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Creationism/Evolution
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Title: NYPD Steals $18,000 from Man Because He Was Carrying a Banned Pocket Knife
Source: The Anti-Media
URL Source: http://theantimedia.org/nypd-steals-18000-knife-law/
Published: Sep 16, 2016
Author: Alice Salles
Post Date: 2016-09-17 14:59:03 by Deckard
Keywords: None
Views: 11955
Comments: 50

In the past five years, the New York Police Department has spent $347,000 on false arrest lawsuit settlements. According to the Village Voice, these costs stem from the city’s “gravity knife statute.”

Passed in 1958, the law banned New York residents from carrying knives fitted with blades that fall out of the handle as the user points them toward the ground while pushing the lever. This antiquated law is responsible for thousands of yearly arrests, despite the fact that current knife designs bear no resemblance to the blades of yesteryear.

But estimates suggest that over the past ten years, this particular ban has been the reason for the prosecution of “60,000 New Yorkers … many of them working people who use folding knives as part of their jobs.” A recent incident shows another unintended consequence of upholding the gravity knife statute — one that cost a South Bronx resident $18,000.

In a very public tweet, the NYPD announced Sunday that officers from Police Service Area 7 had “arrested a male for a gravity knife and vouchered $18,000 dollars cash for forfeiture.” The triumphant tweet, The Village Voice pointed out, even “[publicized the prisoner’s] name and address, down to the apartment number.”

Saveknife

By coupling an outdated law with civil asset forfeiture rules — which in New York state, happen to be draconian — officers managed to take advantage of yet another property owner in order to “prop up” the local police budget.

While few details about the arrest were made public, the Village Voice added, many on Twitter commented that the model of knife the arrestee was carryingappear[ed] to be a style often carried by first responders, with a feature designed for safely cutting clothes and tangled seat belts after, say, a car accident.” The news outlet reached out to the NYPD for more information, but officers failed to respond with more details.

The gravity knife ban was tweaked in June when Democrats added an amendment to the state law clarifying “the definition of a gravity knife by excluding any folding knife with a ‘bias toward closure.’” The change has yet to be signed by Governor Andrew Cuomo.

But even if it’s signed, this change to the state law does little to protect the New Yorkers’ constitutional right to own and carry any means of self-defense. Nevertheless, it could help to limit the number of individuals framed by the NYPD over folding knives and pocket knives, which are often “used for work or passed down in a family.”

Even if the tweak to the state’s knife ban is finally signed into law, this measure, alone, will not be enough because the state’s civil asset forfeiture laws remain intact. Until serious criminal justice reforms are passed in the Empire State, New Yorkers will continue to be bullied in the name of policing for profit. (1 image)

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#1. To: Deckard (#0)

NYPD Steals $18,000 from Man Because He Was Carrying a Banned Pocket Knife

This falsely claims forfeiture due to carrying banned pocket knife.

Cash and other property is seized upon belief that is was involved in an illegal enterprise, such as drug dealing. If the owner can show that he lawfully possessed the money, he may get it back.

nolu chan  posted on  2016-09-17   17:42:08 ET  Reply   Trace   Private Reply  


#2. To: nolu chan (#1)

"If the owner can show that he lawfully possessed the money ..."

Ain't gonna happen.

misterwhite  posted on  2016-09-17   18:41:17 ET  Reply   Trace   Private Reply  


#3. To: misterwhite (#2)

Ain't gonna happen.

True dat.

nolu chan  posted on  2016-09-17   23:08:03 ET  Reply   Trace   Private Reply  


#4. To: nolu chan (#1)

Cash and other property is seized upon belief assumption that is was involved in an illegal enterprise

Fixed it.

“Truth is treason in the empire of lies.” - Ron Paul

"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards."

Deckard  posted on  2016-09-17   23:55:02 ET  Reply   Trace   Private Reply  


#5. To: Deckard (#4)

Cash and other property is seized upon belief assumption that is was involved in an illegal enterprise

Fixed it.

They took the tambourine man's drug money.

As long as you are learning that they due not seize the money because of knife possession, that is progress. If you like the word assumption, they had a reasonable assumption that the mope in the South Bronx housing projects with the $18,000 walking around money possessed dirty money.

The purpose of the civil asset forfeiture law is to separate ill gotten gains from criminals. If the distinguished gentleman in the projects can show this was the day that he inherited $18,000 from his long lost uncle, he can get his money back. Ditto if the tambourine man can show he earned the money busking at the subway station.

No name and few facts are provided.

Here is the U.S. Supreme Court on civil asset forfeiture.

U.S. Supreme Court

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974)

Calero-Toledo v. Pearson Yacht Leasing Co.

No. 73-157

Argued January 7, 1974

Decided May 15, 1974

416 U.S. 663

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO

Syllabus

A pleasure yacht, which appellee had leased to Puerto Rican residents, was seized, pursuant to Puerto Rican statutes providing for forfeiture of vessels used for unlawful purposes, without prior notice to appellee or the lessees and without a prior adversary hearing, after authorities had discovered marihuana aboard her. Appellee was neither involved in nor aware of a lessee's wrongful use of the yacht. Appellee then brought suit challenging the constitutionality of the statutory scheme. A three-judge District Court, relying principally on Fuentes v. Shevin, 407 U. S. 67, held that the statutes' failure to provide for pre-seizure notice and hearing rendered them unconstitutional, and that, as applied to forfeit appellee's interest in the yacht, they unconstitutionally deprived an innocent party of property without just compensation.

Held:

1. The statutes of Puerto Rico are "State statute[s]" for purposes of the Three-Judge Court Act, and hence a three-judge court was properly convened under that Act, and direct appeal to this Court was proper under 28 U.S.C. § 1253. Pp. 416 U. S. 669-676.

2. This case presents an "extraordinary" situation in which postponement of notice and hearing until after seizure did not deny due process, since (1) seizure under the statutes serves significant governmental purposes by permitting Puerto Rico to assert in rem jurisdiction over the property in forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions; (2) pre-seizure notice and hearing might frustrate the interests served by the statutes, the property seized often being of the sort, as here, that could be removed from the jurisdiction, destroyed, or concealed, if advance notice were given; and (3), unlike the situation in Fuentes v. Shevin, supra, seizure is not initiated by self-interested private parties, but by government officials. Pp. 416 U. S. 676-680.

Page 416 U. S. 664

3. Statutory forfeiture schemes are not rendered unconstitutional because of their applicability to the property interests of innocents, and here the Puerto Rican statutes, which further punitive and deterrent purposes, were validly applied to appellee's yacht. Pp. 416 U. S. 680-690.

363 F.Supp. 1337, reversed.

BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Parts I and II of which STEWART, J., joined. WHITE, J., filed a concurring opinion, in which POWELL, J., joined, post, p. 416 U. S. 691. STEWART, J., filed a separate statement; post, p. 416 U. S. 690. DOUGLAS, J., filed an opinion dissenting in part, in which STEWART, J., joined in part, post, p. 416 U. S. 691.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

[...]

nolu chan  posted on  2016-09-18   2:25:23 ET  Reply   Trace   Private Reply  


#6. To: nolu chan (#5)

If the distinguished gentleman in the projects can show this was the day that he inherited $18,000 from his long lost uncle, he can get his money back.

Really? Tell it to this guy.

Arkansas Trooper Steals $20,000, Because Nobody Innocent Carries That Much Cash

(Prosecutors tried to drop the forfeiture case, but the judge would not let them.)

