In February of 2016, a sheriff’s deputy in Muskogee County, Oklahoma, pulled over a van for a broken taillight. Eventually a drug-sniffing dog was brought in and “alerted” on the van, giving the deputies probable cause to search it under the Fourth Amendment.
The police didn’t find any drugs, but they did discover something else quite interesting: fifty-three thousand dollars in cash.
Deputies brought the driver into the station for questioning. After all, who carries that kind of money? They interrogated the man for six hours, but they concluded that his story—he said was in some sort of band—didn’t add up. It didn’t help that he had a thick foreign accent and had trouble understanding their questions.
The deputies decided that the cash was drug money and seized it. The man, whose name was Eh Wah, was let go with a receipt saying his property had been taken for the crime of “possession of drug proceeds.” A couple weeks later, Wah received a notice that the state of Oklahoma was moving to forfeit his fifty-three thousand dollars in civil court.
In April, two months after it seized Wah’s money and let him go, the Muskogee County Sheriff issued an arrest warrant for Wah on a charge of acquiring proceeds from drug activity, despite the fact that not one iota of drugs was found in his van.
The problem was that Wah was not a drug mule. He was an American citizen who came to the country as a Burmese refugee. Wah, aged forty, was the tour manager for a band, the Klo & Kweh Music Team, that was touring across the country to raise money for a Christian college and orphanage in Burma.
But Wah had run afoul of civil asset forfeiture, a legal practice that allows police and prosecutors to seize property suspected of being connected to criminal activity, even if the owner hasn’t been convicted or charged with a crime.
Civil asset forfeiture laws exist in all fifty states, although several have effectively abolished the practice in recent years. Law enforcement groups say it is an essential tool for disrupting drug cartels and other organized crime by targeting their ill-gotten gains. It’s hard to catch cartel bosses and haul them into court, but it’s much easier to interdict the planes, boats, cars, cash, and drugs that fuel their operations.
However, as the drug war ramped up and law enforcement’s use of asset forfeiture exploded beginning in the Eighties, news outlets and civil rights groups began to find more and more cases like Wah’s, in which innocent people were being shaken down by the police without ever being charged with a crime.
Many people’s reaction to first hearing about civil asset forfeiture is disbelief. Police taking your stuff on mere suspicion of wrongdoing? Surely not in America. Although civil asset forfeiture sounds antithetical to a civics textbook description of our justice system, it has a long, well-established history in American law, and in common law before that. In the early years of the American republic, asset forfeiture was a tool to crack down on smugglers trying to dodge steep tariffs and customs.
After the country’s founding, almost all of the government’s revenue came from tariffs. But for a government to make money off of heavily taxed imports, it must stop the flood of contraband. Civil asset forfeiture was created to give the authorities (and privateers) a way to seize contraband without having to try and prosecute the ship’s owner, who was likely in a different country. (Hundreds of years later, illegal fishing fleets still exploit the same jurisdictional weaknesses in maritime law enforcement, obscuring their ownership behind shell companies and registering their ships to foreign jurisdictions with lax regulations, such as Liberia or Mongolia, the latter of which boasts an impressive merchant navy for a landlocked desert country.)
Civil asset forfeiture avoided this hassle by operating under the legal fiction that it is an action against the property itself—an in rem, “against the thing,” seizure—rather than against the owner, in personam. In rem seizures allowed the government to claim smuggled goods quickly and neatly.
The doctrine of in rem jurisdiction also created one notable quirk in American law. The property is listed as the defendant, rather than the owner. So if the Coast Guard seizes a cargo hold full of illegal shark fins, the case appears on a federal court docket not as U.S. v. Tai Loong Hong Marine Products, but instead U.S. v. Approximately 64,695 Pounds of Shark Fins. That’s a real case. The Ninth Circuit Court of Appeals ruled in favor of the shark fins in 2008.
Most cases are less exotic, though. Illicit narcotics move around the United States largely by car these days. Because of the ubiquity of automobiles in everyday life and crime, a considerable body of asset forfeiture case law is named after or involves cars.
The New Jersey Supreme Court affirmed the right to jury trials in drug forfeiture cases in State v. One 1990 Honda Accord. The Pennsylvania Supreme Court did the same in Commonwealth v. One 1984 Z-28 Camaro Coupe. The South Dakota Supreme Court cited both cases in its similar holding in State v. One 1969 Blue Pontiac Firebird and $4,403.83 in American Currency. And when the Supreme Court ruled in 2018 that the Constitution’s proscription of excessive fines and fees applied to the states under the incorporation doctrine, the literal vehicle for the incorporation was a Land Rover.
