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.

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

Ain't gonna happen.

Ain't gonna happen.

True dat.

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

Fixed it.

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.

[...]

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.

"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.

"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?

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.

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.

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.

Try to keep up, OK?

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.

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

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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

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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

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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.

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.

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...

"...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.

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

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

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.

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.

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.

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)

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

tpaine is all bullshit.

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

See #26. This was an action in rem.

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.

tpaine is all bull -,,

Pretending to be a lawyer is bull, nolu sham.

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.

[...]

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.

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.

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?

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.

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.

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.

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.

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.

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.

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

Only in the imaginary Patriot Court, Chief Justice tpaine, presiding.

It has plenary jurisdiction over the mind of CJ tpaine, but that is the limit of its jurisdiction.

Your hatred of the United States Constitution and all federal laws is noted. Your delusion that you live in a world where you make the laws and dictate the legal system according to your whim, is also noted.

Your hatred of the United States Constitution and all federal laws is noted. Your delusion that you live in a world where you make the laws and dictate the legal system according to your whim, is also noted.

You've gone completely off your rocker, poor soul.

Get help..

The only time case law should be referenced is when it parallels your situation including statutory law. This is very important to emphasize because it not only establishes (1) where the court has jurisdiction over you and the case but that (2) this case and the statutes (civil or criminal) provided apply to your case.

The necessity of applying case law in one's Memorandum of Points and Authorities are used only to prove the existence of the statutory law that supports it. Case law is not the law but instead is evidence of the existing statutory law that supports it.

Just below is a link to a statute concerning contraband. Copy and paste unto the URL and when you get there look below the Yellow highlighted Part 8. I do not recall any statute ever referenced in that citation you mentioned in this thread. You don't just throw out the words "contraband" at somebody without realizing the negative connotation it has. Furthermore, it is a criminal offense.

https://www.gpo.gov/fdsys/search/pagedetails.action?collectionCode=CFR&searchPath=Title+28%2FChapter+I%2FPart+8&granuleId=CFR-2005-title28-vol1-part6&packageId=CFR-2005-title28-vol1&oldPath=Title+28%2FChapter+I%2FPart+8&fromPageDetails=true&collapse=true&ycord=1846

That case law you referenced does not define "contraband" and therefore it has no relevance whatsoever to the case against this individual whose property was illegally seized.

WHY was the money seized? The article is deafeningly silent on that point.

What was Ray Ray doing in the projects with $18K and a knife?

My best guess is that the cash was seized as drug money.

As for your rant, you do not have a clue what you are talking about.

Just below is a link to a statute concerning contraband. Copy and paste unto the URL and when you get there look below the Yellow highlighted Part 8. I do not recall any statute ever referenced in that citation you mentioned in this thread. You don't just throw out the words "contraband" at somebody without realizing the negative connotation it has. Furthermore, it is a criminal offense.

https://www.gpo.gov/fdsys/search/pagedetails.action?collectionCode=CFR&searchPath=Title+28%2FChapter+I%2FPart+8&granuleId=CFR-2005-title28-vol1-part6&packageId=CFR-2005-title28-vol1&oldPath=Title+28%2FChapter+I%2FPart+8&fromPageDetails=true&collapse=true&ycord=1846

Your link goes to a CFR which, by definition, is not a statute.

Go to whatever you are blathering about and post it with a link. Or use a dictionary. The concept of contraband is not difficult.

It isn't that hard.

Contraband. In general, any property which is unlawful to produce or possess. Things and objects outlawed and subject to forfeiture and destruction upon seizure. Com. v. One 1958 Plymouth Sedan, 414 Pa. 540, 201 A.2d 427, 429. Goods exported from or imported into a country against it.s laws. Smuggled goods. Articles, the importation or exportation of which, is prohibited by law. See e.g. 49 U.S.C.A. § 781.

Trafficking in contraband cigarettes is a federal crime. 18 U.S.C.A. § 2341 et seq.

"Contraband per se" is property the mere possession of which is unlawful, while "derivative contraband" is property innocent by itself but used in perpetration of unlawful act. Com v. Fassnacht, 246 Pa.Super. 42, 369 A.2d 800, 802.

See also Bootlegging; Counterfeit; Derivative contraband; Gray market goods; Smuggling.

Black's Law Dictionary, 6th Ed.

For example, marijuana is contraband in all 50 states.

The point I was making was that in that case you cited, there is no mentioned statute concerning what the Defendant was ever charged with specifically.

While at it, you might want to browse through this site on the CFR as it complements the Federal Registers.

https://www.law.cornell.edu/cfr/text

https://www.doi.gov/library/collections/law/statutes

And yes, the CFR and FR are considering statutes in reference to "contraband" issues

https://www.federalregister.gov/documents/2015/08/03/2015-18982/contraband-and-inmate-personal-property-technical-amendment

[goldilucky #44] Just below is a link to a statute concerning contraband.

[goldilucky #47] And yes, the CFR and FR are considering statutes in reference to "contraband" issues

The CFR and FR are not statutes. Newspaper articles and blog entries may consider statutes in reference to anything. Only formal written enactments of legislative bodies are considered statutes.

