Under the Fourth Amendment, Americans are supposed to be protected from unlawful search and seizure. But due to a loophole in federal law, law enforcement can seize property — often without an arrest or a court hearing. The growing use of administrative forfeiture is causing more problems for average Americans and prompting some to wonder if law enforcement is abusing their authority.
In the last decade, federal agencies have seized more than $20 billion in cash, stocks, real estate, vehicles and other property, according to a report from Hearst Newspapers. In 2012, the average amount seized per day was around $13 million.
This type of seizure also shifts the burden of proof to the property owner, who has to prove innocence to get back what was taken away from them. Since the odds are often stacked against the average citizen, many end up with a loss of their property.
Philip Hilder, the former leader of the Justice Department’s organized crime strike force in Houston, says “the government is going seizure crazy.”
“Law enforcement budgets are shrinking. … The government is counting on budgets being supplemented by these seizures,” Hilder said.
In November 2011, Victor Ramos Guzman was on his way to Atlanta to buy land in El Salvador so that a new church could be built in the Central American nation. Guzman, a member of the Board of the Pentecostal Church of the New Rebirth, was traveling with his brother-in-law, and had $28,500 in cash since the land owner in Atlanta wanted to be paid in cash. While traveling to Atlanta, the car Guzman was traveling in was pulled over during a routine traffic stop in Emporia, Va.
According to Guzman’s lawyers, a state trooper discovered the large sum of money and didn’t believe Guzman’s story that he planned to use it to buy land for a new church. Thinking the cash was drug-trafficking money, the state trooper seized it instead.
Guzman’s lawyers say that before the state trooper was able to write a report, federal law enforcement “adopted” the seizure.
In January 2012, the Washington Post ran an editorial calling the public’s attention to Guzman’s case and the practice of administrative forfeiture.
“Many in the Hispanic community prefer cash transactions — some because of worries over their legal status and others because they do not trust banks. It is also commonplace for religious institutions to receive donations in cash from parishioners. Lawyers for the church say they have scores of donation envelopes with the names of parishioners and the amount of their contributions. We cannot vouch for the activities of Mr. Guzman, his brother-in-law or even the church. But there is something very wrong when a law enforcement officer can simply take someone’s money while providing no evidence of illicit activity.”
In March 2012, U.S. Customs and Border Patrol gave the money back to Guzman.
Flood of administrative forfeiture
Fifteen federal agencies have the ability to seize assets without charging a person with a crime first. Between 2009 and 2012, there were 84,189 publicly identified cases of forfeiture, according to Hearst. Of those, 46 percent were handled by the law enforcement agency itself, without oversight from a judge.
While the total number of administrative forfeitures is unknown, it’s expected to be much more than 84,000, since not all of the agencies have shared the number of asset seizures they’ve had over the years.
Some of the seizures have targeted drug dealers, money launderers and Wall Street tycoons, but civil liberties groups are increasingly concerned about the number of ordinary Americans who have been targeted, as well.
Joe D. Whitley, a former U.S. attorney in Georgia who served under presidents Ronald Reagan and George H.W. Bush, said that there is oversight when it comes to the use of administrative forfeiture, and it is a necessary tool when used appropriately.
“Congress has entrusted the agencies and prosecutors with this extremely important and useful tool,” Whitley said. “As with anything, there is a chance that something can be used on occasion in a way that was not contemplated. But I do believe on the whole it is a useful tool and delegating these seizures to the agencies is important and useful.”
One of the hardest-hit parts of the country is California. Landlords who have rented spaces for medical marijuana dispensaries have been targeted specifically, resulting in the closure of many dispensaries.
Despite a high rate of seizures, only about 1 percent of of ordinary Americans are able to get their property back. However, assistance from a civil liberties group like the American Civil Liberties Union increases those odds.
“Asset forfeiture can be a valuable tool, but it can also be abused,” Sen. Charles Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, said. “It seems like there are places where we can take a hard look to improve the program instead of simply providing a slush fund for the federal government.”
Anything for a dollar?
Federal agencies monitor state laws and prevent local law enforcement from policing for profit, but the oversight doesn’t seem to be stopping every questionable use of the forfeiture law.
In September 2010, Steven Skinner and his son, Jonathan Breasher, were on their way to Las Vegas when they were pulled over for driving 5 miles per hour over the speed limit. The officer issued a written warning for speeding, searched the rental car, and found $16,925 in cash. The Drug Enforcement Administration and other federal agencies were notified, but the duo were allowed to leave with their cash.
About 230 miles later, local police pulled Skinner and Breasher over for an improper lane change. An officer from U.S. Customs and Border Protection was called to the scene and the cash and car were seized. Neither Skinner nor Breasher were charged with a crime.
The father-and-son pair fought back with the help of the New Mexico ACLU chapter. Two years later, they were able to collect the money that was seized.
“The forfeiture system is running itself,” defense attorney Brenda Grantland told Hearst Newspapers. “I don’t think it matters who is president. Prosecutors have so much autonomy, they’re free to seize whatever they want.”
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