Authorities target the profits of crime. Critics say defendants are stripped of rights as well as property
At the Fort Lauderdale, Fla., airport last spring, as Roger Liukkonen arrived from Boston, the police asked to search his bag. He agreed. They found $14,900 in cash and took it. Mr. Liukkonen was never arrested, never charged with any crime. But his lawyer admits he is ``street-looking,'' and was carrying a small tool sometimes used to cut cocaine.Skip to next paragraph
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Police deemed those facts and the large chunk of cash to be probable cause to believe that the money was intended for a drug purchase.
Overall, the laws aimed at stripping criminals of ill-gotten gains and property used in felonies are tapping a mother lode for government agencies from the local to federal levels.
In the last fiscal year, federal agents brought in $550 million in seized assets. The Florida attorney general's racketeering section helps seize enough goods to cover its own budget.
When $2.4 million in drug profits made by Jerry Smith - a one-time cop turned marijuana smuggler - was divided up last month, the money first paid the Fort Lauderdale police for the cost of investigating him, then helped avoid a 3 or 4 percent property-tax hike in the city - according to the police chief.
But forfeiture of cash, cars, boats, and other valuables does not stop with criminals.
After Liukkonen's money was seized, the burden of proof fell on him to prove that the money was intended for legal purposes. He sued to get his money back. The suit was thrown out because the state has three months to muster its own case against the property.
Rather than wait and pay more in legal fees and travel expenses, which already had cost him $7,000, Liukkonen settled by letting the sheriff's office keep $3,000 of the money and promising not to sue further.
Even if he had won return of his money, legal and other expenses are not recoverable under Florida's Contraband Forfeiture Act. ``Even if you win, you lose,'' says Liukkonen's lawyer, Stuart Stein, ``because you've got to pay your lawyer.''
Seizures like this have been challenged and upheld all the way up the Florida and US court systems. The federal government and most states, in fact, now have civil laws permitting government seizure of property linked to felonies. Florida's law is one of the most sweeping.
Unlike a criminal prosecution, in which where guilt must be established beyond a reasonable doubt, goods can be seized under civil forfeiture laws on the basis of evidence that gives an officer ``probable cause'' to believe that the property is related to criminal activity. Such evidence can include hearsay or circumstantial evidence. Then the burden falls on the owner to prove that the goods are not contraband.
The result, as in Liukkonen's case, is that property is sometimes forfeited where no crime has been established.
It is legal but unfair, says David B. Smith, author of ``The Prosecution and Defense of Forfeiture Cases,'' a legal textbook. Forfeiture laws, the Virginia attorney says, ``can be used to forfeit the property of totally innocent people.''
Even Joseph Boyd, then-chief justice of the Florida Supreme Court, expressed doubts about forfeiture in a dissenting opinion on a 1985 state court decision. Chief Justice Boyd was particularly concerned that while police had months to hold alleged contraband before filing a case, citizens had no legal recourse but to wait.
``I would require the state to do its investigating before seizing any private person's property and to be ready to immediately respond to judicial inquiry into the legality of the procedure,'' Mr. Boyd wrote.