2017 Criminal Law Seminar

Transcription

1 2017 Criminal Law Seminar In Rem Forfeiture 2:00 P.M.-3:00 P.M. Presented by Glen Downey Downey & Mundy, PLLC 303 East Court Avenue Des Moines, Iowa THURSDAY, APRIL 20

2 THE ANATOMY OF A FORFEITURE CASE: IOWA CIVIL ASSET FORFEITURE & CRIMINAL INTERDICTION ISSUES Glen S. Downey DOWNEY & MUNDY, PLLC 303 East Court Avenue Des Moines, IA Telephone: glen@downeymundy.com 1

3 Table of Contents Civil Asset Forfeiture in Iowa An Overview 3 Notice of Seizure for Forfeiture The Issues..3 Probable Cause Hearings.3 In Rem Forfeiture Complaints and/or Notice of Pending Forfeiture..4 Answers to Forfeiture Complaints..5 Motions to Suppress Traffic Stops & Criminal Interdiction in the wake of Rodriguez...6 Discovery & Discovery Issues 9 The Merits Hearing 11 Ancillary Issues Disclaimers...13 Sample Documents Iowa Code Section 809A Notice of Seizure for Forfeiture under Iowa Law Application for Probable Cause Hearing Pursuant to Iowa Code Section 809A.12(3) In Forfeiture Complaint & attachments Notice of Pending Forfeiture & attachments Memorandum in Resistance to Default Answer to Forfeiture Complaint Motion to Suppress Application for County Attorney Subpoena Duces Tecum Discovery Requests (State & Claimant) Claimant s Answers to Discovery Requests Claimant s Proposed Findings of Fact & Conclusions of Law Forfeiture Orders 2

4 Iowa s Civil Asset Forfeiture Law An Overview Iowa s civil forfeiture laws (Iowa Code Section 809A) place a heavy burden on the property owner. Under 809A, the county attorney must only show that the property is substantially related to criminal activity by a preponderance of the evidence. Once the county attorney meets that burden, the burden shifts to the property owner to show his innocence, or in other words, that he did not know and could not have reasonably known of the conduct or that he acted reasonably to prevent the conduct giving rise to the forfeiture or that he had legitimate sources for the property in question (especially if the property is cash). Moreover, law enforcement and the county attorney s deciding whether or not to prosecute the forfeiture receives 100 percent of the value of any property seized under Iowa forfeiture law. Local law enforcement receives the majority while the county attorney s office receives anywhere from 10-25% of the proceeds. Additionally, law enforcement and the county attorneys are not required to collect or report their forfeiture proceeds. In broad brush strokes, a forfeiture action proceeds like this: 1. Property is seized for forfeiture; 2. Notice of seizure for forfeiture is contemporaneously served on Claimant; 3. Notice of In Rem Forfeiture Complaint or Notice of Pending Forfeiture action is filed with the District Court; 4. Answer; 5. Motion to Suppress; 6. Discovery; and 7. Merits Hearing Notice of Seizure for Forfeiture under Iowa Law & Probable Cause Hearings At the time of seizure, individuals are given a form completed by an agent for the state entitled Notice of Seizure for Forfeiture under Iowa Law. The form provides the basic information about the seizure including the date, time and place of seizure as well as a general description of the property being seized. With currency seizures of any real size, the amount is simply listed as (unknown amount of U.S. Currency). In addition, the Notice provides a list of those currently claiming ownership or security interests of the property in questions. NOTE the address provided here is the address a forfeiture complaint or notice of pending forfeiture would be sent to. POTENTIAL ISSUE: The Notice contains no description or outlining of Claimant s rights and responsibilities under 809A BUT the service of the Notice upon the Claimant triggers a ten (10) day deadline under Iowa Code Section 809A.12(3) to file an Application for a Probable Cause Hearing. Under 809A.12(3) [t]he court, after five days notice to the prosecuting attorney, may issue an order to show cause to the seizing agency, for a hearing on the sole issue of whether probable cause of the property then exists. In order to file an Application for Probable Cause Hearing all of the following must be true: 1. The property was seized without a previous judicial determination of probable cause or a hearing under subsection 809A.14(4); 3