A statute is a legislative act.

The "Code of Federal Regulations (CFR) is the annual cumulation of executive agency regulations publised in the daily Federal Register, combined with regulations issued previously that are still in effect. Divided into 50 titles, each representing a broad subject area, individual volumes of the Code a broad subject area, individual volumes of the Code of Federal Regulations are revised at least once each calendar year and issued on a staggered quarterly basis. The CFR contains the general body of regulatory laws governing practice and procedure before federal administrative agencies." (Black's Law Dictionary, 6th Ed.)

The Federal Register, "published daily, is the medium for making available to the public Federal agency regulations and and other legal documents of the Executive Branch." (Black's Law Dictionary, 6th Ed.)

Executive Branch regulations are never considered statutes.

Statute, n. A formal written enactment of a legislative body, whether federal, state, city, or county. An act of the legislature declaring, commanding, or prohibiting something; a particular law enacted and established by the will of the legislative department of government; the written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state. Such may be public or private, declaratory, mandatory, directory, or enabling, in nature. For mandatory and directory statutes, see Directory; Mandatory statutes. Depending upon its context in usage, a statute may mean a single act of a legislature or a body of acts which are collected and arranged according to a scheme or for a session of a legislature or parliament.

This word is used to designate the legislatively created laws in contradistinction to court decided or unwritten laws. See Common law.

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Regulations. Such are issued by various governmental departments to carry out the intent of the law. Agencies issue regulations to guide the activity of those regulated by the agency and of their own employees and to ensure uniform application of the law. Regulations are not the work of the legislature and do not have the effect of law in theory. In practice, however, because of the intricacies of judicial review of administrative action, regulations can have an important effect in determining the outcome of cases involving regulatory activity. United States Government regulations appear first in the Federal Register, published five days a week, and are subsequently arranged by subject in the Code of Federal Regulations.

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[goldilucky #47] The point I was making was that in that case you cited, there is no mentioned statute concerning what the Defendant was ever charged with specifically.

While at it, you might want to browse through this site on the CFR as it complements the Federal Registers.

You seem unable to comprehend the fact that no criminal charges are required against anyone in a CIVIL Asset Forfeiture case and are lost looking for criminal charges that need not exist.

As the instant case was a New York case, and not a Federal case, the applicable law would be New York law. It is not found in the mountain of Executive Branch Federal Regulations either in the Federal Register, or as collected in the Code of Federal Regulations. It is found in New York Civil Practice Law and Rules.

New York C.P.L.R. § 1311 on Forfeiture Actions provides:

A civil action may be commenced against a non-criminal defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime, or the real property instrumentality of a crime provided, however, that a judgment of forfeiture predicated upon clause (A) of subparagraph (iv) of paragraph (b) of subdivision three hereof shall be limited to the amount of the proceeds of the crime. Any action under this article must be commenced within five years of the commission of the crime and shall be civil, remedial, and in personam in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose. Except as otherwise specially provided by statute, the proceedings under this article shall be governed by this chapter. An action under this article is not a criminal proceeding and may not be deemed to be a previous prosecution under article forty of the criminal procedure law.

And,

(b) In a forfeiture action commenced by a claiming authority against a non-criminal defendant:

(i) in an action relating to a pre-conviction forfeiture crime, the burden shall be upon the claiming authority to prove by clear and convincing evidence the commission of the crime by a person, provided, however, that it shall not be necessary to prove the identity of such person.

(ii) if the action relates to the proceeds of a crime, except as provided in subparagraph (i) hereof, the burden shall be upon the claiming authority to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the non-criminal defendant either (A) knew or should have known that the proceeds were obtained through the commission of a crime, or (B) fraudulently obtained his or her interest in the proceeds to avoid forfeiture.

(iii) if the action relates to the substituted proceeds of a crime, except as provided in subparagraph (i) hereof, the burden shall be upon the claiming authority to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the non-criminal defendant either (A) knew that the property sold or exchanged to obtain an interest in the substituted proceeds was obtained through the commission of a crime, or (B) fraudulently obtained his or her interest in the substituted proceeds to avoid forfeiture.

(iv) if the action relates to an instrumentality of a crime, except as provided for in subparagraph (i) hereof, the burden shall be upon the claiming authority to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the non-criminal defendant either (A) knew that the instrumentality was or would be used in the commission of a crime or (B) knowingly obtained his or her interest in the instrumentality to avoid forfeiture.

(v) if the action relates to a real property instrumentality of a crime, the burden shall be upon the claiming authority to prove those facts referred to in subdivision four-b of section thirteen hundred ten of this article by clear and convincing evidence. The claiming authority shall also prove by a clear and convincing evidence that the non-criminal defendant knew that such property was or would be used for the commission of specified felony offenses, and either (A) knowingly and unlawfully benefitted from such conduct or (B) voluntarily agreed to the use of such property for the commission of such offenses by consent freely given. For purposes of this subparagraph, a non-criminal defendant knowingly and unlawfully benefits from the commission of a specified felony offense when he derives in exchange for permitting the use or occupancy of such real property by a person or persons committing such specified offense a substantial benefit that would otherwise not accrue as a result of the lawful use or occupancy of such real property. "Benefit" means benefit as defined in subdivision seventeen of section 10.00 of the penal law.

