Pubdate: Sat, 09 Sep 2000 Source: Omaha World-Herald (NE) Copyright: 2000 Omaha World-Herald Company. Contact: http://www.omaha.com/ Forum: http://chat.omaha.com/ Author: Cindy Gonzalez, World-Herald Staff Writer Bookmark: additional articles on asset forfeiture are available at http://www.mapinc.org/af.htm ACLU JOINS MAN'S FIGHT OVER SEIZED MONEY Hector Herrera walked into Omaha's Eppley Airfield with luggage at his side, money in his pocket and visions of a sunny afternoon in Phoenix. His flight plan skidded to a halt, however, when narcotics agents who had watched Herrera pay cash for his ticket asked him to take a detour to a room with a drug-sniffing dog. No drugs were found. No charges were filed. Yet the agents confiscated the $4,000 Herrera had in his pocket. They said the police dog detected the smell of illegal narcotics on the bills. That, they said, fueled their suspicion that the money was tied to drugs. Herrera said he had earned the money. He later showed pay stubs to the agents, which he thought should have proved it. Two months later, though, the cash remains in government custody - caught up in the complex world of federal forfeiture law in which police have broad powers to seize suspected drug proceeds, and people like Herrera, an immigrant from Mexico, face significant legal barriers to get it back. Even though a new federal law that took effect last month is supposed to remove some obstacles, civil rights advocates say minority populations remain vulnerable because they are targeted more frequently by agents looking for drug couriers. "There is this heightened suspicion about a young person of color who travels and buys a ticket with cash," said Amy Miller, legal director of the American Civil Liberties Union in Nebraska. "Once their money is taken, it is a slow and lengthy process to get it back." Nebraskans have had little success regaining cash taken under federal forfeiture laws. About 235 cases that involved nearly $4 million in seized currency were closed during a two-year period ending July 2000. Of that amount, only 9 percent of the money was returned to the owner, according to the U.S. Marshal Service, which keeps track of forfeitures handled by Justice Department agencies. Nationally, the return rate for seized money is even lower. In the past two fiscal years, the U.S. Marshal Service closed cash forfeiture cases worth $577 million. About 4 percent of that money was returned, according to the agency's records. Local law enforcement officials say they do not keep track of how often agents seize money, find no drugs and file no charges. U.S. Public Defender David Stickman in Omaha said such circumstances are not uncommon. The new law was borne out of concern that citizens' property rights were being trampled. That drugs would be detected on cash also is not uncommon. Studies have shown that most of the currency in circulation is tainted with drug residue, Stickman and others said. "The percentage is so high that there really should be no significance attached to the fact that a trained drug-smelling dog would detect it," he said. Two months after the June 16 seizure of Herrera's cash, Herrera received the official forfeiture notice from the Drug Enforcement Administration, which allowed him to begin his battle to reclaim the $4,000. Herrera then filed a claim of ownership to contest the forfeiture. He paid the court $400, a bond intended to weed out frivolous suits in cases involving seized cash. Property owners won't have to pay an up-front bond under the new law, but they could face a fine later if a judge determines that the case was frivolous. Now Herrera is awaiting word on whether the U.S. Attorney's Office will defend the forfeiture in court. Because the ACLU has agreed to take on Herrera's case for free, he won't have to risk paying thousands of dollars in attorney's fees. "This is an important one for the ACLU," said Tim Butz, director of the organization's Nebraska office. "There are issues of racial profiling and unlawful seizure. We don't think Hector Herrera is the only one out there who has gone through this." Perhaps the most criticized slice of forfeiture law has been the burden of proof. Under the old law, people such as Herrera who were trying to get their money back had to prove that it should not be subject to forfeiture. The new law shifts the burden to the government. It is unclear, though, whether that will apply to Herrera's case. Herrera, 30, said he has little money or knowledge about the legal hurdles that stand between him and what he called his life savings, earned through jobs such as delivering pizza and flowers. Still, he said, he has felt the sting of discrimination, and that's what helped push him to fight. He consulted with his priest, the Omaha Human Relations Department and several lawyers before turning to the ACLU. "I killed myself for a year to make this money," he said in an interview at the apartment he shares with four roommates. "More than the money, I'm interested in clearing this problem because it's not right." Herrera, who currently works for a drywall company, helps support a 10-year-old daughter in Mexico and came to Nebraska a few years ago with the hope of making more money. Terri Teuber, a spokeswoman for the Nebraska State Patrol, which was involved in the airport search, declined to say much about Herrera because his forfeiture case is pending. She would not, for example, say why he was stopped. She did say Herrera's ethnic background was not a reason. "We would not seize money from someone unless our officers were confident it was involved with drug trade or illegally obtained," Teuber said. Elaborating on what made agents suspicious would "tip our hand," she said, and harm future operations. Neither Teuber nor the U.S. Marshal Office would provide a racial or ethnic breakdown of people from whom money was seized. They said that would require a hand search of internal documents. Herrera gave this account of what happened on June 16: He bought a ticket at Eppley Airfield for a Southwest Airlines flight from Omaha to Phoenix, where he planned to visit friends, then see his mother, who was in Tucson visiting from Mexico. An officer in plain clothes approached Herrera as he waited to board the plane. Asked if he had drugs or money, Herrera told the agent that he had money. The officer asked for permission to search him, and Herrera agreed. He was escorted to a lower floor. During a search conducted with the help of a drug-sniffing dog, the officer confiscated Herrera's cash. After leaving the airport without his money, Herrera immediately went to see the Rev. Damian Zuerlein, pastor of Our Lady of Guadalupe Church in south Omaha, who then called the State Patrol. Zuerlein said he was told by a State Patrol official that Herrera paid cash for his ticket on the same day of his flight and acted nervous. Both are red flags to agents, Zuerlein said. Herrera's ticket also showed a return flight in 24 hours. Herrera said later that he thought he could push back the time after he figured out how long he might stay. Carrying large amounts of cash is not uncommon for Mexican nationals, said Zuerlein, whose parish is predominantly Latino immigrants. Many don't have checking accounts or credit cards. Herrera returned to Eppley the same afternoon with the ticket he did not use and got a later flight because he did not want to miss the chance to see his mother. He left with only a few hundred dollars borrowed from friends. After talking to Herrera and others involved, Zuerlein said, he believed that Herrera was treated unjustly. "It just looks too much like profiling," he said. - --- MAP posted-by: Thunder