5 2. An owner or interest holder in property files Application for hearing within ten days after notice of seizure or actual knowledge of seizure, whichever is earlier; and 3. The owner or interest holder complies with requirements for claims or petitions in 809A.11 (requirements are listed below under Answers). The Notice does NOT provide any notice to Claimants or interest holders about the ten (10) day requirement under 809A.12(3) for filing an Application for Probable Cause Hearing, let alone what the requirements in filing that Application might be. Since most Claimants in highway seizures are out-of-state drivers and residents, they will not contact an attorney until well after the ten (10) deadline has expired. Does Iowa s Notice of Seizure for Forfeiture under Iowa Law meet the due process requirements under the Fourteenth Amendment? Dusenbery v. United States suggests not. In Dusenbery, the United States Supreme Court determined that the test for adequacy of notices for forfeitures under the due process clause is whether the notice provided was reasonably calculated under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Dusenbery v. United States, 534 U.S. 694, 697 (2002), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Since Iowa s Notice provides no indication to the interested parties that they only have ten (10) days to seek a probable cause hearing, a credible argument can be made that the notice is constitutionally deficient. After all, a probable cause hearing puts the ENTIRE burden on the State to show probable cause unlike a merits hearing which under 809A.18 MAY allow the prosecuting attorney to engage in discovery with the Claimant. FILING TIPS: 1. If ten days or less since Notice of Seizure for Forfeiture, file an Application for Probable Cause Hearing Pursuant to Iowa Code Section 809A.12(3); or 2. If after 10 days since Notice, file Application and raise due process challenge to 10 day requirement. In Rem Forfeiture Complaints & Notice of Pending Forfeiture There are two ways for the prosecuting attorney to begin forfeiture proceedings: 1. File an In Rem Forfeiture Complaint with the District Court; or 2. File a Notice of Pending Forfeiture with the District Court. Under 809A.8 (Commencement of Judicial Proceedings), the prosecuting attorney must initiate judicial proceedings WITHIN 90 days of the seizure. NOTE: Failure of the State to initiate the proceeding within 90 days deprives the District Court of the power to forfeit property seized. See In re Forfeiture of One Hundred Twenty-Six Dollars, 251 N.W.2d. 216, 217 (Iowa 1977); see also State v. Kaufman, 201 N.W.2d 722, 723 (Iowa 1972) (forfeitures are not favored under the law and this Court strictly construes statutes allowing forfeitures). 4

6 NOTE: If 90 days has passed since the seizure and no forfeiture action has been filed, file an Application for Return of Seized Property under Iowa Code Section 809A.3 (Application for Immediate Return of Seized Property). If a forfeiture proceeding has been filed AFTER the 90 days has passed, file BOTH an Answer to the proceeding (to preserve Claimant s rights) AND a Motion to Dismiss the action as untimely under 809A.8. Section 809A.8(2)(a) requires service of the forfeiture proceedings by: 1. If name and address of Claimant and/or interest holder is known by: a. Personal Service; or b. Restricted certified mail. 2. If name and/or address are NOT known but Claimant and/or interest holder s address is required by law to be on record with county recorder; secretary of state; DMV or other state agency then also by: a. Personal Service; or b. Restricted Certified Mail. 3. If name and/or address are NOT known and is NOT on record as described above then by PUBLICATION in a newspaper of general circulation in the county where the seizure occurred. NOTE: Be aware that prosecuting attorneys often do not follow proper service requirements and send notice of forfeiture proceedings to out-of-state Claimants and/or interest holders by regular certified mail and not restricted certified mail. Restricted certified mail requires delivery only to the addressee or, in other words, the Claimant and/or interest holder. See Iowa Code Section When the Notice or Complaint is returned undeliverable, County Attorneys will then file requests for Default saying the Claimant did not answer the forfeiture proceeding in time. IF the County Attorney files for default, file a Resistance, citing to Section 809A.8(2) and Buss v. Gruis, 320 N.W.2d 549 (Iowa 1982) (holding that if the statute in question requires notice by restricted certified mail than the use of ordinary mail or even certified mail is not valid). NOTE: What accompanies the Complaint or Notice varies from county to county and so what you might have to subpoena or ask for varies greatly. For instance, in Pottawattamie County, the County Attorney always files a Complaint and attaches all the police reports to the Complaint. Other counties may just file a Notice without any supporting reports or evidence. Answers to In Rem Forfeiture Complaints & Notice of Pending Forfeiture Iowa Code Section 809A.13 requires that a Claimant or interest holder file an Answer to the forfeiture proceeding within 20 days of proper service of the Complaint or Notice. In addition, the Answer filed by Claimant and/or interest holder must contain the following: 1. The caption of the proceedings and identifying number, if any, of the Notice or Complaint; 2. The address where the Claimant will accept mail (NOTE: always put the attorney s address here); 3. The nature and extent of the Claimant s interest in the property; 5

