Government ordered to pay legal fees in highway forfeiture case
By Adelaide Chen
Las Vegas Review-Journal
When Las Vegas resident Santiago Cruz was pulled over in his car for speeding on Interstate 80 in Washoe County, a Nevada Highway Patrol officer searched the car for marijuana, but instead found $102,836 in cash.
NHP turned the case over to the federal Drug Enforcement Administration. The U.S. attorney’s office argued that the seized cash was money from marijuana sales. Although no drugs were found, there was a suspicious ledger of transactions, a canine “alerted” at the scent, and Cruz had a prior drug conviction. But there was no hard evidence, no arrests were made, no criminal charges filed. Cruz fought in civil court, but was only able to prove where half of the money came from, and the judge ruled none of it would be returned. The case is being appealed.
Money and property believed to be linked to criminal activity can be seized — legally — by law enforcement through asset forfeiture, without an arrest or criminal charge. Then it’s up to the owner to have enough resources to hire a lawyer to get the belongings back.
“In civil forfeiture, you don’t have to even be accused of a crime,” said Shawn Perez, the lawyer representing Cruz in the incident from 2010. “They hold your assets for ransom.”
Perplexing situation
In 2015, both the U.S. attorney general and the state Legislature made it harder for seizures to take place, citing concerns that that asset forfeitures are a source of revenue for law enforcement agencies.
But the NHP said it was never about the money — it’s about stopping drug dealers and cartels that make Nevada a high-density drug-trafficking state. Only a fraction of drug runs and drug money coming through Nevada and headed to Mexico are intercepted, Capt. Adam Page said.
“It’s a problem that is alive and well in terms of narcotics coming through on a regular basis,” he said. “We’re not out there trying to find money to fund ourselves.”
After 9/11, airport security tightened and drug money was more likely to be driven through Nevada on the way to Southern California to Mexico, said Thomas Moreo, Clark County chief deputy district attorney, who handles forfeiture cases for the Metropolitan Police Department.
“There’s literally tens of thousands of dollars between other states and Southern California floating up and down that highway (Interstate 15) with pounds of drugs,” he said.
Critics of asset forfeiture can be unfair, he said.
“The impression is that we have it (the assets), and we’re not going to give it back,” he said. “We do not take anything. We seize and hold it and file a case, and the court decides.”
The drug cartels have gotten sophisticated about smuggling money in hidden compartments in cars, wrapping vacuum-packed bills in rags soaked with ammonia so that police canines can’t detect it, he said.
But when police do find large amounts of cash in the car, it’s not always enough to charge the driver, Moreo said. “Someone asked me to drive this car, and I had no idea there was $100,000 in the car. I didn’t know that was there,” he said as examples of what such drivers often say. A background check on the car’s owner often reveals that it is in the name of a person who doesn’t exist, he said.
Making a driver prove in court that the money is legitimately his weeds out the bad guys, he said.
“He’s going to say, ‘Well, that’s my money,’ and we’ll say, ‘That’s fine, give us your bank accounts, IRA, tax statements,'” Moreo said. “All of a sudden he has to start naming people. ‘I’m working for Joe Blow’s company.’ That gives us a name.”
It boils down to: “Do I really want the cops looking at this?” Moreo said.
“A lot of times, they will just walk away from the money,” he said. “They will just say, ‘I have no idea where it came from, you can have it.'”
Louis Vuitton purses or drugs?
A Chevy Cobalt had crossed the Mexican border from Tijuana and into California the same day it was stopped on I-15 and St. Rose Parkway by the Southern Nevada drug task force in August 2013.
Two people inside were from Southern California, Mariano Chavez and his now wife, Ana Karen Chavez, along with her sister from Tijuana, Mayra Vargas. They intended to purchase Louis Vuitton purses in Las Vegas and then resell them in Mexico, attorney Cal Potter said.
The drug task force monitored the Cobalt for 2½ hours before pulling it over for a traffic violation, according to court documents. In a hidden compartment in the center console, police seized $13,900 in cash that they suspected to be drug money.
The car’s occupants sought legal representation from Potter. With his help, they began the process to sue for civil rights violations. In September 2015, the original case was dismissed, and they got their money back.
Representing the district attorney’s office, Moreo said the office did not oppose dismissal of the case, not because civil rights had been violated, but because exposure of the drug task force’s surveillance strategies would have compromised additional cases.
Who can afford a lawyer?
There’s a steady stream of forfeiture cases filed in Clark County court by the district attorney’s office, and often individuals don’t claim and challenge them. Many cases are with coupled arrests and criminal charges. But in the case of Arizona residents Robert Comer and his wife, that wasn’t the situation. They forfeited their cash because they couldn’t afford a lawyer.
The Comers had arranged for baby sitters for their four children so they could attend Las Vegas Hempfest last October. They drove from their residence in Cottonwood, two hours north of Phoenix, with about $3,000 remaining from a car title loan. But even though they had event tickets, they never got inside.
Comer, 33, a medical marijuana card holder with rheumatoid arthritis, said he drove his car into a parking lot with his wife and a friend, and they were approached by undercover Metro officers. In 2014, an Arizona court ruled it was legal for patients to sell or donate to other patients. But that ruling was overturned by an Arizona appeals court last May. Comer later said he had not heard about it, and his doctor said the practice was allowed.
A similar provision of the law had been drafted in Nevada, but never made it onto the books, according to a cannabis attorney in Las Vegas.
The undercover officer was also a card holder. Comer said he handed him one-eighth of an ounce of marijuana and one gram of marijuana wax. The officer gave him $100 for expenses which Comer put into his pocket.
