“What’s troubling to you?” Richard Weber, chief of the asset forfeiture section of the Justice Department asks in one of the stories of National Public Radio’s excellent series on forfeiture of assets. “That a drug trafficker who’s bringing money from the U.S. to Mexico, who’s carrying hundreds of thousands of millions of dollars in cash in their pickup truck, who just sold dope and crack and cocaine to children in your playgrounds, and his money is being taken away? That troubles you?”
Jim McGeeney, an attorney in Rochester, has an answer for Weber. “What troubles me is if I’m driving through Alabama and I’m speeding, that for some reason your sheriff’s office thinks you can stop me and then go through my car and if I have a large amount of cash, assume that it’s drug money.”
|National Public Radio photo.|
NPR’s series focused primarily on federal cases, when authorities can confiscate your money without ever charging you with a crime, as long as they can prove it’s tied to illegal activity. McGeeney, a defense attorney, says he doesn’t see the kind of abuse in Minnesota that NPR found down south. He also tends not to handle federal cases.
In Minnesota, most of the cases he sees — and represents — involve people who’ve lost their cars, money or jewelry in state cases involving controlled substances and drunk driving. And here, he says, you can lose your property even if you’ve not been charged with a crime.
“The way the law in Minnesota is now with DWI is there’s different degrees. Fourth degree is a first offense. They can’t seize your vehicle on a first-time DUI. But if you have a prior DUI, and you commit a subsequent within 10 years and there’s an additional aggravating factor or you refuse to take the (breathalyzer) test, then it becomes a designated offense. I’ve seen where someone has a DUI nine years ago. They get arrested for a DWI today, and for some reason, they can’t give a valid sample of their breath — maybe they have asthma. That becomes a forfeitable offense.”
And how often will police pursue someone’s property in a case like that? “One-hundred percent,” he says, “down here, anyway.”
McGeeney says authorities can seize property “in proximity to a controlled substance” in Minnesota without needing a court order, if it’s seized during a lawful arrest or search warrant. He’s currently representing an individual, he says, who had $8,000 seized. “It’s an administrative forfeiture. They take the property and hand you a notice on the spot. The notices are in multiple languages.”
His client couldn’t read.
“He’s never been charged with a crime, but the 60 days to challenge the forfeiture has run out,” McGeeney says.
McGeeney is no fool. He knows what you’re thinking right about now: it serves a drunk driver or drug dealer right. “And I struggle with that,” he says. ” It’s true, you’re not supposed to be possessing controlled substances, and there are some thresholds — a motor vehicle can’t be forfeited unless the controlled substance is worth at least $100 — but the person who is in possession of $50 worth of cocaine… they (law enforcement) come into his house and they can seize thousands of dollars in cash in his house, all the jewelry that’s in his house, and in some bigger instances, they seize your bank accounts. Although it’s appropriate, there has to be more balancing against your interests in your property and the government’s interest in their right to seize this property.”
McGeeney says while some police departments down south are using the law as a tool to raise money for the departments, he doesn’t see that in Minnesota. “If it’s happening, I don’t see it,” he says. “I think it is a motivating factor that they do it, because there is a potential up side. It’s also a hidden motivation. The agencies who seize this money know that there’s a good chance they’re going to get a lot of it back.” Especially if the cost of hiring an attorney to get it back will cost more than the amount confiscated.
“It seems they’re eliminating the due process,” he says. “The constitutional protections you’re entitled to when you’re accused of wrongdoing, they seem to be bypassing that here. These protections were developed because there were abuses in the 16th and 17th centuries.”
In tonight’s final installment of the NPR series (on All Things Considered), reporter John Burnett will profile a Georgia sheriff who is under investigation for misusing forfeiture funds.