7 4. The date, the identity of the transferor, and the circumstances of the Claimant s acquisition of the property in question; 5. The specific provision of this chapter relied on in asserting that it is not subject to forfeiture; 6. All essential facts supporting each assertion; and 7. The specific relief sought. See Iowa Code Section 809A.13(5)(a-g). NOTE: While Section 809A.13(5)(d) requires specifics as to where Claimant acquired the property, it is in the Claimant s best interests to keep this answer as generic as possible while still asserting a basis of ownership, especially if the property in question is cash. For example, if the Claimant asserts that it acquired the cash through employment, the county attorney and investigating agency will attempt to verify Claimant s employment records and use what they find in any merits hearing against the Claimant. So if they Claimant has not been traditionally employed, investigators will often get on the stand asserting that they were unable to locate any employment records for the Claimant for the past decade, for example. So, in other words, if the Claimant acquired the money through a self-owned business that specific answer would be better than employment since investigators could not use a lack of employment records to suggest something nefarious against the Claimant. Motions to Suppress: Traffic Stops & Criminal Interdiction in forfeiture proceedings In Iowa, the most common forfeiture proceedings are the result of cash and/or property being seized during a traffic stop. Although, as discussed below, forfeiture proceedings in Iowa are civil proceedings, there is much overlap with criminal law and criminal proceedings so that a working familiarity with motions to suppress for traffic stops and other search/seizure environments is a definite plus. NOTE: that in the federal forfeiture system, there are no Motions to Suppress, but despite the fact that Iowa civil asset forfeiture proceedings are civil proceedings, Motions to Suppress are allowed and a successful Motion will almost always result in the county attorney having no evidence to use to attempt forfeiture. See In re Flowers, 474 N.W.2d 546, 548 (Iowa 1991) (In establishing a right to forfeiture, however, the State may not rely on evidence obtained in violation of the Fourth Amendment protections nor derived from such violations). By far, the most common forfeiture proceeding in Iowa begins with a routine traffic stop westbound along I-80. Why, westbound? The traditional thought from law enforcement is that drugs flow from the west along the highways to the eastern seaboard for distribution in the major cities and that cash from those drug sales then flows back west along the highways. Criminal interdiction officers focus their attention and stops along the westbound lanes of I-80 particularly in Poweshiek and Pottawattamie counties. Criminal interdiction is a training method perpetuated by an organization called Desert Snow and its founder Joe David, a former California highway patrol officer with a penchant for large seizures and the sizeable number of civil rights lawsuits to match. Criminal interdiction is a 6

