The government’s oft-criticized civil forfeiture practice has once more come under fire in the wake of a federal judge’s decision ordering the return of $167,000 seized from a motor home on a Nevada highway.
In his June 12 decision, Senior U.S. District Judge Larry Hicks said Reno federal prosecutors were not candid with him in forfeiture court papers about what led to the January 2013 seizure by Elko County sheriff’s deputies from the motor home on Interstate 80.
“They tried to pull the wool over the judge’s eyes,” said David B. Smith, a Washington-area lawyer regarded as one of the foremost experts on civil forfeiture abuses. “If I was the judge, I would have asked the prosecutors to explain to me what was the purpose of not presenting those facts.”
Had the seizure occurred this year, it’s unlikely the government would have taken the case to federal court at all, Smith said.
In January, amid ongoing criticism from civil libertarian and government watchdog groups, then-U.S. Attorney General Eric Holder scaled back the Justice Department’s policy of pursuing civil forfeitures of “adopted” assets seized by state and local law enforcement. Under the so-called equitable sharing program, if the government prevails in federal court, it keeps 20 percent of the assets and returns the rest to the agencies that made the seizures.
Holder’s order banned adoptions unless the assets include firearms, ammunition, explosives, child pornography or other property related to public safety.
Civil forfeiture laws allow the government to seize funds from suspected criminals without charging them with a crime.
In January, the Washington Post reported that state and local authorities have made more than 55,000 seizures of cash and property worth $3 billion under the equitable sharing program since 2008.
In the Elko case, the driver of the motor home, Straughn Gorman, was neither charged nor cited for a traffic violation — nor does he have a criminal record.
According to court documents, a Nevada Highway Patrol trooper first stopped Gorman for driving too slow in the fast lane, but after Gorman refused to let him search the motor home, he was allowed to go on his way.
The trooper then arranged for an Elko County sheriff’s deputy with a drug-sniffing dog to stop Gorman again, and the dog alerted the deputy to something suspicious in the motor home, documents show. The search turned up no drugs, but the $167,000 was found hidden in various places.
Sheriff’s deputies took Gorman’s motor home, his laptop and his money, leaving him with only a credit card. They were prepared to leave him on the highway outside Elko in the bitter January cold until he begged for a ride into town, said his Las Vegas lawyer, Vincent Savarese.
Authorities suspect Gorman, a Hawaii resident, was on his way to California to buy marijuana, though Gorman said he was going to visit his girlfriend in Sacramento.
The motor home, which belonged to his brother, and the laptop were eventually returned, but the $167,000 went to federal authorities for civil forfeiture.
In his decision, Hicks found that the two traffic stops were related, and he was critical of the prosecutors for leaving out any references to the first stop in their forfeiture papers. Hicks ordered Gorman’s cash returned and said he is entitled to seek lawyers fees from the government.
“It’s a double whammy,” Savarese said. “First, you have the issue of the illegality of the Fourth Amendment violation in the field and then you have what the court perceived to be an effort by prosecutors to obscure the facts about the Fourth Amendment violation.”
Federal prosecutors are considering an appeal of Hicks’ decision. The final word must come from the Justice Department’s solicitor general in Washington.
Nevada U.S. Attorney Daniel Bogden wouldn’t publicly discuss the case, but he said his office is simply enforcing the law.
Civil forfeiture is meant to stop criminals from profiting from their crimes and allow the government to obtain restitution for crime victims, Bogden said.
Due process rights are not circumvented during forfeiture proceedings, he insisted.
“We’re following the letter of the law,” Bogden said. “The owners are notified, given an opportunity to claim ownership of the funds, and have the funds returned. If a claim of ownership against the currency is filed, the case is litigated just like any other lawsuit.”
Bogden said highway seizures must be based on probable cause the assets have been used or will be used in illegal activity.
“In the vast majority of our interdiction forfeitures, the asset seized is money, which is found wrapped in packets … and hidden in various locations within a vehicle, all indicating an effort to avoid detection by law enforcement or a drug-sniffing dog,” Bogden said.
Authorities are seizing funds that “contain multiple hallmarks of illegal activity” in nearly every case, he explained. In the past two years, the U.S. attorney’s office has obtained 49 civil forfeiture judgments.
Still, highway seizures by local authorities along I-80 in Northern Nevada have come under fire over due process violations in recent months, with lawsuits challenging the constitutionality of the seizures.
“They’re shaking down motorists to try to find large sums of cash,” Savarese said. “They detain people on hunches and not on objective reasonable suspicion, and that is a violation of the constitution.”
Savarese said the policy curtailing adoption of assets is recognition that abuses in the forfeiture process have been occurring across the country.
Smith said legislation to overhaul the process is waiting to be introduced in Congress.
“These bills have teeth and would go very far in resolving the problems” he said.
The bills would eliminate the equitable sharing policy and require the government to provide lawyers for people who don’t have a lot of money to challenge seizures, according to Smith.
“They usually go after people in these highway seizures who are not rich,” he said. “The government counts on that to deter people from fighting the cases.
“Requiring appointed counsel and having the government pay for it will make a huge difference.”
Contact Jeff German at firstname.lastname@example.org or 702-380-8135. Follow @JGermanR on Twitter.