drug-related crimes. In granting the Government summary judgment on the basis of an officer's affidavit that Austin had brought two grams of cocaine from the mobile home to the body shop in order to consummate a prearranged sale there, the court rejected Austin's argument that forfeiture of his properties would violate the Eighth Amendment's Excessive Fines Clause. The Court of Appeals affirmed, agreeing with the Government that the Eighth Amendment is inapplicable to in rem civil forfeitures.

Held:

1. Forfeiture under §§ 881(a)(4) and (a)(7) is a monetary punishment and, as such, is subject to the limitations of the Excessive Fines Clause. Pp. 606-622.

(a) The determinative question is not, as the Government would have it, whether forfeiture under §§881(a)(4) and (a)(7) is civil or criminal. The Eighth Amendment's text is not expressly limited to criminal cases, and its history does not require such a limitation. Rather, the crucial question is whether the forfeiture is monetary punishment, with which the Excessive Fines Clause is particularly concerned. Because sanctions frequently serve more than one purpose, the fact that a forfeiture serves remedial goals will not exclude it from the Clause's purview, so long as it can only be explained as serving in part to punish. See United States v. Halper, 490 U. S. 435, 448. Thus, consideration must be given to whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under §§881(a)(4) and (a)(7) should be so understood today. Pp. 606-611.

(b) A review of English and American law before, at the time of, and following the ratification of the Eighth Amendment demonstrates that forfeiture generally, and statutory in rem forfeiture in particular, historically have been understood, at least in part, as punishment. See, e. g., Peisch v. Ware, 4 Cranch 347, 364. The same understanding runs through this Court's cases rejecting the "innocence" of the owner as a common-law defense to forfeiture. See, e. g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 683, 686, 687. Pp. 611-618.

(c) Forfeitures under §§ 881(a)(4) and (a)(7) are properly considered punishment today, since nothing in these provisions contradicts the historical understanding, since both sections clearly focus on the owner's culpability by expressly providing "innocent owner" defenses and by tying forfeiture directly to the commission of drug offenses, and since the legislative history confirms that Congress understood the provisions as serving to deter and to punish. Thus, even assuming that the sections serve some remedial purpose, it cannot be concluded that forfeiture under the sections serves only that purpose. Pp. 619-622.

2. The Court declines to establish a test for determining whether a forfeiture is constitutionally "excessive," since prudence dictates that the lower courts be allowed to consider that question in the first instance. Pp. 622-623.

964 F. 2d 814, reversed and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, and SOUTER, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 623. KENNEDY, J., fied an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 628.

Opinion of the Court at 609-610:

After deciding to confine the benefits of the Self- Incrimination Clause of the Fifth Amendment to criminal proceedings, the Framers turned their attention to the Eighth Amendment. There were no proposals to limit that Amendment to criminal proceedings...." 492 U. S., at 294. Section 10 of the English Bill of Rights of 1689 is not expressly limited to criminal cases either. The original draft of § 10 as introduced in the House of Commons did contain such a restriction, but only with respect to the bail clause:

"The requiring excessive Bail of Persons committed in criminal Cases, and imposing excessive Fines, and illegal Punishments, to be prevented." 10 H. C. Jour. 17 (1688). The absence of any similar restriction in the other two clauses suggests that they were not limited to criminal cases. In the final version, even the reference to criminal cases in the bail clause was omitted. See 1 W. & M., 2d Sess., ch. 2, 3 Stat. at Large 441 (1689) ("That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted"); see also L. Schwoerer, The Declaration of Rights, 1689, p. 88 (1981) ("But article 10 contains no reference to 'criminal cases' and, thus, would seem to apply.., to all cases").5

The purpose of the Eighth Amendment, putting the Bail Clause to one side, was to limit the government's power to punish. See Browning-Ferris, 492 U. S., at 266-267, 275. The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment. The Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, "as punishment for some offense." Id., at 265 (emphasis added). "The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law." United States v. Halper, 490 U. S. 435, 447-448 (1989). "It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties." Id., at 447. See also United States ex rel. Marcus v. Hess, 317 U. S. 537, 554 (1943) (Frankfurter, J., concurring). Thus, the question is not, as the United States would have it, whether fbrfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment.6

5 In Ingraham v. Wright, 430 U. S. 651 (1977), we concluded that the omission of any reference to criminal cases in § 10 was without substantive significance in light of the preservation of a similar reference to criminal cases in the preamble to the English Bill of Rights. Id., at 665. This reference in the preamble, however, related only to excessive bail. See 1 W. & M., 2d Sess., ch. 2, 3 Stat. at Large 440 (1689). Moreover, the preamble appears designed to catalog the misdeeds of James II, see ibid., rather than to define the scope of the substantive rights set out in subsequent sections.

6 For this reason, the United States' reliance on Kennedy v. Mendoza-Martinez and United States v. Ward is misplaced. The question in those cases was whether a nominally civil penalty should be reclassified as criminal and the safeguards that attend a criminal prosecution should be required. See Mendoza-Martinez, 372 U. S., at 167, 184; Ward, 448 U. S., at 248. In addressing the separate question whether punishment is being imposed, the Court has not employed the tests articulated in Mendoza-Martinez and Ward. See, e. g., United States v. Halper, 490 U. S., at 447. Since in this case we deal only with the question whether the Eighth Amendment's Excessive Fines Clause applies, we need not address the application of those tests.

SCALIA dissenting at 509 U.S. 624-625:

In order to constitute a fine under the Eighth Amendment, however, the forfeiture must constitute "punishment," and it is a much closer question whether statutory in rem forfeitures, as opposed to in personam forfeitures, meet this requirement. The latter are assessments, whether monetary or in kind, to punish the property owner's criminal conduct, while the former are confiscations of property rights based on improper use of the property, regardless of whether the owner has violated the law. Statutory in rem forfeitures have a long history. See generally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 680-686 (1.974). The property to which they apply is not contraband, see the forfeiture Act passed by the First Congress, ante, at 613-614, nor is it necessarily property that can only be used for illegal purposes. The theory of in rem forfeiture is said to be that the lawful property has committed an offense. See, e. g., The Palmyra, 12 Wheat. 1, 14-15 (1827) (forfeiture of vessel for piracy); Harmony v. United States, 2 How. 210, 233-234 (1844) (forfeiture of vessel, but not cargo, for piracy); Dobbins's Distillery v. United States, 96 U. S. 395, 400-403 (1878) (forfeiture of distillery and real property for evasion of revenue laws); J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 510-511 (1921) (forfeiture of goods concealed to avoid taxes).

However the theory may be expressed, it seems to me that this taking of lawful property must be considered, in whole or in part, see United States v. Halper,490 U. S. 435, 448 (1989), punitive.*

* Thus, contrary to the Court's contention, ante, at 618-619, n. 12, I agree with it on this point. I do not agree, however, that culpability of the property owner is necessary to establish punitiveness, or that punitiveness "in part" is established by showing that at least in some cases the affected property owners are culpable. That is to say, the statutory forfeiture must always be at least "partly punitive," or else it is not a fine. See ante, at 622, n. 14.

Justice KENNEDY concurring at 509 U.S. 624-625, 629:

At some point, we may have to confront the constitutional question whether forfeiture is permitted when the owner has committed no wrong of any sort, intentional or negligent. That for me would raise a serious question. Though the history of forfeiture laws might not be determinative of that issue, it would have an important bearing on the outcome. I would reserve for that or some other necessary occasion the inquiry the Court undertakes here. Unlike JUSTICE SCALIA, see ante, at 625, I would also reserve the question whether in rem forfeitures always amount to an intended punishment of the owner of forfeited property.

nolu chan  posted on  2020-01-17   17:59:58 ET  Reply   Trace   Private Reply  


#12. To: misterwhite, A K A Stone, Vicomte13 (#0)

The original article was in the Washington Post, dated 15 Jan 2020.

The seizure occurred in August of last year.

The Class Action Complaint was filed 15 Jan 2020.

As a practical matter, the case may turn on whether the story being told is believable or not. As a matter of curiosity, I note no information about the bills themselves. If they were acquired monthly since 1994 as claimed, then the dates on the bills should reflect that. Complicating that is the alleged commingling of all the bills the day prior to seizure. Still, there should be a sizable quantity of bills dated before 2000.

The case is:

Rebecca Brown et al v DEA et al, 2:20-cv-00064-LPL, in the U.S. District Court for the Western District of Pennsylvania.

Rebecca Brown is the first named Plaintiff. August Terrence Rolin is the second named Plaintiff.

The cash was seized by the DEA, not the TSA.

Document #1:

COMPLAINT against UTTAM DHILLON, DRUG ENFORCEMENT ADMINISTRATION, "STEVE" LAST NAME UNKOWN, DAVID P. PEKOSKE,TRANSPORTATION SECURITY ADMINSTRATION, UNITED STATES OFAMERICA (Filing fee, including Administrative fee, $400, receipt number0315-5428120), filed by AUGUST TERRENCE ROLIN, REBECCA BROWN.

BROWN et al v. DRUG ENFORCEMENT ADMINSTRATION et al
Assigned to: Magistrate Judge Lisa Pupo Lenihan
Cause: 05:0701 Maritime Subsidy Board

Date Filed: 01/15/2020
Jury Demand: Plaintiff
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: U.S. Government Defendant

Only 20% of forfeitures result in any claim for the assets. 39% of said 20% of claims resulted in full or partial return of seized assets. Approximately 8% of total seizures resulted in full or partial return of assets.

80% of asset forfeitures result in nobody claiming to be the owner of the assets.

COMPLAINT

Factual Allegations

A. Terry and his family stored cash in their family home.

71. Terry is 79 years old and lives in Morgan, Pennsylvania.

72. Terry grew up in a mining community southwest of Pittsburgh, where his parents purchased the family home in South Fayette, Pennsylvania, in the 1920s with money earned from his father’s mining wages.

73. After graduating from college in the 1960s, Terry worked for a railroad company until workplace knee and shoulder injuries forced him to retire in 1994. Since 1994, Terry has been receiving Railroad Retirement benefits.

