By Alexa L. Gervasi and Daryl James with the Institute of Justice
North Carolina business owner Jerry Johnson needed a new semi-truck for his logistics company in summer 2020. So he scraped together his savings, borrowed money from family, and flew west from Charlotte to try to negotiate a cash deal at an auction house near Tolleson.
Unfortunately, the Phoenix Police Department and Maricopa County Attorney’s Office made other plans for the money. Acting on a tip from an informant, officers got ready to intercept the currency at Phoenix Sky Harbor International Airport.
A detective started by obtaining Johnson’s itinerary and running a background check. Then he and two other plain-clothed officers took positions in the baggage claim area and waited. When Johnson arrived and picked up his suitcase, they surrounded him and demanded to know whether he was carrying a large amount of currency.
Johnson assumed he was safe because he had done nothing wrong. Traveling with cash—any amount—is legal on domestic flights, so he consented to a search.
Officers discovered no drugs, weapons or contraband of any type, but they did find $39,500 in Johnson’s bags. What followed was a backroom interrogation and threats of arrest if Johnson did not sign a waiver purporting to release his claim to the money.
As someone with felony convictions in his younger years, Johnson felt he could not afford to call the bluff. He also had no attorney present to explain the waiver or its implications, so he bowed to the pressure and signed it. Then he left the airport without his money.
More than eight months later, nobody has charged Johnson with a crime. Yet the government has attempted to keep the cash permanently through civil forfeiture. The moneymaking scheme, which generates an average of $32 million annually in Arizona, does not require a conviction or even criminal charges. Some property owners lose their assets without even receiving a hearing.
Worried about the lack of due process, Arizona lawmakers raised the burden of proof necessary for civil forfeiture in 2017. Previously, the government only had to build a case that was more likely true than not—basically a coin flip. Now, the government must produce “clear and convincing evidence” before permanently taking property.
The new standard requires prosecutors to show that it is highly and substantially more likely true than untrue that seized assets are connected to criminal activity. Yet the court system did not hold the government to this standard.
Instead, during a preliminary hearing on Jan. 6, the Maricopa County Superior Court shifted the burden to Johnson. Specifically, the judge required him to prove he was the innocent owner of the property—a standard higher than the one imposed by Arizona law, which merely requires a person to prove he is the owner of seized property.
Johnson did more than enough to meet his obligation. He swore under oath that the money was his and demonstrated that it was seized directly from him. This evidence alone should have been sufficient, but Johnson went further. He provided bank statements, tax returns, business documents and affidavits to back up his testimony.
None of this satisfied the court, which dismissed Johnson’s claim for the cash without making the government prove anything. With no one else claiming ownership, the court issued an order permanently giving the cash to the state without the government ever needing to show clear and convincing evidence of anything.
If the ruling stands, it would render the 2017 reform meaningless. Essentially, anyone carrying cash in Arizona would be guilty until they prove themselves innocent.
Rather than accept the outcome, Johnson has partnered with the nonprofit Institute for Justice and taken his case to the Arizona Court of Appeals. Even if he wins, his struggle highlights the need for additional reform.
House Bill 2810 could help. Rep. Travis Grantham, R-Gilbert, and other sponsors drafted the measure to require a criminal conviction prior to forfeiture. That would be a step in the right direction, but the bill has stalled in the Senate as law enforcement officials—the same people who profit from forfeiture—demand amendments that would gut the reforms.
The government already has shown a willingness to exploit loopholes, sidestepping the requirement to produce clear and convincing evidence. Property owners like Johnson will not be safe unless their rights are guaranteed with airtight language, and courts show a willingness to restrict policing for profit.
Alexa L. Gervasi is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.