It's not clear why Arkansas State Police Sgt. Dennis Overton decided to stop (Guillermo) Espinoza, who was traveling with his girlfriend, Priscila Hernandez. The legal justification for pulling Espinoza over was missing from the state's September 2013 forfeiture complaint, which referred without explanation to "the traffic stop," and from Circuit Court Judge Chris Williams' September 2014 order authorizing permanent confiscation of the money, which said only that the stop was "proper." In his response to the forfeiture complaint, Espinoza argued that the stop was illegal, so it would be nice to know what the rationale for it was. While police have no shortage of excuses for pulling motorists over, they are supposed to settle on at least one.

After the stop, Judge Williams said, a "State of Arkansas drug dog was transported to the site in order to conduct a search of the vehicle." That's a revealing way of putting it, since according to the Supreme Court walking a drug-sniffing dog around a car does not qualify as a search. But if the dog "alerts" to the car, the Court says, that alone supplies probable cause for a search. So what Williams evidently meant was that Sgt. Overton requested a drug dog on the assumption that it would give him the permission he needed to search the car. But according to Williams, "It is obvious from the tape [of the traffic stop] that the dog did not alert on the vehicle at the scene of the stop."

Undeterred, Overton asked for permission to search the car, which Espinoza supposedly granted—a pretty suspicious sequence of events. Why bother bringing in a drug dog to justify searching a car if the driver is willing to give his consent? In any case, Williams said, "the dog alerted on a computer bag," inside which Overton found $19,894 in cash, mostly wrapped in $1,000 bundles. Overton found no contraband, drug paraphernalia, or any other sign of illegal activity. But as far as he was concerned, the cash itself was conclusive evidence that Espinoza was involved in drug trafficking.

"I've worked this interstate for the last eight years," Overton told Espinoza, according to the transcript of the dashcam video, which Williams appended to his order. "Half of my career I've spent out here. OK? Nobody—nobody—carries their money like that but one person. OK? People that deal with drugs, and deliver drugs. That's it. Nobody else. Nobody." In other words, Overton always treats people who carry large amounts of cash as criminals, which proves that only criminals carry large amounts of cash.

Espinoza, who had no criminal record and was never charged in this case, said the money came from years of construction work, and he later presented checks, receipts, and tax forms to substantiate that income. He said he took the money with him to Memphis because he was planning to buy a 4x4 truck there. But he was not happy with the advertised vehicle, so he did not complete the purchase. He offered to show Overton text messages he had exchanged with the truck seller and said his boss, whom he offered to call, would vouch for him. Overton, already convinced of Espinoza's guilt, was not interested.

Aside from the existence of the cash and the police dog's purported alert to the computer bag, the forfeiture complaint offered no evidence that Espinoza was dealing or delivering drugs. It simply asserted that "the currency was being used for drug trafficking, to further the manufacture of a controlled substance or...to facilitate the violation of Arkansas Code Annotated Section 5-64-536," which criminalizes possessing with intent to deliver marijuana or any other "Schedule VI controlled substance." In other words, prosecutors not only had no real evidence that Espinoza had committed a crime or was planning to do so; they could not even be bothered to specify the crime.

“Truth is treason in the empire of lies.” - Ron Paul

"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards."

Deckard  posted on  2016-09-18   3:01:01 ET  Reply   Trace   Private Reply  


#7. To: nolu chan (#1)

"NYPD Steals $18,000 from Man Because He Was Carrying a Banned Pocket Knife"

My first thought was that he was lucky he was carrying the $18,000 -- exactly the right amount to pay the fine for carrying a knife.

misterwhite  posted on  2016-09-18   10:37:59 ET  Reply   Trace   Private Reply  


#8. To: Deckard (#4)

"Cash and other property is seized upon belief assumption that is was involved in an illegal enterprise."

How silly is that? Doesn't everyone carry around $18,000 banded into packets?

misterwhite  posted on  2016-09-18   10:41:02 ET  Reply   Trace   Private Reply  


#9. To: Deckard (#6)

Really? Tell it to this guy.

The same attorney from CMC v. Costa Mesa, Matthew Pappas, very recently represented a different marijuana dispensary with the following result at the Court of Appeals of the State of California.

A marijuana dispensary in Costa Mesa is illegal.

A marijuana dispensary in Costa Mesa is illegal.

A marijuana dispensary in Costa Mesa is illegal.

Filed 7/12/16

Certified for publication 8/4/16 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE KIND AND COMPASSIONATE et al.,

Plaintiffs and Appellants,

v.

CITY OF LONG BEACH et al.,

Defendants and Respondents.

B258806

(Los Angeles County
Super. Ct. No. BC 483024)

APPEAL from a judgment of the Superior Court for the County of Los Angeles. John Shepard Wiley, Jr., Judge. Affirmed.

Matthew Pappas; Rallo Law Firm, Arthur J. Travieso and Amy L. Bingham for Plaintiffs and Appellants.

Charles Parkin, City Attorney, and Theodore B. Zinger, Deputy City Attorney, for Defendants and Respondents.

_______________________________________

SUMMARY

This is an appeal from a judgment dismissing a complaint after the trial court sustained a demurrer. The court granted leave to amend, but plaintiffs never did.

Plaintiffs are two medical cannabis "collectives/dispensaries" (The Kind and Compassionate, and Final Cut) and three medical cannabis patients, who are members of The Kind and Compassionate collective. Plaintiffs alleged 11 causes of action against the City of Long Beach (city) and/or three of its employees or officers (Eric Sund, Robert Shannon and Robert Foster), all arising from the city's enforcement of municipal ordinances that first regulated and then entirely prohibited the operation of medical marijuana dispensaries within the city's borders. The principal claim in the complaint is that defendants have discriminated against plaintiffs by enacting and enforcing these ordinances, which plaintiffs assert are facially discriminatory and have a disparate and adverse impact on persons with disabilities. Plaintiffs also assert various constitutional violations and tort claims.

We affirm the trial court's judgment dismissing the complaint.

FACTS AND LEGAL BACKGROUND

Before we turn to the facts alleged in the complaint, we briefly note several established principles applicable to medical marijuana dispensaries or collectives.

First, federal law prohibits the possession, distribution and manufacture of marijuana, finding it to be "a drug with 'no currently accepted medical use in treatment in the United States' [citation], and there is no medical necessity exception to prosecution and conviction under the federal act [citation]." (City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 738-739 (Riverside).)

Second, California law also imposes sanctions on marijuana possession, cultivation, and related activities. In California, however, voters and the Legislature have adopted limited exceptions to those sanctions where marijuana is possessed, cultivated, distributed and transported for medical purposes. (Riverside, supra, 56 Cal.4th at p. 739.) These statutes are the Compassionate Use Act (CUA; Health & Saf. Code, § 11362.5), adopted by the voters in 1996, and the Medical Marijuana Program (MMP; § 11362.7 et seq.), enacted in 2004. "Among other things, these statutes exempt the 'collective[] or cooperative[] . . . cultiva[tion]' of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit those activities." (Riverside, at p. 737.)

Third, the CUA and the MMP "have no effect on the federal enforceability of the [Controlled Substances Act (21 U.S.C § 801 et seq.)] in California." (Riverside, supra, 56 Cal.4th at p. 740.) The CUA and the MMP have a "narrow reach" (Riverside, at p. 745), providing only "a limited immunity from specified state marijuana laws" (id. at p. 748).

Fourth, "the CUA and the MMP do not expressly or impliedly preempt [a city's] zoning provisions declaring a medical marijuana dispensary . . . to be a prohibited use, and a public nuisance, anywhere within the city limits." (Riverside, supra, 56 Cal.4th at p. 752; id. at p. 754, fn. 8 ["the CUA and the MMP, by their substantive terms, grant limited exemptions from certain state criminal and nuisance laws, but they do not expressly or impliedly restrict the authority of local jurisdictions to decide whether local land may be used to operate medical marijuana facilities"].)

