Turley reports on Tennessee’s new “Policing for Profit” program:
A professional insurance adjuster, George Reby, was traveling through the state from New Jersey when he was stopped and asked by Officer Larry Bates if he had large amounts of cash. He said that he did — $22,000. The officer demanded the money and said that he was confiscating the money on suspicion of drug activity. That is it. The mere fact that he was carrying a large amount of cash was enough under this policy to seize the money. The police know that many out-of-state travelers never come back for the cash and they are then allowed to keep the money for their own uses at the department.
Even though Reby explained why he had the money, it did not matter. The fact that he completely cooperated in allowing a full search of his car did not matter. What mattered was that the police wanted the cash.
We are then treated to the officer’s flippant and completely irrelevant remarks about bank accounts:
Bates admitted that he did not arrest Reby because he did not commit any crime. However, he reminded drivers that “[t]he safest place to put your money if it’s legitimate is in a bank account. He stated he had two. I would put it in a bank account. It draws interest and it’s safer.”
Whether or not it is safe to keep large amounts of money in a bank account, or on one’s person, is of course completely irrelevant to whether that money should be seized by a law enforcement official pursuant to suspicion of drug activity. Of course, who cares whether you’re suspected of drug activity when State law presumes you are guilty until proven innocent:
Bates said that he was right to take the money because “he couldn’t prove it was legitimate.” That of course flips the normal presumption under criminal law, but it is an example of how police powers have increased in this country.
To made matters even more authoritarian, Tennessee law allows a judge to sign off on the seizure in an ex parte proceeding. Reby was never informed of the hearing. Only the officer’s account is considered at such hearings.
So it’s bad. Still, if you do have the evidence to prove that you have a legitimate reason for carrying that much cash, you can get the money back, right?
Sure. But that assumes that the police and/or prosecutors are going to report your ability to prove your innocence to the Court:
While Reby insists that he offered to show proof on his computer as to the source of the money, the offer was not reported to the court. Bates simply stated “common people do not carry this much U.S. currency.” He noted later that “a thousand-dollar bundle could approximately buy two ounces of cocaine.” Of course, ten dollars can buy drugs as well as a thousand dollars can buy a jet ski.
In our country, the concept of Due Process is premised on the assumption of Adversarialism. Our theory of justice stipulates that when two interested parties litigate a dispute against one another, their mutual desire to achieve a good result will motivate them to vigorously argue, research and present their case, the consequence of which is that all legal theories and evidence are presented to a disinterested arbiter (the Court), who will then make a decision based on the law and the facts presented.
Yet Adversarialism requires…adversaries. That is the problem with these Ex Parte civil forfeiture proceedings. The defendant whose money has been seized has no opportunity to present a defense, even in cases where they cooperate completely with law enforcement, and are highly willing and able to present evidence that demonstrates a legitimate reason for being in possession of large sums of money.
George Reby did finally get his money back. But he’s exceptional in that regard. As Turley notes, “It takes months for travelers to get their money back and many give up. In Reby’s case, he was forced to travel back to Tennessee to pick up the check and was given no apology for the abusive seizure.”
It would be trivially easy to change this policy. You could start by requiring that law enforcement officials, as a matter of law, cannot seize property unless they have probable cause to suspect that a detained person is involved in criminal activity. You could also, as Turley notes, “stipulate that police and prosecutors cannot benefit from seizures — removing the incentive for broad seizures.” You could also impose a statute of limitations on prosecutors: a probable cause hearing must be held within 30 days demonstrating facts sufficient to justify the seizure, including corroborating evidence that the money was being used for criminal activity.
And while we’re at it, we can recognize these types of forfeitures for what they are: a deprivation of property without due process of law, in violation of peoples’ 14th Amendment rights. To call what happened to George Reby “Due Process” is a mockery of the term. We have an Adversarial system. It’s hardly Due Process when one of the adversaries isn’t present during the proceedings in which his property is taken from him.
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