damnum absque injuria

August 21, 2006

Outrage of the Day

Filed under:   by Xrlq @ 10:23 pm

Q: If you have a lot of money in your car and act a little funny when the police pull you over for speeding, does that make you a drug dealer?

A: Yes, if you are in the Eighth Circuit.

Lordy. Double-hat tip: Mona (yes, that Mona) and Radley Balko (yes, that Radley Balko).

UPDATE: Walter Olson has more. Mike Cernovich discusses why the case may be as flawed legally as it is morally. This assumes, of course, that the standard for appealing factual determinations in the Eighth Circuit is “clearly erroneous,” and not “clearly err… aw hell, we just don’t like it.” Meanwhile, commenter Nels Nelson points out that the two bad judges in this case, Morris S. Arnold and Steven M. Colloton, were appointed by Presidents Bush I and Bush II, while the dissenting good guy, Hon. Donald P. Lay, was appointed by President Johnson. It’s good to know that even today, not all judicial activists are liberals.

27 Responses to “Outrage of the Day”

  1. Nels Nelson Says:

    Don’t Bush, Sr. and Bush, Jr. get slammed for picking these judges, as Carter did the other day for appointing Anna Diggs Taylor? And where’s the love for Johnson, who appointed the dissenting judge?

  2. nk Says:

    Nels, I for one have always admired LBJ.

  3. nk Says:

    Shades of O.J. Losing your money on the hearsay testimony of a dog. Maybe there are diferent rules of evidence for brown people. I have to use more sunscreen when I go outside.

  4. SayUncle » Outrage Says:

    […] Via Xrlq and, err, me. While the press is busy giving us wall-to-wall coverage of the Jon Benet Ramsey case, important shit is happening that we should be paying attention to: The Eighth Circuit Court of Appeals has ruled that police may keep the $124,700 they seized from Emiliano Gonzolez, an immigrant who by all appearances was attempting to use the money to start a legitimate business. […]

  5. Mona Says:

    Sincerely, I appreciate the h/t — and on the pernicious issues of the drug war, I ardently hope the split(s) among libertarians over other matters does not prevent our developing a critical-mass coalition to do something.

    Like end the drug “war.”

  6. Xrlq Says:

    Indeed. But I’m also a realist, so I say end the drug war tomorrow, and end civil forfeitures (or at least civil forfeitures without criminal convictions, or at very least, civil forfeitures without clear and convincing evidence) today.

  7. Mona Says:

    It’s over a decade old, but I recommend Henry Hyde’s book Forfeiting Our Property Rights: Is Your Property Safe from Seizure? . Even social con Hyde calls therein for an initiation of rational discussion of the drug war. But mostly his volume is just a concise history of the “guilty property” notion from English common law, and how that doctrine almost died in the U.S. — until the drug warriors breathed monstrous life into it.

  8. Patterico Says:

    When I hear the name Radley Balko, I check, and check again. Here is what I found:

    We believe that the evidence as a whole demonstrates by a preponderance of the evidence that there was a substantial connection between the currency and a drug trafficking offense. Possession of a large sum of cash is “strong evidence” of a connection to drug activity, $84,615 in U.S. Currency, 379 F.3d at 501-02, and Gonzolez was carrying the very large sum of $124,700. The currency was concealed in aluminum foil inside a cooler, and while an innocent traveler might theoretically carry more than $100,000 in cash across country and seek to conceal funds from would-be thieves on the highway, we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking. $117,920.00 in U.S. Currency, 413 F.3d at 829. The canine alert also supports the connection.

    The route and circumstances of Gonzolez’s travel were highly suspicious. Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture, see United States v. U.S. Currency in the Amount of $150,660.00, 980 F.2d 1200, 1206 (8th Cir. 1992), and he gave a vague explanation, attributed to advice from an unidentified third person, about why he elected to return by car. Gonzolez purportedly carried $125,000 in cash with him on his flight, for the purpose of buying a truck that he had never seen, from a third party whom he had never met, with the help of a friend whose name he could not recall at trial. This testimony does not inspire confidence in the innocence of the conduct.