74. In 2005, after his wife passed away, Terry moved back into the family home with his mother.

75. When his mother passed away in 2006, Terry purchased the family home from his other family members and continued living there.

76. Terry’s parents lived through the Great Depression, so instead of keeping most of their money in bank accounts, they had a habit of storing cash in envelopes hidden throughout the family home, particularly in the unfinished basement.

77. Terry adopted this same habit long ago, and after moving back into the family home, he continued to store cash there.

78. Each month since his retirement, Terry receives about $2,700 in Railroad Retirement payments deposited into his PNC bank account.

79. Terry regularly withdrew a portion of his Railroad Retirement payments from the bank and stored the cash in the family home, stuffed into envelopes. Generally, these envelopes of cash were stored in spaces between the walls and rafters in the unfinished basement.

80. Envelopes of cash hidden by Terry’s mother were also still in the family home at the time of her passing.

81. Over the years, between envelopes of cash stashed away by Terry and his mother, tens of thousands of dollars accumulated within the walls of the family home.

82. In 2018, Terry and Rebecca decided that with Terry’s progressing age and declining health, the family home was too much for him to maintain.

83. Terry sold the longtime family home in November 2018, and moved into a small apartment located in Morgan, Pennsylvania. He still lives in the apartment.

84. In the course of Terry’s move, the cash stored in the family home was placed into various moving boxes, dispersed somewhat sporadically throughout Terry’s belongings as more envelopes of cash turned up in the crevices of the family home.

85. Because of his health problems, Terry took months to slowly unpack his belongings in his new apartment. While unpacking, he would periodically find the envelopes of cash. He eventually stored all of the cash in one large tupperware container in the apartment.

86. Terry continues to occasionally store cash in his new apartment.

B. Terry entrusted the stored cash with his daughter, Rebecca.

87. After a substantial amount of cash accumulated in the tupperware container, Terry became concerned about the security of his family’s life savings. To better safeguard his family’s life savings, Terry asked his family for help.

88. In August 2019, Terry’s daughter, Rebecca, who lives in Massachusetts, flew to Pittsburgh for the weekend for her brother’s wedding reception and to visit with Terry.

89. Rebecca, who works full time, was only in town for the weekend; she arrived on Friday, August 23, 2019, and departed early on the morning of Monday, August 26, 2019.

90. Terry decided that he should give Rebecca power of attorney so that she could help care for him.

91. Terry and Rebecca also decided the best course of action would be to deposit the cash into a new joint bank account shared with Rebecca so that she could help him use the money to pay for his much-needed dental care and to fix his truck, among other health care needs and projects.

92. Terry and Rebecca would have joint ownership of and access to the new bank account, but the primary purpose of the account would be to help with Terry’s health care and other expenses.

93. Terry and Rebecca only finalized their plan for the cash on Saturday after the banks had closed, and Rebecca was not able to take physical possession of the cash until Sunday night.

94. There was no time for Rebecca to deposit the cash in a bank before her flight left on Monday morning, so she planned to take it with her and deposit it in the new bank account after she arrived back home in Massachusetts.

95. Rebecca was excited to use the funds to improve her aging and ailing father’s quality of life. Some of the money was immediately earmarked for urgent dental care—namely replacing Terry’s teeth and caring for his gum disease—and for fixing Terry’s old truck, which is his primary mode of transportation and is badly in need of repairs.

96. With Terry’s consent, some of the money was also earmarked to pay off a tax debt Rebecca owes the IRS.

97. Rebecca and one of her brothers also decided to give their father something his life was lacking: a hobby. They planned to use some of the money to buy Terry an old hobby truck to repair and tinker with.

98. Rebecca’s brother found a 1972 Chevrolet C10 Stepside for sale online that Rebecca was going to look at the following weekend. They were excited to give their father a hobby to keep him engaged and occupied in his later years.

99. Terry did not know that his children were planning to buy him a hobby truck as a surprise.

- - - - - - - - - -

D. DEA seized Terry’s and Rebecca’s cash.

127. But Rebecca was soon approached at the gate by the same state trooper who questioned her earlier, this time accompanied by another man in a blue polo shirt.

128. The man in the blue polo said his name was Steve, that he was a DEA agent, and that he had some questions for her.

129. Rebecca felt like she had no choice but to comply with his demands.

130. The two men escorted Rebecca to a less crowded part of the gate area to question her.

131. Rebecca did not feel free to leave. She also needed to remain near the gate in order to board her flight.

132. Steve asked Rebecca to show him the cash in the purse in her carry-on luggage. Rebecca felt like she had no choice but to comply with his demands and showed him the cash.

133. Upon information and belief, Steve decided to seize the cash as soon as he saw the amount, pursuant to DEA’s policy or practice of seizing currency totaling more than $5,000 when found in the possession of travelers at airports regardless of whether there is probable cause for the seizure.

134. Steve then questioned Rebecca about why she was traveling with the cash. For the fourth time, Rebecca explained the origins of the cash and why she was traveling with it.

135. After hearing Rebecca’s explanation, Steve asked to speak with Terry to verify what she had just told him.

136. Rebecca informed Steve that her father was elderly, would still be asleep at 7:00 a.m., and would likely be confused by the call, but Steve insisted that she call Terry so that Steve could talk to him.

137. Terry has age-related memory and cognitive issues, and he typically sleeps until late morning or noon. Terry was woken up by the phone call and was groggy, confused, and upset when he answered the phone.

138. Terry also did not know that his children were planning to buy him a surprise hobby truck, so he could not corroborate those facts.

139. For these reasons—Terry being awoken several hours early; Terry’s cognitive issues; and Terry being unaware of Rebecca’s planned surprise—Terry had difficulty answering all of Steve’s questions.

140. After speaking with Terry, Steve told Rebecca that “your answers don’t match.”

141. Steve then took the cash and searched the rest of Rebecca’s beach bag.

142. Steve seized all of Terry’s and Rebecca’s cash, totaling $82,373 in U.S. currency.

143. Rebecca was not arrested or charged with any crime, and was finally permitted to board her flight to Boston, deeply embarrassed by her fellow passengers and other onlookers staring at her during this entire encounter because it appeared she had done something wrong or illegal.

144. Rebecca was the last passenger to board her flight and was not able to call her father before her flight departed. When she landed, she had several missed calls and voicemails from her distraught father, who did not know what was happening to his daughter or where she may have been taken.

145. Terry and Rebecca have been unable to recover their money for more than four months.

146. Terry and Rebecca received CAFRA notices for the entire $82,373 dated October 11, 2019, from DEA indicating DEA’s intention to permanently keep their cash through civil forfeiture.

147. Upon information and belief, Terry’s and Rebecca’s cash was seized and is being forfeited without any articulable reasonable suspicion or probable cause.

148. Upon information and belief, at the time of the seizure, neither Terry nor Rebecca was under investigation for any criminal activity.

149. Neither Terry nor Rebecca has been arrested for or charged with any crime related to or arising from any circumstances surrounding the seizure of their cash.

150. It is not a crime to travel with any amount of currency, and there are no legal requirements to report to the government that one is traveling domestically with any amount of currency.

- - - - - - - - - -

282. Plaintiffs bring this claim on behalf of themselves and the DEA Class under Federal Rule of Civil Procedure 23(b)(2) for declaratory and injunctive relief against DEA, DEA Acting Administrator Dhillon in his official capacity, and the United States of America for violation of their Fourth Amendment right to be free from unreasonable searches and seizures.

283. It is legal to travel with any amount of currency, and there are no legal requirements to report to the government that one is traveling domestically with any amount of currency.

284. An air traveler’s possession of any amount of currency, by itself, is not suspicious or indicative of criminal activity; it does not give rise to reasonable suspicion or probable cause.

285. DEA follows a policy or practice of seizing currency from travelers at U.S. airports without probable cause based solely on the presence of the currency itself.

286. DEA follows a policy or practice of seizing currency from travelers at U.S. airports based on the presence of a threshold amount of currency that DEA considers “suspicious,” regardless of whether there is probable cause for the seizure.

287. DEA follows a policy or practice of seizing currency from travelers at U.S. airports based solely on whether they have at least $5,000 in currency, regardless of whether there is probable cause for the seizure.

288. DEA’s policy or practice violates the Fourth Amendment right to be free from unreasonable searches and seizures.

289. Pursuant to this unconstitutional policy or practice, DEA seized Terry’s and Rebecca’s cash without probable cause.

290. As a direct and proximate result of DEA’s policy or practice, the Named Plaintiffs and other members of the DEA Class have suffered or will suffer the same injury, including the deprivation of their constitutional rights and the deprivation and/or loss of their currency.

291. DEA’s unconstitutional policy or practice affects every member of the DEA Class—i.e., every instance in which DEA seizes currency from a traveler at a U.S. airport because they were or are traveling with at least $5,000 in currency, regardless of whether there is probable cause for the seizure.

292. Therefore, class-wide declaratory and injunctive relief is necessary to remedy DEA’s unlawful policy or practice, which will otherwise continue.

nolu chan  posted on  2020-01-17   18:12:41 ET  Reply   Trace   Private Reply  


#13. To: nolu chan (#12)

Approximately 8% of total seizures resulted in full or partial return of assets.

Meaning 92% of asset forfeitures were legitimately based on suspicious items/money that couldn't be explained legally.

misterwhite  posted on  2020-01-18   11:17:52 ET  Reply   Trace   Private Reply  


#14. To: misterwhite (#13)

Meaning 92% of asset forfeitures were legitimately based on suspicious items/money that couldn't be explained legally.

No it means that 92 percent of the people got ripped off and didn't know how to get a lawyer or didn't have the funds to hire one to get their money back.

