Law enforcement officers and prosecutors systematically violate the constitutional rights of innocent property owners and interstate drivers, seizing cash and other valuable items without legitimate probable cause, which deprives individuals of much-needed funds in their possession. Police agencies seize additional property like vehicles, houses, businesses, and other tangible items, then auction these items off by executing a well-planned civil forfeiture lawsuit even if a person who owned the property or properties hadn't been convicted of a crime. State and local governments then split the proceeds with the law enforcement agency that made the seizure.
"In the United States, the basic tenet of the criminal justice system is that one is presumed innocent until proven guilty,"
wrote Rebecca Vallas and her team at the Center for American Progress. "However, over the past several decades, many thousands of people have had their property seized by the government without being charged with a crime."
That is civil -- as opposed to criminal -- asset forfeiture. Civil forfeiture law only requires prosecutors to prove a mere preponderance of the evidence, a lesser threshold than the beyond a reasonable doubt standard required in criminal cases. In practice, property targeted under civil forfeiture is usually seized unless the property owner hires an attorney to contest the proceeding, but people whose monies or properties have been seized often lack the means to challenge such actions.
Kevin Lawrence, executive director of the Texas Municipal Police Association, said the lower standard allows police to hit criminals in their pocketbooks even if they can't place them behind bars. "Civil asset forfeiture is intended to try and take a bite out of organized criminal syndicates by getting at their profit margin," he told KERA TV. "If we do away with civil asset forfeiture, who benefits the most? It's organized crime."
Documentation of thousands of asset forfeiture cases by the Institute for Justice (IFJ), a Washington, DC-based public interest law firm, challenges Lawrence's line because it found police confiscated small amounts of money from individuals instead of big hitters who are involved with organized crime which means not everyone who has their money taken is into high-level crimes. Many aren't guilty of anything except for having a substantial amount of cash when police erroneously profile them as criminals.
Forfeited assets including cash proceeds are lucrative for government and law enforcement agencies. In 2018 alone, reports IFJ, 42 states, the District of Columbia, and the federal government seized over $3 billion; $500 million was forfeited under state law and the government seized $2.5 billion within the Department of Justice and the Treasury forfeiture program.
IFJ is fighting tooth and nail against alleged abusive practices in Texas by filing a class-action lawsuit last year against the Harris County District Attorney's Office headed by elected Democrat Kim Ogg and Ed Gonzalez the elected Harris County sheriff.
"Texas has some of the worst civil forfeiture laws in the country, and what's driving this is the fact that police and prosecutors get to keep the property they seize. They can use it to buy better equipment, to buy better automobiles, and pay salaries, IFJ attorney Scott Bullock said more than a decade ago. Little has changed since then.
Ovid Ned can attest to Harris County's questionable seizure tactics. On January 31, 2016, Houston Police patrolmen stopped Ned while he was driving a new Jeep Compass in the 10700 Block of Bentley Street in far North Houston. Since Ned didn't have a state driver's license he was arrested on the spot. While conducting an inventory of the vehicle for towing purposes the officers discovered 26.98 grams of hydrocodone inside a pill bottle in the vehicle's glove box. Police confiscated $948.00 tucked in Ned's pants pocket. A charge of possession with intent to deliver hydrocodone was filed against Mr. Ned. As a bonus, the officers seized Ned's cash claiming the funds were the result of illegal narcotic sales.
But while he potentially faced a stiff prison sentence, Ned's luck was as hot as a pair of winning craps dice because a Harris County prosecutor dismissed the drug charge on June 15, 2016. To the prosecutor's surprise, Ned had a valid prescription for the hydrocodone, but in a second go-round, Ned crapped out. Harris County asset forfeiture prosecutors filed a case against his money and managed to grab every red cent without convicting the alleged member of the 5th Ward Circle Street gang of anything.
Houston Police stated in the seizure report they believe the cash was drug money because Ned was a documented gang member with a lengthy criminal history involving narcotics, and they further allege finding three boxes of plastic sandwich bags in the trunk of the vehicle.
Prosecutor Angela Beaver argued that Ned "was selling the pills." Beaver explained how opioid dealers often obtain several prescriptions from pain clinics.
