4: You Could Make Things Easy

00:06 Tess Terrible: In the first episode of this podcast, we heard about Beto Matias. He was selling hot dogs on the University of California, Berkeley campus without a permit. Police approached his stand, issued him a ticket and seized all the money he had in his wallet. This is Clark Neily. He’s the Vice President for Criminal Justice at the Cato Institute.

00:33 Clark Neily: A vendor in California, I think it was in Berkeley, selling hot dogs or something, and he didn’t have the right permit, and the police officer just went up to him and literally took all of the cash out of his wallet. And this is videotaped by a bystander. And when the crowd kind of expressed concern about this, police officer just could not have been more dismissive or disrespectful, and he just said, “He’s out here selling without a permit, so we get to take this.” That is really not an impression I think that law enforcement wants to create. And, unfortunately, I think it’s essentially inevitable when forfeiture is used as routinely and as cavalierly as it often is.

01:17 Tess Terrible: This is The Pursuit, a podcast about government action and individual liberty. I’m Tess Terrible. In this season of The Pursuit, we’re exploring two tools government uses to seize private property: Eminent domain and civil asset forfeiture. Last week, we concluded our section on eminent domain. During the next two weeks, we will explore asset forfeiture, another tool government uses to seize private property.

01:50 Clark Neily: Many people who are proponents of the drug war believe that an important component of waging the drug war is to take away the money that essentially finances it and that provides the incentives for people to participate in the drug market, the illegal drug market. I don’t find that particularly exceptionable, and not coincidentally, when you allow law enforcement essentially to, what we sometimes refer to as police for profit, they will begin to focus their attention and their resources on policing the crimes that enable them to seize large amounts of cash, oftentimes at the expense of policing the more serious crimes like murder and other violent crimes. So, that’s really what happened during the 1980s as you had an explosion in the drug war, including particularly the advent of crack cocaine, and law enforcement responded in a variety of ways, including by dusting off this idea of civil forfeiture, and empowering law enforcement to take property by alleging that it was involved in a drug crime, in particular, but not actually have to secure a conviction in order to keep it. And this had the effect of really supercharging civil forfeiture.

02:56 Tess Terrible: Attorney General Jeff Sessions highly endorses civil asset forfeiture. In a press release issued by the Department of Justice, he stated, “The Asset Forfeiture Program is one of the most effective tools Congress has provided the Department of Justice to fight crime, combat cartels and other transnational criminal organizations, and take the profit out of crime.” “Therefore,” he says, “we must continue to lead and oversee the Asset Forfeiture Program on behalf of the public we serve in a responsible and effective way, with the highest level of professionalism, integrity, and fairness.” So I return to the previous point. How effective is civil asset forfeiture? Does it actually dismantle crime? Is it a good tool?

03:52 Gerardo: Well, the day of the seizure, you want a little background. I’ll give you a little background.

03:57 Tess Terrible: This is Gerardo. He lives in Kentucky, but he has family in Mexico. When traveling to visit Mexico, he was stopped at the border by Border Control.

04:08 Gerardo: The first thing I do is, there’s a toll, there’s a toll booth. I pay whatever that toll is, three bucks or whatever. I pay the lady. There’s two tolls. The second lady, I decide to take a picture ’cause it’s just to let the family know this is where I’m at. Then I pass the second toll both, and I start taking - I swing that camera, I start taking pictures all the way across, like fast because I’m driving. So it’s like, I’m real slow, I actually stopped, but there’s nobody behind me, so I real quickly did a scan.

04:44 Gerardo: Just as I was doing the scan, two Border Patrol agents was walking by, so I happened to take their picture. And that one guy, he was walking past, and he saw me, and he said, “Hey, hey!” And I said, “Hey, look, look, I didn’t mean to take your picture.” He tries to grab my phone and I, since I was in a car, and my window was all the way down because I just paid the toll, I moved my cellphone all the way towards the passenger side. So he says, “I want that phone.” I said, “I’m not giving you my phone. Listen, I want you to see. I deleted the picture of him on there. See, I deleted it.” And I went back and forth, and I said, “Look, this is the picture before, this is a picture after. The picture’s gone. I’m just going to Mexico.” So I’m relatively in a good mood, and he yanks me out, and being the nice guy that I am, I say, “Listen, you can’t do that. I’m an American citizen. I’m an American citizen and I have rights. You can’t just yank people out of their truck like that.” He said, as I was talking to him, and I was nice. I was very nice. I felt like I was gonna help this guy out. I’m just gonna help him out. He doesn’t know. I don’t care what kind of badge he has, but he just doesn’t know.

[music]

06:18 Gerardo: So I tell him that, and as I was talking to him, I see this other Border Patrol agent. This other guy comes in ’cause the door was open, and he gets in my truck, and then he drives, he drives to the place this guy wanted me to drive to, this parking area.