A K A Stone  posted on  2020-01-18   11:26:45 ET  Reply   Trace   Private Reply  


#15. To: misterwhite (#0)

So they brought it, and He asked them, "Whose image is this? And whose inscription?" "Caesar’s," they answered. Then Jesus told them, "Give to Caesar what is Caesar’s"

Amen

A Pole  posted on  2020-01-18   12:02:07 ET  Reply   Trace   Private Reply  


#16. To: A Pole (#15)

So they brought it, and He asked them, "Whose image is this? And whose inscription?" "Caesar’s," they answered. Then Jesus told them, "Give to Caesar what is Caesar’s" Amen

Give to Caesar what is Caesars. Don't give Caesar what is yours is another way to look at it.

A K A Stone  posted on  2020-01-18   12:06:31 ET  Reply   Trace   Private Reply  


#17. To: A K A Stone (#16)

Don't give Caesar what is yours is another way to look at it.

If your image is on, then keep it, if you can.

A Pole  posted on  2020-01-18   12:18:28 ET  Reply   Trace   Private Reply  


#18. To: nolu chan (#12)

Terry’s parents lived through the Great Depression ... they had a habit of storing cash in envelopes hidden throughout the family home ... Terry adopted this same habit long ago

Why? The Great Depression ended almost 90 years ago. The banking system is secure. The FDIC insures deposits up to $250,000.

Well, OK. He doesn't trust banks. Fine.

Whoa! Now he does? After all this time?

misterwhite  posted on  2020-01-18   12:20:37 ET  Reply   Trace   Private Reply  


#19. To: nolu chan (#12)

96. With Terry’s consent, some of the money was also earmarked to pay off a tax debt Rebecca owes the IRS.

I believe I read it was $15,000. Thanks, dad!

misterwhite  posted on  2020-01-18   12:25:41 ET  Reply   Trace   Private Reply  


#20. To: nolu chan (#12)

97. Rebecca and one of her brothers also decided to give their father something his life was lacking: a hobby. They planned to use some of the money to buy Terry an old hobby truck to repair and tinker with.

He has one already. Remember?

misterwhite  posted on  2020-01-18   12:27:00 ET  Reply   Trace   Private Reply  


#21. To: A K A Stone (#14)

No it means that 92 percent of the people got ripped off and didn't know how to get a lawyer or didn't have the funds to hire one to get their money back.

Under CAFRA, the federal government will reimburse your legal expenses and will return your money with interest. Assuming you can prove you obtained it legally. Which 92% couldn't do.

misterwhite  posted on  2020-01-18   12:33:43 ET  Reply   Trace   Private Reply  


#22. To: misterwhite (#20)

"buy Terry an old hobby truck to repair and tinker with"

He has one already. Remember?

I fully agree with you, Comrade. To own two trucks is a disgrace that should be poonished.

https://youtu.be/AJJsm5PB6HM?t=42s

A Pole  posted on  2020-01-18   13:03:47 ET  Reply   Trace   Private Reply  


#23. To: misterwhite (#19)

96. With Terry’s consent, some of the money was also earmarked to pay off a tax debt Rebecca owes the IRS.

- - - - - - - - - -

137. Terry has age-related memory and cognitive issues, and he typically sleeps until late morning or noon. Terry was woken up by the phone call and was groggy, confused, and upset when he answered the phone.

138. Terry also did not know that his children were planning to buy him a surprise hobby truck, so he could not corroborate those facts.

139. For these reasons—Terry being awoken several hours early; Terry’s cognitive issues; and Terry being unaware of Rebecca’s planned surprise—Terry had difficulty answering all of Steve’s questions.

Saturday night, Terry was clear and lucid enough to consent to a verbal contract to give Rebecca authority to take his life savings out of state, pay off her tax debt, and apparently authorize her to spend some of the money on a truck he did not know about.

Sunday morning, "Terry had difficulty answering all of [the DEA agent's] questions," due to "memory and cognitive issues," and being "groggy, confused, and upset when he answered the phone."

Five months later, Terry's memory and cognition is much better now.

nolu chan  posted on  2020-01-18   17:05:26 ET  Reply   Trace   Private Reply  


#24. To: nolu chan (#23)

38. Terry also did not know that his children were planning to buy him a surprise hobby truck, so he could not corroborate those facts.

I'm guessing the DEA didn't care how they were going to spend the money as opposed to how they got the money.

misterwhite  posted on  2020-01-18   17:20:27 ET  Reply   Trace   Private Reply  


#25. To: nolu chan (#23)

Sunday morning, "Terry had difficulty answering all of [the DEA agent's] questions," due to "memory and cognitive issues," and being "groggy, confused, and upset when he answered the phone."

Hence, placing this story in the "Humor" section. Poor guy couldn't keep his story straight.

misterwhite  posted on  2020-01-18   17:24:53 ET  Reply   Trace   Private Reply  


#26. To: A K A Stone (#5)

My opinion is misterwhte thinks it is drug money and they made it illegitimately. So he wants it seized.

What does every Federal Reserve Note have printed on it?

"This note is legal tender...". Not illegal tender, *legal* tender.

If the US doesn't want cash on the street, it should stop issuing it. Period.

Pinguinite  posted on  2020-01-18   19:29:30 ET  Reply   Trace   Private Reply  


#27. To: misterwhite, Vicomte13 (#10)

And since the property, not the owner, is charged with the crime, due process does not apply.

Actually, due process does apply, but it is the due process for a lawful seizure.

Then there is a bunch more due process for a lawful forfeiture.

https://www.uscourts.gov/sites/default/files/cv_rules_eff._dec._1_2018_0.pdf

Rule G. Forfeiture Actions In Rem

(1) SCOPE. This rule governs a forfeiture action in rem arising from a federal statute. To the extent that this rule does not ad­dress an issue, Supplemental Rules C and E and the Federal Rules of Civil Procedure also apply.

(2) COMPLAINT. The complaint must:

(a) be verified;

(b) state the grounds for subject-matter jurisdiction, in rem jurisdiction over the defendant property, and venue;

(c) describe the property with reasonable particularity;

(d) if the property is tangible, state its location when any seizure occurred and—if different—its location when the ac­tion is filed;

(e) identify the statute under which the forfeiture action is brought; and

(f) state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.

(3) JUDICIAL AUTHORIZATION AND PROCESS.

(a) Real Property. If the defendant is real property, the gov­ernment must proceed under 18 U.S.C. §985.

(b) Other Property; Arrest Warrant. If the defendant is not real property:

(i) the clerk must issue a warrant to arrest the property if it is in the government's possession, custody, or control;

(ii) the court—on finding probable cause—must issue a warrant to arrest the property if it is not in the govern­ment's possession, custody, or control and is not subject to a judicial restraining order; and

(iii) a warrant is not necessary if the property is subject to a judicial restraining order.

(c) Execution of Process.

(i) The warrant and any supplemental process must be delivered to a person or organization authorized to execute it, who may be: (A) a marshal or any other United States officer or employee; (B) someone under contact with the United States; or (C) someone specially appointed by the court for that purpose.

(ii) The authorized person or organization must execute the warrant and any supplemental process on property in the United States as soon as practicable unless:

(A) the property is in the government's possession, custody, or control; or

(B) the court orders a different time when the com­plaint is under seal, the action is stayed before the warrant and supplemental process are executed, or the court finds other good cause.

(iii) The warrant and any supplemental process may be executed within the district or, when authorized by stat­ute, outside the district.

(iv) If executing a warrant on property outside the United States is required, the warrant may be transmitted to an appropriate authority for serving process where the property is located.

(4) NOTICE.

(a) Notice by Publication.

(i) When Publication Is Required. A judgment of forfeit­ure may be entered only if the government has published notice of the action within a reasonable time after filing the complaint or at a time the court orders. But notice need not be published if:

(A) the defendant property is worth less than $1,000 and direct notice is sent under Rule G(4)(b) to every person the government can reasonably identify as a po­tential claimant; or

(B) the court finds that the cost of publication ex­ceeds the property's value and that other means of no­tice would satisfy due process.

(ii) Content of the Notice. Unless the court orders other­wise, the notice must:

(A) describe the property with reasonable particular­ity;

(B) state the times under Rule G(5) to file a claim and to answer; and

(C) name the government attorney to be served with the claim and answer.

(iii) Frequency of Publication. Published notice must ap­pear:

(A) once a week for three consecutive weeks; or

(B) only once if, before the action was filed, notice of nonjudicial forfeiture of the same property was pub­lished on an official internet government forfeiture site for at least 30 consecutive days, or in a newspaper of general circulation for three consecutive weeks in a district where publication is authorized under Rule G(4)(a)(iv).

(iv) Means of Publication. The government should select from the following options a means of publication reason­ably calculated to notify potential claimants of the action:

(A) if the property is in the United States, publica­tion in a newspaper generally circulated in the district where the action is filed, where the property was seized, or where property that was not seized is lo­cated;

(B) if the property is outside the United States, pub­lication in a newspaper generally circulated in a dis­trict where the action is filed, in a newspaper gener­ally circulated in the country where the property is lo­cated, or in legal notices published and generally cir­culated in the country where the property is located; or

(C) instead of (A) or (B), posting a notice on an offi­cial internet government forfeiture site for at least 30 consecutive days.

(b) Notice to Known Potential Claimants.

(i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).

(ii) Content of the Notice. The notice must state:

(A) the date when the notice is sent;

(B) a deadline for filing a claim, at least 35 days after the notice is sent;

(C) that an answer or a motion under Rule 12 must be filed no later than 21 days after filing the claim; and

(D) the name of the government attorney to be served with the claim and answer.

(iii) Sending Notice.

(A) The notice must be sent by means reasonably cal­culated to reach the potential claimant.

(B) Notice may be sent to the potential claimant or to the attorney representing the potential claimant with respect to the seizure of the property or in a re­lated investigation, administrative forfeiture proceed­ing, or criminal case.

(C) Notice sent to a potential claimant who is incar­cerated must be sent to the place of incarceration.

(D) Notice to a person arrested in connection with an offense giving rise to the forfeiture who is not incar­cerated when notice is sent may be sent to the address that person last gave to the agency that arrested or re­leased the person.

