The Ninth Circuit Court of Appeals has rejected Damon Louis’s appeal of a federal district court’s summary judgment for the government. The district court determined that Louis lacked standing to challenge the forfeiture action of the $133,420 seized from his rented automobile, after Louis was stopped for allegedly failing to use his traffic signal. The Ninth Circuit Court of Appeals appears to have made several mistakes including citing inapposite passages.
Perhaps simply confused, the effect of the appellate court’s ruling would seem to create situations wherein private property can be permanently confiscated from private citizens who aver ownership interest unless they waive protections against self-incrimination and answer expansive interrogatories-without any adjudication on the merits of the seizure. The framework would seem to permit the government to wield Article III standing challenges as a weapon designed to put the private citizen in the untenable position of having to sacrifice one constitutional right to maintain another.
Either it compels privileged information (by precluding citizens from exerting a constitutional right against compulsory self-incrimination -on pain of losing access to adjudicate actual violations of legally protected interests that are redressable by the court);
or, it forces the citizen to involuntarily cede property interest without adjudication (by precluding citizens from any access to the courts to rule on the impropriety of the taking-on pain of crimination).
The appellate court seems so untroubled by this result that it was willing to quote inapposite passages, ignore logic, and to jettison core constitutional principles to get there.
Yet, nothing-in the statutes or the supplemental rules-requires this result.
The court has gone out of its way to construe the statutes, supplemental advisory notes, and supplemental rules in a way that is abhorrent to the Constitution. It then sanctions the abhorrence.
That is simply terrifying.
To be deprived of something you must have it in the first place.
Damon Louis had property. The property was taken from him.
The seizure occurred after Arizona Department of Public Safety Officer Mace Craft executed a stop pursuant to an alleged failure to signal. Craft asked Louis if the vehicle contained large amounts of currency. The complaint indicates that Louis denied that a large amount of currency was in the vehicle. Officer Craft asked for permission to search the vehicle. Louis declined. Officer Craft indicated that he was going to have his K9 Unit Dog, Gabby, conduct a K9 olfactory search:
Officer Craft walked Gabby to the front of the vehicle and gave her the command to search. Gabby began working around the vehicle in a counterclockwise direction. She worked down the driver’s side before reversing direction. Gabby worked around the front of the vehicle and upon reaching the passenger side front tire, Officer Craft noticed a distinct change in Gabby’s behavior consistent with her working the odor of controlled substances. Gabby put her muzzle in the wheel well and immediately became very focused and excited. Gabby remained in this area and subsequently alerted by scratching. Officer Craft rewarded Gabby with her burlap toy and returned her to his patrol vehicle. Officer Craft advised Louis of the positive alert and informed him that he had probable cause to search the vehicle.-June 5th, 2009 Verified Complaint For Forfeiture In Rem
Officer Craft searched the Louis’s vehicle. In the trunk, Craft found two boxes containing decorative rocks. A third box contained a set of knives and $133,420 in United States currency. No inherently illegal contraband was found. Officer Craft seized the cash and transported Louis to an AZ DPS office. A search of Louis’s person revealed a receipt for the purchase of a set of knives time stamped from earlier that day. The receipt appears to be a receipt for the knives found in the trunk of Louis’s rental. The officers conducted a second K9 olfactory search at the AZ DPS. The Complaint states that Gabby, again, appeared to give a positive alert for the currency.
Upon arrival at the AZDPS office, Officer Gerard removed the three boxes from the trunk of the vehicle driven by LOUIS and placed them approximately fifteen feet apart in the parking lot. Officer Craft removed Gabby from his patrol vehicle and gave her the command to search. Gabby sniffed the first box and continued on to the second box. Gabby placed her muzzle in the seam of the second box and immediately became very excited and began biting and scratching at the second box. Officer Craft rewarded Gabby with her burlap toy and returned her to his patrol vehicle. The box Gabby alerted to the second box which contained the U.S. currency.-June 5th, 2009 Verified Complaint For Forfeiture In Rem
Louis was detained and questioned. Louis refused to sign any forms disclaiming ownership of the currency. The officers released Louis-less his cell phones and $133,420 in US currency.