Fifth, the Ninth Circuit has held that "medical marijuana use is not protected by the ADA [(Americans with Disabilities Act (42 U.S.C. § 12101 et seq.))]," because the ADA "defines 'illegal drug use' by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs' medical marijuana use." (James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, 397.)

With this background in mind, we turn to the complaint.

[...]

a. The discrimination claims

The bulk of plaintiffs' 43-page opening brief is devoted to its assertions that the city ordinances regulating, and then banning medical marijuana dispensaries discriminate against persons with disabilities. This claim has no merit, and the trial court properly sustained the city's demurrer to plaintiffs' causes of action for violations of the DPA, the Unruh Act, the ADA, and the Rehabilitation Act.

Our conclusion is controlled by now well-established principles: "[The CUA and the MMP] remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a 'right' of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries." (Riverside, supra, 56 Cal.4th at pp. 762-763; see also Safe Life Caregivers v. City of Los Angeles (2016) 243 Cal.App.4th 1029, 1048 ["[i]t is too late in the day . . . to argue that the CUA and MMP[] grant a statutory right to use and/or collectively cultivate medical marijuana"]; Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534, 1553 (Conejo Wellness Center) [neither the CUA nor the MMP creates "a state right to cultivate, distribute, or otherwise obtain marijuana collectively, and thereafter to possess and use it, for medical purposes"].)

Plaintiffs argue at great length that Riverside did not involve discrimination claims, and they "disagree" with the principle that the CUA and the MMP do not confer a right to use and distribute marijuana. Our Supreme Court in Riverside definitively held that neither the CUA nor the MMP grant a " 'right' of convenient access to marijuana for medicinal use . . . ." (Riverside, supra, 56 Cal.4th at p. 762.) That being so, municipal regulation of, and bans on, medical marijuana dispensaries cannot operate to discriminate against persons with disabilities, because those persons have no right of convenient access to medicinal marijuana in the first place.

In addition to that fundamental point, neither the DPA nor the Unruh Act has any application to plaintiffs' desire to use, sell, or have convenient access to medicinal marijuana. The DPA gives individuals with disabilities "the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians' offices, public facilities, and other public places." (Civ. Code, § 54, subd. (a).) The DPA does not give them the right to convenient access to marijuana. The Unruh Act entitles all persons, including those with disabilities, to "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) It does not entitle anyone to convenient access to medicinal marijuana.

[...]

ii. Section 1983

Section 1983 provides redress for the deprivation, under color of law, of any rights, privileges or immunities secured by the Constitution and laws. The complaint alleges the enforcement of the city's marijuana ordinances deprived class members of federal constitutional rights (Fourth, Fifth and 14th Amendments) and "rights . . . secured by the California constitution under color of an invalid law."

Plaintiffs never had a vested property right to operate a medical marijuana dispensary in the city. The city asserted in the trial court and on appeal that the city's zoning code is drafted in a permissive fashion, so that any use not enumerated in the municipal code is presumptively prohibited. (Cf. Conejo Wellness Center, supra, 214 Cal.App.4th at p. 1562 [the plaintiff's operation of a collective medical marijuana dispensary "was always unlawful: first, as a use not expressly permitted by the [municipal code], and later, as a use expressly banned by the [municipal code]"; the plaintiff was "therefore not entitled to the constitutional protections afforded property owners or lessees engaged in lawful existing nonconforming uses"]; City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433 ["where a particular use of land is not expressly enumerated in a city's municipal code as constituting a permissible use, it follows that such use is impermissible"].)

Plaintiffs made no effort in the trial court or on appeal to explain why this principle does not or should not apply in this case. Nor do they dispute the city's assertion that it never issued a permit to plaintiffs to operate a medical marijuana dispensary in the city. (Cf. Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791 ["It has long been the rule in this state . . . that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit." (Italics added.)].)

In the absence of factual allegations that would establish a vested right, at any time, to operate a marijuana dispensary, plaintiffs cannot state a claim under section 1983 for deprivation of vested property rights.

[...]

DISPOSITION

The judgment is affirmed. The city shall recover its costs on appeal.

GRIMES, J.

WE CONCUR:

RUBIN, Acting P. J.

FLIER, J.

nolu chan  posted on  2016-09-18   10:55:26 ET  Reply   Trace   Private Reply  


#10. To: misterwhite (#8)

Doesn't everyone carry around $18,000 banded into packets?

Down in the projects in the South Bronx, where the elite go to meet, they all carry at least $18K banded into packets. I think it is some religious thing having to do with the Canarsie or Manhattan indians. They roll up a bill and snort some sort of sacred powder through the bill which anoints the powder in a holy sacrament.

nolu chan  posted on  2016-09-18   11:07:41 ET  Reply   Trace   Private Reply  


#11. To: Deckard (#6)

Arkansas Trooper Steals $20,000, Because Nobody Innocent Carries That Much Cash

The money was seized as contraband. It is contraband, just like kilo bricks would be contraband. Specifically, it was seized for "being used for drug trafficking, to further the manufacture of a controlled substance or was used to facilitate the violation of Arkansas Code Annotated Section 5-64-436."

Its being contraband does not depend on whether a search was lawful. Contraband cannot be reclaimed except on a showing that it is not contraband. This, Garcia failed to do.

IN THE CIRCUIT COURT OF HOT SPRING COUNTY, ARKANSAS CIVIL DIVISION

NO. 30CV-2013-170-1

STATE OF ARKANSAS PLAINTIFF

V.

NINETEEN THOUSAND EIGHT HUNDRED NINETY-FOUR DOLLARS ($19,894.00) IN AMERICAN CURRENCY

AND

GUILLERMO GARCIA ESPINOZA
4002 STONEY HILL
ROUND ROCK, TX 78681
DEFENDANT

AND

PRISCILA CERVANTES HERNANDEZ
4002 STONEY HILL
ROUND ROCK, TX 78681
DEFENDANT

IN REM COMPLAINT

Comes now the State of Arkansas, by and through Deputy Prosecuting Attorney Teresa Howell of the Seventh Judicial District, and for its In Rem Complaint states:

1. This is an In Rem Complaint for the forfeiture of Nineteen Thousand Eight Hundred Ninety-Four Dollars ($19,894.00) in American currency under Arkansas Code Annotated Section 5-64-505.

2. The seizure of the currency occurred in Hot Spring County, Arkansas. This Court has jurisdiction over the matter pursuant to Arkansas Code Annotated Section 5-64-505.

3. The subject matter of this action is the currency obtained in the following manner: On or about July 17,2013 the currency was seized by the Arkansas State Police after the traffic stop of the defendants. The defendants were in possession of the bundled currency that was found in a false compartment of a computer bag. The drug dog was given the opportunity to sniff the car, other various contents from the building where the vehicle was parked, and the computer bag where the currency was found. The computer bag was the only item on which the dog alerted.

4. The currency is now in the custody of the Hot Spring County Prosecutor's Office.

5. The currency was being used for drug trafficking, to further the manufacture of a controlled substance or was used to facilitate the violation of Arkansas Code Annotated Section 5-64-436.

6. On or about July 17,2013 the currency was seized by Sgt. Dennis Overton of the Arkansas State Police.

7. On or about July 17,2013 the defendants, Guillermo Garcia Espinoza and Priscila Cervantes Hernandez, received notice of the confiscation of the currency after being served with such notice by Sgt. Dennis Overton of the Arkansas State Police. A copy of the notice is attached hereto and marked Exhibit One. Attached as Exhibit Two is the Voluntary Disclaimer of Interest and Ownership signed by Defendants Guillermo Garcia Espinoza and Priscila Cervantes Hernandez.