In 2014, I spent a September morning sitting in Room 478 on the stiflingly hot fourth floor of Philadelphia City Hall. I was watching a couple of prosecutors churn through civil asset forfeiture hearings. Wednesday was always busy at the city’s forfeiture court. It was car day.
Although the huge cash and drug busts that police tout do occur, the day-to-day reality of asset forfeiture looks like Room 478. There was no judge. Instead, two prosecutors from the district attorney’s office started calling car owners forward for about thirty seconds at time, and then handed them a legal questionnaire to fill out.
Owners had to go to these hearings to challenge the forfeiture of their cars. Because these cases were civil, the owners had no right to an attorney. If an owner missed a hearing, the city could move to assume ownership of his or her vehicle summarily. After making owners schlep to four or five of these hearings, prosecutors typically offered to settle the case: pay a fine and get your car back.
This wasn’t unusual. In Wayne County, Michigan, prosecutors charge nine hundred dollars plus towing and storage fees to “settle” forfeiture cases. Wayne County seized more than two-thousand six-hundred cars over the past two years. Of those seizures, four-hundred seventy-three weren’t accompanied by a criminal conviction, and in four-hundred thirty-eight, no one was charged with a crime.
If paying money to get your car back for a crime you were never charged with sounds extortionary, that’s because it is. The alternative is challenging the seizure in court and paying for an attorney, which, in the sorts of cases that Wayne County and Philadelphia often pursued, would cost more than the value of the car itself. The lack of due process protections for innocent owners and low evidentiary standards are among the primary objections to civil asset forfeiture raised by groups such as the American Civil Liberties Union.
The last person the Philadelphia prosecutors called up that September morning was Megan Doto, a twenty-five-year-old mother of two who was eight months pregnant with her third child.
Doto said a father of one of her friends drove her car to a shop to get a new sound system installed. When he was later arrested on criminal charges, none of which involved Doto, police arrived at the shop and seized her car.
That was in April, and Doto had been to four hearings in Room 478 since then. “I have a court hearing in October, and the lady in there just told me I’m going to have to pay all the fees to get my car back,” Doto told me as she walked out of the courtroom. “I don’t have money like that.”
She had not been charged with a crime. In the meantime, she was relying on the bus to get herself and her two small children around.
Doto never made it to her October hearing. Four days after I interviewed her, she was killed by a stray bullet while sitting on her porch, babysitting a neighbor’s kid. After I emailed the Philadelphia District Attorney’s Office a couple of times, a spokesperson told me that, given the tragic circumstances, it would drop its claim against Doto’s car and return it to her estate.
At that time, Philadelphia had one of the most aggressive and unchecked asset forfeiture programs in the country. A report in 2015 found that most of what was seized was cash, small sums averaging less than two hundred dollars. The report found that a third of cash seizures were not accompanied by a criminal conviction.
The City of Brotherly Love didn’t just seize petty cash and cars, though. It went after people’s houses. The Institute for Justice, a libertarian-leaning public interest law firm, filed a class action in 2014 against the city’s asset forfeiture program. The lead plaintiffs were Christos and Markela Sourovelis, whose house had been seized after their son was arrested for selling forty dollars’ worth of heroin outside of it.
The institute obtained records through the lawsuit showing that Philadelphia had seized more than one thousand homes, three thousand vehicles, and forty-four million dollars in cash over eleven years. Among the houses seized was that of a seventy-two-year-old grandmother whose son sold small amounts of marijuana to a police informant. (The officer who coordinated the buys was later sentenced to three and a half years in federal prison on corruption charges involving the planting of drug evidence.) An investigation in 2018 found several instances in which Philadelphia police officers bought seized houses at auction.
This all gets to what opponents of civil asset forfeiture say is one of its other major problems: perverse incentives. In many states, the proceeds of asset forfeiture go directly into the budgets of police departments and district attorneys’ offices. The allure of quick, easy cash leads agencies to go fishing, to create slush funds with forfeiture revenues, and to become dependent upon forfeitures to fill out their budgets. This is not a hypothetical concern.
In Pennsylvania, the Lancaster County District Attorney announced that the county drug task force was missing one-hundred-fifty thousand dollars from its asset forfeiture fund in what “appears in every aspect to be an internal theft.”
