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ON THE DEFENSIVE: The dangerous reach of civil forfeiture laws

By: Anthony Cotton//August 20, 2013//

ON THE DEFENSIVE: The dangerous reach of civil forfeiture laws

By: Anthony Cotton//August 20, 2013//

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Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Law enforcement officers for years have taken advantage of overly broad civil forfeiture laws.

The laws let police seize a person’s money and property, allege a relationship between the items and drugs, and thus require the owner litigate the return of the money or property.

Defense attorneys have been aware of the problem for a long time.

The forfeitures typically unfold like this: Police stop a driver, claim they smell marijuana and then search the vehicle, without consent, because of the purported odor. It matters little whether there is marijuana in the vehicle because the smell alone justifies the search.

And if an officer finds a large sum of money, it often is seized.

To buttress the claim that the money is related to drug trafficking, officers often assert the driver was operating along a known drug route. A Sheboygan County Sheriff’s deputy, for instance, recently characterized his traffic stop as having occurred on a “known drug corridor.” He was referring to Interstate 43, the only freeway that connects to Sheboygan.

Appeals courts rarely critique traffic stops made on pretext. Police can stop drivers for such meaningless infractions as having an air freshener dangling from the mirror. Officers call that an “obstructed view.”

Once property has been seized, the owner has to decide if it is worth spending money for the uncertain chance of securing the return of money. Police know many people in that situation opt to let the property go, which means law enforcement can keep the seized items.

Many police departments derive a portion of their operating budgets from forfeitures, thus necessitating an aggressive use of the practice.

Attorneys can stem that abuse, even when the property owner is guilty of a crime, by litigating forfeitures as violating the constitutional prohibition on “excessive fines.”

In State v. Michael Peloza, the Wisconsin Court of Appeals ordered a 2009 Mitsubishi Lancer, valued at $16,000, returned to Peloza. The court ruled for Peloza even though it was clear he had used the vehicle while selling marijuana.

But because Peloza was convicted for simple marijuana possession, and because simple possession carries not more than a $1,000 fine, the court held that the seizure violated the Eighth Amendment because the vehicle was worth 16 times the maximum fine amount.

Forfeiture law has a place in our justice system, but it can be abused unless judges have the courage to analyze cases with a critical eye.


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