8 method whereby officers use a routine traffic stop to engage the motorist in casual conversation and begin a criminal investigation into the driver and others in an attempt to uncover whether they are engaged in criminal activity or are merely members of the innocent motoring public. However, even a cursory glance at the dash-cam videos will lead to the quick conclusion that these conversations are anything but casual and that the officers already believe the individuals are engaged in criminal activity before they begin the conversation. What also strikes you is how remarkably similar ALL of the forfeiture interdiction videos are. The stop will go something like this: Officer pulls over car for a small traffic infraction, speeding, failing to signal, tinted windows; Officer approaches passenger-side window and says, hey, I m just out here reminding people to be safe and slow down, mind if I see your license, registration and proof of insurance?; Hey, this is a really nice truck you got here. Is it new? How do you like it? My botherin-law has one just like it and he loves it. That s a great topper on it. Is that factory? Hey, thanks for the information. I m just going to give you a warning here today and get you out of here and back on the road as quickly as possible, okay? Why don t you come on back here to my car with me and we will get out of here. Back in the car: so where you coming from today? Where are you headed? Is that where you live? No, where do you live? What do you do there? Why are you traveling out west then? How long have you been on the road? Really, that long? I can t stand driving for that long so I don t know how you do it. So you say you came from Raleigh, huh? How do you end up here on I-80 then? Seems kind of out of your way to back to Tucson. Hey, here s your warning and please just slow down, okay? Thanks for being patient with me. Driver is told he can be on his way but while walking back to his car, the officer will approach him again. Hey, you mind if I ask you a few more questions? Do you have anything illegal in your car? No. No drugs like marijuana or something? No. Are you carrying any large amounts of cash or U.S currency? No. Are you sure about that? Hey, do you mind if I search your vehicle? Well, no, I don t see why you need to. Look, I m just doing my job and it sure would make my job a lot easier if you would just let me search it real quick and you could be back on your way? Again, I don t see why you need to, so, no. Well that makes me think you are hiding something from me, are you? No. Well then it would be okay if I run my dog around your car, wouldn t it? I mean, it only takes a minute. Well can I say no to that? You can say whatever you want but I m going to run my dog around your car now, okay? Well you do what you have to do, but I don t want you to. Fine, go stand at the front of your vehicle about fifteen feet while I run my dog around. Officer runs the dog around the vehicle or calls another officer to run the dog around the vehicle. Officer approaches driver again and says, hey, so here s the deal, my dog alerted on your car and I now have probable cause to search your vehicle. There s no way the dog could have hit on my car. Well, he did and I m not going to argue with you. The dog alerted 7

9 for the presence of four narcotics: cocaine, meth, heroin and marijuana. That s impossible. Look, I need you to pat you down and then I m going to search your vehicle. Officer then searches the vehicle and finds the cash. Prior to 2015, while questionable, these stops were generally difficult to challenge under Whren. See Whren v. United States, 517 U.S. 806, (1996) (holding that while a traffic stop was a seizure under the Fourth Amendment such a seizure was constitutionally reasonable where the police have probable cause to believe that a traffic violation has occurred.) And both Caballes and Johnson had concluded that the Fourth Amendment tolerated certain unrelated investigations that did not lengthen the roadside detention. Illinois v. Caballes, 543 U.S. 405, (2005) (dog sniff); Arizona v. Johnson, 555 U.S. 323, (2009) (questioning). The Eight Circuit had taken these cases to mean that a traffic stop was reasonable under the Fourth Amendment so long as the detention and investigation were deminimis. See, for example, United States v. Morgan, 270 F.3d 625, 630 (8 th Cir. 2001) (holding that a postcompletion delay in the traffic stop of under ten minutes was permissible). But in April of 2015, the world of the traffic stop and criminal interdiction changed when the U.S. Supreme Court decided Rodriguez v. United States, 135 S.Ct (2015). In Rodriguez, the Court concluded that while an officer may conduct inquires incident to the traffic stop such as checking the license, registration, proof of insurance and determining whether there are any outstanding warrants against the driver, any inquires or investigation into other crimes that detour from the traffic mission are not reasonable under the Fourth Amendment because by their very nature they extend the duration of the traffic stop. Rodriguez, 575 U.S. at *6-8. As the Court said, [l]acking the same close connection to roadway safety as the ordinary inquires, a dog sniff is not fairly seen as part of the officer s traffic mission. Id. At *7. While certain safety precautions are recognized by the Court as necessary during a traffic stop, safety precautions taken in order to facilitate such detours into other crimes are not reasonable or permissible under the Fourth Amendment. Id. at *7-8. This is because, the Court concluded, [h]ighway and officer safety are interests different in kind from the Government s endeavor to detect crime in general or drug trafficking in particular. Id. at *8. In other words, anything that extends the traffic stop for ANY length beyond the time necessary to complete the traffic stop in question violates the Fourth Amendment. So, back to the criminal interdiction forfeiture stop. The ordinary script above while permissible in a pre-rodriguez world, now violates the Fourth Amendment. After all, the very nature of a criminal interdiction forfeiture stop is to use the ordinary traffic stop as a ruse to conduct a wider criminal investigation that is, in the words of interdiction officers themselves, they are trying to separate the criminals from the innocent members of the motoring public and are using their questions as a tool to do this. However, in the absence of independent reasonable suspicion or probable cause, the argument is that the interdiction officer can no longer use his questioning techniques to try and develop reasonable suspicion or probable cause. See United States v. Evans, 786 F.3d 779 (9 th Cir. 2015) (holding that a ex-felon registration check and dog sniff prolonged the traffic stop and thus violated the Fourth Amendment); United States v. Hight, 2015 WL (D. Colorado, June 29, 2015) (holding that the discovery of a non-extraditable warrant from another state did not give the officer reasonable suspicion or probable cause to extend the traffic stop to wait for another officer to arrive on the scene to conduct a search of the 8

