Before & After Wyoming Civil Asset Forfeiture Reform

by Stephen Klein

Wyoming's reform of civil asset forfeiture, which passed unanimously in the 2016 Budget Session, went into effect on July 1. Already, the reform has lived up to its name, which is illustrated by comparing two cash seizure cases—one that began before the reform, and one after.

Asset forfeiture is a process by which law enforcement seizes and permanently keeps property allegedly related to crimes. The process varies by state, but for several decades many states—including Wyoming—have maintained open-ended civil forfeiture laws relating to narcotics, allowing police to seize supposed drug property—including cash, cars and firearms—without convicting or even charging the property's owner with a crime. Because the forfeiture process takes place in civil court, property owners are not afforded many of the constitutional protections granted to criminal defendants, such as a right to legal counsel or speedy trial. Wyoming's reform fixed many of these problems, and though the process still occurs in civil court it is much friendlier to due process and property rights than the old law.

To prove this, the first case we'll look at began nearly three years ago—before the reform—and continues a long trudge through the courts. The case of Robert Miller's $470,000 is familiar to anyone who has followed our work on asset forfeiture. Miller's money was seized during a traffic stop in November, 2013. He was not charged with a crime, or even a misdemeanor. His attorneys have worked diligently to get the money back—and the Wyoming Attorney General's office has worked just as diligently, if flailingly, to keep the money, claiming it is drug proceeds.

The AG's office has successfully fended off due process challenges to the case. This is not surprising, because the old Wyoming law gave the office full control over the forfeiture process. The Wyoming Supreme Court recently rejected an appeal to Miller's motion to dismiss the case, meaning it will likely proceed to trial.

Importantly, the reform to state law does not apply to cases that began before July 1. Miller cannot claim any of the new protections, and is left to challenge the constitutionality of the old law or win against the state's old stacked deck.

But last week, a newer case, similar to Miller's in all relevant respects, was quickly disposed of in Albany County because of the new law. On August 5, the Wyoming Highway Patrol stopped a man traveling on I-80. With his permission, they searched the vehicle and uncovered $79,500 in cash. Based on the man's past conviction for a drug crime (the sentence for which he fully served), a "slightly conflicting" story with one of the man's passengers about where they were going, and a "hit" from a drug dog on the money (no actual drugs were found), the cash was seized.

Under the new law, the AG's office is required to bring a preliminary hearing in court within 30 days of a property seizure and a judge must confirm that there was probable cause to seize the property and proceed with a forfeiture action. This segment from the court's ruling says just about everything:

The court entered an order requiring the cash to be "immediately returned."

Would some consider carrying such a large amount of cash suspicious? Sure. Does that amount to probable cause that it's drug proceeds? No. This case is indistinct from Robert Miller's, other than Miller having a lot more cash. Miller's case is still ongoing after nearly three years, while this case ended in less than a month—indeed, it never really began. If Miller's case were subject to the new law, it would likely have ended years ago.

Some will argue that an injustice occurred here, because the money should not have been seized in the first place without charging someone with a crime. I agree. However, it is likely rulings such as this will cause the Attorney General's office and Wyoming police agencies to re-adjust their own notions of "probable cause." Though Wyoming's asset forfeiture reform was not as strong a medicine as the criminal forfeiture option, this Albany County case proves it was, indeed, a significant reform. Wherever one stands on the drug war generally, this reform ensures police must actually focus on curbing drugs, and not take liberties with property that they cannot prove is part of the trade.

In light of Wyoming's reform—again, a 90-0 vote approved by the governor—the best thing the AG's office can do in Miller's case is to dismiss it and return his property. The same should be done with any "cash-because-it's-cash" seizures that occurred before July 1. Dragging out an unconstitutional case just to re-affirm the constitutional problems with Wyoming's old law is a poor option; the only thing worse would be to get one last big win with the old stacked deck.