The Georgia Department of Revenue returned more than two million dollars to the state treasury in May 2020 after local news investigations revealed that the department spent millions of dollars in forfeiture funds “on engraved firearms, pricey gym equipment, clothing, personal items, even $130 sunglasses.”
And in March of last year, Dana Nessel, Michigan’s attorney general, announced that her office was charging the Macomb County prosecutor and three other county officials with a “litany” of felony crimes for embezzling and misusing roughly six-hundred thousand dollars in asset forfeiture funds.
The small city of Castleberry, Alabama, population five-hundred fifty, created a speed trap, then assembled its own police force to raise revenue through undocumented cash seizures that resembled outright highway robbery more than a normal judicial process.
I once found a case in Hinds County, Mississippi, in which sheriff’s deputies stripped the furniture out of a woman’s apartment because her boyfriend was a suspected drug dealer. The woman challenged the seizure and eventually reached a settlement to return nearly all of it, except for her couch. Here is the actual settlement order from February 10, 2015:
It is, therefore, ordered and adjudged that one Visio television, one dining room table and chairs, pictures and lamps are to be returned to the plaintiff upon execution of this Order by this Court. Additionally, one white couch is hereby forfeited to the Hinds County Sheriff’s Office.
I called several Hinds County government agencies but never discovered the whereabouts of the couch. “Her case is the first in my thirty-eight years of practicing law where they took the furniture,” the woman’s attorney said.
To be clear, police vacuum up tons of drugs and millions of dollars in drug proceeds annually through highway interdiction and legitimate asset forfeiture cases. You can go to the U.S. Marshals Service asset forfeiture website and browse auction listings for seized assets, including boats, private jets, and gaudy gold chains and watches. The asset forfeiture spreadsheets I frequently pore over for my reporting are chock-a-block with guns, safes, bill counters, marijuana grow lights, and other tools of the drug trade, as well as televisions and gaming consoles.
And one can understand why a state trooper might be suspicious, for instance, of the origins of one hundred thousand dollars in cash hidden in a rental car, or why an agent from the Drug Enforcement Administration might want to question someone going through the airport with a duffel bag full of cash. A Justice Department Inspector General review of cash seizures at airports found that the seizures were only challenged in twenty percent of cases.
But there’s also nothing expressly illegal about carrying large amounts of cash. As long as you are not breaking the law, it is generally assumed in this country that you are free to go about your business without having to justify yourself to a government official. The worst abuses of asset forfeiture occur when a police officer decides that someone simply has no good reason for carrying around a lot of money. Take the case of Rebecca Brown. An agent seized eighty-two thousand dollars from Brown—her elderly father’s life savings, which she said she was taking to deposit in a bank—after she tried to board a plane in Pittsburgh with the cash. The D.E.A. agreed to return the cash after the Institute for Justice filed a lawsuit on behalf of Brown and her father.
The good news is that more than half of all states have passed legislation reforming asset forfeiture during the last decade as journalists and civil liberties groups have brought more of these outrageous cases to light. Those new laws were often passed by wide bipartisan margins, and sometimes unanimously, despite the objections of law enforcement and prosecutors associations.
Several states—North Carolina, New Mexico and Nebraska—now require a criminal conviction to forfeit assets, effectively abolishing civil forfeiture. California passed reforms requiring criminal convictions for assets totaling less than forty thousand dollars. Other states have established stricter reporting requirements and stronger due process protections for owners, and have earmarked forfeiture revenues for general funds rather than police budgets.
Local and state police still get around these restrictions, though, by partnering with federal drug task forces. The federal government “adopts” forfeiture cases, moving them to federal court. In exchange, the local police get eighty percent of the forfeiture proceeds, while the other twenty percent goes in a Justice Department fund that doles out hundreds of millions of dollars a year to police departments around the country.
The Obama administration limited the circumstances under which the Justice Department could adopt such cases, but its successor rescinded that memo and opened the forfeiture spigot back up.
As for Eh Wah, the band manager, his case made its way to the Institute for Justice, which tipped off the Washington Post. The Post published its story on the morning of April 25, 2016, and by that same afternoon the Muskogee County Sheriff announced that it was dropping its forfeiture claim against Wah and would return the fifty-three thousand dollars.
One wonders what those ace investigators found that suddenly changed their minds. Besides of course, shame.
C.J. Ciaramella is a reporter for Reason.