10 vehicle); U.S. v. $167, in U.S. Currency, 2015 WL (D. Nevada June 12, 2015) (holding that a reasonable traffic stop became unreasonable and violated the Fourth Amendment when the officers did not have independent reasonable suspicion and based their belief that criminal activity was afoot on questioning that prolonged the traffic stop and on the driver s refusal to consent to a dog sniff). NOTE: There are lists available of Iowa officers who have been trained by Desert Snow and trained in criminal interdiction techniques. Many of these officers have previously testified as to their training and the purpose and use of criminal interdiction in both suppression hearings and in depositions. In an evidentiary hearing connected to the Motion to Suppress it is important to have a detailed and very specific timeline (with times and specific questions asked by & actions taken by the officer or officers) from which to question the officer. If at all possible, know the officer s training history ahead of time and know how the officer answered questions about their traffic stops in a pre-rodriguez world. Pin down the officers reasons for asking specific questions or for taking specific actions that is, Deputy Miller, returning to your patrol car and running a google maps search on the distance between the New Jersey Turnpike and Ithaca had nothing to do with stopping my client for speeding, did it? Look for anything that the officer does or says that is unrelated to the purported reason for the traffic stop and use that against the officer in the Motion to Suppress hearing. NOTE: Also, warrantless searches & seizures in forfeiture proceedings should be challenged under State v. Gaskins, 866 N.W.2d 1 (Iowa 2015). Gaskins overruled State v. Sanders, 312 N.W.2d 534 (Iowa 1981) and ruled that warrantless searches of automobiles incident to arrest where the suspect is not within reaching distance of the area to be searched violate Article I, Section 8 of the Iowa Constitution. As the Court noted, under the Iowa Constitution, officers may not conduct a warrantless search of a suspect s vehicle and its contents incident to the suspect s arrest on the grounds that it is reasonable to believe the vehicle contains evidence of the offense of the arrest. Gaskins, 866 N.W.2d at Although Gaskins is limited to searches incident to arrest, it seems rather inconceivable that the Court would declare warrantless searches of vehicles incident to arrest unconstitutional but approve of warrantless searches of automobiles where the suspect and others are not arrested but are also outside the vehicle as is the case with most searches in forfeiture cases. In fact, Chief Justice Cady s concurring opinion seems to suggest that at least he, and maybe others, believe that there should not and perhaps will not even be an automobile exception to the warrant requirement under Article I, Section 8 of the Iowa Constitution. TIP: Because of the discovery issues discussed below, file your Motion to Suppress and argue for an evidentiary hearing and decision prior to the Court holding a merits hearing on forfeiture. Discovery & Discovery Issues Iowa Code Sections 809A.18 &.19 govern discovery in forfeiture proceedings. Please note that forfeiture proceedings are civil proceedings and under 809A.13(6) the statute declares that [t]he rules of civil procedure shall apply to discovery by the state and any claimant who has timely 9

