Seizure on no more than suspicion

WASHINGTON — Rebuilding his post-prison life — drug offenses derailed the young Jerry Johnson — he attempted a 50 percent increase of his North Carolina trucking firm, from two semitrucks, nine and 16 years old, to three. Learning of a usedtruck auction in Arizona, he assembled from his savings and from relatives $39,500 in cash, and flew there in August 2020.

At a luggage carousel in Phoenix’s Sky Harbor International Airport, he was involuntarily enrolled in a Kafkaesque tutorial now in its third year. He now understands the perverse consequences of giving government a pecuniary incentive, through civil forfeiture, to shift onto accused persons the burden of proving their innocence.

Civil forfeiture is the power to seize property suspected of being produced by, or involved in, crime. The property owners must prove that they and their property are innocent of such involvement. Proving this can be, and government has a motive to make it be, a protracted, costly ordeal against a government that has unlimited resources. The government entity that seizes the property often is allowed to keep or sell it. Lucrative law enforcement involves blatant moral hazard — an incentive for perverse behavior.

Flying with lots of cash is legal. Unlike, say, a 4-ounce tube of toothpaste, a stash of cash poses no threat to airline security. But large amounts of currency arouse police suspicions because drug dealers sometimes travel with them. Drug traffickers often do something else Johnson did: They book flights with quick turnarounds. According to the state, a “confidential informant” alerted Arizona law enforcement to Johnson based on the way he was traveling, meaning his quick turnaround.

Three detectives confronted him at the carousel. One asked Johnson whether he had “any large amounts” of cash. When he showed him the money, the detective said it smelled like marijuana, which Johnson says he does not use. Finding no contraband in Johnson’s possession, Johnson says in a court filing, the detective pressured him, by threatening to charge him with money laundering, into signing a “disclaimer of ownership” form for the currency. The next day, Johnson returned to North Carolina with neither his money nor a truck.

Under Arizona law, the state bore the burden of proving by “clear and convincing evidence” that Johnson’s money was connected to criminal activity. A court agreed — briefly — that the money was his. The next day, however, the court treated Johnson’s behavioral conformity with a drug courier’s profile (never mind the absence of drugs or any other evidence of criminality) as nullifying his ownership claim.

The court found that the detectives had “probable cause” to seize the cash, and the court, in a patent legal mistake, treated this “probable cause” as a substitute for “clear and convincing evidence” of the money’s involvement in criminality. The seizure supposedly vitiated his argument for ownership, which was: If the cash is not my money, whose is it? I possessed it, no one else has claimed it, and the state has not offered any evidence suggesting anyone else’s ownership.

This should have obliterated Arizona’s entirely circumstantial case. Instead, the state clung to his cash by substituting mere “probable cause” for the more rigorous requirement of assembling “clear and convincing” evidence against his ownership claim.

Arizona’s complaint for forfeiture contains only one factual assertion: He “had” the cash when it was seized. The rest is a tissue of bald assertions about “indicia of criminal activity” suggesting that the cash had been, or was intended to be, used in criminality.

As a young man, Johnson, now 46, paid the price of breaking the law. Today, Arizona hopes to profit from breaking with the presumption of innocence, shrugging off government’s burden of proof, and instead requiring Johnson to prove his innocent ownership of his property.

Thanks to a successful appeal in May from the Institute for Justice, the state will have to do more than just infer that Johnson might have been involved in drug smuggling. Almost everyone ever incarcerated returns to society and remains, like Johnson, susceptible to extrajudicial punishment: An ineradicable stigma that can trigger the sort of treatment Johnson is experiencing in his ongoing quest to regain possession of his property, and to get on with his admirably reconstructed life.

One of his trucks has been driven more than a million miles. Because the nation has a stake in his struggle for the rule of law against lawless civil forfeiture, it should rejoice that he, like the truck, is in this for the long haul.