(E) Notice to a person from whom the property was seized who is not incarcerated when notice is sent may be sent to the last address that person gave to the agency that seized the property.

(iv) When Notice Is Sent. Notice by the following means is sent on the date when it is placed in the mail, delivered to a commercial carrier, or sent by electronic mail.

(v) Actual Notice. A potential claimant who had actual notice of a forfeiture action may not oppose or seek relief from forfeiture because of the government's failure to send the required notice.

(5) RESPONSIVE PLEADINGS.

(a) Filing a Claim.

(i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:

(A) identify the specific property claimed;

(B) identify the claimant and state the claimant's in­terest in the property;

(C) be signed by the claimant under penalty of per­jury; and

(D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D).

(ii) Unless the court for good cause sets a different time, the claim must be filed:

(A) by the time stated in a direct notice sent under Rule G(4)(b);

(B) if notice was published but direct notice was not sent to the claimant or the claimant's attorney, no later than 30 days after final publication of newspaper notice or legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an of­ficial internet government forfeiture site; or

(C) if notice was not published and direct notice was not sent to the claimant or the claimant's attorney:

(1) if the property was in the government's pos­session, custody, or control when the complaint was filed, no later than 60 days after the filing, not counting any time when the complaint was under seal or when the action was stayed before execu­tion of a warrant issued under Rule G(3)(b); or

(2) if the property was not in the government's possession, custody, or control when the complaint was filed, no later than 60 days after the govern­ment complied with 18 U.S.C. § 985(c) as to real property, or 60 days after process was executed on the property under Rule G(3).

(iii) A claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the bailor's behalf must state the authority to do so.

(b) Answer. A claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim. A claimant waives an objection to in rem jurisdic­tion or to venue if the objection is not made by motion or stated in the answer.

(6) SPECIAL INTERROGATORIES.

(a) Time and Scope. The government may serve special inter­rogatories limited to the claimant's identity and relationship to the defendant property without the court's leave at any time after the claim is filed and before discovery is closed. But if the claimant serves a motion to dismiss the action, the gov­ernment must serve the interrogatories within 21 days after the motion is served.

(b)Answers or Objections. Answers or objections to these in­terrogatories must be served within 21 days after the interrog­atories are served.

(c) Government's Response Deferred. The government need not respond to a claimant's motion to dismiss the action under Rule G(8)(b) until 21 days after the claimant has answered these interrogatories.

(7) PRESERVING, PREVENTING CRIMINAL USE, AND DISPOSING OF PROPERTY; SALES.

(a) Preserving and Preventing Criminal Use of Property. When the government does not have actual possession of the defend­ant property the court, on motion or on its own, may enter any order necessary to preserve the property, to prevent its re­moval or encumbrance, or to prevent its use in a criminal of­fense.

(b) Interlocutory Sale or Delivery.

(i) Order to Sell. On motion by a party or a person hav­ing custody of the property, the court may order all or part of the property sold if:

(A) the property is perishable or at risk of deteriora­tion, decay, or injury by being detained in custody pending the action;

(B) the expense of keeping the property is excessive or is disproportionate to its fair market value;

(C) the property is subject to a mortgage or to taxes on which the owner is in default; or

(D) the court finds other good cause.

(ii) Who Makes the Sale. A sale must be made by a United States agency that has authority to sell the prop­erty, by the agency's contractor, or by any person the court designates.

(iii) Sale Procedures. The sale is governed by 28 U.S.C. §§ 2001, 2002, and 2004, unless all parties, with the court's approval, agree to the sale, aspects of the sale, or different procedures.

(iv) Sale Proceeds. Sale proceeds are a substitute res subject to forfeiture in place of the property that was sold. The proceeds must be held in an interest-bearing account maintained by the United States pending the conclusion of the forfeiture action.

(v) Delivery on a Claimant's Motion. The court may order that the property be delivered to the claimant pend­ing the conclusion of the action if the claimant shows cir­cumstances that would permit sale under Rule G(7)(b)(i) and gives security under these rules.

(c) Disposing of Forfeited Property. Upon entry of a forfeiture judgment, the property or proceeds from selling the property must be disposed of as provided by law.

(8) MOTIONS.

(a) Motion To Suppress Use of the Property as Evidence. If the defendant property was seized, a party with standing to con­test the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeit­ure of the property based on independently derived evidence.

(b) Motion To Dismiss the Action.

(i) A claimant who establishes standing to contest for­feiture may move to dismiss the action under Rule 12(b).

(ii) In an action governed by 18 U.S.C. § 983(a)(3)(D) the complaint may not be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property. The sufficiency of the complaint is governed by Rule G(2).

(c) Motion To Strike a Claim or Answer.

(i) At any time before trial, the government may move to strike a claim or answer:

(A) for failing to comply with Rule G(5) or (6), or

(B) because the claimant lacks standing.

(ii) The motion:

(A) must be decided before any motion by the claim­ant to dismiss the action; and

(B) may be presented as a motion for judgment on the pleadings or as a motion to determine after a hear­ing or by summary judgment whether the claimant can carry the burden of establishing standing by a preponderance of the evidence.

(d) Petition To Release Property.

(i) If a United States agency or an agency's contractor holds property for judicial or nonjudicial forfeiture under a statute governed by 18 U.S.C. § 983(f), a person who has filed a claim to the property may petition for its release under § 983(f).

(ii) If a petition for release is filed before a judicial for­feiture action is filed against the property, the petition may be filed either in the district where the property was seized or in the district where a warrant to seize the prop­erty issued. If a judicial forfeiture action against the prop­erty is later filed in another district—or if the government shows that the action will be filed in another district—the petition may be transferred to that district under 28 U.S.C. § 1404.

(e) Excessive Fines. A claimant may seek to mitigate a for­feiture under the Excessive Fines Clause of the Eighth Amend­ment by motion for summary judgment or by motion made after entry of a forfeiture judgment if:

(i) the claimant has pleaded the defense under Rule 8; and

(ii) the parties have had the opportunity to conduct civil discovery on the defense.

(9) TRIAL. Trial is to the court unless any party demands trial by jury under Rule 38.

(As added Apr. 12, 2006, eff. Dec. 1, 2006; amended Mar. 26, 2009, eff. Dec. 1, 2009.)

nolu chan  posted on  2020-01-18   19:56:44 ET  Reply   Trace   Private Reply  


#28. To: Vicomte13, misterwhite (#7)

My take: the Constitution is clear about unreasonable searches and seizures, about due process and about takings.

The Constitution is clear that warrants can only be issued upon probable cause to protect against unreasonable searches and seizures. The Constitution is silent about what is, or is not, a reasonable search or seizure.

All that is needed to justify a warrant is probable cause. Not all searches or seizures require any warrant. The legislature and the courts have carved out exceptions to the warrant requirement.

As an extreme example, during an inspection or examination at a point of entry, no warrant is required to search or seize.

Forfeiture is an issue which may follow seizure.

nolu chan  posted on  2020-01-18   20:27:04 ET  Reply   Trace   Private Reply  


#29. To: misterwhite, A K A Stone (#9)

But all she has to do is show the legal origins of the money and she'll get it back, with interest and with her legal fees paid for.

I would note that Rebecca Brown was not the owner of the money. The money belonged to Terry Rolins, her father. At best, she was acting as his agent to deposit the money in a bank.

The burden of proof to justify civil asset forfeiture belongs to the government.

The Innocent Owner burden applies to property owned by one person and involved in the criminal action of another, with the innocent owner claiming he knew nothing.

CIVIL ASSET FORFEITURE STANDARD OF PROOF

https://ij.org/report/policing-for-profit/grading-state-federal-civil-forfeiture-laws/

Standard of Proof

People who manage to make it to court to fight a seizure often face a major disadvantage: the low standards of proof required to forfeit property under most civil forfeiture laws. The standard of proof is the hurdle the government must clear to win a civil forfeiture case. It dictates how convincing the government’s evidence must be to a judge or jury. The most familiar standard of proof in the American legal system is “beyond a reasonable doubt,” the requirement for convicting a person of a crime. American law sets such a high standard in criminal cases to avoid punishing the innocent. Yet federal and most state civil forfeiture laws set substantially lower standards for depriving people of their property, as the map in Figure 7 shows.

Thirty-one states and the federal government set “preponderance of the evidence” as the standard of proof for all civil forfeitures, making it the most common standard nationally. A preponderance of the evidence standard means that property is more likely than not connected to a crime.

[...]

https://ij.org/report/policing-for-profit/grading-state-federal-civil-forfeiture-laws/

INNOCENT OWNER BURDEN

Innocent Owner Burden

With civil forfeiture, not only can people lose their property without ever being charged with or convicted of a crime, they can also lose their property when someone else allegedly uses it in the commission of a crime. For example, police in Arizona arrested a man for stealing auto parts and seized the truck he had put them on. The truck was forfeited, even though it belonged to the man’s mother, who had done nothing wrong. A New Jersey woman lost her car after her son used it—without her knowledge or consent—while selling marijuana. It took two years of litigation to win it back. And a Michigan woman saw the car she co-owned with her husband forfeited after he was caught soliciting a prostitute in it—a crime she neither knew about nor consented to.

To avoid punishing such innocent third parties, civil forfeiture laws generally create a carve-out: Property owners (or partial owners) who had nothing to do with the alleged crime that prompted a seizure can petition to get the property (or their share of it) back. In theory, such “innocent owner” claims provide protection against unjust civil forfeitures. In practice, however, most innocent owner provisions put property owners at a disadvantage, making it easy for the government to hold on to seized property.

For starters, making an innocent owner claim is no easy task. Rhonda Cox, the Arizona mother whose son was arrested for theft, learned this the hard way. After her truck was seized, she told two police officers that it was hers and that she had nothing to do with her son’s crime. Both told her that she would never get her property back. Cox then provided proof of ownership to the county attorney’s office and explained that she had no knowledge of the truck’s involvement with any illegal activity. The prosecutor rejected her plea and started legal actions to forfeit her truck.