11 answered the complaint. Therefore, as a civil proceeding, the Claimant and/or interest holder is never required to be present unless ordered by the Court or subpoenaed by the County Attorney. Iowa Code Section 809A.18 gives the prosecuting attorney broad powers of enforcement, including the ability to conduct an investigation of any conduct that gives rise to forfeiture. Before or during the commencement of a forfeiture proceeding, the prosecuting attorney can subpoena witnesses, compel witness s attendance, examine them under oath and require the production of documentary evidence for inspection, reproduction or copying. NOTE: Because Iowa Code Section 809A.18 allows for the county attorney (and law enforcement) to conduct an after seizure and even an after forfeiture proceeding filing investigation, the statute encourages law enforcement officials to seize first and investigate later. That is, even if law enforcement finds U.S. currency and nothing else in the vehicle searched, they will almost always seize the cash anyway hoping that an investigation after the fact will turn up something that justifies the forfeiture of the money. Compounding this issue is the fact that both law enforcement and prosecuting attorneys offices receive a percentage of the seized funds. For instance, in Pottawattamie County, the county attorney s office receives 20% of all funds they successful forfeit, while the local law enforcement agency that seized the funds received the other 80%. What this means for discovery is that funds are often taken with little or no evidence that it is connected to conduct giving rise to forfeiture and county attorney s will attempt to use the discovery process to justify the seizure. Do not let them and do not help them. Because Iowa Code Section 809A is a civil proceeding, the Claimant and/or interest holder s attendance is NOT required absent a court order to the contrary or a subpoena. So if you determine, after examining what the county attorney and law enforcement has for evidence that they cannot meet their burden, do not have your client attend any of the hearings, especially the merits hearings. Note than often that when you request reports, recordings, etc., from county attorneys, the county attorneys will often ask for reciprocal discovery, including interrogatories, depositions, and requests for production of documents. At this stage, you should tell the county attorney that the Claimant and/or interest holder will be invoking their Fifth Amendment right against selfincrimination and you will not be responding to discovery requests. Under Iowa Code Section 809A.19, however, the county attorney could try to compel your client s responses. Section 809A.19 allows for the Court to enter an order compelling responses, either ex-parte or after a hearing, at the request of the county attorney if the following conditions are met: 1. The county attorney must make a written request because in their judgment both of the following are true: a. The production of the evidence may be necessary to the public interest; and b. The person has or is likely to refuse to produce evidence on the basis of the privilege against self-incrimination. 2. The production of evidence that is compelled, or any information directly or indirectly derived from the production of evidence, SHALL NOT be used against the person in SUBSEQUENT criminal case, except perjury or false swearing. 10

12 NOTE: It has been my experience that county attorneys will not use Section 809A.19 to compel your client s testimony for what I think are two reasons. One, county attorneys would want a criminal conviction against your client because any serious misdemeanor or conviction against your client stemming from evidence obtained during the seizure means the county attorney will have met their initial burden in showing, by a preponderance of the evidence, that the property was substantially connected to criminal activity. The burden will then have shifted to your client and you will have to engage in discovery if you want your client to testify and/or offer evidence to rebut that presumption. Second, because of the increased political and media attention focused on civil asset forfeitures, I think county attorneys are reluctant to offer immunity to a person they are saying is, in essence, a criminal. Offering immunity would look to the public like law enforcement and the county attorneys do not care whether these individuals are criminal and are instead only interested in trading a criminal conviction for a wad of cash. The public outcry, in my estimation, would be immense and therefore I ve yet to see the county attorney invoke the immunities of 809A.19. NOTE: I am worried that a smart county attorney might focus on the specific wording of Section 809A.19(4) which says that the evidence cannot be used in any SUBSEQUENT criminal case and therefore the county attorney could argue that a criminal case filed before the forfeiture proceeding (presumably from the same seizure) would not be covered by the immunities of 809A.19(4). If served discovery requests, assert that answering such requests violates your client s procedural due process rights as the state has seized your client s property without probable cause and is now attempting to justify the seizure after the fact. Also invoke your client s Fifth Amendment rights against self-incrimination. See Wohlstrum v. Buchanan, 884 P.2d 687 (Az. 1994). NOTE: Ask yourself whether depositions are really necessary in these forfeiture proceedings. After all, you presumably have the reports and video and audio recordings of the seizure and aftermath and there are already depositions and testimony from many of these interdiction officers that you could receive from your colleagues. Not only are you giving them a clue as to your approach for not much a gain, but you are also giving the county attorney a better argument for compelling your client s deposition. As always, though, these decisions should be taken on a case-by-case basis. The Merits Hearing If you are unsuccessful at having the proceeding dismissed or the evidence suppressed, the State can proceed to a merits hearing attempting to establish the State s right to forfeiture. Iowa Code Sections 809A.11 and 809A.13(7) cover what the State or Claimant and/or interest holder must establish in a merits hearing. Section 809A.11(9) provides that if money was found in close proximity to any contraband or any instrumentality of conduct giving rise to forfeiture, the presumption is that the money was the proceeds of conduct giving rise to forfeiture. Otherwise the State can create a presumption of forfeitability by establishing any of the following: 11

