(CN) — In August 2020, North Carolina trucking company owner Jerry Johnson flew into Sky Harbor International Airport in Phoenix with $39,500 cash, some in a carry-on bag and some in a checked suitcase.
Johnson planned to use the money to buy a truck for his booming business back home, he said, but police had a different idea.
Claiming Johnson was moving cash for drug dealers, police seized it. And although no one was ever charged in the case, the police kept the money, citing a “preponderance of evidence” that it was not his money but was instead the product of racketeering.
Johnson appealed the forfeiture, and on Tuesday the Arizona Court of Appeals heard the case.
Arguing before judges Peter B. Swann, David D. Weinzweig, and Paul J. McMurdie, Johnson’s attorney Alexa Gervasi of the Institute for Justice said the lower court conflated the standing portion of the hearing — which determined whether Johnson owns the money — and the probable cause portion, in which the judge decided it was drug proceeds.
Gervasi argued Maricopa County Superior Court Judge Randall H. Warner erred when he jumped past the ownership of the money — which Johnson had proved by being the timely sole claimant to money taken directly from him — to seizure based on the evidence that he was a courier.
“The court did not find that Jerry was a drug mule,” she said. “The court did not find that the money was not Jerry’s.”
Even if the state did show via evidence that the money was from or for drugs, it didn’t prove the money was subject to seizure, because no owner, like a drug trafficker for instance, other than Johnson was even suggested by the state, she told the panel.
Dallen Gardner from the Maricopa County Attorney’s Office argued the evidence was clear that the money was drug-related. Johnson had business accounts but kept large amounts of cash at home. He flew in and out of Phoenix on a short schedule, Gardner said.
Judge McMurdie challenged the state’s argument that Johnson was just a courier and has no standing to claim the cash.
“He says, ‘I own the money,’” McMurdie said. “Where is there contrary evidence that would indicate that it’s not him, that it’s somebody else?”
Gardner responded, “He doesn’t know how much he has. There’s one."
“I don’t know how much I have in my wallet,” Judge Swann retorted from the other end of the bench. “Do you need to check it? Should I be worried that the police are going to come and check it? Am I going to have to explain where I got it?”
No, Gardner said, but there were other factors, including that the money smelled like cannabis.
Swann dismissed that argument as “highly unpersuasive,” citing a study from the early 2000s in which cash from the Arizona governor’s wallet tested positive for cocaine.
McMurdie dismissed Gardner’s arguments as irrelevant to determining if Johnson has standing to claim the money.
“You can continue of you want, but to me all of these things go to probable cause. It doesn’t go to ownership,” McMurdie said.
Gardner argued that proving other ownership isn’t the state’s role here. Swann then interjected with a stern rebuke.
“I’m sorry that it seems harsh that the government should have to come forth with evidence before they take away people’s money at the airport,” Swann said.
The state does have to prove the money isn’t Johnson’s, and the case presents no evidence other than speculation that it is, he said.
This past May, Arizona Governor Doug Ducey signed a law stiffening protections against undue forfeiture in Arizona. The new law requires most seizures to be made permanent only after criminal conviction, forces presumptive innocence, and abolishes “non-judicial” forfeitures in which law enforcement seizes property without a judge’s intervention.
The Institute for Justice is representing Johnson in the appeal, which the panel took under advisement.
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