Phoenix police seize $39,500 from man with no proof of illegal acts

Jerry Johnson spent two days in Phoenix and left $39,500 poorer.

The 45-year-old small-business owner had flown from Charlotte, North Carolina, to purchase a truck to add to his fleet of two other trucks for his shipping company.

His first truck was 16 years old with over a million miles and began needing maintenance more often, and he hoped a newer truck would give him more steady business.

He found a truck he wanted posted at a Phoenix-based auction and flew to the Valley in August with $39,500 in cash — $7,500 in his carry-on backpack and $32,000 in boxes he had packed in his checked luggage.

Johnson passed through security in Charlotte without any problems but was stopped by Phoenix police officers in plainclothes after he retrieved his luggage from the carousel.

Johnson said an officer asked him if he had any drugs on him, to which Johnson replied that he didn’t. The officer then asked if Johnson was carrying any large sums of cash, which Johnson confirmed and let the officer see the money inside.

The officer then asked Johnson to speak with him in a private office within the airport, to which Johnson agreed but left him a little confused. He had researched whether traveling with a large amount of cash was illegal prior to the trip and found no laws barring him from doing so.

Once the two reached the office, Johnson said the officer asked him why he had come to Phoenix. Johnson replied that he was there to purchase a new truck for his small business.

The officer accused him of being involved in a money-laundering investigation and asked him who had bought his plane ticket and who he was carrying the money for.

Johnson repeated that the cash was his and it was to buy a truck for his business.

The accusations dragged on for about an hour and then the officer filled out a form and told Johnson to sign it or else he would spend the night behind bars. Johnson wasn’t entirely sure what he was signing, but wanted to do whatever he could to continue on his business without further harassment.

It wasn’t until later that Johnson learned he had signed a waiver form indicating the $39,500 he planned to use to grow his small business wasn’t his.

“Once I signed it, he was like, ‘OK you’re free to go,’ ” Johnson told The

Arizona Republic. “I thought he was giving me my money back, but he didn’t give me my money back. He told me if I didn’t sign that form, basically I was going to be arrested.”

Johnson flew back to Charlotte the next day angry and confused. The money he was going to use to grow his business was now in the hands of a police department that accused him of a crime he wasn’t even charged with — much less convicted of.

“I feel like they illegally took my money,” Johnson said. “I feel like they robbed me. I feel like the authorities just took my money for no reason.”

When asked about the incident, Sgt. Mercedes Fortune, a Phoenix police spokesperson, told The Republic that they couldn’t comment on the case due to pending litigation, but specified that detectives investigate potential drug trafficking at airports.

“Phoenix Police Department Interdiction detectives work with many entities to keep Phoenix Sky Harbor Airport safe and free from illicit activity,” Fortune wrote in an emailed statement. “They properly vet information before consensually contacting persons believed to be involved in the trafficking of illegal drugs.”

Fortune didn’t say whether department policy allows detectives to threaten to arrest people to coerce them into signing a waiver form in civil forfeiture cases.

Determined to get his money back, Johnson hired an attorney and navigated the arduous legal proceedings involved in a civil forfeiture case. He submitted business documents, bank statements, tax returns, the registrations for the two trucks he already owned and a slew of other documents indicating he was someone who would likely carry a large sum of cash to buy a semitruck.

Despite that, the court deemed the evidence wasn’t sufficient and refused to award any of the $39,500 back to Johnson.

Johnson was researching laws surrounding civil forfeiture when he came across a Virginia-based libertarian nonprofit called Institute for Justice, which has written about and litigated civil-forfeiture cases.

Paul Avelar, a managing attorney for the Institute for Justice’s Arizona office, said the court’s decision to not return Johnson’s money was ridiculous and would fight it in the Arizona Court of Appeals.

Avelar said Johnson’s case is one of many and that civil forfeiture and antiracketeering, or RICO, laws in Arizona and across the nation warp the definition of criminal justice.

“What forfeiture laws allow is for the government to take and keep your property,” Avelar told The Republic. “Your money, your car, even your home — if the government thinks it’s connected to a crime — they never have to show that you committed a crime or anyone committed a crime. There’s no requirement that you ever be convicted of a crime or even charged with a crime. But they can still take your property.”

While criminal law specifies one must be guilty beyond a reasonable doubt to be convicted of a crime, civil forfeiture law often places the burden of proof on the individual rather than the government, Avelar said. Rather than the government having to prove the property is related to a crime, the owner must prove it wasn’t.

Avelar said these kind of seizures occur because law enforcement agencies get to keep 100% of whatever they forfeit, thus giving them a profit incentive.