13 1. The person has engaged in conduct giving rise to forfeiture; 2. The property was acquired by the person during that period of the conduct giving rise to forfeiture or within a reasonable period of time after that period; and 3. No likely source for acquisition of the property exists other than the conduct giving rise to forfeiture. Section 809A.3 defines conduct giving rise to forfeiture as: 1. An act or omission which is a public offense and which is a serious or aggravated misdemeanor or felony; 2. An act or omission occurring outside this state, that would be punishable by confinement of one year or more in the place of occurrence; 3. An act or omission committed in furtherance of any act or omission described in #1, which is a serious or aggravated misdemeanor or felony, including any inchoate or preparatory offense; and 4. Notwithstanding numbers 1-3, violations of chapter 321 or 321J shall not be considered conduct giving rise to forfeiture, except, a. Section ; b. A second or subsequent violation of section 321J.4B, subsection 2, paragraph b; c. Section 321J.4B(9). In sum, forfeiture proceedings use a system of shifting burdens. The initial burden rests on the State to prove forfeitability by a preponderance of the evidence. Iowa Code Section 809A.13(7). If met, the burden shifts to the Claimant and/or interest holder to show that they either meet one of the statutory exemptions from forfeiture provided by Section 809A.5 or that they have a legitimate source of income and a reasonable reason for carrying the cash. See, e.g. State v. $10,000 Seized from Mary Patrick, 562 N.W.2d 192, 195 (Iowa Ct. App. 1997). To meet its burden of forfeitability, the State must show a substantial connection between the property and conduct giving rise to forfeiture. Section 809A.13(7). Evidence of a particular conclusion is substantial when the conclusion may be reasonably inferred from it. See In re Property Seized from DeCamp 511 N.W.2d 616, 619 (Iowa 1994). BUT, the Court must not use conjecture or speculation to tie the cash seized with drug trafficking or sales. If the State fails to meet its burden, the Court SHALL order the return of the seized property to the Claimant. Section 809A.13(8). PRACTICE TIP: Two things to keep in mind. One, as stated earlier, try to bifurcate the proceedings and have any Motions to Dismiss or Suppress heard and decided before any merits hearings occur to keep the Court from being tainted by substantive evidence. Waive the 60 days from Answer to merits hearing to make this happen if necessary. Second, at the conclusion of the merits hearing, ask the Court for time to submit Findings of Fact & Conclusions of Law rather than merely having closing arguments. It s important to get all of your issues preserved should an appeal be necessary. There are lots of issues still left unresolved by the appellate courts in forfeiture matters and good briefing gives you the best possibility of preserving these issues. 12

14 Ancillary Issue Disclaimers of Ownership Finally, some interdiction officers will tell drivers and property owners that if they simply sign a disclaimer of ownership over the money or property, the officer will let them go without arresting them or charging them with a crime. Do such disclaimers waive the Claimant s right to seek return or the property in a forfeiture proceeding? Law enforcement and county attorneys seem to think so. There is nothing directly on point in Iowa but two things to consider: 1. While the Fourth Amendment does not protect voluntarily abandoned property, the abandonment of property will not be seen as voluntary if it is in direct response to an illegal search and seizure. See State v. Grant, 614 N.W.2d 848, 855 (Iowa Ct. App. 2000). So any conduct giving rise to a Motion to Suppress arguably invalidates any purported disclaimer. Furthermore, even without an illegal search or seizure, the argument can be made that asking for a disclaimer under these conditions is by its very nature coercive and therefore any disclaimer was not voluntary. And this leads us to: 2. Town of Newton v. Rumery, 107 S.Ct (1987). Rumery filed a civil suit against the police for false arrest, etc., and the suit was dismissed by district court because Rumery had released his right to file a civil right action in exchange for prosecutor dropping criminal charges against him. The U.S. Supreme Court upheld the release but said such agreements or waivers would only be enforceable if the agreement was entered into voluntarily, there was no misconduct on the part of the prosecutor asking for the agreement, and enforcement of the agreement would not adversely affect the relevant public interests. Again, a good argument can be made that disclaimers of ownership entered into on the side of the rode by drivers hundreds and sometimes thousands of miles from home can never be considered voluntary and allowing police officers to ask for such agreements under these conditions goes against the public interest of transparency and accountability for our public officials. 13