Arizona Forfeiture Appeal

Jerry’s Trucking Business

Jerry opened his trucking business, Triple J Logistics, in 2015 after getting his commercial driver’s license. He owns two semi-trucks and employs two drivers who run a few loads a week, primarily along the Atlantic coast. He’s been able to build a steady business that helps him support his family, including his young grandson who lives with him.

The business has helped Jerry turn his life around. Growing up, Jerry made mistakes that eventually landed him in prison in 2005. After his release in 2011, Jerry took steps to get on the right path. He opened his trucking business, settled down with his now-fiancée and moved back to North Carolina to be closer to relatives and far away from his old life. Jerry learned his lesson, and he has spent the past decade earning an honest living and avoiding trouble.

But, as any entrepreneur knows, owning a business isn’t without its hassles. Jerry’s two trucks are nine and 16 years old, and one has a million miles and persistent mechanical issues. Jerry needed a third truck to maintain and grow his business. And while on vacation in Phoenix, Jerry had seen a sign for the Ritchie Bros. auto auction. Looking at the auction’s website, Jerry noticed that they were offering just the type of truck his mechanic had recommended, and he decided to check it out in person and try to make a deal.

The “Crime” of Flying with Cash

Jerry took cash that he had been saving over the years and borrowed an additional $9,000 from his uncle to purchase the truck. He packed the cash in his carry-on and checked baggage, putting the money in two cardboard boxes so that it wouldn’t be obvious to someone rooting through his bag. Despite these efforts (and perhaps because of these reasonable measures), the money was likely flagged by the Transportation Security Administration. While cash is not on the TSA’s list of banned items and poses no threat to airline security, agents watch for large amounts of cash and alert law enforcement when it is detected (as other IJ airport cash seizure and forfeiture cases in Houston, Cleveland and Pittsburgh have demonstrated).

The detective who approached Jerry after he landed in Phoenix knew about the money in his checked bag and began interrogating him about the source of the cash. The detective refused to believe Jerry’s reasons for having the cash and insisted that Jerry would be arrested if he did not sign away the money on the spot. Eventually Jerry relented and signed a “Disclaimer of Ownership” form. Only then was he released and, after a fretful night in Phoenix without his savings, allowed to fly back home.

Jerry Is Forced to Prove His Ownership and His Innocence All at Once

After arriving back home in North Carolina, Jerry decided to fight for his money and hired an attorney to contest the state’s civil forfeiture proceeding. Thanks to modest forfeiture reforms passed in 2017, Arizona prosecutors should have been required to prove by “clear and convincing evidence” that Jerry’s money was connected to a crime. But Jerry’s fight was short-circuited at an earlier stage where all he should have been required to show is that the money was his.

At the hearing to determine ownership, Jerry’s attorney presented eleven exhibits supporting the fact that the money was Jerry’s. Jerry also testified over teleconference that the money was his own and explained how he had obtained it. Afterward, the judge even acknowledged to Jerry’s attorney on the record that, “[Y]ou clearly established his interest in the property . . . .”

However, things turned after the state was allowed to present its case for forfeiture. There was no evidence tying Jerry’s money to drug smuggling; instead, the prosecutors dragged back up Jerry’s past convictions and pointed to the fact that Jerry had deposited money into a cousin’s and uncle’s commissary accounts while they were in prison. The detective also testified that Jerry was nervous under questioning.

By the end of the presentation, the judge had changed his mind. He ruled that Jerry’s testimony was “not believable” and held that he had “not met his burden of proving that he owns the $39,500 seized from him.” But what the court really held was that Jerry had not proven he was an innocent owner, as revealed by this critical conclusion: “As between two possibilities—that Claimant flew with his own cash to possibly buy a truck, or that Claimant was transporting the proceeds of drug transactions—the latter is more likely.” The court then granted the forfeiture for the government, handing the state of Arizona Jerry’s $39,500.

Legal Claims

Jerry has teamed up with the Institute for Justice to appeal the court’s flawed ruling, which runs counter to Arizona precedent and threatens to undermine the recent reforms to Arizona’s forfeiture statutes. Federal courts, applying statutes like Arizona’s, have repeatedly held that judicial determinations on (1) whether a claimant is the owner of property and (2) whether the property should be forfeited must be kept separate. The court in this case was wrong to conflate the two, both as a matter of Arizona law and the U.S. and Arizona constitutions.

Statutory Law

Arizona law is clear: a person contesting a forfeiture is required to show that he is the owner of the seized property; the state must then make its case for forfeiture under a “clear and convincing” burden of proof. That means the state must offer “clear and convincing” evidence to demonstrate that seized property is related to criminal activity. Despite this burden, which is clearly on the state, the court determined that Jerry had not proven his own innocent ownership of the seized cash. This ruling was premature and inappropriately placed the burden on Jerry to effectively prove his own innocence before he could contest the forfeiture of his money. As federal courts have recognized while interpreting similar statutes, “[ownership] must be clearly separated from the merits in civil forfeiture cases so that the government is not relieved of its burden to ‘prove that property is subject to forfeiture.’”[1] If deciding ownership meant deciding innocent ownership, federal courts have recognized, then there would be no distinction between questions of ownership and questions of forfeitability. These inquiries must be kept separate, and the state must be held to its burden of proving guilt.

Constitutional Law

In addition to violating Arizona statute, the court’s ruling violates the U.S. and Arizona constitutions by requiring Jerry to prove his own innocence. As the U.S. Supreme Court has previously held,[2] forcing people to prove their own innocence before returning their property gives rise to an unacceptable risk of error. The Court concluded that “to get their money back, defendants should not be saddled with any proof burden,” explaining that imposing such a burden on people trying to retrieve their property in a civil proceeding violates the “[a]xiomatic and elementary” principle that individuals are “entitled to be presumed innocent.”

A case IJ won in Albuquerque, New Mexico, established that this presumption-of-innocence analysis applies to forfeiture cases.[3] Arizona courts should follow this established precedent in rejecting any requirement that property owners prove their own innocent ownership of seized property to be able to contest its forfeiture.

The court in this case denied Jerry his due process of law by forcing him to prove his innocent ownership. The Constitution demands better.

The Litigation Team

IJ Senior Attorney Dan Alban and IJ Attorneys Keith Diggs and Alexa Gervasi represent Jerry Johnson in the appeal of his civil forfeiture proceeding.

About the Institute for Justice

The Institute for Justice is the nation’s leading advocate for private property rights and has successfully defended innocent property owners in civil forfeiture cases across the United States. In Arizona, IJ helped an elderly couple get their car back after prosecutors ignored state law and attempted to take the car through an administrative procedure. In Albuquerque, New Mexico, IJ successfully challenged the city’s vehicle forfeiture program, which violated due process by forcing property owners to prove their own innocence and provided improper financial incentives to law enforcement to use forfeiture revenue to fund their forfeiture program. In Oklahoma, IJ prevented law enforcement from taking money raised for Burmese refugees by a Christian rock band. IJ has also launched a class action suit against the TSA and Drug Enforcement Administration on behalf of individuals who have had cash seized at airports in Pittsburgh, Wilmington and Charlotte.

[1] United States v. Funds in the Amount of $239,400, 795 F.3d 639 (7th Cir. 2015).

[2] Nelson v. Colorado, 137 S. Ct. 1249 (2017).

[3] Harjo v. City of Albuquerque, 307 F. Supp. 3d 1163, 1211 (D.N.M. 2018).