Justice and Due Process

Hate civil asset forfeiture? Here’s a court case in Utah to follow…

On November 27, 2016, Kyle Savely was driving westbound through Utah along I-80 when he was stopped by the Utah Highway Patrol for allegedly following another vehicle too closely.

The trooper requested permission to search Savely’s car, but was not given consent. So a drug dog was called, which allegedly “alerted” on the vehicle, allowing the officer legal authority to detain Savely and search the car.

No drugs or other contraband were found, though the officer located 52 bundles of cash. Savely was issued a citation for following a vehicle too closely and was released.

The trooper kept the money.

Savely was provided an “Asset Seizure Notification Form” which explained the legal procedure of civil asset forfeiture—a law that allows police and prosecutors to take ownership of a person’s property without having to prove he or she is guilty of a crime. Savely was notified of state law governing the process.

And that state law was circumvented.

Utah law is very clear: unless prosecutors file an action to initiate forfeiture within 75 days, the property must be returned. In Savely’s case, that time window came and went. And when he filed a petition to have his property returned, he learned that the Utah Department of Public Safety (DPS) had given his money to the U.S. Drug Enforcement Administration (DEA) at their request—this despite Utah law stating very clearly that to be transferred to the federal government, state prosecutors must petition the court for permission. This was put in the law to prevent the exact type of thing happening to Savely.

The Utah Attorney General’s office—which has a poor record when it comes to forfeiture law in Utah—argued, on behalf of DPS, that state courts did not have authority over the seized money. So, they claim, they could hand the money over to the federal government without state courts getting involved.

The legal argument they’re relying on is technical in nature. While Utah law explicitly says that state courts have custody of Savely’s seized property, the state’s attorney claims that the court does not have jurisdiction—that the property has no court oversight (and thus is in some sort of legal limbo that provides DPS the discretion to do with it as they personally please).

This is arbitrary and wrong. It completely circumvents the protections put in place by Utah voters in 2000 to limit forfeiture abuses. And if allowed to stand, it would entirely undermine those controls by allow state officers to phone a friend at a federal agency, tell them about a piece of property, and then hand it over to them—bypassing state law and the rigid controls put in place on police and prosecutors by Utah voters.

This case is now pending before the Utah Supreme Court. And today, we filed an amicus brief to bring Utah’s justices up to speed on the history, context, and significance of Utah’s forfeiture law. More importantly, we are arguing before the Court while DPS and their attorneys have a highly flawed position that violates the letter and spirit of the law.

If the Court rules in favor of the government, it will open up a legal loophole allowing law enforcement officials to shirk off restraints imposed upon them under state law. If the Court rules in Savely’s favor, it will enforce the intent and purpose of Utah’s forfeiture law as intended by voters in 2000, and legislative bodies since.

You can read our brief here.

Libertas Institute has been the leading organization for forfeiture reform since we published a report in 2013 documenting how attorneys within the Attorney General’s Office had intentionally deceived the legislature into gutting several due process and property protections that made it difficult for prosecutors to forfeiture property. That report led to a wave of reforms in recent years—and more changes are still needed.

But for now, we will be monitoring this court case with great interest, and will update you with the Court’s decision when a ruling has been made.