December 11, 2010

Murphey's Law

Hatched by Dafydd

The city of Aurora, Illinois, has a clever new system for protecting its citizens from criminals: They seize the assets from anybody who looks like a drug runner, even if they can't find a shred of evidence against him. But hey, image is everything, yes?

In this case, the reluctant "miscreants" are Jose and Jesus Martinez, whose packet of savings ($190,040) was seized from Jose's truck by Aurora police officers under very peculiar circumstance:

The case started Oct. 18, when an Aurora officer stopped Aurora brothers Jesus and Jose Martinez. Police searched the car and the Martinezes. Police used drug-sniffing dogs, but found no drugs, according to court records. But police did find a bag with $190,040 in cash in the trunk of the car.

Although the brothers were issued no tickets, the cash was seized by police. As of Thursday, neither brother was charged with a crime.

“Not so much as even a traffic ticket,” said Kathleen Colton, a Geneva attorney who is helping the Martinez family. Colton has done work for the family previously and is aiding Aurora attorney Patrick Kinnally, who has filed a lawsuit seeking the return of the money.

“I’ve been practicing law for 23 years and I’ve never seen anything like this,” Colton said. “This is an egregious abuse of power.”

Then in order to ensure that the guilty-looking innocents could never get their money back, even with a court order (which the Martinezes sought and received), the city lateraled the money to the state of Illinois within "a blink of the eye" after the seizure, as Aurora's attorney, John Murphey, put it.

When Judge Michael Colwell heard the case, he ordered the money returned; the city refused, telling the judge that it couldn't return the money because it didn't have it anymore.

I reckon that's what folks mean by "Murphey's Law."

It's a fascinating legal theory: I steal your money; then when a judge demands I pay restitution, I shrug and say, "Sorry, your honor, but I can't return the money I stole because I gave it to my accessory after the fact."

But the bucks didn't stop there. "Immediately" (another quote) after receiving it, the noisiest Illinois, perhaps concerned about its own liability (and rather liking Aurora's clever legal strategem), re-lateraled that same blessed $190,040 cash to the federal Department of Homeland Security.

And there, the department sits on it, smugly declaring that the Martinez brothers "violated the Drug Abuse Act." This in spite of the fact that neither Martinez was convicted, tried, arrested, charged, or even issued a citation, despite a tapped phone and an extensive search (including drug dogs) of the vehicle in question directly after it was stopped. And despite the embarassing lack of a criminal record for either Jesus or Jose Martinez.

The closest the police can come to "connecting" the Martinezes to any drug abuse is guilt by familial relationship; hold onto your bowlers...

The brothers have denied being involved in drugs at all. They do not have any criminal record. However, another Martinez brother, Froilan, and a cousin, Juvenal, were convicted of drug charges in 2002. Both were released in 2006 after an appellate court ruled that Froilan and Juvenal had essentially been coerced into making a drug deal by an undercover officer who pestered them.

Colton, who represented Froilan and Juvenal, maintained the case was entrapment. She said she thinks Jesus and Jose were targeted because of the previous case.

So there you have it: Jose and Jesus are suspicious characters because Froilian and Juvenal were (briefly) convicted of trafficking in 2002 -- before the conviction was overturned four years later when an appellate judge ruled they had been entrapped. And that, dear readers, seemingly gives the city of Aurora valid authorization to seize J&J's money and fire it up the chain to the feds, whence it may never be seen again. Voilà!

Oh, in case you wonder why a couple of Mexican immigrant remodelers would have $190,040 in a truck, here's their explanation -- which actually makes some sense, to me at least:

The officer found the sack of cash and asked Martinez about it; he said it was the family's savings. Colton said Jesus Martinez had just picked up cash his brother had collected from other family members and was on his way to his father's to give him the money so his father could pay off his mortgage and retire to Mexico.

Works for me.

