Why police could seize a college student's life savings without charging him for a crime

Charles Clarke entered the Cincinnati/Northern Kentucky International Airport last February eager to go back to his mother after a months-long visit with relatives. But instead of a quick, easy trip home to Orlando, Clarke lost his life savings — $11,000 in cash — to law enforcement officials who never even proved he committed a crime.

Clarke, a 24-year-old college student, said losing that $11,000 was "devastating." He's been forced to live with his mom, trumping his plans to move closer to school. He's fallen back on other family for financial support. And he had to take out loans for school instead of paying for it up front — for which he's still in debt. "It's been a struggle for me," Clarke, who's now fighting in court to get his money back, said.

But law enforcement officials may have been working within the confines of the law when they took Clarke's money. Under federal and state laws that allow what's called "civil forfeiture," law enforcement officers can seize and keep someone's property without proving the person was guilty of a crime. They just need probable cause to believe the assets are being used as part of criminal activity, typically drug trafficking. Police can then absorb the value of this property — be it cash, cars, guns, or something else — as profit: either through state programs, or under a federal program known as Equitable Sharing that lets local and state police get up to 80 percent of the value of what they seize as money for their departments.

So police can not only seize people's property without proving involvement in a crime, but they have a financial incentive to do so.

People can get their property back through court challenges, but these cases can often be very expensive and take months or years.

It's these laws that law enforcement officials cited in taking Clarke's cash, and in seizing thousands of other people's property across the country. But Clarke's story shows just how flimsy the initial basis for taking someone's money can be — starting with, simply, how his checked luggage smelled.

Police say Clarke's bag smelled like marijuana

The government is mainly basing its forfeiture of Clarke's $11,000 on one claim: His checked bag and money smelled like marijuana, so, according to law enforcement, the money was very likely obtained or meant for illegal drug activity.

A spokesperson for the US Attorney's Office of the Eastern District of Kentucky said it couldn't directly comment on a case with pending litigation, but he pointed to a Drug Enforcement Administration (DEA) agent's affidavit outlining why police felt justified in seizing Clarke's cash.

The story of what happened at the airport was pieced together with Clarke's account, the affidavit, and other court documents provided by the Institute for Justice, a national nonprofit that runs EndForfeiture.com and is helping Clarke get his money back from law enforcement.

Clarke had spent a few months in the winter of 2013 and 2014 visiting relatives in Cincinnati as his mom, whom he lived with, moved to a new apartment in Florida. Before leaving home, Clarke decided to bring all of his cash with him because he didn't want to deposit it in a bank or leave it in Florida while movers would be in his home.

"I didn't commit any crime, and I didn't understand why I was stopped, so I was confused and scared"

On February 2014, it was time to go back home to Florida. Clarke went to the Cincinnati airport, checked in a bag, and proceeded to the departure gate. Shortly after, two law enforcement officers — acting through a tip from a ticket agent — claimed they and their drug-sniffing dog detected a strong smell of marijuana coming from the checked bag. The officers proceeded to the departure gate where Clarke was waiting for his plane, and questioned him about his bag, whether he had any cash, and where the cash came from. During this questioning, Clarke admitted to smoking marijuana on the way to the airport, and he provided some — but not all — the information about where the cash came from.

Citing the smell of marijuana, "travel on a recently purchased one-way ticket," and "inability to provide documentation for source of currency," the police officers took the cash "based upon probable cause that it was proceeds of drug trafficking or was intended to be used in an illegal drug transaction," according to the affidavit filed in July by the DEA agent, William Conrad.

Up to this point, Conrad's affidavit noted that Clarke was completely cooperative: He agreed to talk to police when approached, he agreed to a search, and he willingly showed them his cash when asked if he had any money on him. (As Clarke explained to me, he had no idea at the time police could easily take his cash through civil forfeiture laws.)

But after police moved in for his cash, Clarke said he reacted as many people likely would to someone taking their life savings — confused and scared. Conrad's affidavit alleged that Clarke shouted at the officers, and tried to grab and push one of them away from his cash. Police ended up filing charges against Clarke for assault on a police officer, resisting arrest, and disorderly conduct — the first charge was immediately dropped, and the second and third were dropped after Clarke agreed to community service.