And,

(c) In a forfeiture action commenced by a claiming authority against a noncriminal defendant the following rebuttable presumptions shall apply:

(i) a non-criminal defendant who did not pay fair consideration for the proceeds of a crime, the substituted proceeds of a crime or the instrumentality of a crime shall be presumed to know that such property was the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime.

(ii) a non-criminal defendant who obtains an interest in the proceeds of a crime, substituted proceeds of a crime or an instrumentality of a crime with knowledge of an order of provisional remedy relating to said property issued pursuant to this article, shall be presumed to know that such property was the proceeds of a crime, substituted proceeds of a crime, or an instrumentality of a crime.

(iii) in an action relating to a post-conviction forfeiture crime, a noncriminal defendant who the claiming authority proves by clear and convincing evidence has criminal liability under section 20.00 of the penal law for the crime of conviction or for criminal activity arising from a common scheme or plan of which such crime is a part and who possesses an interest in the proceeds, the substituted proceeds, or an instrumentality of such criminal activity is presumed to know that such property was the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime.

(iv) a non-criminal defendant who participated in or was aware of a scheme to conceal or disguise the manner in which said non-criminal obtained his or her interest in the proceeds of a crime, substituted proceeds of a crime, or an instrumentality of a crime is presumed to know that such property was the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime.

Contraband is something which is unlawful to possess. If discovered, the government may seize it. Nobody can successfully such a forfeiture action as it would be impossible for them to establish that they lawfully possess that which is unlawful to possess. Persons who have their contraband seized generally disavow ownership. Any claimant would be providing evidence of his guilt and justify his own prosecution.

Your Federal Register entry is applicable to the Federal Bureau of Prisons and their regulations on what is considered contraband for inmates. The definition of contraband therein applies only to such inmates.

"Contraband any property the possession or transportation of which is ilegal. For instance, narcotic drugs, firearms, counterfeit money, or cigarettes which an individual intends to illegally distribute or use are contraband. 49 U.S.C. § 781." Law Dictionary, 2nd Ed., Steven H. Gifis, 1984.

The cited section has been moved to:

http://law.justia.com/codes/us/2014/title-49/subtitle-x/chapter-803/

2014 US Code
Title 49 - Transportation (Sections 101 - 80504)
Subtitle X - Miscellaneous (Sections 80101 - 80504)
Chapter 803 - Contraband (Sections 80301 - 80306)

http://law.justia.com/codes/us/2014/title-49/subtitle-x/chapter-803/

Table of Contents
Sec. 80301 - Definitions
Sec. 80302 - Prohibitions
Sec. 80303 - Seizure and forfeiture
Sec. 80304 - Administrative
Sec. 80305 - Availability of certain appropriations
Sec. 80306 - Relationship to other laws

http://law.justia.com/codes/us/2014/title-49/subtitle-x/chapter-803/sec.-80302/

49 U.S.C. § 80302 (2014)

§80302. Prohibitions

(a) Definition.—In this section, "contraband" means—

(1) a narcotic drug (as defined in section 102 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802)), including marihuana (as defined in section 102 of that Act (21 U.S.C. 802)), that—

(A) is possessed with intent to sell or offer for sale in violation of the laws and regulations of the United States;

(B) is acquired, possessed, sold, transferred, or offered for sale in violation of those laws;

(C) is acquired by theft, robbery, or burglary and transported—

(i) in the District of Columbia or a territory or possession of the United States; or

(ii) from a place in a State, the District of Columbia, or a territory or possession of the United States, to a place in another State, the District of Columbia, or a territory or possession; or

(D) does not bear tax-paid internal revenue stamps required by those laws or regulations;

(2) a firearm involved in a violation of chapter 53 of the Internal Revenue Code of 1986 (26 U.S.C. 5801 et seq.);

(3) a forged, altered, or counterfeit—

(A) coin or an obligation or other security of the United States Government (as defined in section 8 of title 18); or

(B) coin, obligation, or other security of the government of a foreign country;

(4) material or equipment used, or intended to be used, in making a coin, obligation, or other security referred to in clause (3) of this subsection;

(5) a cigarette involved in a violation of chapter 114 of title 18 or a regulation prescribed under chapter 114; or

(6)(A) a counterfeit label for a phonorecord, copy of a computer program or computer program documentation or packaging, or copy of a motion picture or other audiovisual work (as defined in section 2318 of title 18);

(B) a phonorecord or copy in violation of section 2319 of title 18;

(C) a fixation of a sound recording or music video of a live musical performance in violation of section 2319A of title 18; or

(D) any good bearing a counterfeit mark (as defined in section 2320 of title 18).