Both Republican and Democratic advocates have criticized civil-forfeiture laws across the country for years. In 2017, Gov. Doug Ducey signed legislation to reform civil forfeiture, expanding oversight on spending and ratcheting up the burden of proof required for police to seize property. But many say it wasn’t enough.

While it’s not impossible to get your money and property back after it’s been seized by the government, the legal process is often long and expensive.

Russ Richelsoph, a partner at Davis Miles McGuire Gardner PLLC, told The Republic that many people don’t fight to get their property back because it’s often worth less than the legal fees it would take to challenge the government.

“You’re not going to hire an attorney and fight the government to get two or three thousand dollars back because the legal fees are just going to exceed the value of the property,” Richelsoph said. “And this happens with money, happens with cars, happens with computers. I’ve had cases where the government comes in and they take computers and iPads — not as evidence — they’re saying these are ill-gotten gains and take the stuff.”

Richelsoph said when potential clients tell him that police took their vehicle, he pulls up the Kelley Blue Book website and asks for the make, model and other various details about the car to help determine if the car is even valuable enough to fight for in court.

“Even if you go to court to fight it, there’s no guarantee you’re going to get it back,” Richelsoph said. “So, unfortunately, what happens is a lot of people just give up the stuff without even fighting.”

Richelsoph estimated most civil-forfeiture cases likely cost at least $10,000 in legal fees except in certain circumstances where the case is resolved more quickly.

He also said it can be difficult for an attorney to know whether there’s a good chance someone will get their stuff back because they won’t know what evidence the government does or doesn’t have until they reach the discovery phase, which often takes months.

Avelar said it’s a process designed to be difficult for the impacted individual.

“The first thing to know about the process is that it is a process created by prosecutors and it’s a process that most people can’t afford to have attorneys help them with,” Avelar said. “And because forfeiture is civil and not criminal, you don’t have the right to have an attorney provided to you. If you can’t afford one, you’re on your own.”

Avelar said prosecutors and other advocates of civil forfeiture often defend the practice as a way to fight drug cartels or return property to those who have been defrauded, but said the data doesn’t check out for the latter.

“That’s why they say these things are important,” Avelar said. “And the reason that we use civil forfeiture is because it’s hard to convict some people of some things. Well, I would hope one of the groups of people it’s hard to convict are innocent people — which is a big problem.”

Richelsoph echoed a similar sentiment, saying civil forfeiture’s advocates often paint it as a tool to go after highprofile criminals with the means and influence to largely evade the law.

And while he acknowledges it’s sometimes used in those types of cases, Richelsoph said law enforcement often uses civil forfeiture on normal people who may not have done anything wrong.

“There’s not a lot of Bernie Madoffs,” Richelsoph said. “There’s not a lot of Pablo Escobars. The people that it’s really hitting are just regular people that the government has a suspicion about something but can’t prove it beyond a reasonable doubt.”

The Phoenix Law Enforcement Association (PLEA), Maricopa County Sheriff’s Office and Maricopa County Attorney’s Office did not comment for this article.

The government has a lot of power in civil-forfeiture cases, but a bill introduced in the state Legislature could introduce numerous restrictions on how Arizona government can use civil forfeiture if signed into law.

House Bill 2810 would require a criminal conviction in most cases if the government wishes to keep the seized property.

It would require the government to return the property to its owner within 10 business days unless it met certain conditions, such as the property was being held as evidence or was illegal for the owner to possess.

The bill would also bar law enforcement from coercing people into signing waiver forms and threatening to lock them up if they refused as what Johnson said happened to him, which Richelsoph said would be considered a crime under most circumstances.

“If you look at the legal definition of extortion, threatening to accuse someone of a crime if they don’t give you money is one of the definitions of extortion,” Richelsoph said.

Avelar added that the officer who confronted Johnson was likely making an empty threat about arresting him, as there wasn’t any probable cause that he had committed a crime.

HB 2810 passed the House 57-2 with one nonvote on Feb. 24 and passed the Judiciary and Rules committees in the Senate but had yet to see a floor vote as of Wednesday.

Both Avelar and Richelsoph said they support the bill as it would better protect people from having the government take their property on mere suspicion.

As HB 2810 sits in the state Senate, Johnson’s appeal is moving forward.

Two attorneys with the Institute for Justice filed a 62-page appeal brief on April 12 alleging that Maricopa County Superior Court erred in not returning the money and its refusal to do so violated state and constitutional law.

The brief further argues that Johnson provided adequate evidence that the money belonged to him under the current law and that the state misapplied a statute requiring Johnson to provide more than proof of ownership that the cash was his.

When asked if he could see the case going before the Arizona Supreme Court should the Arizona Court of Appeals agree with the lower court’s decision, Avelar’s answer was unequivocal.

“Yes. What happened here was contrary to Arizona’s statutes and contrary to the Constitution.”