06:39 Tess Terrible: We need to add one important detail to this story: Prior to going to Mexico, Gerardo was carrying a firearm. Gerardo has a concealed carry permit and carries his firearm regularly.

06:54 Gerardo: I drive towards Mexico. Bowling Green, Kentucky, I stopped by, there is a Cabela’s over there, I stopped at Bowling Green. I said, “I guess I’ll go buy me a box of bullets, you never know. So it’s a 380 size gun, small gun. It’s for defensive purposes only, not for any offensive things. Just for defense, I buy a box of bullets. I go back in my car, I start driving to Mexico. I arrive at Eagle Pass, Texas, it’s late, I decide to get a hotel. I go to a hotel, in the morning I tell my cousin, “Cousin, I’m ready to go to Mexico.” And I’m right here in Eagle Pass. And I said, “Hey look, I’m taking my gun with me, okay?” He goes, “Gerardo, please, whatever you do, don’t take that gun.” I said, “Why? It’s a small gun. I can hide it.” He said, “No. In Mexico, if they catch you, they won’t tell us for like a year later that they have you in prison. We’ll be trying to figure out where you went and what happened to you. And they won’t tell us until they’re ready to tell us.” So I said, “Okay, so what do I do?” And he said, “Well, we’ve got another cousin that lives in Eagle Pass. He’s dying to meet you anyway. He hasn’t seen you in years.” Mind you, I haven’t been to Mexico in 20, 25 years. So, this is the first time I’m going back.

08:24 Tess Terrible: He stopped in Eagle Pass, he left his firearm with his cousin, and he continued his journey to Mexico, but he didn’t realize he was still carrying five loose bullets in his center console. Back to Gerardo’s encounter with the police.

08:41 Gerardo: So I started getting nervous now. Because I’m thinking, “They’re gonna plant something on me.” So I’m getting a little nervous, but then I said, “I didn’t do anything wrong. I haven’t done anything wrong. You can’t do this.” So as we were talking, the next thing I heard was one of the guys say, “We got him.” He yells out, “We got him.” And I’m thinking, “What has he got?”

09:10 Tess Terrible: Five bullets from a small 380 caliber handgun. He had five bullets in his console. And for that, Border Control said he had “munitions of war.”

09:25 Gerardo: So I said, “What have you got?” ‘Cause he’s right there. He opens his hand, and there’s that magazine of bullets. There’s five bullets in that magazine. So real quickly I just said, “Hey look, I’ve got a license to conceal and carry. This is not a problem. You’ve got two options.” As I’m telling him this he says, “You’re in trouble, man. Turn around, put your hands behind your back.” He’s putting handcuffs on me. So now he’s got my phone, he took the phone out of my hand to get the handcuffs, and now he’s got my phone. And he says, “You’re in big trouble.” And I said, “Listen, I’ve got a license to conceal and carry, okay?” So he goes, “No, you’re now in big trouble, young man. You’re in big trouble.”

10:21 Tess Terrible: Gerardo was taken into custody and questioned. When he was released, Border Control seized his truck. This was a brand-​new truck and Gerardo was being obstinate, he was not going to cooperate with the police. This is Gerardo’s lawyer, Robert Johnson, who works with the Institute for Justice.

10:42 Robert Johnson: So Gerardo is a guy, he lives in Kentucky. He has a sort of variety of businesses that he works in. He fixes up houses, he has other sorts of lines of business. And for his work, I guess that part of it is fixing up properties that he purchases, he depends on his pickup truck, this is part of his livelihood. And one day he was going to Mexico to visit with cousins he has down in Mexico. And he was going across the border, and he had his cellphone out, and he was taking pictures at the border crossing. Gerardo likes to post pictures on Facebook, he likes to show them to his family, who follows him on Facebook. And so he thought, “You know, I’m going back to Mexico. I haven’t been there in a long time. It’d be fun to take pictures.”

11:31 Robert Johnson: The border guards did not agree that it was fun. They pulled him over, said, “Why are you taking pictures?” Being a firm believer in his civil liberties - I think Gerardo is nothing if not a civil libertarian - he said, “You know, I’m not gonna want to show you my phone. I don’t wanna talk to you about these pictures.” They wanted him to give the password to his phone, he refused. So, ultimately, what happened was, they pulled him out of the truck, they searched the truck, and at this point, they found five bullets in the center console. And these were small-​round ammunition. They’re not anything particularly extraordinary, and Gerardo just didn’t realize that they were there in his truck. Now, at this point, they said, “You could make things easy for us. You could let us search your phone - or you could make things hard for us.” And Gerardo, not wanting to make things easy for the government, he said, “No, I’m not gonna give you the password to my phone.” Anyway, at the end of the day, they let Gerardo go, but they say, “We’re gonna keep your truck, and we’re gonna forfeit it.” And they send him this notice saying that, “Your truck is subject to civil forfeiture because those five bullets were munitions of war, and those five bullets make your truck subject to civil forfeiture.”