(b) Prohibitions.—A person may not—

(1) transport contraband in an aircraft, vehicle, or vessel;

(2) conceal or possess contraband on an aircraft, vehicle, or vessel; or

(3) use an aircraft, vehicle, or vessel to facilitate the transportation, concealment, receipt, possession, purchase, sale, exchange, or giving away of contraband.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1353; Pub. L. 104–153, §13, July 2, 1996, 110 Stat. 1389.)

http://law.justia.com/codes/us/2014/title-49/subtitle-x/chapter-803/sec.-80303/

2014 US Code
Title 49 - Transportation (Sections 101 - 80504)
Subtitle X - Miscellaneous (Sections 80101 - 80504)
Chapter 803 - Contraband (Sections 80301 - 80306)
Sec. 80303 - Seizure and forfeiture

49 U.S.C. § 80303 (2014)

§80303. Seizure and forfeiture

The Secretary of the Treasury or the Governor of Guam or of the Northern Mariana Islands as provided in section 80304 of this title, or, when the violation of this chapter involves contraband described in paragraph (2) or (5) of section 80302(a), the Attorney General or a person authorized by another law to enforce section 80302 of this title, shall seize an aircraft, vehicle, or vessel involved in a violation of section 80302 and place it in the custody of a person designated by the Secretary, the Attorney General, or appropriate Governor, as the case may be. The seized aircraft, vehicle, or vessel shall be forfeited, except when the owner establishes that a person except the owner committed the violation when the aircraft, vehicle, or vessel was in the possession of a person who got possession by violating a criminal law of the United States or a State. However, an aircraft, vehicle, or vessel used by a common carrier to provide transportation for compensation may be forfeited only when—

(1) the owner, conductor, driver, pilot, or other individual in charge of the aircraft or vehicle (except a rail car or engine) consents to, or knows of, the alleged violation when the violation occurs;

(2) the owner of the rail car or engine consents to, or knows of, the alleged violation when the violation occurs; or

(3) the master or owner of the vessel consents to, or knows of, the alleged violation when the violation occurs.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1354; Pub. L. 107–296, title XI, §1112(q), Nov. 25, 2002, 116 Stat. 2278.)

http://law.justia.com/codes/us/2014/title-21/chapter-13/subchapter-i/part-e/sec.-881/

See also 21 U.S.C. 881

2014 US Code
Title 21 - Food and Drugs (Sections 1 - 2252)
Chapter 13 - Drug Abuse Prevention and Control (Sections 801 - 971)
Subchapter I - Control and Enforcement (Sections 801 - 904)
Part E - Administrative and Enforcement Provisions (Sections 871 - 890)
Sec. 881 - Forfeitures

21 U.S.C. § 881 (2014)

§881. Forfeitures

(a) Subject property

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.

(2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or listed chemical in violation of this subchapter.

(3) All property which is used, or intended for use, as a container for property described in paragraph (1), (2), or (9).

(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1), (2), or (9).

(5) All books, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this subchapter.

(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter.

(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment.

(8) All controlled substances which have been possessed in violation of this subchapter.

(9) All listed chemicals, all drug manufacturing equipment, all tableting machines, all encapsulating machines, and all gelatin capsules, which have been imported, exported, manufactured, possessed, distributed, dispensed, acquired, or intended to be distributed, dispensed, acquired, imported, or exported, in violation of this subchapter or subchapter II of this chapter.

(10) Any drug paraphernalia (as defined in section 863 of this title).

(11) Any firearm (as defined in section 921 of title 18) used or intended to be used to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2) and any proceeds traceable to such property.

(b) Seizure procedures

Any property subject to forfeiture to the United States under this section may be seized by the Attorney General in the manner set forth in section 981(b) of title 18.

(c) Custody of Attorney General

Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the Attorney General, subject only to the orders and decrees of the court or the official having jurisdiction thereof. Whenever property is seized under any of the provisions of this subchapter, the Attorney General may—

(1) place the property under seal;

(2) remove the property to a place designated by him; or

(3) require that the General Services Administration take custody of the property and remove it, if practicable, to an appropriate location for disposition in accordance with law.

(d) Other laws and proceedings applicable

The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer.

(e) Disposition of forfeited property

(1) Whenever property is civilly or criminally forfeited under this subchapter the Attorney General may—

(A) retain the property for official use or, in the manner provided with respect to transfers under section 1616a of title 19, transfer the property to any Federal agency or to any State or local law enforcement agency which participated directly in the seizure or forfeiture of the property;

(B) except as provided in paragraph (4), sell, by public sale or any other commercially feasible means, any forfeited property which is not required to be destroyed by law and which is not harmful to the public;

(C) require that the General Services Administration take custody of the property and dispose of it in accordance with law;

(D) forward it to the Bureau of Narcotics and Dangerous Drugs for disposition (including delivery for medical or scientific use to any Federal or State agency under regulations of the Attorney General); or

(E) transfer the forfeited personal property or the proceeds of the sale of any forfeited personal or real property to any foreign country which participated directly or indirectly in the seizure or forfeiture of the property, if such a transfer—

(i) has been agreed to by the Secretary of State;

(ii) is authorized in an international agreement between the United States and the foreign country; and

(iii) is made to a country which, if applicable, has been certified under section 2291j(b) of title 22.