"I'm not a drug dealer. I never have been."

"I was scared. I didn't feel like I knew what was going on," Clarke told me. "I didn't commit any crime, and I didn't understand why I was stopped, so I was confused and scared."

Clarke admits he used marijuana while on his way to the airport, which explains the smell on his bags and cash. But he didn't have any pot or other drugs on him or his bags when he was stopped at the airport.

He also insists he never sold drugs or participated in any trafficking. Over the five years it took him to save the $11,000, he said he worked various jobs: at fast-food restaurants, clothing stores, an airport, and UPS. His defense team provided several documents showing Clarke earned money from three jobs in the months prior to the airport stop, Department of Veterans Affairs benefits (his mom is a disabled veteran), and financial aid for college.

"I'm not a drug dealer. I never have been," Clarke said. "I was just a recreational user. I don't smoke often, but I was using at the time."

Civil forfeiture laws don't require police to charge someone with a crime

Under the law, a police officer only needs probable cause to take someone's property or cash because he felt it was in some way gained or meant for criminal activity. After that, it's on the property owner to prove law enforcement wrong.

If challenged, the government needs to show a preponderance of evidence that the property has substantial connection to criminal activity. So in Clarke's case, the government would need to show that the money was linked to illicit activity — it either came from selling illicit drugs, or it was intended to buy illicit drugs.

Requiring only preponderance of evidence is an extremely low standard. In typical criminal cases, the government has to prove beyond a reasonable doubt that someone is guilty of a crime. But in civil forfeiture cases, the government only has to show that it's more likely than not that the property was intended to buy drugs or obtained from selling drugs.

The bar is so low in part because it's the property itself on trial, not the person whose property was taken — and due process rights cover people, not property. So in Clarke's situation, the case is literally called United States of America v. $11,000.00 in United States Currency. (No, this is not a joke.)

The case is literally called United States of America v. $11,000.00 in United States Currency

"Originally, it was designed for situations in which the court would not have jurisdiction over the person," Darpana Sheth, an attorney for the Institute for Justice, said. "So it's an action on the property itself."

This is unlike criminal forfeiture cases, in which people are convicted of crimes before their property is taken.

With the bar set so low, the question in Clarke's case is whether the government's claim of merely smelling marijuana on his bags is enough to show the cash he had on him was more likely than not meant to buy drugs or gained from selling them. Sheth said courts have come down different ways on whether the smell of a drug is enough evidence in these cases. "That's what we'll be litigating," she said. "We certainly don't think that should be enough."

Specifically, Clarke's defense claims the government has to show that the money was in some way attached to trafficking, not just prior pot use. But, Sheth conceded, this is also a topic that's being debated in court — and, despite the Institute for Justice's confidence, it's possible they'll lose due to the low threshold the government needs to meet.

Police have a profit motive to seize people's property

FBI/Newsmakers via Getty Images

The original intent of civil forfeiture and the federal Equitable Sharing program was to let cops seize property from bad guys — drug lords, terrorists, and the like — and turn that property into a financial advantage for police departments.

But like many police powers expanded in the war on drugs, the worry is cops are now abusing civil forfeiture laws — specifically, to pad their own budgets. An investigation by the Washington Post's Robert O'Harrow Jr. and Steven Rich found money going to anything from computers and guns to armored trucks, coffee makers, and the face-painting services of Sparkles the Clown.

The Institute for Justice estimates that 13 different law enforcement agencies from Ohio and Kentucky are seeking a cut of Clarke's $11,000

And critics worry about how civil forfeiture laws can warp police priorities. They might, for example, deliberately take on highway stops that don't improve public safety but can lead to big cash seizures. In Clarke's case, can the public really say it was served by the seizure of a man's life savings when there's no evidence the cash would have been used for anything but rent and college?

