The Big Asset Trip

In the few times I have had to claw back seized assets from the State on behalf of a client, I’ve had success. I can’t chalk this up to skill. In my experience, a not atypical scenario is where a person is stopped for a traffic offense (for example, speeding, having an expired tag, etc.), the officer then either states they smell marijuana, or just asks to search the driver’s car, and marijuana is found. And, a wad of cash is found as well. The cash is seized. It’s placed into an evidence locker at the police station. The presumptive theory is the money constitutes proceeds from selling marijuana. Otherwise, having less than four ounces of marijuana shouldn't trigger seizure. So, if the fish isn’t too big, and the prosecutor can be persuaded the client doesn't sell weed, they just like to smoke it - a lot - and depending on other factors like the accused’s priors, many prosecutors are magnanimous. They'll release the funds back to the accused without a fight.?

The law which allows the State of Georgia to seize cash found in a car where illegal drugs were also located is OCGA §16-13-49. And, while the statute changed in 2015, the relevant provision was given its current “plain meaning” by the Court of Appeals of Georgia just before. The current provision, OCGA §16-13-49(b)(5), reads, “Any property found in close proximity to any controlled substance or other property subject to forfeiture under this Code section” is itself contraband. In State v. West, 775 S.E.2d 153 (2015), after the defendant pled guilty to possession of marijuana with intent to distribute, the State also wanted to seize his car. The car had been parked in front of his residence inside of which was all of the marijuana and related evidence. No evidence was found in the car. West testified he bought the car with money from work and school loans. The trial court denied the State’s seizure of the car, but in a 4-3 decision, the Court of Appeals reversed.?

West stands for the proposition that there is no requirement that seized assets have anything whatsoever to do with the illegal stuff in order to be permanently taken away from a defendant. All that is required, be it cash, car, jewelry, phone, laptop, home - whatever - is that the property in question be near, close, proximate - choose your preferred synonym - to the contraband. Or, the assets to be seized can be near to other property subject to forfeiture per OCGA §16-13-49. If that seems unfair, the majority opinion noted, “Arguably, the forfeiture laws have sometimes led to unfair results and failed to protect the rights of innocent individuals.” Id. at 155. And, while the Court of Appeals might have entertained an argument based on an infringement of West’s constitutional rights, the majority notes no such challenge was raised. As for the dissent, it wasn’t pushing to read the statute any differently than the majority. It just questioned whether the trial court had made a finding West’s car was or was not “proximate” to the other bad or tainted stuff. The dissent would have remanded - or sent the case back down - for further determinations.?

So, in a recent case of mine, the Assistant District Attorney let me know all they had to show was that my client’s money was near the illegal stuff (not a little bit of marijuana) in their little car. The illegal stuff and the cash were not together in a backpack or other container. They were just in the same tiny vehicle. But, as the case was worked out with a diversion agreement that dismissed my client’s felony VGCSA (drug) charges, restricted their criminal history (a.k.a. “expungement), and returned their money, I didn’t have to worry about a hearing on the seizure. And, it seems per West, I’d have no leg to stand on. Save I could make a constitutional challenge. But for what is worth, I disagreed with the prosecutor's broad reading of West, although I'd admittedly be on untrodden, shaky ground. Still . . .

What does “proximate” mean when an arrestee is found with contraband and other assets in a small car? In a little clown car Fiat, the contraband and the money could at most be just under a dozen feet apart, if even. Doesn’t the concept of distance in this case become meaningless??

For instance, what if my client had been driving a large 18-wheel trailer truck? And what if they had, say, some psychedelic mushrooms and a lot of money. But the money was in their glove compartment, and the shrooms were all the way at the back of the truck some 80-feet distant? Under West, is that still proximate, or does the truck driver get the cash back? But, if the trucker gets their money back, the Fiat driver is still out of luck? What if the “driver” is the engineer of a line of freight trains and the distance between their cash and contraband is 2 to 3 miles? Not realistic? You'd be surprised. But okay, let’s try this . . .?

What if instead of being stopped on the highway, a Fiat driver with the munchies stops their fancy go-cart somewhere at the far end of a Buc-ee’s parking lot. Let’s name our Fiat driver "The Dude". The Dude shambles across a massive expanse of hundreds of parked cars and gas pumps, leaving around $1,000 inside their tiny car. The Dude goes into the Buc-ee’s. He makes his way to the other end of the 80,000 square-foot megastore. A half-mile from his car and $1,000, The Dude hungrily peruses the impressive beef jerky display. Smelling not too faintly of weed, and not remembering if he brought any cash with him, The Dude digs into his pockets looking for a few bucks, man. And, as luck would have it, some coins and a not-too-full sandwich bag of quality Mary Jane falls out of The Dude’s pocket. Oh, and there just happen to be some shrooms, too. The coins clatter and the weed and shrooms spill onto the store floor. All this is observed by an amused police officer. Officer Friendly kindly assists The Dude collect his weed. And coins. And shrooms.

Now, can The Dude’s $1,000 some half-mile away be seized per West’s application of OCGA §16-13-49? That’s pretty far away. If you think The Dude's money can't be seized as it's too far from the psilocybin mushrooms when he’s at one end of Buc-ee’s, but it is seizable when the shrooms and money are both in a small vehicle, does that not seem arbitrary? What if The Dude gets nabbed with his magic fungi while walking across the Buc-ee's parking lot not a half-mile away from the cash, but a couple hundred feet? If that's too far to support seizure, would 175-feet be sufficient? If it's not far enough to avoid seizure, would 300-feet work? Should the law be so capricious? Aside from constitutional concerns, the Georgia legislature didn’t put down a specific distance for how far or close The Dude’s shrooms and cash need be. They just used the word ‘proximity'. Frankly, while I managed to pass the Bar Exam, I find the concept of proximity elusive.

Proximity in the above scenarios seems relative. Not to get to geeky about it, but time and distance are relative. Physically and legally. Einstein showed us as much as regards the physical. My argument, had I needed to make it in my latest case, would’ve been that unless the contraband and the money are situated side by side, like both being in the same backpack or compartment, that in a small car, there is no proximate. That is, in a small car, if the illicit drugs and the money are only a few feet from one another, say some shrooms in the glove compartment and the money in a bag on the backseat, that’s far enough to not be proximate. In this scenario, the contraband and the assets are about as far apart as practicable. And, that is a different argument from the constitutional ones of basic fairness and due process.

It is my opinion that in The Dude’s situation, both the issue of proximity and the law’s constitutionality should be raised by an attorney in their fight to prevent the State from taking the money. But, another consideration beyond legal reasoning is pragmatism. No matter how sure the prosecutor is that they have the legal right to seize your client’s assets, if they’re willing to dismiss the case and return the money, even a dumb lawyer can figure out to keep their genius thoughts about relativity to themselves. Just shut up. Man.