In the first days of 2010, the Twin Falls County Sheriff’s Office received a tip that a Hispanic man and his wife were selling drugs out of their home at 656 Callaway Court.
A week later, Jasil Gomez answered deputies’ knock on the door. She was about to experience firsthand the controversial practice known as civil asset forfeiture, the process by which law enforcement officers seize money, cars and other personal belongings without a criminal conviction — sometimes without even accusing the person of a crime.
Gomez told the deputies she had no drugs or large amounts of cash inside the home where she lived with her husband, Saul Torres. The deputies were persistent and Gomez eventually let them in. Deputy Guy Joslin found a plastic bag with a small amount of marijuana and a glass pipe with brown and black residue in a dresser.
The discovery prompted the deputies to secure the home and apply for a search warrant. They found no evidence of a large-scale trafficking operation, but they did find circumstantial evidence, such as a pendant with a picture of Jesus Malverde, a possibly mythical figure who is worshipped by some drug traffickers as the Narco Saint of Sinaloa, Mexico.
The search also turned up another small bag of marijuana and $12,010 in cash.
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. But the deputies seized the cash. Joslin wrote in an affidavit that the money was “contraband, the fruits of a crime, or things otherwise criminally possessed.” Ultimately, $3,000 was returned to Torres and Gomez, while the Twin Falls County Sheriff’s Office kept the rest.
No criminal charges were filed against the couple.
‘Prove your innocence’
Federal and state laws on civil asset forfeiture allow officers to seize cash, cars, guns and other items used in the furtherance of drug crimes.
The purpose? “Removing the proceeds of crime and disabling criminal organizations,” according to a memorandum by Twin Falls police and prosecutors.
For supporters of the law, its use is simple and obvious: Items that are used to commit drug crimes or that are the profits of drug crimes should be taken from the criminals and used to fight future drug crimes.
But critics say the practice gives law enforcement undue incentive to seize property, and the standard of evidence in civil asset cases is too low. A Times-News review of forfeiture cases uncovered several that illustrate these concerns.
To have property seized, a person doesn’t even need to be charged with a crime, and prosecutors don’t have to prove a connection beyond a reasonable doubt.
“The statute is pretty broad,” Magic Valley defense attorney Tony Valdez said. “You would think due process would require a finding of guilt — if you’re guilty of a crime, then police can seize your property — but the way the statute is, the police just start taking it, and it’s on you to prove your innocence.”
Jennifer Bergin, chief civil deputy in the Twin Falls County Prosecutor’s Office, defended her use of the practice. She said Idaho State Police were doing controlled purchases from Torres and that some of the seized money matched the bills used in the undercover purchases, “further showing that the money was all part of drug deals.”
“There is a lot more information regarding why we believed the money was tied to drug trafficking, and not just a ‘close proximity’ case of a little marijuana,” Bergin said.
How the laws work
The most common way for law enforcement agencies to seize assets in Idaho is under state law.
Prosecutors have five days to file a forfeiture complaint. Officers who seized the asset must write a sworn affidavit explaining why they believe the asset was connected to drug activity.
The property owner or claimant has 20 days to answer the forfeiture complaint. If 20 days pass without an answer, the money or car is awarded to the law enforcement agency, which usually gives part of the proceeds to the prosecuting attorney’s office.
If the claimant does file an answer, a hearing is set within 30 days. These cases rarely go to trial. Usually the parties agree to a settlement. That’s how Torres and Gomez got back $3,000 and let the Sheriff’s Office keep the remaining $9,010.
Many get nothing back.
Because the cases are filed in civil court and filed against the property itself, the property’s claimants or original owners can’t get assistance from the public defender’s office. Claimants must either represent themselves or hire a private attorney.
“A claimant is usually already paying to defend themselves in criminal court,” Valdez said. “And if the money seized isn’t that much, how do you justify spending thousands to get $500 back?”
There are other things to consider while challenging a civil case, too, such as ensuring nothing said in a civil hearing affects a defendant’s rights in a criminal case, Valdez said.
Critics say these laws give law enforcement agencies financial incentives that distort their priorities.
The argument goes like this: Why would police focus on getting drugs off the street when they could instead focus on seizing the drug dealer’s money and cars, which they can use to supplement their budgets? And even if there were not outright prejudice, wouldn’t officers be influenced by the simple knowledge that they could help fill the department’s coffers?
“Forfeiture was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources,” the ACLU, one of the biggest opponents of forfeiture laws, says on its website. “But today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting.”
Local agencies write policies that make it clear what the law should be used for.
“Law enforcement is the principal objective of forfeiture,” according to a draft of the Jerome County Prosecuting Attorney’s Office’s Drug Asset Forfeiture Policy obtained through a public records request. “Potential revenue must not be allowed to jeopardize the effective investigation and prosecution of criminal offenses, officer safety, the integrity of ongoing investigations, or the due process rights of citizens.”
Twin Falls Police Capt. Matt Hicks said his officers take a “conservative approach” to seizing assets. Civil asset cases should be of secondary priority, he said.
“We’re not driven by money,” Hicks said. “We’re trying to deter the sales of narcotics. We don’t fund positions with the proceeds or use it to offset salaries.”
Nationwide growth in forfeiture numbers is astounding, according to the Institute for Justice, a Virginia-based law firm that says it “litigates to limit the size and scope of government power,” and has done the most comprehensive work to date in compiling data on assets seized at federal and state levels.
From 2001 to 2006, the federal government seized and retained less than $1 billion of assets each year. In 2007, that number topped $1 billion for the first time. By 2014, the federal government was seizing and retaining nearly $4.5 billion of assets per year.
Similar data for Idaho are not readily available.
Valdez said lawmakers are responsible for discouraging law enforcement abuse of forfeiture.
Rep. Raul Labrador, R-Idaho, announced May 24 he is co-sponsoring bipartisan legislation aimed at reforming the federal forfeiture law.
The bill, authored by Rep. James Sensenbrenner, R-Wis., would establish stricter timelines for federal forfeiture cases and allow federal judges to decrease a forfeiture if it’s disproportionate to the underlying crime.
Most importantly, the bill would “elevate the burden of proof by requiring the government to prove its case through clear and convincing evidence,” Labrador said in a statement. But that still doesn’t match the proof beyond a reasonable doubt that a criminal case requires.
The Institute for Justice, while it praised the reform legislation, would rather see forfeiture laws abolished.
On May 25, the bill passed the House Judiciary Committee and moved forward to a full House vote.