'Loophole' Helps N.H. Law Enforcement Net Millions Through Civil Asset Forfeiture
On October 3rd, 2016, around 7:45 at night, a New Hampshire State Trooper pulled over a red Hyundai with Massachusetts plates heading northbound on I-95.
According to the police report, the car was going 66-mph in a 65-mph zone, and was tailgating behind a pickup truck. The driver of the car, a man named Alexander Temple, appeared nervous. The trooper noticed his hands were shaking.
Temple gave the officer permission to search the car, and in the trunk, the trooper found $46,000, all in twenties, inside of a Whole Foods paper bag.
Temple told the officer he picked up the cash from his sister, but when police called his sister, she said that wasn’t true.
A canine unit was called in, and a dog named Gauge sniffed the car. However, Gauge didn’t turn up any drugs. Aside from tailgating, Alex Temple hadn’t apparently broken any laws.
That didn’t stop law enforcement from confiscating the money.
“It appears that the government is of the view that it is illegal to be traveling with $46,000 in cash,” says Gilles Bissonnette, a lawyer with the ACLU of New Hampshire.
“And it is of course not illegal to be traveling with $46,000 in cash. Law enforcement should not be able to take people’s money simply by assuming, without concrete evidence, that is drug related, simply due to its size.”
The legal maneuver that allows the government to seize money in these cases is called civil asset forfeiture. It’s a controversial technique that law enforcement says helps ensure criminal rings are starved of cash, but is also a system that has come under fire for abuse and questionable seizures.
In New Hampshire, civil asset forfeiture has resulted in millions of dollars transferred to police departments, including some unexpected windfalls for small towns.
Map: Click the towns to see money received by NH law enforcement through a U.S. Department of Justice program from 2010-2016
These cases can be brought in either state and federal courts, with each system setting its own guidelines. In 2016, New Hampshire lawmakers tightened its statute. The new rules only permit forfeitures after a person is arrested, charged and found guilty of a crime. In essence, civil forfeiture was banned, allowing for only criminal forfeiture cases to proceed.
New Hampshire’s new rules came as states across the country are re-thinking the civil asset forfeiture system, the result, in part, of several high profile investigations which uncovered widespread abuse. Backers of the tighter rules, including many libertarian-leaning groups, criticize forfeiture for creating what they consider the wrong incentives for law enforcement, labeling it ‘policing for profit.’
New Hampshire’s new rules, though, don’t apply to federal civil asset forfeiture cases.
In practice, that means all a state trooper or local cop needs to do is call in federal partners, such as the FBI or Homeland Security, and have them seize the money, even if there isn’t an arrest and conviction.
That’s what happened with Alex Temple’s money, which is now moving through the federal court system under the case name U.S. vs. $46,000.
“It’s a loophole. There is definitely a loophole that allows state and local law enforcement to bypass state policy set by our legislature,” says Greg Moore, state director of Americans for Prosperity New Hampshire.
He, along with the ACLU, pushed for the stricter state laws in 2016. According to Moore, the advocacy wasn’t based on any specific case of New Hampshire fraud, but rather a philosophical belief about the role of government.
“If the government is going to take people’s money away, there should be a high bar-- there should be a high bar,” says Moore. “And if you are suggesting that this money was a derivative of a crime, then there should be the conviction of that crime in order to start seizing and forfeiting people’s money.”
Under the Obama Administration, there was a reduction in some types of federal asset forfeiture cases. But under President Trump, and his Attorney General Jeff Sessions, the U.S Department of Justice is expanding its use.
“I love that program. We had so much fun taking drug dealers’ money and passing it out to people trying to put drug dealers in jail,” said Sessions during a speech. “What’s wrong with that?”
From the government and law enforcement’s perspective, civil asset forfeiture is a no-brainer.
“There are a number of reasons for this...one is to deter criminal activity,” says John Farley, who works in the U.S. Attorney’s office in Concord.
“Another is to make sure that people are not able to maintain the proceeds of their criminal activity, so that crime does not pay.”
If someone made money off of something illegal, be it selling drugs or running a ponzi scheme, reasonable people would agree that they shouldn’t get to keep that money. But what about murkier cases, like that involving unexplained cash in a grocery bag?
Farley couldn’t comment on the case of Alex Temple, which his office is handling. He did say the government is not going bring forward cases it doesn’t think it can win. And all of these cases, in the end, are decided by a federal judge or jury--there is due process to ensure people’s property rights are protected.
“If someone has a really legitimate defense, if they really truly were an innocent owner, if there is a legitimate explanation for why someone has this large quantity of cash, we’re not going to just sit back and wait for a trial to see what happens,” says Farley. “We’re going to take that very seriously in how we assess what to do with that case.”
The U.S. Attorney’s office in New Hampshire says that at any given time, there are roughly one to two dozen active asset forfeiture cases. Even with that relatively low number, the money does add up.
Since 2010, an NHPR analysis found that New Hampshire law enforcement departments received nearly $10.5 million through what’s called the federal Equitable Sharing Program. As you’d expect, bigger agencies including the Manchester Police Department and N.H. State Police receive large payouts.
But there are also some outliers, like the Kingston, Plaistow and Atkinson Departments: small towns that, altogether, have received more than $600,000 in seized assets.
Michael Carignan is deputy chief of the Nashua Police Department, where forfeitures fund the force’s drug unit, as well as drug court and other community-facing programs.
He opposed the 2016 tightening of the state’s civil forfeiture rules, and says seizures are simply the result of good policing.
“We are not in the business of going to someone’s house, ‘hey, you got $100,000 in the mattress? Give it here, we are taking it.’ It just doesn’t happen that way,” he says. “So I just think there is an anti-government movement that they do not like asset forfeiture.”
As for the case of the cash found in a Whole Foods shopping bag, there’s been an interesting wrinkle. Alex Temple, who was driving the car, hasn’t stepped forward to challenge the case. Instead, someone named Edward Phipps has filed a petition claiming that the cash is actually his. In court paperwork, the Maine resident claims the money was lawfully obtained, although he hasn’t yet explained how he got it, why it was in twenty dollar bills, or why it was in Mr. Temple’s trunk.
That information will likely come out during the trial of the U.S. vs. $46,000, scheduled to start in December of this year.