It's difficult to fathom the thinking of the police in this case; it seems so outrageous and fantastical that I wouldn't even accept it as the plot of a second-rate penny-dreadful. Wouldn't you think that somebody somewhere along the line would take a step back and demand, "What on Earth are we doing here? Why are we seizing this non-drug-related money after finding no drug relation under the Drug Abuse Act?"

Anybody? Bueller? Bueller? Bueller? Bueller?

It would seem that asset forfeiture has become so ubiquitous, it is now its own justification: The police, especially small-town cops (but aided and abetted by both state and federal authorities), believe they have to right to seize property merely because there is property there to be seized; and the police hate to walk away from a felony stop empty handed.

This is precisely why we need a strong Constitution that can override (read: trample under foot) the fiats of covetous legislators and authoritarian administrators -- and why Obamunism, with its Wilsonian belief in a "living Constitution" that should simply represent the will of the People (that is, the momentary whim of the mob), is so deadly antithetical to Americanism. Simply put, if Barack H. Obama and his cohorts have their way, all of America will become one great, sprawling Aurora.

Then God help us all, for there will be nowhere to turn.

Hatched by Dafydd on this day, December 11, 2010, at the time of 9:16 PM

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The following hissed in response by: DK

This is a classic case of why "Sovereign Immunity" needs to be rigidly restricted.
If these cops, prosecutors, and petty bureaucrats found that they had skin in this game, their actions would be more circumspect.

The above hissed in response by: DK [TypeKey Profile Page] at December 11, 2010 9:59 PM

The following hissed in response by: Dale Gribble

I've been saying forever that the "war on drugs" is the camels nose under the tent that will eventually destroy all our rights.Pretty much anyone with over $10,000 in cash can have it confiscated at will with no repercussions. $10,000 is two months wages for a laborer(with overtime) or two weeks wages for a fed employee.

The above hissed in response by: Dale Gribble [TypeKey Profile Page] at December 12, 2010 11:45 AM

The following hissed in response by: Baggi

This case sounds unbelievable to me.

Seriously. I don't believe it.

I've been in law enforcement for 15 years and have seized quite a few things in that time. There's a few things ive learned in that time.

1) The media always gets the story wrong, and oddly enough, the error is always in the favor of the criminal.

2) Officers are not allowed to offer their opinion, lest they get in some trouble. Usually it's some clueless manager who speaks up for the entire department.

3) I still have fresh in my memory that brush fire story from last year, of that dimwit Michael Yon, coming through my airport drunk as a skunk, refusing to answer questions. He then goes and gives interviews, which everyone accepts on face value (And calling us CBP, TSA by mistake) that we violated his rights (Which we didn't). That was last January. The January before that he did the exact same thing, but that time it was in defense of his Thai girlfriend. I can't wait to see what he does this January to get attention.

To sum up, might this have happened? I don't believe it.

I'm taking this story with some serious grains of salt.

The above hissed in response by: Baggi [TypeKey Profile Page] at December 12, 2010 10:59 PM

The following hissed in response by: mdgiles

I've been in law enforcement for 15 years and have seized quite a few things in that time. There's a few things I've learned in that time.
Other than the fact, that the police are never in the wrong? This isn't exactly the first instance of a bogus asset forfeiture seizure. Here are a few links to some articles on the problem.

The above hissed in response by: mdgiles [TypeKey Profile Page] at December 13, 2010 11:12 AM

The following hissed in response by: Chris Balsz

Keep an eye on it, but the fact that city, state and federal government cooperated so rapidly, is a sign there's a lot more in the background.

"In the meantime, Colton said it appears the Martinez brothers will have to go to federal court to get their money back." Well, if you're going to pursue THAT $191,000, yes you have to follow it whereever it goes until THAT $191,000 is returned to you.

Along the way, though, you could sue everybody who passed the hot potato, for the loss of the funds, and the costs run up seeking return of the funds, and maybe some damages.

The above hissed in response by: Chris Balsz [TypeKey Profile Page] at December 13, 2010 3:03 PM

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