8. An attempt will be made to serve a copy of this In Rem Complaint on Guillermo Garcia Espinoza and Priscila Cervantes Hernandez at their last known addresses.

9. The currency should be forfeited to the State of Arkansas.

10. The State Drug Director's Office has assigned the following tracking number to the case: 0809-13-7-1.

WHEREFORE PREMISES CONSIDERED, Plaintiff prays that the Court adjudge the Nineteen Thousand Eight Hundred Ninety-Four Dollars ($19,894.00) in American currency described herein, condemned and forfeited to the State of Arkansas, that the Court order said property disposed of as provided by law, and for any and all other relief to which it may be titled.

Respectfully submitted,
STATE OF ARKANSAS

/s/ TERESA HOWELL
TERESA HOWELL #98199
Deputy Prosecuting Attorney
215 East Highland
Malvern, Arkansas 72104
(501) 337-1468

Subscribed and sworn to before me on this the 12 day of Septernber, 2013.

nolu chan  posted on  2016-09-18   11:30:55 ET  Reply   Trace   Private Reply  


#12. To: nolu chan (#9)

Wrong thread for that spam jackass.

Try to keep up, OK?

“Truth is treason in the empire of lies.” - Ron Paul

"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards."

Deckard  posted on  2016-09-18   11:35:01 ET  Reply   Trace   Private Reply  


#13. To: Deckard (#6)

Espinoza, who had no criminal record and was never charged in this case, said the money came from years of construction work, and he later presented checks, receipts, and tax forms to substantiate that income. He said he took the money with him to Memphis because he was planning to buy a 4x4 truck there. But he was not happy with the advertised vehicle, so he did not complete the purchase. He offered to show Overton text messages he had exchanged with the truck seller and said his boss, whom he offered to call, would vouch for him. Overton, already convinced of Espinoza's guilt, was not interested.

All we can do is pray that whitey, nolu spam, and other civil forfeiture cheerleaders have vehicles stolen by government because a pot seed was found in the tire tread.

A government strong enough to impose your standards is strong enough to ban them.

ConservingFreedom  posted on  2016-09-18   11:50:16 ET  Reply   Trace   Private Reply  


#14. To: Deckard (#6)

Hell, might as well see the Appeals Court opinion as well. They note "Hernandez did not claim an interest in the money and did not file a verified answer to the complaint."

Slip Opinion

Cite as 2016 Ark. App. 244

ARKANSAS COURT OF APPEALS

DIVISION IV

No. 30CV-13-170-1

Opinion Delivered May 4, 2016

NINETEEN THOUSAND EIGHT HUNDRED NINETY-FOUR DOLLARS ($19,894.00) IN AMERICAN CURRENCY AND
GUILLERMO GARCIA ESPINOZA
APPELLANTS

V.

STATE OF ARKANSAS
APPELLEE

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT
[NO. 30CV-13-170-1]

HONORABLE CHRIS E WILLIAMS, JUDGE

APPEAL DISMISSED WITH PREJUDICE

DIVISION IV No. CV-15-548

DAVID M. GLOVER, Judge

This appeal involves the forfeiture of $19,894 in cash seized from Guillermo Espinoza's vehicle on July 17, 2013, pursuant to a traffic stop. On September 12, 2013, the State filed an in rem complaint against Espinoza and the passenger in his car, Priscilla Hernandez, seeking forfeiture of the money pursuant to Arkansas Code Annotated section 5-64-505. On October 30, 2013, Espinoza filed his verified answer. Hernandez did not claim an interest in the money and did not file a verified answer to the complaint. On May 21, 2014, the State filed a motion to dismiss the forfeiture action, explaining it had decided not to pursue a forfeiture and requesting dismissal of the case without prejudice. The trial court denied the motion, and a forfeiture hearing was held on June 26, 2014. On September 30, 2014, the trial court entered an order granting forfeiture to the State.

Page 1

- - - - - - - - - -

On October 30, 2014, Espinoza filed a motion for reconsideration. The State responded on December 1, 2014, and, on the same day, the trial court denied the motion[1] in an order that provided "The Defendant's Motion to Reconsider is denied and without merit." Espinoza filed his notice of appeal on December 30, 2014, stating he was appealing the December 1, 2014 decision denying his motion for reconsideration and "granting forfeiture to the State." He raises three points of appeal, contending the trial court 1) abused its discretion in denying the motion for order of dismissal because it was made before the case was submitted for final decision, and the State had an absolute right to dismiss pursuant to Arkansas Rule of Civil Procedure 41(a); 2) should have found that his continued detention violated the Fourth Amendment to the Arkansas Constitution and Rule 3.1 of the Arkansas Rules of Criminal Procedure; and 3) clearly erred in granting forfeiture because the State failed to prove by a preponderance of the evidence that the seized currency was used or intended to be used to facilitate a violation of Arkansas Code Annotated section 5­64-505. These are the same arguments he asserted in his motion for reconsideration. Though we sua sponte raise issues determining our court's jurisdiction to hear an appeal, in this case, the issue was also raised by the State in its responsive brief; there the State contended we are without jurisdiction to hear this appeal because Espinoza failed to timely file his notice of appeal. We agree with the State and dismiss this appeal with prejudice.

In responding to the State's jurisdictional challenge, Espinoza takes the position that because forfeiture actions are quasi-criminal in nature, Rule 33.3 of the Arkansas Rules of Criminal Procedure is more applicable than Rule 4 of the Arkansas Rules of Appellate

[1] November 30, 2014, fell on a Sunday.

Page 2

- - - - - - - - - -

Procedure-Civil. Rule 33.3 provides in pertinent part, "All post-trial motions or applications for relief must be filed within thirty days after the date of entry of judgment," and "[u]pon the filing of a post-trial motion or application for relief in the trial court, the time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications." (Emphasis added.) Espinoza states his motion for reconsideration was filed within thirty days of the forfeiture order, and his notice of appeal was filed within thirty days after the trial court's denial of his motion. He then asks us to analyze any jurisdictional issues in this appeal under the rules of criminal procedure because this civil-forfeiture case is more criminal than civil in nature. Our court has long held that the rules of civil procedure apply to judicial-forfeiture proceedings; we are not convinced our position on this issue should change. See, e.g., Mitchell v. State, 94 Ark. App. 304, 229 S.W.3d 583 (2006); In re One 1995 Ford Searcher Jamboree, 76 Ark. App. 522, 69 S.W.3d 442 (2002).

Because we determine our jurisdiction to hear an appeal, we do not rely entirely upon the parties' analysis of the issue. Here, Espinoza's posttrial motion was styled "Motion to Reconsider." It made no reference to which procedural rule it was based upon. Motions are to be liberally construed, and we are not blinded by titles; rather, we look to the substance of motions to ascertain what they seek. Stickels v. Heckel, 2009 Ark. App. 829, 370 S.W.3d 857. Espinoza's motion to reconsider made three basic arguments, challenging the trial court's denial of the State's motion to dismiss, challenging the trial court's determination that the length of time Espinoza was detained pursuant to the traffic stop did not violate the Fourth Amendment to the Arkansas Constitution or Rule 3.1 of the Arkansas Rules of Criminal Procedure, and challenging the trial court's finding of fact that the seized currency

Page 3

- - - - - - - - - -

was used or intended to be used to facilitate a violation of Arkansas Code Annotated section 5-64-505. His prayer for relief in the motion provided, "WHEREFORE, Claimant, Guillermo Garcia Espinoza, respectfully requests that this Court reconsider its ruling in holding the $19,894.00 forfeitable; deny the State's petition to forfeit the $19,894.00; and enter an order stating that the money is not forfeitable and should be returned to the defendant/claimant immediately, with interest at 6% from the date of seizure." In his December 30, 2014 notice of appeal, Espinoza stated he was appealing from the December 1, 2014 decision denying his motion for reconsideration "and granting forfeiture." As noted at the outset of our opinion, the December 1, 2014 order simply denied Espinoza's motion for reconsideration; forfeiture was granted in the September 30, 2014 order.