On her own and without a lawyer, Cox filed the paperwork required to challenge the forfeiture as an innocent owner—paying a $304 filing fee for the privilege. But eventually she gave up. The legal process was too convoluted, and—as the prosecutor had warned her—if she lost, not only would she lose the truck, but under Arizona law she would also have to pay the government’s legal costs.

Cox lost her truck without ever having been accused of a crime and without ever having gotten her day in court. Innocent third-party owners who do make it to court will often face a bizarre and almost impossible task: proving their own innocence.

As shown in Figure 8, innocent owner provisions in federal law and 35 states place the burden of proof on owners, meaning that owners must prove they had nothing to do with the alleged crime. In essence, most civil forfeiture laws presume that people are connected to any criminal activity involving their property and force them to prove otherwise to recover it. This is precisely the opposite of what happens in criminal trials, where the accused is presumed innocent until proven guilty by the government. It also often involves a practical impossibility, as it requires people to prove a negative—that they did not know about or consent to the illegal use of their property.

Only 10 states and the District of Columbia demand that the government prove owners did something wrong before forfeiting their property. In the remaining states, whether the burden of proof falls on the owner or the government generally depends on the type of property involved.

[snip]

nolu chan  posted on  2020-01-18   20:43:23 ET  Reply   Trace   Private Reply  


#30. To: Pinguinite, A K A Stone (#26)

"This note is legal tender...". Not illegal tender, *legal* tender.

Legal tender is not illegal. The claim to ownership of any asset gained through illicit means is unlawful. Civil asset forfeiture finds the claim to ownership is invalid.

nolu chan  posted on  2020-01-18   22:33:25 ET  Reply   Trace   Private Reply  


#31. To: misterwhite (#25) (Edited)

Sunday morning, "Terry had difficulty answering all of [the DEA agent's] questions," due to "memory and cognitive issues," and being "groggy, confused, and upset when he answered the phone."

Hence, placing this story in the "Humor" section. Poor guy couldn't keep his story straight.

Or he did not know the story because he had not been told the story yet. He might not have known he ever had $82,000.

I am reasonably certain that if I gave $82,000 dollars to my daughter on Saturday, I would recall that on Sunday morning.

Also, I would be very surprised if my daughter took my money to put in a bank in another state, and then intended to buy a truck for me with my money, as a surprise. That one was told to the DEA agent before the phone call. Dad, Sunday morning: A truck? I've got a truck. And taxes? What are you talking about?

I did notice that the article was filed in humor. It seemed appropriate enough.

nolu chan  posted on  2020-01-18   22:48:05 ET  Reply   Trace   Private Reply  


#32. To: nolu chan (#30)

The claim to ownership of any asset gained through illicit means is unlawful.

In which the possession of legal tender is deemed to be all the evidence required of a crime. Ergo, possession of some arbitrary amount of cash is, de facto considered a crime all. by. itself.

Civil asset forfeiture finds the claim to ownership is invalid.

Based solely on the fact that a person possesses some arbitrary amount of cash, at which point the acquiring of said cash is deemed to be invalid until the possessor provides some arbitrary support that deems it validly gained. Essentially depriving the person of any presumption of innocence.

This absolutely is a circumvention of the plain meaning of the 4th amendment. And before you start citing court cases, I'll say I don't give a freak about any federal court opinions (yes, opinions) that say taking away people's property without proving a crime was committed is okay and part of what the founder's intended when they added the 4th amendment to the Constitution. It's plainly not. The founders certainly never intended with the 4th to suggest that people could be secure in their effects but that the gov could seize those effects anyway on the personal whim of one of their employees.

I'll say again, if the gov will consider having cash to be evidence of a crime, then its issuance should be ceased.

Pinguinite  posted on  2020-01-18   23:51:09 ET  Reply   Trace   Private Reply  


#33. To: Pinguinite, A K A Stone, misterwhite (#26)

In which the possession of legal tender is deemed to be all the evidence required of a crime. Ergo, possession of some arbitrary amount of cash is, de facto considered a crime all. by. itself.

FALSE PREMISE AND FALSE CONCLUSION.

Civil asset forfeiture finds the claim to ownership is invalid.

Based solely on the fact that a person possesses some arbitrary amount of cash, at which point the acquiring of said cash is deemed to be invalid until the possessor provides some arbitrary support that deems it validly gained. Essentially depriving the person of any presumption of innocence.

FALSE PREMISE AND FALSE CONCLUSION.

This absolutely is a circumvention of the plain meaning of the 4th amendment.

FALSE CONJECTURE BASED OF FALSE PREMISES.

And before you start citing court cases, I'll say I don't give a freak about any federal court opinions (yes, opinions) that say taking away people's property without proving a crime was committed is okay and part of what the founder's intended when they added the 4th amendment to the Constitution. It's plainly not.

FALSE PREMISE.

The founders certainly never intended with the 4th to suggest that people could be secure in their effects but that the gov could seize those effects anyway on the personal whim of one of their employees.

FALSE PREMISE AND FALSE CONCLUSION.

I'll say again, if the gov will consider having cash to be evidence of a crime, then its issuance should be ceased.

FALSE PREMISE.

- - - - - - - - - -

Forfeiture law in America predates the United States. Following the adoption of the Constitution and the government created thereby, the first Legislature passed the first Federal forfeiture law.

The below article is dated, but generally informative on the topic of asset forfeiture.

I will let The Federalist Society respond to your conception of civil asset forfeiture law and procedures. I would note that the instant Brown and Rolin Complaint is not a response to a notice of civil asset forfeiture, but a challenge to the constitutionality of the statute, which I shall address seperately.

https://fedsoc.org/commentary/publications/forfeiture-is-reasonable-and-it-works

Forfeiture is Reasonable, and It Works

Criminal Law & Procedure Practice Group Newsletter - Volume 1, Issue 2, Spring 1997

Stefan D. Cassella
May 1 1997
The Federalist Society

Asset forfeiture has become one of the most powerful and important tools that federal law enforcement can employ against all manner of criminals and criminal organizations -- from drug dealers to terrorists to white collar criminals who prey on the vulnerable for financial gain. Derived from the ancient practice of forfeiting vessels and contraband in Customs and Admiralty cases, forfeiture statutes are now found throughout the federal criminal code.

Why do forfeiture?

Federal law enforcement agencies use the forfeiture laws for a variety of reasons, both time-honored and new. Like the statutes the First Congress enacted in 1789, the modern laws allow the government to seize contraband — property that is simply unlawful to possess, like illegal drugs, unregistered machine guns, pornographic materials, smuggled goods and counterfeit money.

Forfeiture is also used to abate nuisances and to take the instrumentalities of crime out of circulation. For example, if drug dealers are using a "crack house" to sell drugs to children as they pass by on the way to school, the building is a danger to the health and safety of the neighborhood. Under the forfeiture laws, we can shut it down. If a boat or truck is being used to smuggle illegal aliens across the border, we can forfeit the vessel or vehicle to prevent its use time and again for the same purpose. The same is true for an airplane used to fly cocaine from Peru into Southern California, or a printing press used to mint phony $100 bills.

The government also uses forfeiture to take the profit out of crime, and to return property to victims. No one has the right to retain the money gained from bribery, extortion, illegal gambling, or drug dealing. With the forfeiture laws, we can separate the criminal from his profits — and any property traceable to it — thus removing the incentive others may have to commit similar crimes tomorrow. And if the crime is one that has victims — like carjacking or fraud — we can use the forfeiture laws to recover the property and restore it to the owners far more effectively than the restitution statutes permit.

Finally, forfeiture undeniably provides both a deterrent against crime and as a measure of punishment for the criminal. Many criminals fear the loss of their vacation homes, fancy cars, businesses and bloated bank accounts far more than the prospect of a jail sentence. In fact, in many cases, prosecution and incarceration are not needed to achieve the ends of justice. Not every criminal act must be answered with the slam of the jail cell door. Sometimes, return of the property to the victim and forfeiture of the means by which the crime was committed will suffice to ensure that the community is compensated and protected and the criminal is punished.

The parade of horribles

The expansion of forfeiture into all of these areas has, of course, been controversial. When laws that were designed to seize pirate ships from privateers are applied, over the course of a decade, to the seizure of homes, cars, businesses and bank accounts, there are a lot of issues to sort out. How do we protect innocent property owners? What procedures afford due process? When does forfeiture go too far, in violation of the Excessive Fines Clause of the Eighth Amendment? The ten forfeiture cases that the Supreme Court has had on its docket in the past five terms are part of this sorting out process. There are certain to be more; and Congress will need to pass legislation to fill in many of the loopholes.

An informed debate on these issues is welcome. The debate is not informed, however, if it is muddled by the misconceptions and plain old-fashioned misstatements that seem to pop up in every article critical of asset forfeiture. Roger Pilon's article, containing the usual parade of horribles, is a good example.

Once again we are told that forfeiture is based on an absurd legal "fiction" that the property is guilty of the crime, which implies that property can be forfeited without proof that a crime was committed by a real live person. We're told that the government can seize property "almost at will," i.e. without due process, and that innocent people find the process so unfair that they walk away from their property without filing claims. And we're told that even when they do file claims, innocent owners just don't have any rights. Let's see if we can't inject a little truth and understanding into the debate on these points.

The legal "fiction"

There are three types of forfeiture under federal law: administrative forfeiture, civil judicial forfeiture, and criminal forfeiture. An administrative forfeiture is essentially a default proceeding. It occurs when property is seized and no one files a claim contesting the forfeiture. By definition, all administrative forfeitures are uncontested. Between 80 (eighty) and 85 (eighty-five) percent of all forfeitures handled by the Department of Justice fall into this category.

If someone does file a claim to the property, the government has a choice (assuming Congress has provided both options by statute). It can file a civil complaint against the property in district court, thus commencing a civil judicial forfeiture; or it can include a forfeiture count in the indictment in a criminal case, which sets the stage for a criminal forfeiture. In 1995, the Justice Department began aggressively training criminal prosecutors in the use of the forfeiture laws, so that now more than half of all contested forfeitures are criminal forfeitures.