"All they have to do to make the criminal case go away is to produce one of these prescriptions so that the possession is not illegal," Beavers said. "It does not mean the money seized is not contraband."
What Beavers failed to mention is all her office had to do was contact Ned's doctor to verify the authenticity of the prescription. Nor did Beavers show proof that Ned engaged in scouting for doctors to write bogus prescriptions to account for the drugs he possessed at the time he was arrested.
"Taking property without a criminal conviction is a violation of the owners' civil liberties," said IFJ attorney Arif Panju. "There is a principle of being innocent until proven guilty, and forfeiture just takes that and flips it on its head. That raises all sorts of constitutional problems."
The IFJ scored a victory at the US Supreme Court that limits forfeitures in state cases where the value of what is seized outweighs the seriousness of the connected crime.
US Supreme Court Justices Weigh In
US Supreme Court justices realize how civil forfeitures can become excessively punitive and that in such cases the constitutional protections must attach to balance the law. Forfeitures of property without proof of the owner's wrongdoing, merely because it was 'used' in or was an instrumentality of crime has been permitted in England and this country, both before, and, after the adoption of the Fifth and Fourteenth Amendments.
In the case of Leonard vs. Texas, Justice Clarence Thomas questioned: "whether the Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one."
Leonard vs. Texas entails a story of two men, vehicle driver James Leonard and passenger Nicosa Kane. Police stopped the men in Texas as they headed down an interstate known for heavy drug trafficking. When the officer saw a locked safe in the trunk he questioned the men about the contents of the safe. According to the officer, both men gave conflicting stories about the safe. James told the officer the safe belonged to his mother and that he was to buy a house in Pennsylvania. Once the safe was opened the officers discovered the mother lode, a cool $201,000. A bill of sale for a house was also found in the safe.
The state immediately seized the funds. Leonard's mother, Lisa Olivia Leonard, filed a lawsuit listing herself as the innocent owner of the cash-filled safe. At the trial court hearing, the presiding judge issued a forfeiture order meaning Ms. Leonard lost the cash. She appealed the verdict. Rejecting Leonard's innocent-owner defense the court of appeals, citing the suspicious circumstances of the stop and the contradictory stories between James Leonard and Nicosa Cane, court concluded that the government proved by a preponderance of the evidence that the money in the safe was either the proceeds of a drug sale or intended for such activity.
The US Supreme Court denied Leonard's petition for certiorari on March 6, 2017. No news reports are showing whether Leonard won her money back.
Meanwhile, states like Arkansas and Michigan have passed legislation to require that a person must first be convicted of a crime before forfeiture proceedings can start. Texas state Republicans and Democrats have proposed similar legislation.
Difference Between Criminal Law and Civil Forfeiture Asset Law
The key feature of Texas civil forfeiture law is how it shifts the burden of proof onto the person who had their property seized to prove their property wasn't connected to a crime. Unlike a criminal trial where the evidence is brought against an individual, in civil forfeitures, the government proceeds against the property (or seized cash) as if the property itself assisted in the commission of a crime.
For instance, when it comes to civil law forfeitures the government only needs to meet a lower preponderance of the evidence to snatch away someone's property which means a person can have their property taken without being convicted of a crime.
"Who could afford to have their life savings taken away for more than two years with no hearing and no opportunity to go before a judge?" asked IFJ Senior Attorney Wesley Hottot.
The Harris County District Attorney's Office has declined to comment publicly about the IFJ lawsuit.
Harris County DA Office Dismisses Dope Cases by Corrupt Houston Police Narcotic Officers And Keeps the Seized Tainted Cash
Harris County prosecutors in Houston dismissed numerous drug cases and recommended the reversal of the cases of other defendants arrested by terribly corrupt Houston police narcotic officers Gerald Goines and Stephen Bryant, the narco officers responsible for one of Houston's most scandalous acts of sheer violence when Goines lied to obtain the January 2019 search warrant that led to the shooting deaths of two innocent people, 59-year-old Dennis Tuttle and Tuttle's wife, 58-year-old Rhogena Ann Nicholas. They were gunned down by police after Goines fabricated a search warrant and executed the same warrant at the couple's home.
