In January 2016, police officers searched Ovide Ned’s car during a traffic stop in Houston, Texas. After they found a bottle of opioid painkillers, police charged Ned, then aged 40, with drug possession. Ned had $955 on his person at the time. Officers seized this money as well.
Once Ned was able to prove he had a valid prescription for the medication, the criminal charges against him were dropped. The money, however, was never returned.
Angela Beavers, the chief civil asset forfeiture prosecutor at the Harris County District Attorney’s Office, said that despite the prescription, Ned was “obviously selling the pills.” She explained that drug dealers would often obtain prescriptions for the meds they were selling from pain clinics.
“All they have to do to make the criminal case go away,” said Beavers, “is to produce one of the prescriptions so that the possession is not illegal.” Then she added, “It does not mean the money seized is not contraband.”
In the seizure report, police said Ned had a criminal history and was a known gang member. They believe the three boxes of plastic sandwich bags they found in the trunk of his car were related to drug dealing.
The police were able to take Ned’s money using a procedure known as civil asset forfeiture. This is a legal procedure whereby law enforcement can take possession of an individual’s property if it is suspected of being involved in criminal activity. In most states, no criminal conviction is needed for police to be able to take property—not even criminal charges are necessary.
In criminal cases where the standard of proof is high—“beyond a reasonable doubt”—the burden of proof lies with the prosecution. In civil asset forfeiture cases in Texas, however, a much lower standard of proof is required—just “a preponderance of the evidence.” The burden of proving the property was not involved in a crime lies with the property owner.
Additionally, since this is a civil and not a criminal procedure, property owners have no right to counsel. If they want to challenge the case, they either have to pay for an attorney or attempt to navigate the complicated legal system themselves.
To complicate matters further, police in Texas have an incentive to seize an individual’s property: they keep at least 70 percent of the proceeds from forfeitures. Law enforcement agencies can use this cash to fund their own operations, something which leads critics of civil asset forfeiture to say police have an incentive to seize cash. This is known as policing for profit.
Jennifer Gaut, a defense attorney based in Houston, explained that seizing small dollar amounts makes sense to police. “In a way, I think it actually benefits police to seize these smaller dollar amounts because… people can’t find [legal] representation,” she explained.
Ned’s case has come to light as part of a broader investigation into civil asset forfeiture in Texas. Local and state law enforcement agencies in the state bring in approximately $50 million every year as a result of civil asset forfeitures. There is, however, little oversight on how this money is obtained. Law enforcement agencies have successfully fought attempts to require full reporting on forfeitures in the state.
“There is a principle of being innocent until proven guilty, and forfeiture just takes that and flips it on its head,” said Arif Panju of the Institute for Justice. “That raises all sorts of constitutional problems.”
Civil Asset Forfeiture Attorney
If your lawful property has been seized, then you should hire a lawyer. Contact us to set up a free initial consultation and work with one of Florida’s most experienced civil forfeiture defense attorneys.