(2)(A) The proceeds from any sale under subparagraph (B) of paragraph (1) and any moneys forfeited under this subchapter shall be used to pay—

(i) all property expenses of the proceedings for forfeiture and sale including expenses of seizure, maintenance of custody, advertising, and court costs; and

(ii) awards of up to $100,000 to any individual who provides original information which leads to the arrest and conviction of a person who kills or kidnaps a Federal drug law enforcement agent.

Any award paid for information concerning the killing or kidnapping of a Federal drug law enforcement agent, as provided in clause (ii), shall be paid at the discretion of the Attorney General.

(B) The Attorney General shall forward to the Treasurer of the United States for deposit in accordance with section 524(c) of title 28, any amounts of such moneys and proceeds remaining after payment of the expenses provided in subparagraph (A), except that, with respect to forfeitures conducted by the Postal Service, the Postal Service shall deposit in the Postal Service Fund, under section 2003(b)(7) of title 39, such moneys and proceeds.

(3) The Attorney General shall assure that any property transferred to a State or local law enforcement agency under paragraph (1)(A)—

(A) has a value that bears a reasonable relationship to the degree of direct participation of the State or local agency in the law enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total law enforcement effort with respect to the violation of law on which the forfeiture is based; and

(B) will serve to encourage further cooperation between the recipient State or local agency and Federal law enforcement agencies.

(4)(A) With respect to real property described in subparagraph (B), if the chief executive officer of the State involved submits to the Attorney General a request for purposes of such subparagraph, the authority established in such subparagraph is in lieu of the authority established in paragraph (1)(B).

(B) In the case of property described in paragraph (1)(B) that is civilly or criminally forfeited under this subchapter, if the property is real property that is appropriate for use as a public area reserved for recreational or historic purposes or for the preservation of natural conditions, the Attorney General, upon the request of the chief executive officer of the State in which the property is located, may transfer title to the property to the State, either without charge or for a nominal charge, through a legal instrument providing that—

(i) such use will be the principal use of the property; and

(ii) title to the property reverts to the United States in the event that the property is used otherwise.

(f) Forfeiture and destruction of schedule I and II substances

(1) All controlled substances in schedule I or II that are possessed, transferred, sold, or offered for sale in violation of the provisions of this subchapter; all dangerous, toxic, or hazardous raw materials or products subject to forfeiture under subsection (a)(2) of this section; and any equipment or container subject to forfeiture under subsection (a)(2) or (3) of this section which cannot be separated safely from such raw materials or products shall be deemed contraband and seized and summarily forfeited to the United States. Similarly, all substances in schedule I or II, which are seized or come into the possession of the United States, the owners of which are unknown, shall be deemed contraband and summarily forfeited to the United States.

(2) The Attorney General may direct the destruction of all controlled substances in schedule I or II seized for violation of this subchapter; all dangerous, toxic, or hazardous raw materials or products subject to forfeiture under subsection (a)(2) of this section; and any equipment or container subject to forfeiture under subsection (a)(2) or (3) of this section which cannot be separated safely from such raw materials or products under such circumstances as the Attorney General may deem necessary.

(g) Plants

(1) All species of plants from which controlled substances in schedules I and II may be derived which have been planted or cultivated in violation of this subchapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the United States.

(2) The failure, upon demand by the Attorney General or his duly authorized agent, of the person in occupancy or in control of land or premises upon which such species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, shall constitute authority for the seizure and forfeiture.

(3) The Attorney General, or his duly authorized agent, shall have authority to enter upon any lands, or into any dwelling pursuant to a search warrant, to cut, harvest, carry off, or destroy such plants.

(h) Vesting of title in United States

All right, title, and interest in property described in subsection (a) of this section shall vest in the United States upon commission of the act giving rise to forfeiture under this section.

(i) Stay of civil forfeiture proceedings

The provisions of section 981(g) of title 18 regarding the stay of a civil forfeiture proceeding shall apply to forfeitures under this section.

(j) Venue

In addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought.

(l) 1 Agreement between Attorney General and Postal Service for performance of functions

The functions of the Attorney General under this section shall be carried out by the Postal Service pursuant to such agreement as may be entered into between the Attorney General and the Postal Service.

(Pub. L. 91–513, title II, §511, Oct. 27, 1970, 84 Stat. 1276; Pub. L. 95–633, title III, §301(a), Nov. 10, 1978, 92 Stat. 3777; Pub. L. 96–132, §14, Nov. 30, 1979, 93 Stat. 1048; Pub. L. 98–473, title II, §§306, 309, 518, Oct. 12, 1984, 98 Stat. 2050, 2051, 2075; Pub. L. 99–570, title I, §§1006(c), 1865, 1992, Oct. 27, 1986, 100 Stat. 3207–7, 3207–54, 3207–59; Pub. L. 99–646, §74, Nov. 10, 1986, 100 Stat. 3618; Pub. L. 100–690, title V, §5105, title VI, §§6059, 6074, 6075, 6077(a), (b), 6253, Nov. 18, 1988, 102 Stat. 4301, 4319, 4323–4325, 4363; Pub. L. 101–189, div. A, title XII, §1215(a), Nov. 29, 1989, 103 Stat. 1569; Pub. L. 101–647, title XX, §§2003, 2004, 2007, 2008, Nov. 29, 1990, 104 Stat. 4855, 4856; Pub. L. 102–239, §2, Dec. 17, 1991, 105 Stat. 1912; Pub. L. 103–447, title I, §102(d), Nov. 2, 1994, 108 Stat. 4693; Pub. L. 104–237, title II, §201(b), Oct. 3, 1996, 110 Stat. 3101; Pub. L. 106–185, §§2(c)(2), 5(b), 8(b), Apr. 25, 2000, 114 Stat. 210, 214, 216; Pub. L. 107–273, div. B, title IV, §4002(e)(3), Nov. 2, 2002, 116 Stat. 1810.)

