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.
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.
Paul Joseph, a law professor at Nova University in Fort Lauderdale, says that the government's ability to hold money or cars for months while the courts decide the case, gives the state unfair leverage to negotiate settlements, as with Liukkonen.
Further, says Mr. Joseph, ``forfeiture is being used by law enforcement for punishment, in lieu of criminal prosecution, but for the same purpose.''
Law enforcement officials, however, defend forfeiture as a valuable tool in breaking up drug trafficking and other criminal endeavors.
``It's an effective deterrent,'' says Jeffrey Hochman, forfeiture attorney for the Fort Lauderdale Police Department. Drug dealers, he says, ``don't understand anything else. They understand going to jail or seizing their assets.''
``It's not unconstitutional. It's not an abuse of power. It's not anything like that,'' he adds.
Forfeiture laws have relieved burglars and shoplifters of the cars used in committing crimes and even pimps of the computers they used to list their prostitutes and customers.
``The reason these laws are such a good weapon against crime,'' says Brad Cates, director of the US Justice Department's asset forfeiture department, ``is that with traditional laws, yes, you can send a guy to prison for a couple years. But if he has a couple million bucks waiting for him when he gets out, maybe that isn't such a bad deal.''
In Florida, civil laws like the Contraband Forfeiture Act provide the only means of separating criminals from their ill-gotten gains. Although on the federal level criminal law often provides for forfeiture, the Florida Constitution is commonly read to bar the seizing of property as a punishment.
Civil forfeiture is not legally a punishment. Rather, the cases are made against the property itself, not a person. They have titles such as ``United States v. $2,500 in United States Currency'' or ``United States v. 295 Ivory Carvings.''
David Smith calls forfeiture a ``quasi-criminal punishment for non-criminals.'' It is often used, he says, where no criminal charges are filed.
Janet Ferris, general counsel to the Florida Department of Law Enforcement, acknowledges that it seems unfair to seize property and then make the citizen justify owning it. But, she says, ``you have to presume that law enforcement officers have probable cause.''
``Unfortunately,'' she adds, ``law enforcement has to make these decisions, and we hope they make them well.'' Police must be especially careful not to abuse forfeiture powers by seizing goods in hopes of forcing a settlement, Ms. Ferris says.
Defense lawyers such as Mr. Stein complain that police often see a large chunk of cash as probable cause in itself, especially if a person looks like a 1970s-style hippy or a flashily-dressed black.
Sam Price, attorney for the Broward County, Fla., sheriff's office, which seized Liukkonen's money, says officers at airports and bus stations look for people fitting profiles of typical drug couriers.
``A lot of it is subjective,'' Mr. Price says. ``A lot of it is subject to the hunch.''
Matching the profile and carrying a large amount of cash does not establish probable cause, according to Price, although some attorneys disagree. But, he adds, ``we've got 2,200 sworn people. Sometimes the officers are overzealous.''
The Broward sheriff often pursues forfeiture cases without filing criminal charges. One edge the civil cases offer is that the Fifth Amendment right against self-incrimination does not apply, Mr. Price notes.
In taking depositions of property owners, he explains, ``we can bring a guy in and ask him all kinds of embarrassing questions.''