Michael Simard prevailed on a civil asset forfeiture and Article III case or controversy standing question before the United States Court of Appeals for the Ninth Circuit. The federal government argued, among other things, that a possessor of currency who denied knowledge of, or interest in, possessed currency, at the scene of an investigatory stop and seizure, conceded Article III standing to subsequently claim ownership and/or possessor interest in the currency. For purposes of ownership interest, at this point, the appellate court saw otherwise. The appellate court reversed the district court and found (while implicitly rejecting the government’s position in regards to ownership interest):
” The district court erred in granting the motion to strike by applying the standard of proof for a claimant asserting a possessory, rather than an ownership, interest in property. In a civil forfeiture proceeding, “[a]t the motion to dismiss stage, a claimant’s unequivocal assertion of an ownership interest in the property is sufficient by itself to establish standing.” USA v. Michael Simard, et al., No. 11-15528 (9th Cir. Aug. 27, 2012)(unpublished).
Parties seeking to claim property facing federal in rem (against the thing) forfeiture actions carry the burden of establishing their own constitutional standing at all stages of litigation. Without Article III standing, federal courts lack jurisdiction to hear the claim.
The government’s argument, if successful, threatened to further escalate incentivization of coercive seizure tactics while reducing access to the courts-eliminating it for some. Many parties who suffered currency seizures would effectively be left with no option but to petition the agency for remission or mitigation-a plea for the agency and agents (who often have financial and professional incentives to say no) to be merciful.
Mr. Simard and his attorneys, Ronald N Richards and Louis Palazzo, deserve congratulations on their victory. The matter has been remanded to the district court where the matter will be further litigated. Among possible issues to be discussed in further litigation include the government’s contentions:
- Asking for a consent to search on the pretense of a “current threat assessment and homeland security issues” is not coercive [It should be noted that Simard is Canadian. The U.S. Government's role in sending Canadian Maher Arar to his native Syria for a year of torture is better known in Canada than it is in the U.S.]
- Simard’s vehicle being ”cluttered with several snacks” [while on a road trip] was indicative of a courier smuggling drugs or drug proceeds.
- The use of a rental car was indicative of a courier smuggling drugs or drug proceeds.
- The presence of an ”atlas on the front right passenger seat” was indicative of a courier smuggling drugs or drug proceeds.
- The presence of a “black backpack on the right front floor board [which] would hold insufficient clothing for the road trip” was indicative of a courier smuggling drugs or drug proceeds. [This was was prior to officers finding further luggage-presumably in his trunk where a good number of people keep luggage.]
- The presence of multiple duplicate electronic devices was indicative of a courier smuggling drugs or drug proceeds.
- Simard was no longer detained after officers told him that he could go but then came back and starting asking more questions, secured a signature to consent to search his rental, and seized the currency in his possession.
- That a positive canine sniff on bulk currency was (and is) a reliable indicator of recent exposure to illegal controlled substances and thus a reliable indicator that the currency was either intended to be used to purchase illegal drugs or constitutes proceeds of illegal drug sales.