New Mexico Civil Rights Lawyers Challenge State Transfers of Cash to Feds
Kennedy & Oliver have joined forces with Albuquerque lawyer Glenn Smith Valdez to challenge the State of New Mexico's practice of bypassing the New Mexico Forfeiture Act in favor of the more profitable federal forfeiture route. The New Mexico State Police have ignored the New Mexico Forfeiture Act since it became effective on July 1, 2002. Kennedy & Oliver and Glenn Smith Valdez represent a man whose now deceased brother's cash the New Mexico State Police seized and transferred to the federal government in direct defiance of state law. Albin v. Bakas, et al., CV 2004-1682 (First Judicial District Court, Santa Fe County)
On October 20, 2002, New Mexico State Police Patrolman C.S. Hooper stopped the plaintiff's brother, John Albin, while he was a passenger in a car in the State of New Mexico. After a prolonged stop and a consent to search the car and personal belongings, Hooper seized $23,000.00 in cash from John Albin and charged John Albin with misdemeanor possession of mushrooms, marijuana and drug paraphernalia.
On December 3, 2002, the New Mexico State Police transfered John Albin's cash to the United States Government thirty-seven (37) days after the seizure. The New Mexico Forfeiture Act provides that seized cash "shall" be deposited in an interest bearing account with the district court clerk. NMSA 31-27-8(A). The Act also provides that "within thirty days of making seizure, the state shall file a complaint for forfeiture or return the property to the person from whom it was seized." NMSA § 31-27-05. Finally, the Act provides that state district courts have jurisdiction over forfeiture proceedings. NMSA§ 31-27-6 (B).
In State v. Nunez, 2000 NMSC 13, 129 NM 63, 2 P.3d 264, the New Mexico Supreme Court decided that the bringing of a criminal action after a forfeiture under the Controlled Substances Act violated the Double Jeopardy Clause of the New Mexico Constitution (Art. II, Sec. 15). The Court decided that civil forfeiture under the Controlled Substances Act constituted punishment.
The Nunez court stated:
Forfeiture inflicts a pecuniary penalty as punishment for the crime and seeks to deter any recurrence of the crime. . . . [E]ven though forfeiture has some remedial aspects, the design and motive behind the forfeiture statutes are unquestionably punitive.
In response to the Nunez decision the state legislature revamped forfeiture proceedings in 2002. 31-27-2 NMSA. The Forfeiture Act has two clearly stated purposes:
"1) to make uniform standards and procedures for
the seizure and forfeiture of property subject to
forfeiture; and (2) to protect the constitutional rights
of persons accused of a crime and of innocent persons
holding interests in property subject to forfeiture."
31-27-2 (A) NMSA.
John Albin was charged with a misdemeanor violation of the New Mexico Controlled Substances Act. The New Mexico Controlled Substances Act provides for the forfeiture of property and cash. NMSA§ 30-31-34. The Act subjects the following to forfeiture:
money which is a fruit or instrumentality of theNMSA§ 30-31-34 (F).
crime.
The Controlled Substances Act, as amended in 2002, also states:
The provisions of the Forfeiture Act [31-27-1 NMSA
1978] apply to the seizure, forfeiture and disposal of
property subject to forfeiture and disposal under the
Controlled Substances Act.
31-31-35 NMSA 1978.
The legal team of Kennedy & Oliver and Valdez is arguing that the Forfeiture Act governs the seizure, handling and final disposition of John Albin's property as New Mexico State Police Officers were enforcing the New Mexico Controlled Substances Act and the officers charged John Albin with a violation of the New Mexico Controlled Substances Act.
The New Mexico Tort Claims Act provides plaintiff with a right to sue law enforcement officers when there is a violation of an explicit constitutional right or a statutory right. California First State Bank v. State, 111 N.M. 64, 801 P.2d 646 (1990); McDermitt v. Corrections Corporation of America, 112 N.M. 247, 814 P.2d 115 (1991). The only requirement is that the statute be written with sufficient particularity as to give rights to specific individuals. Id.