Rule 4 of the Arkansas Rules of Appellate Procedure—Civil provides in pertinent part:

(a) Time for Filing Notice of Appeal. Except as otherwise provided in subdivision (b) and (c) of this rule, a notice of appeal shall be filed within (30) days from the entry of the judgment, decree or order appealed from. A notice of cross-appeal shall be filed within ten (10) days after receipt of the notice of appeal, except that in no event shall a cross-appellant have less than thirty (30) days from the entry of the judgment, decree or order within which to file a notice of cross-appeal. A notice of appeal filed after the circuit court announces a decision but before the entry of the judgment, decree, or order shall be treated as filed on the day after the judgment, decree, or order is entered.

(b) Extension of Time for Filing Notice of Appeal.

(1) Upon timely filing in the circuit court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court's findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal

Page 4

- - - - - - - - - -

shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding.

(Emphasis added.) Pursuant to our rules of appellate procedure—civil, the only way to extend the thirty-day time limit for filing a notice of appeal from the judgment proper under the circumstances presented here would be to file one of the motions listed under subsection (b)(1) within ten days after the forfeiture judgment was entered. Regardless of the fact that the posttrial motion filed by Espinoza was merely styled "Motion for Reconsideration" and did not specifically request a new trial, we have determined that it constitutes either a Rule 59 motion, or that it falls within the category of "any other motion to vacate, alter, or amend the judgment" under Rule 4, and it was not filed within ten days from the date the judgment was entered.[2] Consequently, he does not benefit from the extension outlined in Rule 4(b)(1) to challenge the September 30, 2014 order granting forfeiture; when he eventually filed his notice of appeal on December 30, 2014, it was well beyond the thirty-day time limitation for filing a notice of appeal from the forfeiture order itself.

[2] Rule 59 of the Arkansas Rules of Civil Procedure provides in pertinent part:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: . . . (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law; . . . (8) error of law occurring at the trial and objected to by the party making the application.

(b) Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment.

Espinoza is not helped by the fact that his December 30, 2014 notice of appeal specifically designates the December 1, 2014 order denying his motion for reconsideration as the order from which he is appealing. We have determined that his motion was, in substance, one that should have been filed within ten days from the September 30, 2014 order granting forfeiture; therefore, the motion was untimely, and the trial court was without jurisdiction to entertain it. See, e.g. , White v. White, 2014 Ark. App. 594 at 6, 446 S.W.3d 635, 638 ("Because [the] purported Rule 60 motion was in actuality a Rule 59 motion and was not filed within ten days of the divorce decree, the motion was untimely and the trial court was without jurisdiction to entertain it.").

We find no basis for exercising our jurisdiction in this appeal.

Appeal dismissed with prejudice.

GRUBER, J., agrees.

BROWN, J., concurs.

nolu chan  posted on  2016-09-18   12:19:21 ET  Reply   Trace   Private Reply  


#15. To: Deckard (#12)

Wrong thread for that spam jackass.

Try to keep up, OK?

It is the same lawyer who got his ass handed to him, and recites the applicable state laws.

nolu chan  posted on  2016-09-18   12:23:40 ET  Reply   Trace   Private Reply  


#16. To: Deckard (#0)

Returning to the Costa Mesa case after a diversion to anything but the Costa Mesa case....

The petition was filed in Superior Court of the State of California, County of Orange, Central Justice Center, and is CMC, a group of patients collectively operating pursuant to Ca. Health & Safety Code § 11362.775 v. City of Costa Mesa; Costa Mesa Police Department; and Does 1 to 10 inclusive. It was filed in State court on 9 August 2016.

It states it is PETITION FOR WRIT OF MANDAMUS (CCP § 1085); VIOLATIONS OF THE STATE AND FEDERAL CONSTITUTIONS (42 U.S.C. § 1983).

It states two causes of action:

FIRST CAUSE OF ACTION
(42 U.S.C. § 1983. 14th AMD., DUE PROCESS)

SECOND CAUSE OF ACTION
(42 U.S.C. § 1983, 4th AND 14th AMDS.)

The two causes of action cite Federal law, and Federal law only.

to be continued...

nolu chan  posted on  2016-09-18   12:24:49 ET  Reply   Trace   Private Reply  


#17. To: nolu chan (#1)

"...If the owner can show that he lawfully possessed the money, he may get it back."

What exactly was the man charged with? Illegal possession of a banned pocket knife or carry excess amount of cash? We still have Due Process in this country where one is innocent until proven guilty. The burden rests solely on the officers to prove this guy broke the law. Not the other way around.

goldilucky  posted on  2016-09-18   22:31:25 ET  Reply   Trace   Private Reply  


#18. To: goldilucky (#17)

What exactly was the man charged with?

Irrelevant.

Illegal possession of a banned pocket knife or carry excess amount of cash?

Irrelevant.

We still have Due Process in this country where one is innocent until proven guilty.

The Defendant is the currency, not a person. The process that is due pertains to the money, not any person.

The burden rests solely on the officers to prove this guy broke the law. Not the other way around.

Nobody need ever prove this guy broke the law. The money is the defendant.

Unfortunately, you have it all ass-backwards. Civil asset forfeiture is not a criminal proceeding. Look at the case citations.

If the money is seized for forfeiture, anyone who wants to obtain the money must claim ownership of the money and show, by a preponderance of the evidence, that it is lawfully his.

See In re Forfeiture of $9,430 United States Currency, COA (Mich 15 Dec 2011).

http://www.michbar.org/file/opinions/appeals/2011/121511/50420.pdf

STATE OF MICHIGAN

COURT OF APPEALS

In re Forfeiture of $9,430 United States Currency.

No. 298479
Wayne Circuit Court
LC No. 09-015761-CF

UNPUBLISHED
December 15, 2011

PEOPLE OF MICHIGAN,
Plaintiff-Appellee,

v.

$9,430 UNITED STATES CURRENCY,
Defendant,

and

PERCY HEAD,
Claimant-Appellant.

Before: O’ ONNELL , P.J., and MURRAY and DONOFRIO , JJ. PER CURIAM

Claimant, Percy Head, appeals as of right the circuit court’s judgment of forfeiture of $9,430 in United States Currency, pursuant to MCL 333.7521. We affirm. On May 12, 2009, Michigan State Trooper Jason Nemecek pulled claimant’s vehicle over on I-94 because claimant was following the car ahead of him too closely and had an air freshener hanging from his rearview mirror, possibly obstructing his vision. When Trooper Nemecek approached the car, he smelled burned marijuana. Claimant said there was nothing illegal in the car and gave Trooper Nemecek consent to search it. Trooper Nemecek first ran LEIN checks on claimant and the passenger. The passenger was in violation of parole and Trooper Nemecek took him into custody. Claimant’s LEIN check showed he was driving with a suspended license, so Trooper Nemecek arrested claimant. Trooper Nemecek searched the car and saw marijuana stems and seeds on the floor in the front seat and in the back seat. A narcotics canine searched the car but did not give a positive indication for drugs inside the vehicle. Trooper Nemecek then searched claimant pursuant to arrest and found a large amount of money in his pocket. Claimant said it was about $3,000, but it was actually $9,430. At the police station, Trooper Nemecek tested the money and the same narcotics dog alerted to the presence of narcotics on the currency.