Just because a forfeiture is handled administratively or civilly, of course, doesn't mean that there isn't a related criminal case. In all forfeiture cases there must be proof that a crime was committed by someone. In fact, in more than eighty percent of all forfeitures, including administrative and civil forfeitures, there is a parallel arrest and/or criminal prosecution. There wouldn't have been such a wail and cry about forfeiture constituting a violation of the Double Jeopardy Clause a few years ago if that weren't so. (Between the Ninth Circuit's decision in United States v. $405,089.23 in 1994 and the Supreme Court's decision putting the double jeopardy issue to rest in United States v. Ursery, thousands of federal prisoners filed post-conviction actions alleging that their criminal conviction and the civil forfeiture of their property constituted double jeopardy.)

The legal "fiction" that the property is "guilty" of the crime is simply a shorthand for the way a civil forfeiture case is styled: United States v. $405,089.23, United States v. 92 Buena Vista Ave., and so forth. In legal parlance, the property in such a case is the "defendant." But property doesn't commit crimes; people do. If there isn't proof that a person committed a crime, there is no forfeiture. If our normally verbose legal system styled its civil forfeiture cases to set forth the full legal theory, this would be obvious. The above cases, for example, might have been called United States v. $405,089.23 in Proceeds Earned by Charles Arlt From Selling Methamphetamine; or United States v. A Residence at 92 Buena Vista Ave. Purchased with Drug Proceeds that Joseph Brenna, a Drug Dealer, Gave to His Girlfriend.

In short, forfeiture is a way of reaching the property involved in a crime, but the focus is on the crime, without which there can be no forfeiture.

Why do civil forfeiture?

If all forfeitures involve the commission of a crime, and the vast majority involve an arrest or prosecution, why does the government use civil forfeiture at all? It is not, as many contend, because it is necessarily easier. To the contrary, the easiest way to forfeit a criminal defendant's property in many cases is not to file a separate civil action, but to present the forfeiture issue to the same jury that just convicted the defendant in the criminal case. But sometimes, criminal forfeiture isn't available or doesn't make sense.

Take the administrative forfeiture cases for example. There is no point in including a criminal forfeiture count in an indictment and presenting the issue to a jury if the defendant is not going to contest the forfeiture. If a defendant facing criminal conviction for drug trafficking thinks it pointless to contest the forfeiture of the cash seized from him as drug proceeds at the time of his arrest, it is equally pointless to clutter the indictment with a forfeiture count when administrative forfeiture will answer.

What about the contested forfeitures that are done civilly? The reasons for this are many. First, while there are over 100 civil forfeiture statutes, there are relatively few criminal forfeiture statutes. Drug proceeds can be forfeited either civilly or criminally, for example, but firearms, gambling proceeds, vehicles used to smuggle illegal aliens, and counterfeiting paraphernalia can only be forfeited civilly. See 28 U.S.C. §2461(a). This is a problem Congress needs to fix.

Second, criminal forfeiture requires a federal conviction for the crime giving rise to the forfeiture. If the defendant is dead or is a fugitive, there can be no prosecution and therefore no criminal forfeiture. If the defendant was prosecuted in a State case, the federal forfeiture has to be civil, because there is no federal prosecution for the criminal offense. And if the defendant is prosecuted for one crime, but the property was involved in a related but separate crime, the forfeiture has to be civil, because the criminal forfeiture is limited to the offense of conviction. For example, drug proceeds seized from a defendant at the time of his arrest must be forfeited civilly if the defendant is charged with possession of drugs with intent to distribute, because such money was necessarily the proceeds of an earlier drug deal, not the one for which the defendant is actually prosecuted.

Third, and perhaps most important, criminal forfeiture is limited to the property of the defendant. If the defendant uses someone else's property to commit the crime, criminal forfeiture accomplishes nothing. Only civil forfeiture will reach the property. For example, if a drug dealer uses an airplane to smuggle drugs into California, the government has an interest in seizing and forfeiting the plane. But suppose the only person arrested and prosecuted is the pilot. If he owns the plane outright, criminal forfeiture is the way to go. But if the plane is owned by a corporation, or a third-party in South America, or by the pilot jointly with his spouse, criminal forfeiture is pointless.

The same is true if we want to forfeit a crack house. We can prosecute the tenants in the building until the cows come home, but we will never be able to forfeit the building criminally if the tenants don't own it. If the building belongs to a slumlord who allowed his property to be turned into a crack house, we need civil forfeiture to shut it down.

Due Process

Whatever the reasons why civil forfeiture is essential to federal law enforcement, it goes without saying that the process must be fair. All property owners — whether they be criminal defendants or third parties — are entitled to due process of law. Mr. Pilon contends that due process is lacking. He says that the government can seize property "almost at will," that officials can "seize property, real or personal, without notice or hearing," and that innocent parties find the system so daunting that they abandon their property without filing a claim. On all points, he is greatly mistaken.

Seizures of property for forfeiture are governed by the same rules that govern seizure of property for evidence — the search and seizure requirements of the Fourth Amendment. See United States v. Lasanta, 978 F.2d 1300 (2d Cir. 1992). If federal agents want to seize property for forfeiture, they have to get a warrant, unless one of the recognized exceptions to the Fourth Amendment applies, like when cash is found in plain view in a vehicle that can be driven away, and there is probable cause to believe it's drug proceeds, or when property is found during a search incident to a lawful arrest. In fact, in many instances, forfeiture seizures are more limited than their evidentiary counterparts. See 18 U.S.C. §981(b)(2) (in money laundering cases, warrantless seizures are authorized during searches incident to arrest, but not in other exigent circumstances).

In real property cases, the rules are still more restrictive. In United States v. James Daniel Good Property, 114 S. Ct. 492 (1993), the Supreme Court held that real property may not be seized at all, even with a warrant based on a showing of probable cause, until the property owner has been given notice and an opportunity to be heard. In short, in real property cases, the Due Process Clause of the Fifth Amendment requires the government to give property owners more "process" than is due under the Fourth Amendment.

Moreover, seizing the property isn't the end of the process; it's only the beginning. If someone wants to contest a forfeiture he has a right to file a claim, thereby forcing the government to file a civil or criminal forfeiture action in federal court. If the case is civil, the claimant has all the rights that attend normal civil litigation, including the right to discovery and the right to a trial by jury. Finally, the forfeiture verdict must be based on a preponderance of the admissible evidence, not the probable cause evidence that was sufficient for the seizure.

Of course, any system can be improved. The Justice Department has proposed legislation to make the government carry the burden of proof in civil forfeiture cases. We also have suggested making it easier for people to file claims in forfeiture cases by extending the filing deadlines, and we have proposed a remedy for those whose property is damaged in government custody. (The Justice Department's legislative proposal and supporting testimony are published in the record of the Hearing on the Civil Asset Forfeiture Reform Act, H.R. 1916, House Committee on the Judiciary, 104th Congress, 2d Sess., Serial No. 94, July 22, 1996.) But it is preposterous to say that property owners are denied due process under current law.

The Uncontested Forfeitures

What should we make of the fact that so many forfeitures are uncontested? The critics, of course, see this as evidence that innocent property owners are walking away from their property without filing a claim because the procedures are unfair. But the opposite is far more likely. Four out of five forfeitures are uncontested because in most cases the evidence is so overwhelming that contesting the forfeiture would be pointless. A defendant charged with smuggling illegal aliens, for example, might see little advantage in contesting the forfeiture of the truck he was driving when he was arrested and the aliens were found. Remember, eighty percent of all forfeitures involve a parallel arrest or prosecution. Those are cases in which the defendant is in court anyway, has counsel, and yet most of the time does not object to the forfeiture.

Certainly, there are still due process issues to be worked out. One of the most nettlesome involves the current flood of post-conviction pleadings being filed by federal prisoners who contend that they didn't contest forfeiture actions because they didn't receive proper notice. See e.g. United States v. Clark, 84 F.3d 378 (10th Cir. 1996). Most commonly, the prisoners complain that the government sent the notice to the wrong jail or to a home address when the government knew that the person was incarcerated. Criminals have due process rights just like everyone else, so the government must find a way to provide notice of forfeiture actions to persons being held in jail. But these are hardly cases that involve innocent claimants not filing claims because the procedures are stacked against them.

Innocent Owners

In his discussion of Bennis v. Michigan, Mr. Pilon makes a persuasive argument that the Constitution does not adequately protect innocent owners in civil forfeiture cases. It is an argument, however, that has little relevance to federal forfeiture law.

Bennis, it must be remembered, was a State case. Michigan, apparently, does not provide statutory protection for innocent owners, and the Supreme Court held that no such protection is required by the Due Process Clause. Fair enough. But the fact that the Constitution doesn't protect innocent owners doesn't mean that the legislature cannot do so. In fact, Congress has included an innocent owner defense in virtually all of the most widely used federal forfeiture statutes. For example, the drug statutes, 21 U.S.C. §881(a)(4) and (7), say that neither vehicles nor real property, respectively, may be forfeited if they were used to commit a crime without the knowledge or consent of the owner.

Mr. Pilon's claim that "hotels and apartment buildings are today forfeited when their owners are unable to prevent drug transactions in them" is just plain wrong. Even a property owner who "knows" that his property is being used for an illegal purpose is protected from forfeiture if he shows that he took all reasonable steps to prevent the activity. See United States v. 141st Street Corp., 911 F.2d 870, 877-78 (2nd Cir. 1990) (landlord who knew building was being used for drug trafficking had opportunity to show he did not consent to such use), cert. denied, 111 S. Ct. 1017 (1991); United States v. Parcel of Real Property Known as 6109 Grubb Road, 886 F.2d 618, 626 (3rd Cir. 1989) (wife who knew of husband's use of residence for drug trafficking had opportunity to show she did not consent to such use); United States v. One Parcel of Real Estate at 1012 Germantown Road, 963 F.2d 1496 (11th Cir. 1992).

