A known cartel member, not long out of prison for a drug offense, is stopped for a traffic violation traveling south toward Mexico.
The smell of marijuana smoke is strong. Based on the smell, the officer legally searches the vehicle.
She finds no illegal drugs but discovers a hidden compartment stacked with cash.
The driver has no legitimate employment and can’t explain the cash.
The officer writes the driver a ticket, hands back the cash and watches taillights disappear.
As wrong as it sounds, this would be how Texas officers would have to handle this situation if recent efforts to change asset forfeiture procedures in Texas are successful.
Proponents of reform allege rights are being trampled by cash-hungry authorities and that we can be saved from this affront to liberty only by requiring that someone be convicted of a criminal offense before property could be forfeited.
Asset forfeiture removes the tools of crime from criminal organizations, deprives wrongdoers of the proceeds of crime, recovers property for compensating victims and deters crime.
In almost all cases, the person whose property is seized is convicted of a crime.
Even in the rare case when a conviction is not obtained, authorities must file a separate lawsuit and bear the burden of proving that the seized money or property was illegally used or obtained.
Some critics claim that under current law “innocent owners” — those who may have loaned a vehicle to a drug offender, for example — must undertake some higher burden than criminal defendants in order to recover their property.
In reality, officers rarely seize property owned by someone other than the person accused of a crime.
When they do, property is frequently returned to these owners without going to court when officers establish that the owner did not know that the property was being illegally used.
And if a property owner is required to go to court, the law requires only that it be shown — by the lowest burden of proof — that the owner did not know of the property’s illegal use.
In addition, there are compelling reasons why a criminal conviction should not be necessary to seize criminal property.
In the case of the cartel member above, there may be overwhelming evidence that money is in fact “drug money,” but there may not be a crime currently being committed.
Current law allows prosecutors to prove that contraband was used or intended to be used for an illegal purpose.
To require a conviction would reward drug dealers who keep their cash separate from their dope, even with proof of the money’s illegal source.
Requiring a criminal conviction also ignores the fact that sometimes convictions cannot be obtained because a suspect dies or absconds. Criminals should not benefit because they flee.
Furthermore, requiring a conviction could penalize offenders who might otherwise be treated more leniently.
Low-level drug offenders are often given the opportunity to “work off” their cases by assisting law enforcement in other investigations.
Prosecutors may agree to drop some charges in exchange for guilty pleas, or some offenders may be eligible for diversionary programs that allow offenders to complete rehabilitation requirements and avoid conviction.
If any of these offenders were arrested with “drug money”, these concessions by prosecutors are less attractive if we know that, without a conviction, the offender will be rewarded with the ill-gotten gain of drug proceeds.
As with all laws, there have been times when Texas’ forfeiture laws have been abused.
The examples most frequently cited — such as frivolous expenditures of forfeited funds by law enforcement agencies — made good prosecutors cringe, and those same officials worked with our Legislature to outlaw those practices.
Texas law enforcement agencies and prosecutors conscientiously use asset forfeiture to keep our communities safer and to strike a blow against the evils of human trafficking, child pornography, the illegal drug industry and other criminal financial enterprises.
We should not handicap our law enforcement and give back valuable assets to those who would put poison on our streets.
Joe D. Brown is the Grayson County criminal district attorney in Sherman.