https://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=17324

Wisconsin Supreme Court

Leonard L. Jones v. State, 226 Wis.2d 565, 594 N.W.2d 738 (1999)

¶46 Based on the enumerated items provided in Wis. Stat. § 968.13(1)(a), we conclude that contraband is not limited to materials which are per se illegal. Rather, it is clear that contraband encompasses those items that are not only per se illegal, such as controlled substances or forged money, but also those items which are used, acquired or transferred illicitly. Money which is established to have been acquired through the sale of or used to purchase controlled substances certainly constitutes contraband under§ 968.13(1)(a).

¶47 We also note that a rule of statutory construction, such as ejudem generis, is employed only to determine the legislative intent behind an ambiguous statute. State v. Tollefson, 85 Wis. 2d 162, 167, 270 N.W.2d 201 (1978). “It is impermissible to apply rules of statutory construction to ascertain legislative intent when the legislation is clear on its face.” Engler, 80 Wis. 2d at 406. We conclude that Wis. Stat. § 968.13(1)(a) is

¶48 This court in State v. Voshart, 39 Wis. 2d 419, 159 N.W.2d 1 (1968), recognized the difference between items which are per se illegal, and those items which are put to an illegal use. One of the issues before the Voshart court was whether concededly obscene materials which were improperly seized had to be returned to the defendant or could be destroyed as contraband. Id. at 434. The court determined that it would frustrate the public policy of the state based on the nature of obscenity to return admittedly obscene materials. Id. In reaching its conclusion, the court distinguished obscenity from “an article put to an illegal use,” instead equating the former with those materials that should be destroyed because they are illegal to possess, such as counterfeit money, diseased cattle and gambling devices. Id. at 435. In contrast, the money in this case is akin to items which may constitute contraband, under Wis. Stat. § 968.13(1)(a), if put to an illegal use, such as the “tools, dies, machines or materials” used to make forged money or written instruments.

¶49 While public policy may not dictate destruction of the money, it certainly does not require its return to the owner. The legislature has declared the abuse of controlled substances to be a serious problem for society, Wis. Stat. § 961.001, and that those who illicitly traffic in controlled substances constitute a menace to the public health and safety, § 961.001(1r). Accordingly, the public interest in the control, suppression and regulation of controlled substances and those who traffic in them dictates that money which is used to purchase or is acquired in the sale of controlled substances be designated as contraband.

¶50 Contrary to Jones’ assertion, our interpretation does not render Wis. Stat. § 968.13(1)(b) superfluous. He argues that under subsec. (b) anything which is the fruit of or has been used in the commission of any crime may be seized under a search warrant. Id. If an item is neither contraband nor needed as evidence, a person may seek return of the property, and the court shall order its return under Wis. Stat. § 968.20(1). Benhoff, 185 Wis. 2d at 603. Thus, while § 968.20(1)(b) authorizes the seizure of items which have been used in the commission of a crime, these items must be returned to the rightful owner when they are no longer needed as evidence or when the proceedings have been completed. § 968.20(1)(a) and (b). Contraband, on the other hand, need never be returned. Judicial Council Committee Note, 1969, § 968.20, Stats.

¶51 Jones also contends that a broad interpretation of contraband would lead to absurd results because the potentially innocent owner of the money which is seized and later found to be contraband is out of luck. However, Wis. Stat. § 968.20(4) directs cities, towns, villages, and counties to adopt procedures for disposal of seized property. These procedures are to include a presumption that if the substance appears to be or is reported stolen, an attempt will be made to return the substance to the rightful owner. § 968.20(4). Thus, a truly innocent property owner would have some recourse under the statute.

¶52 We also reject Jones’ argument that if an item is the “fruit of a crime,” or used to commit a crime, then the criminal charges are critical. According to Jones, items which are per se illegal need never be returned, but those items which are legal to possess but have been used in an illicit manner must be proven to be contraband in a forfeiture action or be returned to its rightful owner. This contention is untenable.