    When he was stopped by the Nebraska State Patrol, Gonzolez was driving a rental car that was leased in the name of another person who was not present, another circumstance that gives rise to suspicion. Then, when Gonzolez was questioned by officers, he lied about having money in the car and about the names of his friends, thus giving further reason to question the legitimacy of the currency’s presence. See $117,920.00 in U.S. Currency, 413 F.3d at 829. The totality of these circumstances – the large amount of concealed currency, the strange travel pattern, the inability to identify a key party in the purported innocent transaction, the unusual rental car papers, the canine alert, and the false statements to law enforcement officers – leads most naturally to the inference that Gonzolez was involved in illegal drug activity, and that the currency was substantially connected to it.

    There’s a bit more to this than a guy with a lot of money acting a little funny.

  9. Xrlq Says:

    Patterico, I don’t trust Radley any more than you do. My reaction is to the opinion itself, not to his take on it. While you say there’s more to this than a guy with a lot of money acting a little funny, what’s the “more?” One-way ticket and a rental car? Please.

    Also, bear in mind this decision was a reversal of a lower court judgment. It’s one thing to write an opinion like that to uphold a lower court’s decision that the guy was a drug dealer, on the theory that his strange behavior was enough to satisfy the pathetically low preponderance of evidence standard. It’s quite another to write the same opinion to reverse a lower court’s factual determination that the the money was not derived from the drug trade. Do you really think that a one-way ticket, a rental car by a third party and a paranoid fool who lies to the police make it so obvious he’s a drug dealer, that any finding to the contrary is clearly erroneous?

  10. Phil Says:

    One major irony of all of these forfeiture cases is that the police — the very folks supposedly charged with protecting us from the drug trade — actually end up reaping huge profits from the drug trade.

    If I were in law enforcement under these conditions, I’d have a very low incentive to actually stop the drug trade — and a very high incentive to intercept the profits of the drug trade as often as I could without actually putting them completely out of business.

    And when you look at the reality — that the drug trade never goes away, or even really appears to diminish, despite endless efforts — the result of those incentives appears pretty clearly.

  11. The Agitator Says:

    Probing Prosecutor Patterico…

    The proprietor of “Patterico’s Pontifications” responds in the comments section of this blog (also, apparently, not a fan of mine)……

  12. Patterico Says:

    The more is everything I quoted above.


    I see Balko has done a post about me and my response to this. If he had comments, I’d take him to task for never correcting that misstatement he made about the Supreme Court. But he doesn’t have comments, so I guess I’ll have to make that observation here.

    I didn’t say I necessarily agree with the decision; I’d have to do a lot more research to decide whether I thought it was proper or not under the law. But I’d like the facts to be characterized correctly. Unlike Balko (see my link above), accuracy is important to me.

  13. Dave Wangen Says:

    Frankly, I could care less about your disagreements with Balko.

    Patterico: do you honestly feel that it is morally justifiable to take a person’s possessions away from them, because of “suspicions” that they have committed a crime? Shouldn’t they actually have to be, you know, convicted?

    (Not withstanding items such as drugs, which are illegal to possess. No law, to my knowledge, bans me from owning money.)

  14. Mappo Says:


    Please stop asking such nosy, irrelevant questions of Patterico. You are SUCH a cheap shot artist.

  15. jf Says:

    Hey Mappo,

    I don’t know about Dave’s history, but he asked some good questions. Frankly, I don’t see how anyone who believes in due process can come to any conclusion but that you and Patterico can both go off into a corner and sodomize each other. Find this man guilty in a court of law and I’ll change my mind, but since you two nitwits (Patterico by implication and Mappo by association) have already judged this guy, I can see how much you respect the process.

  16. Dave Wangen Says:

    I’m a “cheap shot artist”? Based on a single, on-topic post?

    Look, the original post was titled “Outrage of the Day”. My point was that, regardless of the circumstances that Patterico cited, taking this man’s money without actual evidence sufficient to convict him of a crime _is_ an outrage, and Patterico’s mistrust of Balko doesn’t play into it.

    If you choose to interpret that as a “cheap shot”, that’s your perogative, but I have no idea how you arrive at that conclusion.

