In criminal cases, forfeiture occurs after a conviction, ordered by a judge as part of a sentence. In civil forfeiture, even if the rightful owner is not charged with any crime, the person stands to lose the property permanently.
Civil forfeitures happens every day, according to Darpana Sheth, senior attorney and director of the Institute for Justice’s nationwide initiative to end forfeiture abuse.
What’s unusual about Smith's experience is that the West Virginia State Police, which declined to comment, pointing to an ongoing internal investigation, returned more than $10,000 to Smith and her husband as soon as the situation received media attention.
Historically used in cases of piracy and admiralty, in which a crime is alleged overseas, a civil forfeiture case is brought against the property, not the person. “The idea is based on a legal fiction that the property itself is guilty,” Sheth said.
Today, the device is often deployed during roadside seizures, such as on June 9, when West Virginia State Trooper Derick Walker and four other officers stopped and detained Smith and her husband, Dimitrios Patlias.
The couple said they had cashed out at Horseshoe Casino in Baltimore and were headed to dine and gamble at Hollywood Casino in Charles Town, W.Va. Smith, 34 weeks pregnant, had just begun maternity leave.
Patlias was asked to step out of the car before the officers searched and re-searched the champagne-colored 2003 GMC Envoy. Backup officers brought dogs to sniff the area for narcotics. Then, Smith was asked to step out, too; she joined her then-handcuffed husband on the road.
The troopers questioned the couple about a slew of suspected illegal activities: drugs, guns, smuggling untaxed cigarettes, gift-card fraud.
No drugs were reported found, but troopers seized $10,478 in cash and gift cards from Patlias’s pocket and Smith’s purse.
It was two hours later, at 10 p.m., when the officers sent them on their way. Neither was charged with a crime. Patlias was issued a warning citation for crossing into another lane.
Smith told The Washington Post she was horrified. “I felt like I was in a movie. This is not the kind of law we should be living with in our country.”
For two months, she said, the couple waited patiently for paperwork in the mail. Unable to reach the prosecutor, they contacted a local newspaper, the Charleston Gazette-Mail. Increased press attention apparently led to a call from the state police, arranging to return their belongings. The couple got their cash back on Aug. 23.
Smith and Patlias's experience is not unusual.
“The vast majority of people don't get this kind of attention, but in a few days of announcing a lawsuit, law enforcement will opt out and give back the property," said Dan Alban, an attorney at the Institute for Justice .
In 2016, Oklahoma deputy sheriffs pulled over Eh Wah for a broken tail light. Wah had been touring with a Christian rock band, raising money for a Thai orphanage, and was headed toward his hometown in Texas. The deputies searched his car and took $53,000, the proceeds of CD and ticket sales and donations. No drugs were found, but Wah was arrested for possessing drug proceeds.
Two months later, on April 25, The Washington Post reported on the case, which was being handled by the Institute for Justice. Within hours of publication, the Muskogee County district attorney dropped the civil forfeiture and the criminal charges.
Another Institute for Justice lawsuit was filed in May 2016 on behalf of a Connecticut bakery that had battled the Internal Revenue Service for three years to recover $70,000. Hours after the institute announced the suit, the IRS agreed to return the money.
Since 2014, 29 states and the District of Columbia have reformed their civil forfeiture laws. Fifteen require a conviction for most forfeiture cases, and 16 put the burden of proof on the government, according to the Institute for Justice.
West Virginia is not among them.
Under the state’s Contraband Forfeiture Act, once property is seized by law enforcement, the government has 90 days to claim the property by forfeiture. This action is separate from any parallel criminal case.
A troubling aspect of civil forfeiture, according to legal experts, is that law enforcement has a financial incentive in such cases.
As a general rule, according to Alban, the prosecutors’ office that works on the forfeiture case also controls the forfeiture fund.
“It’s an off-budget slush fund they can spend funds out of — it’s not controlled by the local legislature. The only limitation it has is that it’s supposed to be spent on law enforcement purposes, but that’s pretty much anything,” he said, mentioning a sheriff who purchased a car and department that hired a clown named Sparkles.
West Virginia does not keep public records on forfeiture spending, including how the money is spent or how much is in the fund.
Another concern in civil forfeiture cases, Alban said, is that property owners are not afforded the same protections as criminal defendants. They have no right to an attorney, remaining silent can be held against them, and the presumption of innocence is flipped.
The burden of proof in a civil case is much lower: The government must prove by a preponderance of the evidence — which means more likely than not, as opposed to the criminal standard of beyond a reasonable doubt — that the property was involved in a crime.
According to Alban, that can be satisfied by officer testimony, often that the car stop took place on a known drug trafficking corridor or that a driver fit the profile of a drug courier. To win in court, an owner must affirmatively prove the property’s innocence, ignoring the “innocent until proven guilty” hallmark of the American justice system.
“The people who are victims of civil forfeiture aren’t necessarily innocent people, but many just get caught up in the web of the proceedings," Alban said. "There’s no need for a criminal charge, and law enforcement has that financial incentive. So you end up with a lot of people losing their property through no fault of their own.”