Oral arguments began Tuesday morning in the Arizona Court of Appeals in a civil foreclosure trial in which the Phoenix police confiscated $ 39,500 in cash from a man with no criminal charges against him.
At the hearing, three judges repeatedly questioned and criticized a Maricopa County attorney’s argument against Jerry Johnson, one of whom referred to the Civil Forfeiture Process (RICO) as “disgusting”.
“I am sorry if it seems tough that the state actually has to produce evidence before stealing the money from the people at the airport,” said the Honorable Peter Swann.
Civil decay has drawn sharp criticism over the years as it has often enabled law enforcement agencies to seize assets such as money and property without having to charge the owners with a crime – let alone induce a conviction.
Proponents of civil recovery reform often argue that the cost of hiring a lawyer and trying to get the assets back is often more expensive than the assets confiscated. Some say law enforcement agencies are able to collect and spend money from the seized assets, and then create a financial incentive to seize as much as possible.
The hearing comes a month after the U.S. 9th Court of Appeals ruled in favor of a couple trying to get their car back after it was confiscated in Arizona, and several months after lawmakers passed law requiring major civil reforms Forfeiture law in the state.
Phoenix Police seized the man’s $ 39,500 at the airport last year
Jerry Johnson had flown out of Charlotte, North Carolina in August 2020 to buy a third articulated truck for his small shipping company. Johnson found a job for a wanted truck at an auction in Phoenix and flew to Phoenix Sky Harbor International Airport with $ 39,500 in cash – $ 7,500 in his carry-on bag and $ 32,000 in boxes that he put in his checked baggage.
Johnson previously told the Arizona Republic that he chose to travel with cash to avoid incurring fees for withdrawing outside of his usual bank, and that he found articles that said that traveling with large amounts of cash was perfectly legal .
Phoenix officers turned to Johnson when he was collecting his luggage and interrogated him about the purpose of the large sum of money he had brought with him. Johnson said he intended to buy a truck for his business.
An official eventually accused Johnson of being involved in criminal activity and forced him to sign a waiver or go to jail.
Johnson previously told The Republic that he did not understand what he was signing at the time, but was later learned that it was a waiver indicating that the money he had brought with him was not his. Johnson was able to leave after signing the form, but his money was kept in police custody.
Johnson hired an attorney to get his money back and submitted bank statements and tax returns, but the court still found the evidence insufficient. He later contacted the Virginia-based libertarian nonprofit called the Institute for Justice, which has written and prosecuted civil forfeiture cases.
The lower court ruled Johnson was more likely than not involved in illegal activities and ruled against him.
The nonprofit learned more about Johnson’s case and agreed to appeal the lower court’s decision.
Judge: “The legislature has laid down a very tasteless process”
Alexa Gervasi, an attorney for the Institute for Justice, represented Johnson at the hearing on Tuesday, arguing that the lower court shifted the burden of proof to Johnson and relieved the government of the burden of proving that Johnson’s property had been forfeited.
Dallen Gardner, an attorney representing the Maricopa County Attorney’s Office, disagreed that the lower court made a mistake in its decision. Gardner claimed Johnson did not own the money, but told the three-person jury that the owner of the money was unknown.
When asked how he knew the money was not from Johnson, Gardner said the money did not appear to be from Johnson’s commercial bank account and that Johnson did not know exactly how much money he had at the time.
“I don’t know how much I have in my wallet,” replied Swann. “Do you need to check that? Do I have to worry the police will come to check it out? Do I have to explain where I got it from? “
Gardner then said the money that smells like marijuana was also a factor in seizing it from Johnson, although Swann criticized the point as well, saying that money travels through different parties and doesn’t smell or trace of substances on the bills necessarily mean that it is being used during unauthorized activities.
“I find it hard to imagine impregnating $ 40,000 with the smell of marijuana,” said Swann.
The somewhat heated argument then centered on whether the government could not prove whether Johnson had received the money illegally, but whether he was simply an agent transporting the money on behalf of someone else and not the actual owner.
Gardner claimed Johnson did not own the property and that someone moving money that was not theirs could lie about their property to keep it from deteriorating.
“All you had to do is get a money mule that will never reveal who the agent is and boom – he says it’s his and you are stuck,” Gardner said.
Gardner’s point of view did not find much sympathy.
Gardner began to argue that it fell under civil forfeiture law when Swann found that the law had changed since then.
“I will notice that the law has evolved since that case and the legislature has set a very tasteless process,” said Swann.
After the hearing, Gervasi told The Arizona Republic that she was cautiously optimistic that the Arizona Court of Appeals would rule in Johnson’s favor.
“We think that the court has obviously read all the pleadings and looked very closely at the opinion of the lower court and asked the government really good questions,” said Gervasi. “For example, if Jerry isn’t the owner – who is it? And the government had absolutely no answer. “
Gervasi also said the Arizona Court of Appeal ruling was significant as it could set a precedent for the burden of proof the government must provide in civil foreground disputes.
“You never put the burden of proving your own innocence on the plaintiff,” said Gervasi. “Even after these reforms, that is still a very important message of the law.”
Johnson, who was present at the hearing, told the Republic that he believed the trial had gone well and thanked the Institute of Justice for arguing on its behalf. He said he just wanted the government to return his money.
“I want my money back because the money affects my trucking business,” said Johnson. “I could buy another truck with the money.”
Johnson said he has still not been able to buy another truck for his business since the money was seized.
Gervasi said the court could deliver its opinion in two ways – a formal published decision or just a memorandum. Gervasi said she assumed the former would take between 60 and 90 days and the latter 30 to 60 days.
Reach reporter Perry Vandell at 602-444-2474 or perry.vandell@gannett.com. Follow him on Twitter @PerryVandell.
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