This one comes from Aurora, Illinois, where two brothers were pulled over on suspicion of drug dealing. They didn't find any drugs and they didn't arrest them, but they did seize about $190K in cash and now they're refusing to give it back.
Two brothers who say police unlawfully seized more than $190,000 from them during a traffic stop had been under surveillance and were suspected of drug-dealing, a lawyer for the city of Aurora said today during a court hearing.
Though neither Jose nor Jesus Martinez is charged with a crime, authorities are seeking forfeiture of $190,040 found in Jesus' truck when he was stopped by an Aurora police officer on Oct. 18.
A Kane County judge ordered the money returned, but the city has refused.
Now here's the city's argument for why they should be allowed to keep the cash:
But during the hearing, an attorney disclosed reports from an Illinois State Police drug task force saying police had received court permission to tap the brothers' phones on the suspicion they were involved in drug trafficking.
Chicago attorney John Murphey, who is representing Aurora, said the city had not been at liberty to discuss the case until today.
"We were constrained by a live, serious investigation," said Murphey, who said he had been informed that the phase of the investigation involving the Martinez brothers was over...
The new documents allege that North Central Narcotics Task Force officers were listening in on a call between the Martinez brothers in which they discuss Jesus' planned meeting with a man named Charlie in the parking lot of a Home Depot in Aurora.
According to the report, Jose tells Jesus, "The package is ready," though there is no explicit mention of drugs.
The report said police observed Jesus Martinez arrive in the parking lot at 8:07 p.m. on Oct. 18 and talk with another man for a minute before both left in separate vehicles. No exchange is reported between the men, and police apparently did not stop the second driver, who was in a gray minivan.
So they're arguing that because they were investigating the men for drug dealing, they should be allowed to keep the seized money. But they haven't even arrested them, much less charged them and much less convicted them of anything. Unfortunately, they're probably going to lose this case because the burden of proof is not on the state but on them to prove where they got the money.
It's hard to imagine a more clear violation of the constitution. But our courts have consistently allowed it because, they say, this is a "civil" asset forfeiture as opposed to a "criminal" asset forfeiture. And that's nonsense. If the government is taking away your property on the premise that it was involved in a crime, that's a criminal accusation and all of the constitutional provisions for criminal trials should apply.
by Ed Brayton
December 14, 2010
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