[music]

12:48 Tess Terrible: We will come back to Gerardo’s case. But for now, we’re going to dive into another. This is Frank Ranelli. On June 29, 2010, his small computer store just outside of Birmingham, Alabama was raided by the police.

13:06 Frank Ranelli: I was in my office doing my books from the day before, and we have electric switch on the door, so that it wouldn’t let people in, ’cause we’re not always in the showroom for customers, so somebody came up, and instead of pushing my buzzer, they beat on the door. I got up to go see what was going on, and it was this detective from the City of Homewood. And we opened the door, was like, “What the heck’s going on?” We could see other officers out in the parking lot, some of them had AR-​15s or whatever the military deal is there, and flak jackets on. I’m like, “What the heck?” And so he walked into my little showroom there, and we had a room to the side there that we stored stuff in, and if I purchased something or whatever, we would put it back there ’cause we had to hold it for 15 days. And he came in and went straight for that room, and then he turned around and yelled, “Arrest them all. Stolen goods.”

[music]

14:09 Tess Terrible: Police raided his store. They arrested Frank and two of his employees. Frank didn’t know why this was happening. It turns out there had recently been a series of burglaries in the area. Frank was not being arrested for these burglaries. He played no part in them. He was being arrested because police suspected that he purchased some of the stolen goods.

14:38 Tess Terrible: I’m a bit confused. They raided your store and arrested you because they thought you had purchased stolen goods?

14:48 Frank Ranelli: Yes, but they had no proof of that.

14:52 Tess Terrible: They didn’t raid you and arrest you because they thought you had stolen goods, just purchased stolen goods.

15:00 Frank Ranelli: Received, received stolen goods, yes. At the time, the way they did it in Birmingham, you had to have a ledger book with non-​removable pages. In other words, you’d have to literally cut the page out to get it out of there. And you could tell if a page had been cut out. And when someone came in to sell you something, you took their driver’s license, wrote down all their information and then put in the item that you purchased, the serial number, description and all that kinda stuff. And so if the police came looking for it or whatever, you’d have a record of where you got it. And so I explained all that to him, and they looked surprised. So then they asked me where the book was, and da-​da-​da, and then they said, “Well, how do you pay for this stuff?” And I said, “Well, probably 95% of the time, I write a check.” I said, “There are occasions, sometimes, that I will pay cash, but not often.”

15:57 Frank Ranelli: And so they asked me a few more things and really talked silly about this and that. They told me that when I go to purchase something, why don’t I call downtown police department of Birmingham and find out if it’s stolen. There’s no hotline for doing that or anything. And that item, if it turned out to be stolen, it may not even get reported for a few days or get in the system. At the end of that conversation, they kinda like, “Well, we’re gonna have to look at this and see what we’re gonna do.” One of the detective was from Mountain Brook and the other one was this guy from Homewood. At the end of that conversation, I said, “Well, listen, guys,” I said, “I’ve cooperated with you. I’ve told you whatever I could tell you, tried to help you or whatever.” I said, “Now,” I said, “There’s a phone right here,” I said, “Can I call my lawyer?” And Sergeant Rodriguez said, “You don’t need a lawyer.” I said, “Well, can I call my wife? Because I’m sure she’s going crazy wondering where I’m at.” He said, “Don’t worry about that. Your family knows where you are.” And they took me back, put me back in the cell.

17:02 Tess Terrible: He ended up spending the night in jail. When he returned to his store in the morning, his inventory was completely emptied.

17:11 Frank Ranelli: I didn’t find out till I got out of jail on Friday and came back to my shop that they had just emptied my building. They took all the inventory out the store. Now, a good bit of what they took were customers’ units that had invoices on them with the customer’s name and telephone number and whatever, and a bill. So maybe they owed me $50, $75, $100 or whatever. They took all that. Of course, they also cleaned out all of my new inventory. They took just a whole load of desktops, laptops, monitors, hard drives, just anything, but the real clincher for me was, they took my server, my workstations, my checkbooks. The warrant was only for four computers.

18:00 Tess Terrible: The police took over $40,000 worth of computer goods and equipment. This is no small loss for a small business like Frank’s, but it turns out, in the grand scheme of things, this figure is relatively small.

[music]

18:23 Tess Terrible: When you look at the total assets, seized every year by government officials, this is just a drop in the ocean: New trucks, old computers and cash money.

18:36 Clark Neily: In the last year before the advent of this asset forfeiture fund that changed where forfeiture proceeds went - from the general treasury fund to DOJ, specifically - DOJ brought in about $95 million in forfeiture proceeds. In 2014, which is the last year for which we have statistics, but after the advent of the Assets Forfeiture Fund, DOJ brought in 4.5 billion, that’s billion with a “b”, dollars in forfeiture funds.

[music]

19:10 Tess Terrible: The Pursuit is produced and hosted by me, Tess Terrible. It is a project of the Cato Institute and Lib​er​tar​i​an​ism​.org.

[music]