¶53 As this court stated in Voshart, when determining whether seized property constitutes contraband, the underlying criminal charges are not before us for review. Voshart, 39 Wis. 2d at 436. “Where the items were in fact contraband, properly found so to be by judicial determination in adversary proceedings, timely conducted, offending no constitutional safeguards, they would be subject to confiscation rather than return.” Id. Because contraband threatens the public health, safety and morals, the legislature has allowed for its seizure. Id. at 435. Similarly, controlled substances and those who traffic them are considered a substantial menace to the public health and safety. Wis. Stat. § 961.001(1r). Certainly money which is either the proceeds from or used for the purchase of controlled substances which has been found to be contraband in a judicial proceeding need not be returned simply because the charges have been dismissed.

¶54 In sum, we conclude that Wis. Stat. § 968.13(1)(a) is clear on its face, and that under this statute contraband is not limited to materials which are per se illegal. Rather, it is clear that contraband encompasses those items that are not only per se illegal, such as controlled substances or forged money, but also those items which are put to an illegal use or acquired illicitly, such as the purchase or sale of controlled substances.

IV.

¶55 Having determined that money may constitute contraband under Wis. Stat. § 968.13(1)(a), if it is established to have been acquired through the sale of or used to purchase controlled substances, the next question we are presented with is who has the burden of establishing this connection. In order to remove any incentive a prosecutor may have to never use Wis. Stat. § 961.55, the forfeiture statute, the State suggests, without opposition from Jones, that this court place the same burden of proof on the state which exists under Wis. Stat. § 961.555(3) on the issue of whether the property in question is contraband.

¶56 This court, in Welter v. Sauk County Clerk of Court, 53 Wis. 2d 178, 182 n.6, 184, 191 N.W.2d 852 (1971), addressed the burden of proof under Wis. Stat. § 963.04, which was superseded by Wis. Stat. § 968.20. The petitioner in Welter sought return of some 200 items involved in the killing of a law enforcement officer, and the wounding of another. Welter, 53 Wis. 2d at 180. The trial court denied the motion based on petitioner’s failure to particularize the evidentiary usefulness of the requested items in case a new trial were to be ordered. Id. at 183-84. This court affirmed, concluding that the burden of proof rests with the moving party to support the motion by proof. Id. at 184. We stated, “The burden of proof upon petitioner was, at the least, the responsibility to identify items which he claimed to be without evidentiary value, and his reason or basis for so claiming.” Id. at 185.

¶57 In his motion for return of the monies seized, Jones identified his claim to the money, and he indicated the basis of his claim, in accordance with Welter. It was the State, however, who argued that the money was contraband and need not be returned to Jones. Wis. Stat. § 968.20. Because the burden rests with the moving party to support the motion by proof, Welter, 53 Wis. 2d at 184, it follows that the State should have the burden of establishing that the property, in this case money, constitutes contraband as defined by Wis. Stat. § 968.13(1)(a), and need not be returned, § 968.20.

¶58 Wisconsin Stat. § 968.20 is silent on this question. However, actions in rem are civil and fall under the civil procedures of Wis. Stat. ch. 801. See Wis. Stat. § 801.01; State v. One 1973 Cadillac, 95 Wis. 2d 641, 644, 291 N.W.2d 626 (Ct. App. 1980). In addition, Wisconsin cases have applied the middle burden in civil actions involving criminal acts. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 299, 294 N.W.2d 437, 457 (1980). While the return of property statute does not involve criminal acts, the state’s contention that the property is contraband implies criminal or illicit activity. See Judicial Council Committee Note, 1969, § 968.20, Stats. (Contraband need never be returned). Thus, the appropriate burden of proof in this civil matter, as with other civil actions, is proof by the greater weight of the credible evidence. See Wis. JI-Civil 200 (1996); Kruse v. Horlamus Indus., Inc., 130 Wis. 2d 357, 362-63, 387 N.W.2d 64 (1986). We conclude that when the state contends that property need not be returned under § 968.20(1) because it constitutes contraband, the state must establish this by the greater weight of the credible evidence.

V.

¶59 In addressing whether money may constitute contraband under Wis. Stat. § 968.13(1)(a), we have concluded that property, in this case money, which has been found to have a significant connection to items which are illegal to possess, such as controlled substances, or have been acquired illicitly, may constitute contraband. We also have reaffirmed that an item found to be contraband need never be returned regardless of whether the underlying criminal charges are dismissed or not. Further, when the state has alleged property to be contraband, and therefore not subject to return, we have concluded that the state must establish that the property is contraband by the greater weight of the credible evidence.

¶60 We have yet to determine the effect of our holdings on the outcome of this case. At the hearing on Jones’ motion for return of the property, the circuit court placed the burden of establishing that the money was not contraband on Jones. This was in error. The proper question and the question before us now is whether the State established by the greater weight of the credible evidence that the money was drug-related and therefore contraband.

¶61 Whether a party has met its burden of proof is a question of law which we examine without deference to the circuit court’s conclusion. Burg v. Miniature Precision Components, Inc., 111 Wis. 2d 1, 12, 330 N.W.2d 192 (1983). However, in doing so, we must accept the circuit court’s assessment of the credibility of the witnesses and the weight to be given their testimony. See id. at 12-13; In re Estate of Glass, 85 Wis. 2d 126, 135, 270 N.W.2d 386 (1978). Because the State established, by the greater weight of the credible evidence, that the money was contraband, we conclude that the circuit court committed harmless error by placing the burden on the defendant.

