Ohio reformed its forfeiture laws years ago. But some defense attorneys, public defenders and civil rights groups say state and federal forfeiture laws still make it too easy for police to confiscate and keep money and property, even if there’s scant evidence it is tied to serious criminal activity.
They say many people have trouble getting their property back, even if they are innocent or had it wrongfully taken.
“Forfeiture actions disproportionately affect poor people,” said Jacob Seidl, assistant public defender with the Office of the Montgomery County Public Defender. “The property at issue is oftentimes automobiles and small amounts of money. Property that has immense value to those who have limited resources.”
Last fall, Clifford Owensby filed a legal petition in Montgomery County Commons Pleas Court demanding the Dayton Police Department return $22,450 in cash that officers seized from his vehicle.
Owensby, who police controversially yanked from his car during a traffic stop in September, alleged that officers unlawfully searched his vehicle and seized his money without valid probable cause.
Dayton police said they stopped Owensby’s car because they saw him leave a suspected drug house and the window tint on his vehicle was too dark, which is a traffic violation.
Owensby ultimately was convicted of minor misdemeanor counts of illegal window tint and failing to properly secure a child, and he was fined.
Police also discovered a black plastic bag on the car’s floorboard containing $22,450 in cash. A drug-sniffing police canine indicated the money had been in the presence of narcotics, officers alleged.
Owensby told the Dayton Daily News the money was his life savings. Police said Owensby told officers he was carrying the cash because he is a real estate investor and was looking to buy property.
Owensby’s petition claims officers did not have the authority to take his money, and it could not be legally seized or forfeited under Ohio Revised Code.
“That property found to be in the possession of the motorist whose vehicle is being searched (whether rightly or wrongly so) cannot be seized by an officer merely because it became visible to the officer conducting the search,” the petition says. “To be sure, it must appear to be contraband or evidence that can be related to a crime. If it were otherwise, the officer could cart off anything in the vehicle, despite the rights of the motorist he is bound to respect.”
In court documents, the city and police department denied many allegations in Owensby’s petition and argued he is not entitled to the requested property and asked the court to dismiss the case.
A spokesperson for the police department said, “The money is still going through the court process so we cannot comment on it.”
When do officers take money?
But Dayton police officials said officers typically seize assets when they have good reason to believe the property is the proceeds of drug crimes or supports drug trafficking.
Officers take and hold money during arrests and submit eligible property for forfeiture through state or federal courts, and the process can take months or even years.
“The final disposition of seized assets is determined by the courts,” Saunders said.
Since 2017, the Dayton Police Department’s state law enforcement trust fund has been awarded more than $449,000 in forfeited funds from state courts, department data show. The police department’s federal justice fund received more than $798,000 from forfeited funds from federal court..
Many property forfeiture awards follow criminal cases that result in conviction.
The primary purpose of Ohio’s forfeiture laws is to “provide economic disincentives and remedies to deter and offset the economic effect of offenses,” said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, citing Ohio Revised Code.
What is Ohio law?
Ohio’s civil asset forfeiture laws changed in 2017, after House Bill 387 passed by wide margins in the Ohio House and Senate.
Under previous state law, Ohioans did not have to be convicted or even charged with a crime for the government to take their property through civil forfeiture, according to the Institute for Justice, a national, public interest law firm.
The 2017 law requires authorities to obtain a criminal conviction or its equivalent against property owners before cash or property worth less than $15,000 can be forfeited.
Authorities in Ohio can still seek civil forfeiture of property worth $15,000 or more without a criminal conviction.
The 2017 law also shifted the burden of proof from the property owner onto the state and lowered the standard of proof for forfeiture in civil court, the Institute for Justice states.
State law allows people who believe their property was unlawfully seized to file a court motion stating their interest in the property, why the seizure was unlawful and request the property’s return, said Greg Flannagan, spokesperson for the Montgomery County prosecutor.
But though the burden is supposed to fall on prosecutors in civil forfeiture cases, that burden is much lower than in criminal cases, said Seidl, the assistant public defender.
Many civil forfeiture cases result in default judgments, Seidl said, because the defending party fails to plead or otherwise defend against the case, which automatically results in forfeiture.
This happens regularly, he said, likely because people either don’t have money for an attorney or do not understand how to appear in a legal case on their own behalf. Unlike in a criminal cases, citizens in civil cases are not given a free attorney if they are indigent, he said, and must hire an attorney or navigate the legal system on their own.
“Going to court takes time,” Seidl said. “Forfeiture not only deprives a property owner of the use of their property, it means expending more resources: taking time off of work, finding child care, and putting aside one’s life to try to get your property back.”
