4/18/2018Utah Supremes To Decide Whether Cops Are Violating Forfeiture Ban
Utah Supreme Court to decide whether police can avoid ban on taking money from motorists not charged with any crime by calling in the feds.
Voters in Utah banned state officials from seizing property from people who committed no crime almost two decades ago -- or so they thought. Ever since Initiative B passed with 69 percent of the vote, police have evaded its provisions by seizing cash, turning it over to federal authorities, and then taking a cut of the proceeds in a way that is prohibited under state law. The Utah Supreme Court last week held oral arguments on a roadside seizure case that will decide whether law enforcement has gone too far.
Initiative B does not ban civil asset forfeiture. The measure merely states that full due process protections, including trial by jury, apply to the proceedings. It bans taking property from innocent owners and anyone found not guilty in criminal proceedings and explicitly prohibits state agencies from transferring seized property "directly or indirectly" to federal agencies without a court order. The law bans law enforcement agencies from profiting from seizure by ordering the cash to be given to the public school system, although the legislature loosened the restriction in 2004.
Kyle Savely had his money taken on November 27, 2016, after he was pulled over on Interstate 80 in Summit County for allegedly following someone too closely. That traffic charge was eventually thrown out, but the Utah Highway Patrol officer who stopped Savely called in a drug dog who alerted on his car. There were no drugs, but the officers helped themselves to $500,000 in cash that he was carrying in a Nautica bag.
Savely was never charged with any crime, and Utah law clearly states that the money should have been returned within 75 days if no charges were filed. The highway patrol bypassed that requirement by tipping off the Drug Enforcement Administration which had a federal judge issue an order to take the money.
"The cynic in me would say that what happened here was that this is a lot of money, that your client wanted to avoid the court, alerted DEA as to what happened here and is happy to circumvent the court proceedings in this case," one high court justice speculated last week.
Several of the justices expressed skepticism over the state's argument that Utah courts have no jurisdiction over the seizure at all. The high court must decide whether the linguistic loophole that prosecutors have been using allows the case to be taken over by a federal court, where the property protections found in Utah's law do not apply.
"Initiative B took great pains to end policing for profit," the Libertas Institute wrote in its friend of the court brief. "Under UHP's vision of the statute, state agencies can seize property under state law, ignore state law protections by turning the seizure over to the federal government without a court ordered transfer, and then receive the proceeds back with no strings attached, cleansed by federal forfeiture proceedings. At best this resembles forum shopping and, at worst, money laundering."