For example, the owner of a residential hotel doesn't have to put a stop to drug transactions on his property; he just has to do what a reasonable owner would do to try to stop it, like call the police, evict tenants convicted of committing drug crimes on the premises, and install security devices like locks and adequate lighting. See United States v. All Right, Title and Interest (Kenmore Hotel), 77 F.3d 648 (2d Cir. 1996).

nolu chan  posted on  2020-01-19   8:49:27 ET  Reply   Trace   Private Reply  


#34. To: Pinguinite (#26)

Notably, this case is not about an asset seizure contested in the normal manner of responding with a claim of ownership.

This is a case where the parties, Rebecca Brown and Terrence Rolin are Complainant's in an their Complaint is styled, "CLASS COMPLAINT FOR CLASS-WIDE DECLARATORY AND INJUNCTIVE RELIEF AND FOR INDIVIDUAL RELIEF OF RETURN OF PROPERTY AND COMPENSATORY DAMAGES."

The Class Claims are:

Count I

Class Claim for Ultra Vires Agency Action Under 5 U.S.C. §§ 701-706

(Against TSA, TSA Administrator Pekoske in his official capacity, and the United States of America)

- - - - - - - - - -

Count II

Class Claim for Unconstitutional Action Under 5 U.S.C. §§ 701-706 and the Fourth Amendment

(Against TSA, TSA Administrator Pekoske in his official capacity, and the United States of America)

- - - - - - - - - -

Count III

Class Claim for Unconstitutional Action Under 5 U.S.C. §§ 701-706 and the Fourth Amendment

(Against DEA, DEA Acting Administrator Dhillon in his official capacity, and the United States of America)

The Individual Claims are:

Count IV

Individual Claim Under Federal Rule of Criminal Procedure 41(g) and 28 U.S.C. § 1331 for Return of Plaintiffs’ Property Currently Held in Violation of the Fourth Amendment

(Against DEA, DEA Acting Administrator Dhillon in his official capacity, and the United States of America)

- - - - - - - - - -

Count V

Individual Bivens Claim for Compensatory Damages Under the Fourth Amendment

(Against DEA Agent Steve, Last Name Unknown)

5 U.S.C. 701-706:

https://law.justia.com/codes/us/2017/title-5/part-i/chapter-7/

2017 US Code
Title 5 - Government Organization and Employees
Part I - The Agencies Generally
Chapter 7 - Judicial Review

Sec. 701 - Application; definitions
Sec. 702 - Right of review
Sec. 703 - Form and venue of proceeding
Sec. 704 - Actions reviewable
Sec. 705 - Relief pending review
Sec. 706 - Scope of review

5 U.S.C. 701 STATES IJN RELEVANT PART:

§701. Application; definitions

(a) This chapter applies, according to the provisions thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

5 U.S.C. 702 states:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

5 U.S.C. 703 states:

The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.

5 U.S.C. 704 states:

Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

5 U.S.C. 705 states:

When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.

5 U.S.C. 706 states:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

28 U.S.C. § 1331

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

Federal Rule of Criminal Procedure 41(g) states:

Rule 41. Search and Seizure

(a) Scope and Definitions.

(1) Scope. This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.

(2) Definitions. The following definitions apply under this rule:

(A) “Property” includes documents, books, papers, any other tangible objects, and information.

(B) “Daytime” means the hours between 6:00 a.m. and 10:00 p.m. according to local time.

(C) “Federal law enforcement officer” means a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant.

(D) “Domestic terrorism” and “international terrorism” have the meanings set out in 18 U.S.C. § 2331.

(E) “Tracking device” has the meaning set out in 18 U.S.C. § 3117(b).

(b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:

(1) a magistrate judge with authority in the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district;

(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed;

(3) a magistrate judge–in an investigation of domestic terrorism or international terrorism–with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district;

(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both; and

(5) a magistrate judge having authority in any district where activities related to the crime may have occurred, or in the District of Columbia, may issue a warrant for property that is located outside the jurisdiction of any state or district, but within any of the following:

(A) a United States territory, possession, or commonwealth;

(B) the premises–no matter who owns them–of a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the mission’s purposes; or

(C) a residence and any appurtenant land owned or leased by the United States and used by United States personnel assigned to a United States diplomatic or consular mission in a foreign state.

(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:

(A) the district where the media or information is located has been concealed through technological means; or

(B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.

(c) Persons or Property Subject to Search or Seizure. A warrant may be issued for any of the following:

(1) evidence of a crime;

(2) contraband, fruits of crime, or other items illegally possessed;

(3) property designed for use, intended for use, or used in committing a crime; or

(4) a person to be arrested or a person who is unlawfully restrained.

(d) Obtaining a Warrant.

(1) In General. After receiving an affidavit or other information, a magistrate judge–or if authorized by Rule 41(b), a judge of a state court of record–must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.

(2) Requesting a Warrant in the Presence of a Judge.

(A) Warrant on an Affidavit. When a federal law enforcement officer or an attorney for the government presents an affidavit in support of a warrant, the judge may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces.

(B) Warrant on Sworn Testimony. The judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances.

(C) Recording Testimony. Testimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.

(3) Requesting a Warrant by Telephonic or Other Reliable Electronic Means. In accordance with Rule 4.1, a magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means.

(e) Issuing the Warrant.

(1) In General. The magistrate judge or a judge of a state court of record must issue the warrant to an officer authorized to execute it.

(2) Contents of the Warrant.

(A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned. The warrant must command the officer to:

(i) execute the warrant within a specified time no longer than 14 days;

(ii) execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and

(iii) return the warrant to the magistrate judge designated in the warrant.

(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

(C) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:

(i) complete any installation authorized by the warrant within a specified time no longer than 10 days;

(ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and

(iii) return the warrant to the judge designated in the warrant.

(f) Executing and Returning the Warrant.

(1) Warrant to Search for and Seize a Person or Property.

(A) Noting the Time. The officer executing the warrant must enter on it the exact date and time it was executed.

(B) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.

(C) Receipt. The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property. For a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a copy of the warrant and receipt on the person whose property was searched or who possessed the information that was seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person.

(D) Return. The officer executing the warrant must promptly return it–together with a copy of the inventory–to the magistrate judge designated on the warrant. The officer may do so by reliable electronic means. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.

(2) Warrant for a Tracking Device.

(A) Noting the Time. The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.

(B) Return. Within 10 days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant. The officer may do so by reliable electronic means.

(C) Service. Within 10 days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person’s last known address. Upon request of the government, the judge may delay notice as provided in Rule 41(f)(3).

(3) Delayed Notice. Upon the government’s request, a magistrate judge–or if authorized by Rule 41(b), a judge of a state court of record–may delay any notice required by this rule if the delay is authorized by statute.

(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

(h) Motion to Suppress. A defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides.

(i) Forwarding Papers to the Clerk. The magistrate judge to whom the warrant is returned must attach to the warrant a copy of the return, of the inventory, and of all other related papers and must deliver them to the clerk in the district where the property was seized.

Federal Rules of Civil Procedure, Rule G, provides the rule for "Forfeiture Actions In Rem." See my #27 supra for a quotation in full.

The procedures for a civil asset forfeiture are found in the Federal Rules of Civil Procedure, not the Federal Rules of Criminal Procedure.

In FRCP Rule G, it provides,

(5) RESPONSIVE PLEADINGS.

(a) Filing a Claim.

(i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:

(A) identify the specific property claimed;

(B) identify the claimant and state the claimant's in­terest in the property;

(C) be signed by the claimant under penalty of per­jury; and

(D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D).

(ii) Unless the court for good cause sets a different time, the claim must be filed:

(A) by the time stated in a direct notice sent under Rule G(4)(b);

(B) if notice was published but direct notice was not sent to the claimant or the claimant's attorney, no later than 30 days after final publication of newspaper notice or legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an of­ficial internet government forfeiture site; or

(C) if notice was not published and direct notice was not sent to the claimant or the claimant's attorney:

(1) if the property was in the government's pos­session, custody, or control when the complaint was filed, no later than 60 days after the filing, not counting any time when the complaint was under seal or when the action was stayed before execu­tion of a warrant issued under Rule G(3)(b); or

(2) if the property was not in the government's possession, custody, or control when the complaint was filed, no later than 60 days after the govern­ment complied with 18 U.S.C. § 985(c) as to real property, or 60 days after process was executed on the property under Rule G(3).

(iii) A claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the bailor's behalf must state the authority to do so.

Clearly, the Rebecca Brown and August Terrence Rolin Class Action Complaint is not a response to the forfeiture Notice under FRCP Rule G.

Brown and Rolin Request for Relief states,

Request for Relief

WHEREFORE, Plaintiffs respectfully request that this Court:

A. Certify the TSA Class under Federal Rule of Civil Procedure 23(b)(2) consisting of: “All air travelers who, from January 15, 2014, until the present, either have had or will have their currency, carry-on luggage, personal effects, and/or person seized by TSA Screeners at transportation security screening checkpoints—based on the presence of a ‘large’ amount of currency on their person or in their carry-on luggage—after the transportation security screening has concluded.”

B. Certify the DEA Class under Federal Rule of Civil Procedure 23(b)(2) consisting of: “All air travelers who, from January 15, 2014, until the present, either had or will have their currency seized by DEA at a U.S. airport because they were or are traveling with at least $5,000 in currency, pursuant to DEA’s policy or practice of making such seizures regardless of whether there is probable cause for the seizure.”

C. Issue class-wide declaratory relief against Defendants TSA, TSA Administrator Pekoske in his official capacity, and the United States of America declaring ultra vires and unlawful TSA’s policy or practice of having TSA Screeners seize (even temporarily) air travelers’ currency, carry-on luggage, personal effects, and/or persons — based on the presence of currency on their person or in their carry-on luggage — after the transportation security screening has concluded.

