Joined: 01-24-2003 Posts: 30,817 |
rfenst wrote:I represented my law school at a competition against other law schools from around the country and the two issues/topic were whether a traffic stop was reasonable vs. pretextual and whether there was a duty to answer questions. This used to be "my baby", so much so it was the reason I was hired as a clerk by a large, well known, Fort Lauderdale, law firm during the late 80's. While there, I was heavily involved in two civil forfeiture cases when drug forfeitures cases were at their peak there.
The first one involved a suspected drug dealer in Fort Lauderdale who was pulled over for speeding 100mph on I-95 in his Ferrari. The cops had to have immediately known who he was. But, after the ticket, he stupidly gave the cops permission to search his car. They found one item in the trunk, a briefcase (or box). He denied to them ownership of it and claimed he didn't know how it got there. So, the cops opened it, found $250K in $100 bills, and seized it. I was totally OK with that. The stop was good, he gave permission to search and denied ownership. What I wasn't OK with was the state trying to seize/forfeit the Ferrari he was driving- since they couldn't trace the car to criminal activity. We got the car back fast. I don't think he gave a chit about the money.
The other case involved a black man who was pulled over in the middle of the night for speeding on the turnpike in a brand new rental car (Lincoln) with Georgia rental plates. He was from bum-frank Egypt, rural Georgia, and couldn't speak clearly. To put it politely, he and that car must have been an VERY odd mismatch. The cop asked him where he was going so late at night and in such a rush. He said he was traveling to Miami to buy a tractor-trailer(s) to haul produce from his farm to market- because he heard truck prices were lowest in Miami. The cop saw five big paper grocery bags in the back seat and asked him what was in them. HE TOLD THEM it was HIS life savings in cash and gave the cop permission to search the car. The bags were full of bundles of small bills totaling $150k. That is, $30k in small bundled bills per bag (which also just so happened to be about the price of two kilos of cocaine there at that time). Cash was seized. He was allowed to leave in his rental car with a speeding ticket. Seizure made the newspaper.
So, just a few days later, when he came to the office for the first time, I quickly concluded he was not even capable of creating such a plan, let alone successfully executing it. Yet, he had like 10 properly drafted different affidavits in different formats, signed by his relatives and "friends", that had just been overnighted to him that morning. Each signer claimed to have loaned cash from their "savings at home" and therefore there were no bank withdrawal receipts or promissory notes backing up their affidavits. No way possible he could have figured out the affidavit thing and certainly not within just a couple of days. Nevertheless, we got the cash back in like a week or so.
I felt good about winning winning entire matter (despite knowing in my heart it was all b.s.) until a day or two later when I saw the overnight envelope the affidavits had been sent in had a return address of an Atlanta law firm. I asked wtf he was involved in the case for? He laughed at me and bragged it was like his third case involving a client from the same part of Georgia and that his work was "watched over" in each case by the same Atlanta lawyer, whose probable true client's name was never asked for or revealed. Despite having a wife and three kids, he didn't seem to even care that drug dealers were killing their own lawyers in the streets- when they blamed their lawyers for losing their cases. He even bragged that his fee was 1/3 of each recovery each time. I couldn't feel good about even just winning anymore. At that point, I wanted to puke. And, fast forward 20 years: The criminal lawyer was disbarred and two of his partners (neither of which were even criminal lawyers) were indicted for money laundering.)
There is a whole lot wrong with forfeiture in so many ways on both sides of the issue. One major problem is that the standard for forfeiture, "more likely than not"/"preponderance of the evidence", is too low of a legal standard. Instead, the standard needs to be raised to the same standard as criminal conviction requires- "beyond a reasonable doubt." Forfeiture proceedings should be reviewed by a judge emergently (like 3-5 days max) to determine the propriety of the state's potential seizure case. If it sucks, the judge should kick it right then and there and immediately return the seized property, but allow the state to re-file if it feels it comes up with sufficient proof (after the property has been returned. If a case go to trial, it should be fast (like 30 days maximum). State should pay big-time fees and costs whenever it loses to inhibit wrongful seizures and encourage attorney's to take even small seizure cases- that otherwise don't make financial sense to pursue.
Bottom line no the matter what: Once you get your ticket, ask if you are "free to leave" and say nothing else. The cop may start asking questions, but you do not ever have to answer them (or claim the 5th), especially if you ask if you are free to leave again. Then when told yes, leave!!! You should not feel bad, regardless of the man's actual "business", it was wrong to take his money without due process.
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