  17. Phelps Says:

    Dave has a legitimate question. To me, if the seizure does conform to the letter of the statute, that is even more damning. The issue is, do We the People put up with a government that has decided to throw out the fourth and fifth amendments and replace them with 4.2 and 5.2? And that is before we get to the Bill of Attainder issue on all of this.

  18. Patterico’s Pontifications » Why Would I Say Radley Balko Isn’t Always Accurate? Because He Isn’t. Says:

    […] P.S. As to the specific case in question, I simply felt that Xrlq and (to a lesser degree, Balko) had oversimplified (and understated) the facts underlying the decision. Read this Xrlq post and this comment of mine to see what I mean. That doesn’t mean I necessarily agree with the decision — just that I want to see it portrayed accurately. […]

  19. Mappo Says:


    Lordy. I was being sarcastic. It was a reference to Xlrq’s lame effort of an insult at Balko from last night.

  20. A Second Hand Conjecture » Inactivist Says:

    […] A while back I mentioned Jon Henke’s latest project, Inactivist. There is a lot going on over there, Mona is stirring things up as usual, and brings our attention to Radley Balko’s post on asset forfeiture. Xrlq weighs in at his own place as well as in Mona’s thread. The two of them are in agreement, and I’ll side with them, but the comments shed some light on various nuances and both sites allow them to strut their stuff on this issue. Unfortunately since Patterico feels the telling has been a bit one sided Mona can’t resist calling him an authoritarian, no, a hard-core authoritarian. Sigh. As The Libertarian World Turns is a never ending series. […]

  21. buzz Says:

    I understand the concept about taking the ill gotten gains from illegal conduct as it was discribed back when they started doing this, but as usual, it has been abused by the government. If your convicted of a crime, then sure, haul them back into court and take the profits. I bought a motorcycle back in April. I live in Nebraska, I used to live in Ohio where I still have a bank account. I was in town visiting friends and decided to withdraw a few thousand dollars to purchase the bike. Now if I had been pulled over in Nebraska, exactly what obligation do I have to inform the police dept where I was at, where I am going and what my business is and what I intend to do with the money? If they decided to take my money, just how do I go about proving it had no connection to drugs? Is it suspicious that I have a bank account out of state? Is it suspicious that I withdrew cash rather than paying for a cashier check?

  22. nk Says:

    Buzz, you wrote:

    “just how do I go about proving it had no connection to drugs?”

    Since you live in Nebraska you would probably have to prove that you’re not skimming wheat off the combines.

  23. Patterico Says:

    Would you tell the cops numerous lies about yourself and the motorcycle?

  24. MVP Says:

    Patterico, cases like this only increase my suspicions about the police — if the police would like Americans to trust and always be straight with them, perhaps they should try giving us the same respect. It’s SUPPOSED to be Them *working for and helping* us, not Us VS Them (a great tune, but not a great reality!). Would I tell the cops numerous lies? Perhaps, because I KNOW they would tell numerous lies to me, hoping for a momentary lapse in judgement leading to divulgence of some information that would ordinarily not be divulged willingly to the authorities. The fact that the authorities again and again have objected to being supervised, monitored, and recorded while performing their civic duties doesn’t help the matter.

    I don’t think “oversimplification” is an issue here — authorities didn’t have enough evidence to even CHARGE this man with a crime, but they still thought it reasonable to seize his assets, suspicious as they may be, without any real justification or proof.

  25. MVP Says:

    Let me correct myself. “Us VS Them” is not a great tune (no offense, Song-Teksten!), but “Us And Them” is.

  26. Patterico Says:

    “I don’t think “oversimplification” is an issue here — authorities didn’t have enough evidence to even CHARGE this man with a crime, but they still thought it reasonable to seize his assets, suspicious as they may be, without any real justification or proof.”

    I.e. prosecutors didn’t even think they had enough evidence to prove the case beyond a reasonable doubt, but they still thought they had a preponderance of the evidence. Crazy!

  27. Xrlq Says:

    I.e. prosecutors didn’t even think they had enough evidence to prove the case beyond a reasonable doubt, but they still thought they had a preponderance of the evidence. Crazy!

    It’s not crazy that they thought that, but it is crazy that that’s good enough.

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