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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: 8545
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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Begin Trace Mode for Comment # 26.

#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   Untrace   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   Untrace   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   Untrace   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   Untrace   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   Untrace   Trace   Private Reply  


Replies to Comment # 26.

#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   Untrace   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 08:49:27 ET  Reply   Untrace   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 08:56:52 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 26.

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