-1-

- - - - - - - - - -

Trooper Nemecek decided to forfeit the money and a forfeiture trial was held, at which the trial court ruled that forfeiture was proper.

On appeal, claimant asserts the trial court erred in concluding the prosecution established by a preponderance of the evidence that the money should be forfeited. In a forfeiture proceeding, review of the trial court’s decision is for clear error. In re Forfeiture of $180,975, 478 Mich 444, 450; 734 NW2d 489 (2007). “A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made.” Id. “[R]egard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C); see also In re Forfeiture of $19,250, 209 Mich App 20, 29; 530 NW2d 759 (1995).

Under MCL 333.7521(1)(f), the following property is subject to forfeiture: Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance, an imitation controlled substance, or other drug in violation of this article that is traceable to an exchange for a controlled substance, an imitation controlled substance, or other drug in violation of this article or that is used or intended to be used to facilitate any violation of this article including, but not limited to, money, negotiable instruments, or securities.

While forfeiture is generally disfavored in the law, Michigan’s forfeiture provisions are part of the Public Health Code and, therefore, should be liberally construed to promote the health, safety, and welfare of the citizens of the state. Forfeiture of $19,250, 209 Mich App at 27. “However, the requirements of the forfeiture provisions may be construed strictly to ensure that the due process rights of claimants are protected.” Id.

A forfeiture proceeding against property is in rem, and the subject of the proceeding is the property itself, rather than the owner or possessor of the property, who is the claimant. Forfeiture of $180,975, 478 Mich at 450. In an in rem forfeiture proceeding, the party seeking forfeiture has the burden of proof by a preponderance of the evidence. Id. at 458. “Proof by a preponderance of the evidence requires that the factfinder believe that the evidence supporting the existence of the contested fact outweighs the evidence supporting its nonexistence.” Blue Cross & Blue Shield of Mich v Governor, 422 Mich 1, 89; 367 NW2d 1 (1985).

To forfeit an asset because it was used, or intended to be used, to effect a violation of the controlled substances act, there must be a substantial connection between the asset and the underlying criminal activity. In re Forfeiture of $5,264, 432 Mich 242, 262; 439 NW2d 246 (1989). The asset need not be traced to a specific sale of drugs, only to drug trafficking generally. In re Forfeiture of $1,159,420, 194 Mich App 134, 147; 486 NW2d 326 (1992). Property with only an “incidental or fortuitous connection” to the underlying criminal activity is not subject to forfeiture. Id. at 146. Whether a claimant can legitimately account for the possession of the asset is a factor considered in making this determination. See id. at 147. However, it is the prosecution’s burden to show claimant cannot so account. Id.; Forfeiture of $180,975, 478 Mich at 458 n 19.

-2-

- - - - - - - - - -

Here, there was ample evidence in favor of the trial court’s forfeiture decision, including that Trooper Nemecek smelled burned marijuana in the car, Trooper Nemecek saw marijuana stems and seeds in the car, claimant significantly underrepresented the amount of currency he possessed, the currency was wrapped in rubber-bands, claimant was driving a vehicle that did not belong to him, claimant said he was self-employed, the narcotics canine alerted to the presence of narcotics on claimant’s currency, and claimant had a prior misdemeanor drug conviction. This Court has held that “drug profile” evidence is not particularly probative where there is no other convincing evidence indicating a claimant was linked to drug trafficking. In re Forfeiture of $275, 227 Mich App 462, 468; 576 NW2d 431 (1998), rev’d on other grounds 457 Mich 864 (1998). Claimant’s use of a third-party vehicle, his self-employed status, his misstatement about the amount of currency he possessed, and the way the money was packaged constituted evidence showing at least part of a “drug profile.” However, there is also other persuasive evidence linking claimant to the sale or purchase of drugs, including the smell of marijuana in the car, the seeds and stems in the case seen by Trooper Nemecek, and the narcotics on the currency. Therefore, the “drug profile” evidence here is probative and was properly given weight by the trial court.

Claimant is correct when he argues that some evidence could have supported a negative finding by the trial court. In particular, the evidence showing that the narcotics canine did not alert to the presence of any narcotics in the vehicle (not even to the stems and seeds Trooper Nemecek saw), the stems and seeds were never collected for evidence, and claimant presented legitimate sources for the currency in his possession, including a $2,000 bank account withdrawal on January 21, 2009, a $5,000 withdrawal on April 21, 2009, a statement showing an account balance of $14,650 on April 10, 2009, and a receipt for a vehicle sale on April 8, 2009, for $16,298.30.[1]

However, “regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). Here, the trial court specifically found that Trooper Nemecek did see the stems and seeds in claimant’s car, that claimant misstated the amount of currency he had on him, and that the canine gave a positive indication for narcotics on claimant’s currency. Claimant does not refute the positive canine indication, and the trial judge was free to accept Trooper Nemecek’s testimony, and to discredit claimant’s testimony, including his supposedly legitimate sources of income. See Forfeiture of $19,250, 209 Mich App at 29; Forfeiture of $1,159,420, 194 Mich App at 147. In rigorously applying the clearly erroneous standard, we recognize the trial judge had the benefit of evaluating the witnesses before him and judging the credibility of the testimony, and, therefore,

__________

[1] The prosecution attempted to discredit these sources by pointing out that one of the bank transactions took place several weeks before claimant was pulled over, the other occurred several months before, and the vehicle sale happened over a month earlier. We also note that bank withdrawals and account balances do not actually show the legitimacy of the source of funds, merely that claimant had access to them, and that failure to collect evidence does not necessarily mean it did not exist.

-3-

- - - - - - - - - -

we cannot conclude that the court’s finding that the prosecution established by a preponderance of the evidence that the money was, or was intended to be, used in exchange for a controlled substance, was clearly erroneous.

Affirmed.

/s/ Peter D. O’Connell
/s/ Christopher M. Murray
/s/ Pat M. Donofrio

nolu chan  posted on  2016-09-19   1:06:30 ET  Reply   Trace   Private Reply  


#19. To: nolu chan, goldilucky (#18)

Great explanation....thanks.

Gatlin  posted on  2016-09-19   2:21:35 ET  Reply   Trace   Private Reply  


#20. To: nolu chan (#18) (Edited)

That case law you cited sounds like something that Michigan judge used straight from law outside the U.S.. The defendant is being charged under some foreign customs act which needs to be challenged due to a jurisdictional issue. https://www.1215.org/lawnotes/lawnotes/irshist.htm

and here -----> https://www.1215.org/lawnotes/lawnotes/irshist.htm#cabm

Read here on the fact that this judge is treating this defendant like a narcotics dealer -----> https://www.1215.org/lawnotes/lawnotes/irshist.htm#nd

goldilucky  posted on  2016-09-19   2:21:56 ET  Reply   Trace   Private Reply  


#21. To: Deckard (#6)

But he was not happy with the advertised vehicle, so he did not complete the purchase. He offered to show Overton text messages he had exchanged with the truck seller

This was his error. He left too many traces and Sgt. Overton knew about cash.

When you carry more cash, never make emails, phone calls or text messages about it.

A Pole  posted on  2016-09-19   6:00:54 ET  Reply   Trace   Private Reply  


#22. To: goldilucky (#17)

I agree with you. You know innocent until priven guilty.

