In Rare Win, Man Arrested On Bogus Drug Charges Gets Everything Back, Including $150,000 The Government Really Didn't Want To Give Up

Source: Techdirt.com

Here’s a pretty encouraging story about fighting asset forfeiture and winning. The convoluted laws surrounding marijuana use are being exploited by California cops as revenue streams. A raid of a legal cannabis collective resulted in a whole lot of forfeited assets.

[I]n Oceanside, CA, [attorney Michael] Cindrich’s client Shaun Smith endured a home invasion, a SWAT-style raid where law enforcement took 3 ounces of cannabis concentrates, 55 pounds of cannabis and over $43,000 of his medical marijuana collective’s cash on-hand.

Not content with the massive cannabis haul, officers then took everything else it could find.

They also took what they felt were his assets, including a Toyota truck, guns, ammunition, and a motorcycle, then rode to the bank and confiscated the $110,000 from his bank account.

It appeared to be open-and-shut, especially as forfeiture is purposely extremely difficult to challenge, no matter what state you’re in. Weed dealer busted. Assets obtained. Nothing left to do but decide how to split up the proceeds.

Fortunately for Smith, his lawyer quickly unraveled the very questionable case against him. The jury reached a not guilty verdict on the manufacturing and distribution charges in less than ten minutes. One of the key pieces of evidence in the prosecution’s case — a small extraction tube often used for butane extraction of cannabis oil (still illegal in the state) — worked against it.

The prosecution tried to claim the tube showed Smith was engaged in illegal extraction efforts. Smith’s lawyer, however, obtained documents from the DEA showing the extraction tube had never been in use. The lab notes on the seized evidence stated that there were spiderwebs inside the tube — something that suggested it had been stored for quite some time, rather than being part of an active extraction effort.

From there, Cindrich went on to challenge the forfeiture. Once its case fell apart, the state was unable to successfully challenge Smith’s motion for return of property. However, that didn’t mean it actually returned all of the seized property. It gave him back all of the seized marijuana, weapons, and other miscellaneous items, but refused to hand over the $150,000 in cash or the motorcycle it took.

But in its haste to turn all of Smith’s assets into its own, local law enforcement screwed up. It failed to process the forfeiture of these items in a timely manner. All hail “technicalities.”

Since state agents seized the property pursuant to a state search warrant, the state statute of limitations of one year began on the date of seizure, not the date feds turned it back over to state. Since the one year statute of limitations had lapsed, Cindrich argued that the property return was required.

The District Attorney’s office said that the federal government seized the money initially, claiming the law enforcement authorizes involved in the raid were acting as federal agents.

The judge found in favor of Smith, noting that while the officers were cross-sworn as federal and state agents, the original seizure occurred under the state’s authority, and the belated shift of the assets to the feds (as part of the DOJ’s equitable sharing program — a favorite loophole exploited by local law enforcement agencies to route around more restrictive state laws) didn’t change the underlying facts. The attempt to reset the clock on the forfeiture failed and the DA’s office is now in the process of returning the last of Smith’s property to him.

A closed-loop collective that grows and distributes medical marijuana to members is fully legal in California. Obviously, law enforcement wishes this weren’t the case. The same goes for the prosecutors who get fed questionable cases like this by overzealous drug warriors. A medical marijuana activist who attended some of the hearings in Smith’s case points out that local prosecutors do everything they can to prevent juries from being made aware of this fact. Other cases covered by this advocacy group suggest this technique hasn’t been working too well, what with juries returning not guilty verdicts in record time.

However, the loss of a prosecution does not automatically result in the return of seized assets. Convictions are not required in cases where the value of assets seized tops $40,000. And this stipulation doesn’t go into effect until the beginning of next year — which will also trigger a tightening of the equitable sharing loophole to prevent law enforcement from routing around the new conviction requirement. The sad fact is that, more often than not, citizens can walk away from bogus charges, but still have nothing to show for it in terms of returned assets.

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Source: Techdirt.com

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