D. Issue class-wide injunctive relief against Defendants TSA, TSA Administrator Pekoske in his official capacity, and the United States of America enjoining TSA Screeners from seizing (even temporarily) air travelers’ currency, carry-on luggage, personal effects, and/or persons — based on the presence of currency on their person or in their carry-on luggage — after the transportation security screening has concluded.

E. Issue class-wide declaratory relief against Defendants TSA, TSA Administrator Pekoske in his official capacity, and the United States of America declaring unconstitutional under the Fourth Amendment TSA’s policy or practice of seizing (even temporarily) air travelers’ currency, carry-on luggage, personal effects, and/or persons — based on the presence of currency on their person or in their carry-on luggage—after the transportation security screening has concluded and without reasonable suspicion or probable cause.

F. Issue class-wide injunctive relief against Defendants TSA, TSA Administrator Pekoske in his official capacity, and the United States of America enjoining TSA from seizing (even temporarily) air travelers’ currency, carry-on luggage, personal effects, and/or persons — based on the presence of currency on their person or in their carry-on luggage — after the transportation security screening has concluded and without reasonable suspicion or probable cause.

G. Issue class-wide declaratory relief against Defendants DEA, DEA Acting Administrator Dhillon in his official capacity, and the United States of America declaring unconstitutional under the Fourth Amendment DEA’s policy or practice of seizing air travelers’ currency at U.S. airports because they are traveling with currency in excess of $5,000 (or any other threshold amount of currency), regardless of whether there is probable cause for the seizure.

H. Issue class-wide injunctive relief against Defendants DEA, DEA Acting Administrator Dhillon in his official capacity, and the United States of America enjoining DEA from seizing air travelers’ currency at U.S. airports because they are traveling with currency in excess of $5,000 (or any other threshold amount of currency), regardless of whether there is probable cause for the seizure.

I. Order Defendants DEA, DEA Acting Administrator Dhillon, and the United States of America to immediately return Terry’s and Rebecca’s cash (or an equivalent amount in U.S. currency) in the amount of $82,373, plus interest.

J. Award Terry and Rebecca compensatory damages plus interest—in an amount to be proven in discovery or at trial—against Bivens Defendant DEA Agent Steve (last name and identity to be discovered in the course of litigation) for his violations of Terry’s and Rebecca’s Fourth Amendment rights.

K. Enter an award against all Defendants allowing Plaintiffs to recover their attorney fees, costs, and expenses in this action under 28 U.S.C. § 2412 and any other applicable provisions of law or equity.

L. Award any further equitable or legal relief the Court may deem just and proper.

28 U.S.C. 2412

As one may observe, Brown and Rolins are not pursuing the normal response to a Forfeiture Action In Rem Notice, an effort to establish legal ownership of the seized property, but have embarked on a constitutional challenge to the Federal statute.

Demonstrating a legal source of the funds is not the essential element of this lawsuit. Essential to this lawsuit is proving that the statute is unconstitutional.

nolu chan  posted on  2020-01-19   8:56:52 ET  Reply   Trace   Private Reply  


#35. To: nolu chan (#33)

In any debate, the person who can present their argument concisely and clearly, in the fewest words, wins.

Pinguinite  posted on  2020-01-19   9:51:50 ET  Reply   Trace   Private Reply  


#36. To: nolu chan (#29)

I would note that Rebecca Brown was not the owner of the money. The money belonged to Terry Rolins, her father.

Oh?

I mean, that's what she says. But do we know that? Do we know that she didn't fly into Pittsburgh over the weekend to pick up drug money and fly it back to Boston? Clearly her father didn't have a clue.

misterwhite  posted on  2020-01-19   10:49:00 ET  Reply   Trace   Private Reply  


#37. To: Pinguinite (#35)

In any debate, the person who can present their argument concisely and clearly, in the fewest words, wins.

In the fewest words? Not fair. nolu chan would lose every time.

misterwhite  posted on  2020-01-19   10:50:45 ET  Reply   Trace   Private Reply  


#38. To: Pinguinite (#32)

Essentially depriving the person of any presumption of innocence.

Ah. But the person is not being charged. The money is.

misterwhite  posted on  2020-01-19   10:52:33 ET  Reply   Trace   Private Reply  


#39. To: nolu chan (#31)

I did notice that the article was filed in humor. It seemed appropriate enough.

Some of the explanations are a hoot. I was watching a crime show where the cops found drugs in the perps pants pocket. He said he had just got the pants from Goodwill and the drugs must have already been there.

misterwhite  posted on  2020-01-19   10:57:57 ET  Reply   Trace   Private Reply  


#40. To: Pinguinite (#35)

In any debate, the person who can present their argument concisely and clearly, in the fewest words, wins.

In any court, empty bullshit loses.

Fourth Amendment challenges to asset forfeiture laws have been rejected by the U.S. Supreme Court, as shown by Calero-Toledo.

Calero-Toledo v Pearson Yacht Leasing Co, 416 US 663, 676-80 (1974)

II

Appellants challenge the District Court’s holding that the appellee was denied due process of law by the omission from §2512(b), as it incorporates §1722, of provisions for preseizure notice and hearing. They argue that seizure for purposes of forfeiture is one of those “‘extraordinary situations’ that justify postponing notice and opportunity for a hearing.” Fuentes v. Shevin, 407 U. S., at 90; see Sniadach v. Family Finance Corp., 395 U. S. 337, 339 (1969); Boddie v. Connecticut, 401 U. S. 371, 378-379 (1971). We agree.12

In holding that lack of preseizure notice and hearing denied due process, the District. Court relied primarily upon our decision in Fuentes v. Shevin, supra. Fuentes involved the validity of Florida and Pennsylvania replevin statutes permitting creditors to seize goods allegedly wrongfully detained. A writ of replevin could be obtained under the Florida statute upon the creditor’s bare assertion to a. court clerk that he was entitled to the prdperty, and under the Pennsylvania statute, upon filing an affidavit fixing the value of the property, with­out alleging legal entitlement to the property. Fuentes held that the statutory procedures deprived debtors of their property without due process by failing to provide for hearings “‘at a meaningful time.’” 407 U. S., at 80.

Fuentes reaffirmed, however, that, in limited circumstances, immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally per­missible. Such circumstances are those in which

“the seizure has been directly necessary to secure an important governmental or general public inter­est. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the stand­ards of a narrowly drawn statute, that it was neces­sary and justified in the particular instance.” Id., at 91.

Thus, for example, due process is not denied when postponement of notice and hearing is necessary to pro­tect the public from contaminated food, North American Storage Co. v. Chicago, 211 U. S. 306 (1908); from a bank failure, Coffin Bros. & Co. v. Bennett, 277 U. S. 29 (1928); or from misbranded drugs, Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); or to aid the col­lection of taxes, Phillips v. Commissioner, 283 U. S. 589 (1931); or the war effort, United States v. Pfitsch, 256 U. S. 547 (1921).

The considerations that justified postponement of notice and hearing in those cases are present here. First, seizure under the Puerto Rican statutes serves significant governmental purposes: Seizure permits Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings,13 thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions. Second, preseizure notice and hearing might frustrate the interests served by the statutes, since the property seized — as here, a yacht — will often be of a sort that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given. And finally, unlike the situation in Fuentes, seizure is not initiated by self-interested private parties; rather, Commonwealth officials determine whether seizure is appropriate under the provisions of the Puerto Rican statutes.14 In these circumstances, we hold that this case presents an “extraordinary” situation in which postpone­ment of notice and hearing until after seizure did not deny due process.

___________________

12 Appellants also argue that the seizure did not result in any injury to appellee that constituted failure of preseizure notice and hearing a denial of due process. This is so, they contend, because the lease gave the lessees exclusive right to possession at the time of the seizure, and therefore appellee's nonpossessory interest was adequately protected by the statutory provisions for a post-seizure hearing. But the lease provides that lessees' failure, inter alia, within 15 days after notice from appellee to pay arrears of rent or use the yacht solely for legal purposes would establish a default entitling appellee to possession. Whether a default had in fact occurred between May 6, 1972, when a lessee was first accused of a narcotics violation, and the date of seizure, July 11, 1972, is not clear from the record, although it is clear that appellee did not attempt to repossess the yacht until October 19, 1972.

Since, however, our holding is that preseizure notice and hearing are not required by due process in the context of this forfeiture, we have no occasion to remand for a determination (1) whether the company had an immediate, but as yet unexercised, right to possession on the date of seizure or merely a right to collect rents, together with a reversionary interest, and (2) whether either or both of these property interests would be of sufficient significance to require that the company be given an advance opportunity to contest the seizure. Cf. Fuentes v. Shevin, 407 U. S. 67, 86-87 (1972).

13 Cf. Oumbey v. Morgan, 256 U. S. 94 (1921), cited with approval in Fuentes v. Shevin, supra, at 91 n. 23.

14 Fuentes expressly distinguished seizure under a search warrant from seizure under a writ of replevin:

"First, a search warrant is generally issued to serve a highly important governmental need — e. g., the apprehension and conviction of criminals — rather than the mere private advantage of a private party in an economic transaction. Second, a search warrant is generally issued in situations demanding prompt action. The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice. Third, the Fourth Amendment guarantees that the State will not issue search warrants merely upon the conclusory application of a private party. It guarantees that the State will not abdicate control over the issuance of warrants and that no warrant will be issued without a prior showing of probable cause." 407 U. S., at 93-94, n. 30.

We have no occasion to address the question whether the Fourth Amendment warrant or probable cause requirements are applicable to seizures under the Puerto Rican statutes.

15 No challenge is made to the District Court's determination that the form of postseizure notice satisfied due process requirements. See n. 3, supra. Notice, of course, was required to be "'reasonably calculated' to apprise [the company] of the pendency of the forfeiture proceedings." Robinson v. Hanrahan, 409 U. S. 38, 40 (1972).

More recently, challenges have been made citing the Eighth Amendment's Excessive Fines Clause. Timbs v. Indiana, S Ct 17-1091 (20 Feb 2019) slip op.

nolu chan  posted on  2020-01-19   11:24:35 ET  Reply   Trace   Private Reply  



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