A K A Stone  posted on  2016-09-19   6:42:31 ET  Reply   Trace   Private Reply  


#23. To: nolu chan (#18)

Money can't be a defendant. A defendant is a person who can call witnesees and cross examine them. Ridiculous.

A K A Stone  posted on  2016-09-19   6:44:40 ET  Reply   Trace   Private Reply  


#24. To: A K A Stone, y'all (#23)

goldilucky (#17) ---- We still have Due Process in this country where one is innocent until proven guilty.

The Defendant is the currency, not a person. The process that is due pertains to the money, not any person. - Nolu Chan

A K A Stone wrote: ---- Money can't be a defendant. A defendant is a person who can call witnesees and cross examine them. Ridiculous.

Most of the massively long spam Nolu Chan posts is ridiculous.

Good to see that you're aware of his bullshit.

tpaine  posted on  2016-09-19   13:48:13 ET  Reply   Trace   Private Reply  


#25. To: A K A Stone (#22) (Edited)

What caught my attention was this statement:

If the money is seized for forfeiture, anyone who wants to obtain the money must claim ownership of the money and show, by a preponderance of the evidence, that it is lawfully his.

This quote tells me in code language that the defendant is being treated like a narcotics dealer and that the use of that case law is being used to deny the defendant's basic Due Process Rights. What the judge did was use a case law which would not apply to this defendant. What the judge should have used was the proper statute and if applicable use a parallel case to support their findings. Narcotics dealing would fall under Internal Revenue codes which are not positive law. See here: http://www.tax-freedom.com/ta16013.htm#ta16014 and that Dan Meador explains this about how the IRS and Bureau of Internal Revenue merged with the Customs Clearance Act and that neither are positive law and therefore their statutes have no legality in the United States.

See here: The asset need not be traced to a specific sale of drugs, only to drug trafficking generally. [Emphasis added here] The burden rests on those officers to prove their case against the defendant.

goldilucky  posted on  2016-09-19   16:44:52 ET  Reply   Trace   Private Reply  


#26. To: A K A Stone (#23)

Money can't be a defendant. A defendant is a person who can call witnesees and cross examine them. Ridiculous.

Yes, it can. Sort of like a corporation can be a person, at law. For purposes of certain laws taxing vegetables, tomatoes were held to be vegetables. In the rest of the world, tomatoes have seeds and are fruit. In all of these in rem forfeiture cases, some item is the named defendant.

In a forfeiture action, the people claim lawful ownership of the seized item(s). The items are seized pursuant to law, and lawful ownership is decided by a court. If a person claims the property, he is a Claimant, not a Defendant. For purposes of law, the item is the named Defendant.

http://www.michbar.org/file/opinions/appeals/2011/121511/50420.pdf

PEOPLE OF MICHIGAN,
Plaintiff-Appellee,

v.

$9,430 UNITED STATES CURRENCY,
Defendant,

and

PERCY HEAD,
Claimant-Appellant.

[...]

A forfeiture proceeding against property is in rem, and the subject of the proceeding is the property itself, rather than the owner or possessor of the property, who is the claimant.

It is stated as an action in rem.

In rem. A technical term used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions, which are said to be in personam.

"In rem" proceedings encompass any action brought against person in which essential purpose of suit is to determine title to or to affect interests in specific property located within territory over which court has jurisdiction. ReMine ex rel. Liley v. District Court for City and County of Denver, Colo., 709 P.2d 1379, 1382. It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. In the strict sense of the term, a proceeding "in rem" is one which is taken directly against property or one which is brought to enforce a right in the thing itself.

Actions in which the court is required to have control of the thing or object and in which an adjudication is made as to the object which binds the whole world and not simply the interests of the parties to the proceeding. Flesch v. Circle City Excavating & Rental Corp., 137 Ind.App. 695, 210 N.E.2d 865.

Black's Law Dictionary, 6th Ed. (emphasis added)

nolu chan  posted on  2016-09-19   17:19:54 ET  Reply   Trace   Private Reply  


#27. To: tpaine (#24)

Most of the massively long spam Nolu Chan posts is ridiculous.

tpaine is all bullshit.

nolu chan  posted on  2016-09-19   17:20:54 ET  Reply   Trace   Private Reply  


#28. To: goldilucky (#20)

Read here on the fact that this judge is treating this defendant like a narcotics dealer

See #26. This was an action in rem.

nolu chan  posted on  2016-09-19   17:23:23 ET  Reply   Trace   Private Reply  


#29. To: A K A Stone, goldilucky (#22)

I agree with you. You know innocent until priven guilty.

An action in rem determines lawful ownership of property, not guilt or innocence of a person.

nolu chan  posted on  2016-09-19   17:24:49 ET  Reply   Trace   Private Reply  


#30. To: nolu chan, -- in rem -- (#27)

Most of the massively long spam Nolu Chan posts is ridiculous.

tpaine is all bull -,,

Pretending to be a lawyer is bull, nolu sham.

tpaine  posted on  2016-09-19   17:33:53 ET  Reply   Trace   Private Reply  


#31. To: tpaine (#30)

Most of the massively long spam Nolu Chan posts is ridiculous.

Not even an illegal seizure prevents upholding a civil asset forfeiture. tpain specializes is bullshit.

IN RE FORFEITURE $180,975, 478 Mich. 444 (Mich. 2007)

IN RE FORFEITURE OF $180,975

PEOPLE OF THE STATE OF MICHIGAN
Plaintiff-Appellee,

v.

$180,975 IN UNITED STATES CURRENCY, Defendant,

and TAMIKA SHANTE SMITH,
Claimant-Appellant, and

TODD FITZGERALD FLETCHER,
Claimant.

WEAVER, J.

In this case we consider the proper application of the exclusionary rule in a civil forfeiture proceeding in which the property subject to forfeiture has been illegally seized. We further consider whether In re Forfeiture of United States Currency, 166 Mich App 81; 420 NW2d 131 (1988), was correctly decided. In deciding these questions, we first hold that under Immigration Naturalization Service v Lopez-Mendoza, 468 US 1032; 104 S Ct 3479; 82 L Ed 2d 778 (1984), illegally seized property is not immune from forfeiture. We also agree with the holding in United States v $639,558, 293 US App DC 384, 387; 955 F2d 712 (1992), that property subject to forfeiture that was illegally seized "is not 'excluded' from the proceeding entirely." Instead, the illegally seized property "may be offered into evidence for the limited purpose of establishing its existence, and the court's in rem jurisdiction over it." Id.

Because we find that the exclusionary rule was never meant to preclude illegally seized property from a subsequent civil forfeiture proceeding involving that property, we hold that, in accord with In re Forfeiture of United States Currency and MCL 333.7521, as long as the order of forfeiture can be established by a preponderance of evidence untainted by the illegal search and seizure, the forfeiture is valid.

For the reasons summarized by the Court of Appeals in its decision affirming the circuit court's judgment and order, we agree with the Court of Appeals that the circuit court did not clearly err in finding that, although the money was illegally seized, there was a preponderance of untainted evidence to support a finding of civil forfeiture pursuant to MCL 333.7521(1)(f).

Accordingly, we affirm the Court of Appeals judgment, and we further conclude that the Court of Appeals in In re Forfeiture of United States Currency reached the correct result.