The couple and their friend continued on their way by foot and then were stopped. No one was arrested, but one of the officers reached into his pocket and took the $3,000, he said. Comer grabbed his arm.
“We almost got into a physical altercation,” he said.
The officers told them to leave and not come back, he said.
“We were all trying to follow the laws, maintain all the statutes and the laws that they put out for medical marijuana,” Comer said. “We tried to followed these rules to the best of our ability.”
Comer and his wife said they tried to hire an attorney with documentation that the money came from a car title loan. Some quoted him $250 an hour and asked for the money upfront. It was a hopeless cause.
“I just want someone to stand up for me,” he said. “They made me out to be some kind of drug dealer.”
“Simply because they don’t have an attorney doesn’t mean they don’t have any rights,” Moreo said. Individuals can represent themselves, and some have successfully gotten their money back if the evidence is sufficient enough, he said. The parties meet during the early case conference in the beginning stages of the legal process, he said.
“We’re not taking money from people. We’re holding it until they can show it came from legitimate means,” Moreo said. “Show us what you got and we’ll go from there.”
Calls for state, federal reform
In 2015, U.S. Attorney General Eric Holder prohibited federal agencies under the Department of Justice, such as the DEA, to adopt cases and share the forfeitures with participating state and local agencies.
But it didn’t create widespread change in Nevada, largely because adoptions by DOJ agencies represented a quarter of equitable sharing seizures, according to an analysis by the advocacy group, Institute for Justice. The remaining three-quarters were from from joint task forces, which Holder made exempt from the new rule.
What created change on a broader scale were budget cuts by Congress, which resulted in the suspension of the DOJ equitable sharing program as of Dec. 21.
On the state level, Sen. Don Gustavson, a Republican representing multiple counties in Northern Nevada, authored a bill in 2015 that would abolish civil forfeitures and process individuals through the criminal court system, because, he said, the defendant would be guaranteed legal representation. But there was too much opposition.
“Law enforcement agencies, not all of them, throughout the state put a lot of pressure on the judiciary chairman because they would lose too much money,” said Gustavson. Several provisions were taken out, but it did win final approval.
The revised version states that if criminal charges are involved, the forfeiture case is on hold until the criminal case is over, and a dismissal or acquittal of the criminal case requires a return of seized assets within seven business days.
It also requires law enforcement agencies starting in April to post how much they receive in asset forfeitures online on the state attorney general’s website. Only New Mexico, Minnesota and Montana have similar requirements.
Gustavson said it’s not over. Making seizures transparent gives lawmakers the information they need to have another shot at tougher reform in the 2017 session, he said. “By the time next session comes around there’s a good possibility we’ll reintroduce the bill and stop this,” he said. “A lot of these are actual seizures and forfeitures that should be done, but if found innocent they should get every penny back.”
— Former Review-Journal reporter Eric Hartley contributed to this report. Contact Adelaide Chen at achen@reviewjournal.com or 702-383-0281. Find her on Twitter: @adelaide_chen.
WHERE THE FORFEITURE MONEY WENT *
(Nevada fiscal years)
Nevada Public Safety Department
2014 — $1.4 million funded 882 Tasers and related accessories for 802 sworn positions. In the biennial 2013-15 budget, $11,200 funded 28 small laptops, referred to as netbooks, for training academy cadets. 2015 expenditures were not immediately available.
Metropolitan Police Department
2014 — $1.9 million helped fund a new digital radio system including installation, consultation and related accessories. Other major purchases included $47,500 for software for the public to fill out reports online; $32,660 for network security identification software; $7,000 went toward a K-9; $5,000 for phone surveillance technology designed for law enforcement.
2015 — $5.4 million continued paying for the new radio system, including $5.3 million to the vendor, Motorola Solutions, and $24,250 for the construction of a radio site. Other major purchases included $229,955 for 10 narcotics vehicles (Chryslers and Chevrolets); $198,712 for fuel for narcotics vehicles; $161,839 for surveillance equipment and technology. $94,305 was spent on purchases related to 911 software system upgrades and building remodel which included $9,182 for headsets, $17,123 for design of the remodel to accommodate a raised floor in the older portion of the dispatch building, and $68,000 for consultants to provide technical assistance in transitioning to a new 911 system.
Clark County School District
2015 — The district received $737,682. Of that amount, $544,606 came from Metro, $185,126 from the state Gaming Control Board, and $7,950 from the Henderson Police Department. The funds were spent on books and computer software.
For nonfederal forfeitures, agencies share funds with the school district where the assets were seized. After expenses such as legal fees and the cost of incinerating drugs, the agencies retain the first $100,000 and split the remaining with the school district 70-30. The formula is outlined in state law.
* Federal and state asset forfeiture funds
FEDERAL ASSET FORFEITURES DISTRIBUTED TO NEVADA *
Fiscal Year — DOJ — Treasury
2004: $3,057,339 — $50,000
2005: $958,577 — $103,000
2006: $4,811,808 — $0
2007: $3,171,097 — $160,000
2008: $3,976,608 — $1,124,000
2009: $2,376,957 — $338,000
2010: $3,170,547 — $859,000
2011: $3,791,926 — $124,000
2012: $4,275,944 — $3,392,000
2013: $3,390,984 — $229,000
2014: $4,075,559 — $4,426,000
* Federal asset forfeiture funds are seized from individuals who may or may not have been arrested, charged and criminally convicted.
The U.S. Treasury between Oct. 1, 2003 and Sept. 30, 2015 distributed more than $3 million to the Metropolitan Police Department and more than $700,000 to the Henderson Police Department. The Nevada Highway Patrol does not work with law enforcement agencies within the treasury.
SOURCE: U.S. Justice Department, U.S. Treasury through the Equitable Sharing programs
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