¶62 The harmless error test appears in Wis. Stat. § 805.18, which requires this court to “disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.” § 805.18(1). When a court has committed a procedural error, § 805.18 precludes the court from reversing unless an examination of the entire proceeding reveals that the alleged error has “affected the substantial rights” of the party seeking reversal. § 805.18(2); State v. Armstrong, 223 Wis. 2d 331, 368, 588 N.W.2d 606 (1999).

¶63 When determining whether the circuit court error is harmless, this court must determine if there is a reasonable possibility that but for the error, the result of the proceeding would have been different. Armstrong, 223 Wis. 2d at 369. The State, as the beneficiary of the error, has the burden of showing that the error was harmless. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985).

¶64 The State has met its burden in this case. Jones was arrested for OWI, and a search incident to that arrest was conducted of Jones and the vehicle in which he was found. Jones moved to suppress the evidence and sought return of the money and property seized during the search. At the motion hearing, Officer Linsmeier testified to the evidence he found: a small scale, six cigarette lighters, three pieces of charred “Chore-boy” scouring pads and $1,783 in cash. Linsmeier explained that “Chore-boy” pads are regularly used in a crack pipe for ingesting crack cocaine and that a scale is a common tool that drug dealers use to measure drugs for sale. The wads of cash were also significant: the number of twenties in set totals, the separation of the money on Jones’ body, and the lack of any alternative explanation for the large amount of cash all indicated to Linsmeier that the money was drug-related. Jones presented no evidence to the contrary.

¶65 The circuit court found Linsmeier’s testimony to be credible in reaching its conclusion that the money was contraband. We accept the circuit court’s findings as to the credibility of the testimony unless they are clearly erroneous. Burg, 111 Wis. 2d at 12; Wis. Stat. § 805.17(2). Based on the evidence presented at the hearing, we conclude that the State established, by the greater weight of the credible evidence, a logical nexus between the money and the drug paraphernalia in Jones’ possession such that the money falls under the purview of Wis. Stat. § 968.13(1)(a) and need not be returned.[16]

¶66 We are unpersuaded that the cases cited by Jones dictate a different result. Jones concedes that the four cases he cites all stem from a different procedural posture, but insists these cases provide persuasive authority for this court to rule in his favor.

¶67 We do not agree. The result in each case turned on whether there was credible evidence to support the circuit court’s factual findings, and in three cases, the reviewing court determined that there was credible evidence to support the court’s findings. See State v. Roberts, 657 N.E.2d 547, 550 (Ohio Ct. App. 1995); State v. $7,000, 642 A.2d 967, 975 (N.J. 1994); and People v. United States Currency, $3,108, 579 N.E.2d 951, 956 (Ill. 1991). Similarly, in this case, we have concluded that there is credible evidence to support the circuit court’s finding that the cash was contraband.

¶68 In the fourth cited case, United States v. $506,231 in United States Currency, 125 F.3d 442, 453-54 (7th Cir. 1997), the court of appeals reversed the district court finding no evidence tying the money to narcotics pursuant to 21 U.S.C. § 881(a)(6), which allows for forfeiture of proceeds traceable to drug trafficking. The court concluded that without the statutorily required nexus connecting the money to drugs, the money was not subject to forfeiture. $506,231 in United States Currency, 125 F.3d at 452. The court did not determine whether cash could be contraband. We do not view the cited cases as controlling.

¶69 In summary, we hold that property, in this case money, which has been found in a judicial proceeding to have a logical nexus to items which are illegal to possess, such as controlled substances, or have been acquired through illicit means, may constitute contraband as defined in Wis. Stat. § 968.13(1)(a). If property is found to be contraband under § 968.13(1)(a), the property need not be returned to the owner whether criminal charges are filed or not. Wis. Stat. § 968.20. We also hold that the state is required to establish, by the greater weight of the credible evidence, that the property constitutes contraband. Even though the circuit court in this case mistakenly placed the burden on the defendant to show whether the cash was or was not contraband, we conclude that based on the evidence presented at the hearing, this error was harmless. Accordingly, we affirm the decision of the court of appeals.

By the Court.—The decision of the court of appeals is affirmed.

United States v. $506,231 in United States Currency

Insanity. An inanimate object is not capable of committing a crime.

Insanity. An inanimate object is not capable of committing a crime.

But it is capable of being the subject of an in rem legal action.

Damn, you are dumb.

Uncle Sam says you have no property right to contraband. He can and does take your illegal shit, including your money made from selling your shit, or intended to be used to buy more shit.

What's really insane is registering and getting a card certifying that you buy and use shit. Then Uncle Sam knows you can't be trusted with a firearm and takes that away.

21 U.S.C. § 881 (2014)

§881. Forfeitures

(a) Subject property

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.

(2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or listed chemical in violation of this subchapter.

(3) All property which is used, or intended for use, as a container for property described in paragraph (1), (2), or (9).

(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1), (2), or (9).

(5) All books, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this subchapter.

(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter.

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