[...]

nolu chan  posted on  2016-09-19   17:55:28 ET  Reply   Trace   Private Reply  


#32. To: nolu chan (#29) (Edited)

An action in rem determines lawful ownership of property, not guilt or innocence of a person.[Emphasis added here]

Not so especially where the court has no personal jurisdiction over the person. If they have no personal jurisdiction over the person then they also have no jurisdiction over the subject matter.

goldilucky  posted on  2016-09-19   18:07:51 ET  Reply   Trace   Private Reply  


#33. To: goldilucky (#32)

Not so especially where the court has no personal jurisdiction over the person. If they have no personal jurisdiction over the person then they also have no jurisdiction over the subject matter.

Nonsense.

With contraband or the fruits of criminal activity, the government can seize the property and the court can hold an in rem proceeding to determine ownership. They can unlawfully search and still seize the property.

If they unlawfully search and find 100 pounds of pot, you may overturn the search for criminal purposes, but you are not getting your 100 pounds of pot returned.

nolu chan  posted on  2016-09-19   18:26:53 ET  Reply   Trace   Private Reply  


#34. To: nolu chan (#31)

tpaine is all bull -,,

Pretending to be a lawyer is bull, nolu sham.

tpain specializes is bullshit.

You specialise in fraud and duplicity, nolu chump.

In fact, isn't acting as if you were a member of the bar, -- a crime?

tpaine  posted on  2016-09-19   18:45:48 ET  Reply   Trace   Private Reply  


#35. To: nolu chan (#33)

With contraband or the fruits of criminal activity, the government can seize the property and the court can hold an in rem proceeding to determine ownership. They can unlawfully search and still seize the property.

Nonsense here! Define "contraband". Anything seized without a court order subpoena, is treated as unlawful seizure under the fruit of the poisoned tree doctrine.

goldilucky  posted on  2016-09-19   18:48:02 ET  Reply   Trace   Private Reply  


#36. To: tpaine (#34)

Pretending to be a lawyer is bull, nolu sham.

That's what you say when you're not calling me a lawyer.

In fact, isn't acting as if you were a member of the bar, -- a crime?

To my knowledge, writing intelligently about the law is not a crime.

Your attempts to sell utter bullshit may constitute mopery.

nolu chan  posted on  2016-09-20   1:46:53 ET  Reply   Trace   Private Reply  


#37. To: goldilucky (#32)

With contraband or the fruits of criminal activity, the government can seize the property and the court can hold an in rem proceeding to determine ownership.

Nonsense here! Define "contraband".

Google is your friend. I am not your secretary. The sentence begins, "With contraband or the fruits of criminal activity...."

They can unlawfully search and still seize the property.

Anything seized without a court order subpoena, is treated as unlawful seizure under the fruit of the poisoned tree doctrine.

This is ridiculous.

Read my #31 again.

IN RE FORFEITURE $180,975, 478 Mich. 444 (Mich. 2007)

In deciding these questions, we first hold that under Immigration Naturalization Service v Lopez-Mendoza, 468 US 1032; 104 S Ct 3479; 82 L Ed 2d 778 (1984), illegally seized property is not immune from forfeiture. We also agree with the holding in United States v $639,558, 293 US App DC 384, 387; 955 F2d 712 (1992), that property subject to forfeiture that was illegally seized "is not 'excluded' from the proceeding entirely." Instead, the illegally seized property "may be offered into evidence for the limited purpose of establishing its existence, and the court's in rem jurisdiction over it." Id.

A civil asset forfeiture proceeding is a CIVIL proceeding, not a criminal proceeding. The fruit of the poisonous tree doctrine has no application whatsoever to civil proceedings.

Seizure is not pursuant to a subpoena which is used to require one to appear at a judicial proceeding. A subpoena duces tecum requires one to bring specified relevant documents when one appears.

A warrant may be issued for a search. There are exceptions to the requirement for a warrant.

If, in the course of an illegal search law enforcement finds your 100 pounds of marijuana, they will lawfully seize it, and the government will never return it to you.

If you go through customs at the airport, the customs may examine, as distinguished from inspect, your bags. It can be done on a predetermined random selection basis for the day, perhaps a digit of your social security number to hit every tenth passenger. You and your bags would be taken to a private room and your bags would be opened and the inspector can look inside everything. If an item is found that is unlawful to possess, it is seized. You are taken into custody. No warrant is required. The evidence is admissible. If the item is your marijuana, you do not see it again, except as evidence.

You are misinformed as to criminal cases as well.

Warden v. Hayden, 387 U.S. 294 (1967)

Held:

1. "The exigencies of the situation," in which the officers were in pursuit of a suspected armed felon in the house which he had entered only minutes before they arrived, permitted their warrantless entry and search. McDonald v. United States, 335 U. S. 451, 335 U. S. 456. Pp. 387 U. S. 298-300.

2. The distinction prohibiting seizure of items of only evidential value and allowing seizure of instrumentalities, fruits, or contraband is no longer accepted as being required by the Fourth Amendment. Pp. 387 U. S. 300-310.

(a) There is no rational distinction between a search for "mere evidence" and one for an "instrumentality" in terms of the privacy which is safeguarded by the Fourth Amendment; nor does the language of the Amendment itself make such a distinction. Pp. 387 U. S. 301-302.

(b) The clothing items involved here are not "testimonial" or "communicative," and their introduction did not compel respondent to become a witness against himself in violation of the Fifth Amendment. Schmerber v. California, 384 U. S. 757. Pp. 387 U. S. 302-303.

Page 387 U. S. 295

(c) The premise that property interests control government's search and seizure rights, on which Gouled v. United States, 255 U. S. 298, partly rested, is no longer controlling as the Fourth Amendment's principal object is the protection of privacy, not property. Pp. 387 U. S. 303-306.

(d) The related premise of Gouled that government may not seize evidence for the purpose of proving crime has also been discredited. The Fourth Amendment does not bar a search for that purpose provided that there is probable cause, as there was here, for the belief that the evidence sought will aid in a particular apprehension or conviction. Pp. 387 U. S. 306-307.

(e) The remedy of suppression, with its limited functional consequence, has made possible the rejection of both the related Gouled premises. P. 387 U. S. 307.

(f) Just as the suppression of evidence does not require the return of such items as contraband, the introduction of "mere evidence" does not entitle the State to its retention if it is being wrongfully withheld. Pp. 387 U. S. 307-308.

(g) The numerous and confusing exceptions to the "mere evidence" limitation make it questionable whether it affords any meaningful protection. P. 387 U. S. 309.

363 F.2d 647, reversed.

nolu chan  posted on  2016-09-20   2:38:34 ET  Reply   Trace   Private Reply  


#38. To: nolu chan (#36)

Isn't acting as if you were a member of the bar, -- a crime?

To my knowledge, writing intelligently about the law is not a crime.

You claim to write intelligently, -- but most here at LF differ. -- You are the champion of big govt, big brother, authoritarian 'law' in the USA.

Your attempts to sell utter bullshit may constitute mopery.

Your attempts to sell 'progressive law' are far beyond mere mopery; -- they border on treasonous activity, imho.

tpaine  posted on  2016-09-20   6:05:56 ET  Reply   Trace   Private Reply  


#39. To: nolu chan (#37)

Google is your friend. I am not your secretary. The sentence begins, "With contraband or the fruits of criminal activity...."

Google is to case law as statutory positive law is to my friend.

Again, I ask of you to define what is contraband according to the actual statutory law the judge used. Not case law.

goldilucky  posted on  2016-09-20   12:14:44 ET  Reply   Trace   Private Reply  


#40. To: goldilucky (#39)

Google is to case law as statutory positive law is to my friend.

Again, I ask of you to define what is contraband according to the actual statutory law the judge used. Not case law.

Do it yourself. Buy a dictionary.

nolu chan  posted on  2016-09-21   18:16:09 ET  Reply   Trace   Private Reply  



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