Berkeley Police Confiscate Cash from Hot Dog Vendor

Over the weekend, university police in Berkeley, Calif., stopped Martin Flores from buying a hotdog from a street vendor. Claiming the vendor was operating without a permit, an officer grabbed the vendor’s wallet, rifled through it, and took all of his money—$60—before writing him a ticket for illegal vending. Shocked, Martin recorded the interaction.

His video went viral.

Responding to a firestorm of criticism, Berkeley police announced that they are holding the vendor’s money as “evidence” of illegal vending and not—as many suspected—for civil forfeiture.

This is a baseless argument that we, at the Institute for Justice, have encountered before. When prosecutors in our San Diego case realized there was no hope of forfeiting the Slatic family’s life savings (because California’s one-year statute of limitations to seek forfeiture had expired), they changed their theory, 18 months into the case, and argued that the money was “evidence” of a drug crime.

But money is seldom evidence of anything. Only in exceptional cases can money “prove the existence or nonexistence of a fact”—the legal definition of “evidence” in California. Granted, money might have fingerprints on it, but the fact that a street vendor has $60 in his wallet does not tend to prove or disprove anything. Police could just as easily put in their report that he had $60 in his wallet.

Fortunately, the court in San Diego rejected the prosecution’s evidence argument and ordered the return the Slatics’ money. Hopefully, the same outcome can be expected for the vendor in Berkeley…after painful and expensive litigation, which will cost more than $60 in legal fees.

This illustrates one of the dirty secrets of the American justice system. Police have near absolute power to seize property on the street, putting the burden on the property owner to fight back at his or her own expense. That is what happened in our San Diego case, where it took a team of IJ lawyers more than 21 months to win back the Slatics’ illegally seized money.

The situation in Berkeley is infuriating for several reasons. No one was going to be harmed if Martin was allowed to buy a hot dog from a street vendor. The vendor was only trying to earn an honest living. Permit or no permit, police shouldn’t have the power to take a person’s property for such a minor offense.

Wesley Hottot is an attorney at the Institute for Justice.

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