The Forfeiture Act is a statute that gives property owners explicit rights. The statute is designed to "protect the constitutional rights of persons accused of a crime". NMSA 31-27-2 (A)(2). John Albin fit into this category of persons. The statute also gives rights to innocent property owners. Id. Plaintiff falls squarely in the category of innocent property owners. John Albin was charged with a crime under the New Mexico Controlled Substances Act. The Forfeiture Act is designed to protect him and his property.
The Forfeiture Act allows law enforcement officers to seize property in certain limited circumstances. NMSA 31-27-4. The Forfeiture Act gives to a property owner the expectation of a speedy prosecution. NMSA 31-27-5 (filing required within thirty (30) days). The Forfeiture Act gives John Albin the right to a single procedure as required in Nunez and the state bears the burden of proof by "clear and convincing evidence". NMSA 31-27-6. The proceeds of any forfeited funds is designed to go for "drug abuse treatment services, for drug prevention and education programs for other substance abuse demand-reduction initiatives or for enforcing narcotics law violations". The Forfeiture Act guarantees John Albin the right to a "interest bearing account". NMSA 31-27-8.
The New Mexico State Police derive their authority from state law. 29-2-1 NMSA. If the defendants choose to ignore their obligations under the Controlled Substances Act and the Forfeiture Act, they lose the authority to seize the property in the first instance. There is no state law authority for defendants to seize property that is alleged to be contraband under a federal statute. The police chief and "other members" of the New Mexico State Police have limited powers and duties. Their powers are limited to keeping the peace; arresting persons who have violated the law and enforcing laws related to the highway. 29-2-18 NMSA. Their authority to seize property is derived directly from the state forfeiture act. Section 31-27-4 allows the seizure of property in carefully defined circumstances. The common requirement is that the property be "property subject to forfeiture". Under the Forfeiture Act "property subject to forfeiture" is property declared to be subject to forfeiture under state law. NMSA Section 31-27-3(F).
The state has given the defendants no power to enforce civil, federal laws. Since the defendants power is derived from the Controlled Substances Act and the Forfeiture Act, it is incongruous, to say the least, for state officers to seize money under the authority given to them under state law, then to turn around and claim that the state law does not apply.
The Maryland Court of Appeals confronted and disposed of a similar defense by Maryland's State Police when a property owner complained of a federal adoption of a forfeiture. DeSantis v. Maryland, No. 141 (Maryland Court of Appeals 2005) (copy attached). The DeSantis Court framed the State Police defense as follows:
We begin by considering the State's contention that the
State Police had authority to circumvent § 297(e) entirely
when it opted to pursue federal adoption and allow the DEA
to forfeit the money under federal law. The State's primary
argument is that it is not bound by the strictures of § 297
because when the State Police opted for federal adoption
and federal forfeiture, the State statute "never came into
play." We disagree.
The State Police is not free to circumvent State law
altogether when it decides to forgo State forfeiture
proceedings in favor of federal forfeiture proceedings.
When the State Police seized the cash in petitioner's car,
it was operating under State, not federal, law, because the
State trooper seized the property pursuant to the
statutory authority granted him under § 297. Furthermore,
when the State Police took custody of the property, it did
so pursuant to State law, without any federal involvement
whatsoever. At the time of the seizure and during the State
Police's custody of the property, the State Police was
operating under § 297, not 21 U.S.C. § 881. There is no
evidence that federal authorities were involved in, or even
had knowledge of, the seizure of petitioner's property. Thus,
whatever authority the State Police exercised in seizing and
detaining the property emanated from State law, see § 297
(D)(iv), and not from the auspices of federal authority.
Because the property was "taken or detained under [§ 297],"
§ 297(e) is applicable to the State Police. Indeed, almost
all of the cases having considered this issue have assumed
that state authorities cannot avoid their own state laws
when they transfer the property to federal officials.
The Maryland court decided that the Maryland statue allowed the transfer of the money to the federal government. New Mexico's Act requires a filing of a forfeiture complaint wihtin thirty (30) days or the return of the money to its owner. NMSA 31-27-5.
We will be briefing and argue the legalities of the State Police actions in this regard in the near future. We will keep the New Mexico legal community informed of the outcome.