So at this point, you have a search and seizure on a probable cause theory. The complaint implies that the search failed to turn up what it was looking for…i.e. the dog did not find what it was supposedly trained to find. Additionally, it did not find what the complaint alleges that it was being used to find. Officer Craft employed the dog to conduct a search for drugs. No drugs were found. The dog found the currency. They repeated a test and the dog, again, found the currency but no drugs. So, unless they were searching for currency, their search did not find anything that it was particularized to find. One could argue that since the dog gave a positive “drug” sniff to the currency; the currency is, at minimum, seizable evidence on the theory that it had drug residue. That is a theory. However, more than 80% of publicly tendered US currency has drug residue. It is not reasonable to permit the seizure of currency that has drug residue, because it has drug residue, in a country where more than 80% of the publicly tendered currency has drug residue. We would not have any workable system for publicly tendering currency. The currency would be worthless. Further, the frequency of drug residue and the frequency with which currency is tendered would seem to defenestrate any scienter theory-absent some other showing.
In any event, Louis has a plausible arguments to make challenges concerning the taking of the currency. It might not win, but it should be litigable. If he wants to invoke the Fifth Amendment protection against self-incrimination, he needn’t rely on any of his own testimony to make arguments concerning harms that are ordinarily justiciable.
Relying only the government’s in rem complaint, Louis can show many things.
The police searched Louis’s rented automobile without his permission. The police seized $133,420 and the cell phones that were in his possession. They handcuffed him. They detained him. They questioned him. Louis refused to sign a form disclaiming ownership of the currency. The police found the currency stored in the trunk of his rental, in a box which also held knives for which he had a receipt. The receipt was taken from his person. The police search of his vehicle did not reveal any contraband. The dog was supposedly trained to search for drugs. It was supposedly searching for drugs. It found no drugs. It found currency. The police repeated the exercise outside of the vehicle and the dog again found currency but no drugs. The searches, seizures, detentions, and initiation of forfeiture action were directly caused by police conduct. The in rem complaint also states, “[o]n March 9, 2009, Damon J. Louis, through his attorney David M. Michael, filed a claim for the defendant currency with the Drug Enforcement Administration.” The government’s in rem complaint establishes that these actions took place independent of any entered testimony by Louis.
The court could, if so inclined, redress the situation with a favorable judgment to Louis (returning the currency, fees, and possibly awarding damages). Louis is the party that had his rights most violated. And, the court is in the best position to make Louis whole again. That a regulatory, statutory, and judicial process exists to process such claims implies that this would be the best avenue to handle such claims.
Louis filed a claim for the currency on March 9, 2009. The government initiated an in rem civil forfeiture proceeding on June 5th, 2009; pursuant to 21 U.S.C. §881(a)(6) and 18 U.S.C. § 981(a)(1)(C). In August of 2009, Louis filed a verified claim. Louis’s verified claim stated, “[t]he undersigned hereby claims an ownership and/or a possessory interest in, and the right to exercise dominion and control over, all or part of the defendant property.”
In October, 2009, the government served Louis with a series of special interrogatories, document production requests, and admission requests-pursuant to the Federal Rules of Civil Procedure and Rule G(6) of Supplemental Rules for Certain Admiralty or Maritime Claims. The requests sought “information and documents relating to Louis’s identity, his claimed interest in the defendant property, his manner of acquiring that interest, his sources of income, and his and the currency’s relationship to drug trafficking.”
Louis asserted that he had litigable interest in the property. Louis asserted that the property was taken without probable cause. He made a motion which would compel the adjudication of the establishment of probable cause. In response to the interrogatory questions, Louis invoked Fifth Amendment privilege against self-incrimination in answering questions beyond confirmation of his identity (addresses, telephone numbers, names, identity numbers, et cetera) and a direct statement about his relationship to the property: “Without waiving said objections, my interest in the defendant property is as the owner and possessor of said property, with a right to exercise dominion and control over said property.”
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