Goines claimed his informant purchased heroin from the couple when no informant had entered the home and made a drug buy. Five additional officers were shot during the raid as well as what became the sensational, deadly raid on Harding Street in the East End of town. There have been at least three dozen instances in recent years when Goines' Narcotics Squad #15 seized lots of cash, jewelry, and vehicles based on misleading statements and even outright lies to justify narcotic search warrants.
Despite the criminal cases being dropped or dismissed, the Harris County Civil Asset Forfeiture Division still seized the "crime-tainted" cash and property. For example, on July 24, 2018, Andrew Hebert, of 4524 Alvin Street in Houston was strolling over to his 2017 Buick Lacrosse parked in the driveway when police swarmed him like flies. Narcotic officers Goines and Bryant said they saw Hebert make a hand-to-hand dope delivery to an individual. A search of Hebert's residence yielded assorted narcotics and $10, 965.00. Police seized the funds and Hebert had a second seizure of $1,765.00. When news broke about the scandal involving Goines and Bryant's involvement in the death of the East End couple the District Attorney's Office dropped the dope case against Hebert but still, the prosecutors kept his money.
The same thing happened to Christopher White's $2,465 and Andre Thomas's $2,700. Criminal charges were dropped due to Goines's involvement in their narcotics cases, but they never saw the money again. Goines and Bryant are facing a laundry list of federal civil rights criminal charges ranging from obstruction of justice, making false statements, falsifying records, and depriving the deceased victims of their constitutional right to be secure against unreasonable searches. State charges against Goines include first-degree murder. That trial remains pending.
Transporting Cash to Buy a Truck Isn't a Crime
Included in the Institute for Justice class action lawsuit is the case of Ameal Woods and Jordan Davis from Natchez Mississippi, who lost $42, 300 to Harris County Civil Asset Forfeiture Enforcement. Ameal Woods was traveling from Natchez to a suburb outside Houston called Katy, Texas, -- when he happened to encounter a Harris County Sheriff Patrol Sergeant on May 19, 2019. The sergeant pulled Woods over in the 2300 block of I-10 driving a new Nissan Sentra for allegedly "following a tractor-trailer too closely."
The Sergeant allowed Woods to sit in his patrol car while he checked Woods' license and prepared a warning citation. As these transactions took place, the sergeant wrote the following in his offense report: "Mr. Woods was having facial tremors, labored breath, shifting around in his seat, licking his lips and belching, all signs of stress," the officer wrote in his report.
Whether the officer first asked Woods if he was transporting dope or money or if anything out of the ordinary triggered the officer's suspicion remains unclear. In the officer's report, he said that Woods claimed to be carrying $30,000 in his rented vehicle and that his girlfriend Jordan Davis rented the car. Woods said the money was to buy a used tractor-trailer to expand his trucking business back home in Mississippi.
The deputy recovered the money wrapped in separate packages. When asked where he got the funds Woods said his wife gave him part of it, and that a niece loaned him some as well. The deputy also claimed Woods had explained to him that his girlfriend Jordan Davis had given him part of the money from her tax returns.
To verify Woods's story, the deputy sergeant said he called Jordan Davis from his cell phone while sitting on the road with Ameal Woods and that Davis said she hadn't gotten her tax return yet. Ameal Woods denied his girlfriend had talked with the sergeant about her tax return. Once the money was taken, the sergeant gave Woods an incident report number detailing the seizure and Woods was cut loose at the scene.
Ameal Woods recalled seeing no drug dog at the scene. But in a final seizure report submitted to the county by a different deputy, the deputy stated a drug dog made a hit on the money Woods was carrying, which means the dog detected an odor of illegal drugs on the seized money.
National Geographic and several more prominent news media outlets reported in 2009, that a definitive study showed "Nearly nine out of ten bills circulating in the United States are tainted with cocaine." In 1994, the US 9th Circuit Court of Appeals determined that in Los Angeles, out of every four banknotes, on average more than three are tainted by cocaine or another illicit drug.
Questions swirled among the IFJ attorneys as to why it took slightly over two years before the Harris County District Attorney's Office in Houston served Ameal and Jordan with legal notification of the forfeiture.
IFJ attorneys said there is a scheme by Texas lawmen and the District Attorney's Office to take cash from travelers without legit probable cause, particularly if the individuals are African Americans and Mexicans.