Federal law and local cases
Under federal law, authorities can seek criminal, civil and administrative forfeiture, which are meant to deprive criminals of the proceeds of their crimes and recover funds to both deter crime and compensate victims, says the U.S. Department of Justice.
Civil judicial forfeiture does not require a criminal conviction, though the government must prove the property was linked to criminal activity.
In September 2020, the DEA Dayton resident office and the Dayton Police Department received information about a suspicious flight itinerary of a female passenger, according to a complaint for forfeiture in U.S. District Court for the Southern District of Ohio.
The woman, who once lived in Brookville, bought a one-way ticket a day before departure traveling from Dayton to San Francisco, the complaint states.
The complaint describes Dayton as a “known destination area for illegal drugs” and San Francisco as a “known source area” for illicit narcotics.
Credit: Aaron Max / Staff
Credit: Aaron Max / Staff
DEA task force officers said they approached the woman at the airport, and she agreed to be interviewed.
The officers summoned Dayton Police Detective Jeremy Stewart and his police canine Weston, who is trained to detect the odors of marijuana, cocaine, heroin, methamphetamines and other illegal drugs.
Weston gave a positive alert on the woman’s carry-on bags and checked suitcase, the complaint states.
Officers said they found more than $12,000 in cash in a Gucci backpack, duffle bag and her suitcase, which they say also had three vacuum-sealed plastic bags that smelled of marijuana.
U.S. Assistant Attorney Deborah Grimes filed a civil complaint for forfeiture that says the DEA task force officers had probable cause to seize the cash from the woman as proceeds from drug-related activities.
The woman filed a claim with the DEA to get her money back. In it she said the cash was her life savings, and she was carrying the money because she wanted to invest in a start-up family business.
“I lawfully earned and saved all of the defendants (the cash) listed above over the course of my lifetime,” she wrote in a claim.
The judge in December ruled in favor of the state’s request for forfeiture.
The woman has not been charged with any crime, according to publicly available records.
Prosecutors: Forfeitures disrupting crime
The U.S. Attorney’s Office for the Southern District of Ohio has a district forfeiture unit focused on “seizing ill-gotten gains.”
The U.S. Attorney’s Office for the Southern District of Ohio seized assets worth more than $9 million in fiscal year 2016.
“Asset forfeiture has the power to disrupt or dismantle criminal organizations that would continue to function if we only convicted and incarcerated specific individuals,” the U.S. Attorney’s office said when the unit was announced.
Some civil rights groups have questioned, challenged or condemned warrantless canine free-air sniffs, claiming they are an invasion of privacy and are unreliable.
Gary Daniels, chief lobbyist with the ACLU of Ohio, said defense attorneys and others for a long time have argued that a positive alert from a police canine sniff should not constitute probable cause.
He said that’s because most currency people carry around has trace amounts of illegal drugs.
Some studies suggest most U.S. currency have some drug residue, like cocaine.
More local examples
Last year, a couple in Bainbridge filed a lawsuit against Dayton’s law department claiming Dayton police did not return about $10,000 the husband found in the woods.
The husband, a roofer, said he was searching for mushrooms near a job site on Riverview Avenue in May 2017 when he found a bag containing the cash. The man said he met with a Dayton police officer who said he could keep the money if no one ever claimed it.
The lawsuit alleged police held onto the cash, and city officials never answered the couple’s requests to have the money returned. The lawsuit was dismissed last spring after the city agreed to return the money.
The money had not been claimed by anyone, but for some reason the city would not return it to the couple, even though they acquired absolute title to it because it was abandoned, said Bradley Anderson, the couple’s attorney with Rion, Rion & Rion.
“We had some worries that the cash might ‘disappear’ or be otherwise appropriated by the city in some way, but it appears to all have been retained in the property room and turned over to our clients when we settled the lawsuit,” he said.
In May 2020, a Miami Twp. police officer stopped a car with no license plate that allegedly was weaving on Interstate 75.
After allegedly smelling marijuana, the officer detained the two occupants and during a search of the vehicle found a grocery bag containing stacks of cash, and another bag in the trunk containing cash wrapped in rubber bands, according to the complaint for forfeiture, filed by assistant U.S. Attorney Grimes.
The woman claimed the money — later determined to be more than $124,000 — came from a workplace lawsuit she won, as well as from casino winnings and her earnings as an Uber driver.
Police located a partially smoked marijuana cigarette in the car, but decided not to cite the driver or passenger, the complaint states.
Officers seized the money as drug proceeds, and a police canine indicated the money had the odor of illegal narcotics, the complaint states.
The woman hired an attorney, who filed an answer stating there is no probable cause that would allow the government to permanently take the money. The case is ongoing.