The Institute for Justice estimates that under the federal program, 13 different law enforcement agencies from Ohio and Kentucky are seeking a cut of Clarke's $11,000 — even though 11 of those agencies weren't involved in the seizure. The competition should show how lucrative these kind of seizures are in the eyes of law enforcement: They're an opportunity to turn a costly counter-narcotics operation into a profitable venture for the police agencies involved (or even not, in Clarke's case).

This has been an increasingly profitable program for Cincinnati airport police, which have been in involved in more and more seizures over the years. Seizures involving Cincinnati airport police trended down for a few years after the federal government passed small reforms in 2000, but they have shot back up since then, peaking in 2013.

The Justice Department imposed some new restrictions on the federal Equitable Sharing Program earlier this year, but critics argued that the exceptions swallow the new rules. Local and state police departments will no longer be able to "adopt" seized property when they're working completely alone and without any federal aid, but they can still get deputized by a federal agent, work through a federal task force, or cite a vague public safety exemption to tap into forfeiture powers and continue seizing people's stuff for cash.

In cases in which local and state police can't use the federal program, they can fall back on state laws that also allow police to absorb the value of much of the property that they take. States are generally more restrictive about how police can seize and use property from civilians, but not always. And in some states, if police can overcome the generally higher standards of state law, they can keep as much as 100 percent of the proceeds, according to a 2010 report from the Institute for Justice.

The result is that civil forfeiture laws at the state and federal levels provide plenty of opportunities for police agencies around the country to take people's property and turn it into profit for their own professional (or personal) use. That helps explain not just why someone like Clarke — a college student who seems to pose little threat to anyone — was stopped, but why hundreds others like him are stopped each year.

There are thousands of stories similar to Clarke's

Institute for Justice

The Washington Post's Michael Sallah, Robert O'Harrow, and Steven Rich detailed many stories in which people were pulled over while driving with cash and had their money taken despite no proof of a crime, and only got their money back after court battles. In one story, police took $17,550 from Mandrel Stuart, a 35-year-old restaurant owner in Virginia — and he lost his business before finally getting his money back in court. In another case, cops seized $18,000 from Benjamin Molina, a 40-year-old man with no criminal history, that was intended to buy a used car. And in one of the most bizarre cases, law enforcement took $28,500 in church funds from Jose Jeronimo Sorto and Victor Ramos Guzman that was meant to purchase land for a church in El Salvador and a trailer for a new congregation in North Carolina.

One problem for the victims in these cases is that hiring a lawyer and fighting in court to get property back can often cost more than the actual value of the property. Clarke was able to get free legal aid for his case, but not everyone is that fortunate.

"I don't think the cops should be allowed to take somebody's money if they haven't committed any crime. We're treating innocent people like criminals."

A bulk of forfeiture cases also appear to disproportionately afflict minorities. Clarke, who's black, said he felt like he was racially profiled. Of the 400 federal court cases reviewed by the Post in which people challenged a seizure and got some money back, most of the victims were black, Hispanic, or another racial minority.

By taking Clarke's case, the Institute for Justice is hoping to combat not just the one injustice Clarke felt he suffered, but the civil forfeiture laws that drive all these other cases as well. So they're attaching a broader constitutional argument to the case: that the Justice Department shouldn't be able to — as it does today — choose where to spend the seized money, because that gives the executive branch appropriations powers left to Congress in the Constitution.

"Under the Appropriations Clause, Congress is the only branch that has the power to appropriate money," Sheth said. "That's designed to protect people. So if Congress — the most representative branch — holds the purse strings, then people are actually accountable to how that money is spent."

This is an argument that's been advanced by other critics of civil forfeiture, including the Drug Policy Alliance. It's unclear whether it can win in courts, and whether it would strike down civil forfeiture laws. But for organizations like the Institute for Justice, it's the best chance to take out a program that they believe is doing a lot of harm — and that lawmakers just aren't doing much about.

"It's ridiculous. I think it needs to change," Clarke said. "I don't think the cops should be allowed to take somebody's money if they haven't committed any crime. We're treating innocent people like criminals."