Forfeiture Complaints Raise Suspicion
What infuriates the IFJ attorneys was the suspicious composition of the forfeiture complaint by a Harris County Deputy Sheriff identified as Greg Nason, who, according to the lawsuit "was not at the scene when the money was seized from Ameal Woods."
The Attorney's investigation uncovered more peculiar activities. Unsurprisingly, IFJ attorneys identified 113 seizure affidavits rife with errors and misspelled words "written by an officer who was not at the time and place of seizure." At least 80 of those affidavits were written by the same Officer Greg Nason. Just as the discovery of some of the poorly worded sentences wasn't enough, the attorneys noticed 'cut and paste' testimony with different fonts, and erroneous dates and the deputy even referred to tangible cash when the seized property was a vehicle.
Dog Makes Alert on Proceeds Later; Not At The Scene
IFJ attorneys also discovered 92 cases (including the Ameal Woods case) where a drug dog reportedly alerted "after police seized property." The key word is "after" the incident took place, not at the scene. Ameal assured his attorneys that no dog sniffed his money at the scene.
"The government cannot copy-and-paste its way to probable cause," said IFJ. Managing Attorney Arif Panju. "Probable cause means more than simply having a large sum in cash and an after-the-fact dog alert."
Retired Harris County Sheriff Department Narcotic Detective Joe Harris told Drug War Chronicle, "Unless there was an ongoing investigation that hasn't been revealed, what we used to do is if we target a person for carrying lots of money, money suspected to be from selling drugs we would have a dog come to the scene to see if the dog hit on the money. If the dog hits on the money we seize it right then", not later on unless a person is arrested with drugs and carrying money at the same time," Harris said.
Harris went on to explain that when a dog makes a hit on a vehicle this is when to get a warrant to search for narcotics.
Between 2018 and 2020, the Harris County District Attorney Forfeiture Division collected $15.9 million in forfeiture revenue. Over $7.5 million was spent on police salaries and overtime.
Texas Gunslingers Battle for Reform
Harris County prosecutors in Houston unified with their compatriots in law enforcement against proposed laws to restrict civil asset forfeiture over the last few years. Several bills have been filed in the state's legislature by Democrats and Republicans to prevent Texas prosecutors from seizing citizens' money and other assets unless they'd been convicted of a crime.
During one 2019 legislative hearing at the state capitol in Austin, Harris County Civil Forfeiture prosecutor Angela Beaver said criminal charges were filed in all but 5% of Harris County seizure cases in 2018. State Rep. Harold Dutton (D-Houston), who has filed legislation to require convictions for forfeiture. Scoffed at Beavers' numbers.
"I'm going to tell you as a practicing lawyer in Harris County, I don't think you're being honest with this committee," he said.
"Well, we have the stats," she shot back.
But a study of Harris County statistics by the Texas Tribune suggested the prosecutor's numbers were wrong. The Tribune found that during the first six months of 2016, 15 percent of asset seizures did not include criminal charges connected to the stated reason for the seizure -- such as a drug crime -- and nearly 40 percent of seizures did not result in a related conviction or guilty plea.
Proposed Changes to Modify the Way Property is Seized in Texas
To add an extra boost to eliminate civil asset forfeitures against a person's property, although the person hasn't been criminally convicted in a court of law, State Rep. Senfronia Thompson (D-Houston) and then-Republican Senator Konni Burton filed identical bills requiring law enforcement and prosecutors to secure a criminal conviction before property can be legally seized, instead claiming the seized property was more likely than not connected to a crime.
Texas Civil asset forfeiture law needs much reform to equal the playing field for defendants to have a better shot at proving their money or property wasn't intended for criminal activities. The biggest stake in the foray is how prosecutors and law enforcement abuse civil forfeitures to tilt the scales in their favor and undermine the constitutional rights of American citizens.
Democratic State Reps. Harold Dutton and Senfronia Thompson will attempt to re-introduce House Bill 251 in the legislative session beginning in January 2023, to reform Texas civil asset forfeiture Law. Their goal is to make it so that state prosecutors must first convict a person in criminal court to legally seize the individual's property that may or may not be connected to the crime with which they were charged.
Drug War Chronicle contributor and news reporter Clarence Walker can be reached at [email protected]
