Civil asset forfeiture invites abuses

By Christian Rose

Reader Contributor

Benjamin Franklin once said, “They who would give up an essential liberty for temporary security, deserve neither liberty or security.’ A truer statement couldn’t be more applicable today, even in liberty-minded Idaho.

Historically, our laws are drafted in ways that give vast interpretative authority to enforcement officials. We cede this because we trust that police officers and prosecutors act in our best interest. For the most part, they live up to this standard. Rarely do we question their intentions. But our founding fathers didn’t trust good intentions, and neither should you.

Directives for law enforcement should be clear, concise and grounded in the Constitution and Bill of Rights. When they’re not, despite good intentions, abuses can occur. Sadly, some Idaho residents have become victims of a relatively new section of law that has its genesis in the War on Drugs.

It’s called Civil Asset Forfeiture and it works like this: a law enforcement officer receives a tip concerning narcotics trafficking, or finds evidence of drugs and cash during a traffic stop. Based on even finding small amounts of narcotics, or cash, the officer has the authority to seize the car, cash, or other personal property—all without a criminal conviction. It’s perfectly legal under Idaho law.

After seizure, prosecutors have five days to file a forfeiture complaint. Officers write a sworn affidavit explaining why they believe the asset was connected to drug activity. The property owner then has 20 days to respond. If 20 days pass without an answer, the money, car or other property is awarded to the law enforcement agency, which gives part of the proceeds to the prosecuting attorney’s office.

The practice nationally is becoming increasingly abusive. But even in Idaho, law enforcement agencies are beginning to take the tactic too far.

In a 2010 case from Twin Falls County, the sheriff’s office received a tip from an anonymous source that a man and his wife, Jasil Gomez, were trafficking drugs from their home. Deputies arrived at her front door to investigate, but Gomez told them she didn’t have any drugs or cash. The deputies insisted they search the house. Gomez consented, and while looking through a dresser in a bedroom, they found a plastic bag with a small amount of marijuana, and a glass pipe. After a warrant was obtained, the deputies found more personal-use quantity marijuana and $11,000 in cash. In total, they ended up seizing $12,010.

Gomez claimed the money came from her business, a shop called Botanica San Judas, that sold candles and other religious items and accepted only cash. Ultimately, $3,000 was returned, while the sheriff’s office kept $9,010. No formal criminal charges were ever filed against the couple.

In fairness, Bonner County Prosecutor Louis Marshall sees his role differently than prosecutors in other jurisdictions. “We take into account a number of factors when looking at a case,” he said. “First and foremost, it is important (even though not required) there is some evidence that the owner of the property is involved in the sale and/or distribution of narcotics,” Marshall told me in an email interview. He added, “We have hundreds of drug cases every year—mostly for possession and only a small percentage have corresponding forfeiture cases.”

While we’re lucky to have a prosecutor here that takes a measured approach utilizing the law, we should still be concerned. Why? Prosecutors aren’t appointed to life-time terms, they’re elected. Political winds change. Who’s to say our next county prosecutor will see things the same way?

That’s why State Reps Ilana Rubel (D-Boise) and Steven Harris (R-Meridian) have been working on reform. I spoke with both a few weeks ago, and while they’re getting push-back from prosecutors, Harris agrees that full repeal of the law is “too far to go.” Rubel believes the law is allowing prosecutors to use the civil court process, which operates on the lesser preponderance of evidence requirement, as an “end run around the constitution.”

Criminal convictions require the higher, beyond a reasonable doubt standard.

The Rubel-Harris legislation, known as HB 202, just passed the Senate in amended form and will go back to the House for another vote. Under the amended legislation, law enforcement would no longer be able to confiscate property that has no connection to a drug crime other than being “in proximity” to a controlled substance. Additionally, vehicles cannot be taken unless there is a drug trafficking offense shown – mere drug possession is not enough. The bill also makes clear that the possession of cash, without any evidence of a drug offense, is not grounds to seize that cash.

Prosecutor Marshall isn’t abusing the law, but is still concerned about any change to the law that prevents forfeiture from defendants that aren’t convicted of crimes. He told me that “the problem with seizing assets only for defendants which have been convicted of drug crimes is sometimes we catch the guys after they have sold the drug on the way back with the money.”

He did describe a few seizures, including one from Garfield Bay, “where a Bay Area drug dealer had an operation…he converted a house into a marijuana grow and then had local associates deposit sales proceeds into his bank account.” Marshall’s office seized $10,000 from a bank account despite an inability to “make a criminal case against him.” The defendants CA attorney admitted “it wasn’t worth contesting” the claim.

Now I’m all for punishing drug dealers. Once they’re actually found guilty. But nobody should have to worry about a sheriff’s deputy seizing hard-earned cash traveling on Hwy 95. Prosecutor Marshall thinks this concern is “blown out of proportion.” I respectfully disagree. So should you.

We should all agree drug trafficking is a serious crime and deserves an aggressive, lawful response. But even if law enforcement intends to follow the Constitution, that’s not good enough. If we fail to demand our due-process rights, eventually they’ll be lost.

It’s clear: Our current law affords an opportunity for abuse and needs to be changed. HB 202 is a good start. I think Franklin would agree.