Pubdate: Fri, 16 May 2008
Source: Texas Observer (TX)
Section: Feature Article
Copyright: 2008 The Texas Observer
Contact:  http://www.texasobserver.org/
Details: http://www.mapinc.org/media/748
Author: Jan Reid
Note: Austin-based writer Jan Reid is the author of 10 widely varied 
books, including The Improbable Rise of Redneck Rock (University of 
Texas Press), The Bullet Meant for Me (University of Texas Press), 
and with Lou Dubose, The Hammer (PublicAffairs).

HIGHWAY ROBBERY

One Man's Painful Journey Through South Texas' Addiction to Asset Forfeiture.

On October 20, 2005, Javier Gonzalez, sporting baggy shorts, T-shirt, 
and a shaved head, took off from Austin toward Brownsville in a used 
Mazda. At the time, he worked for an Austin auto dealer performing 
minor body-shop repairs and the occasional car sale for the owner, 
who had loaned him the Mazda. Along with changes of clothes Javier 
carried $10,032, most of it in $100 bills, in a black gym bag that he 
made no effort to conceal.

Javier, who was then 30, is the son of Mexican immigrants and an 
American citizen. He was born in the Rio Grande Valley and grew up in 
Austin. On a melancholy errand that day, he hoped to see his ailing 
aunt, Maria Martinez , who had helped raise him, before she passed 
away. He was taking the money to secure arrangements for her funeral: 
a proper coffin; her burial, as she wished, across the river in her 
native Mexico; and a nice tombstone. Most of the money was his own, 
Javier says, withdrawn from his Austin bank account. The rest came 
from relatives.

Other travelers might have converted that much money to a cashier's 
check or wired it to a financial institution in Brownsville, but 
Javier saw no need. Traveling with him that day was a friend named 
Christopher Clifford, who also wore baggy shorts and a T-shirt. 
Originally from small-town Kentucky, he was just along for the ride. 
It was a clear day as they passed through San Antonio, then followed 
Interstate 37 toward Corpus Christi and took the U.S. 281 exit near 
Three Rivers. The road toward the border winds through the Nueces 
River bottom for a few miles with the Choke Canyon Reservoir nearby. 
"You know," Javier said later, "some days you're driving down that 
highway, and you think, 'It's nice down here. It's pretty. I might 
come back.'" But the passage into deeper South Texas put him on edge, 
as it often did. "It's different down there, that's all there is to 
it. It's still Texas, but it's different."

Two long rural highways provide the most direct connection between 
the state's major population centers and the Valley. U.S. Highway 77 
skirts the coastline from Houston, Corpus Christi, and Kingsville and 
drops south through Kleberg and Kennedy counties-King Ranch 
country-toward Harlingen. Twenty-odd miles to the west, on an almost 
parallel track, U.S. Highway 281 routes traffic from San Antonio and 
populous points north through and around Alice, down through the 
chaparral of Jim Wells and Brooks counties toward McAllen. These two 
highways are undisputed circuits for the transport of illegal drugs, 
the money that pays for the drug traffic, other items of contraband 
such as cars stolen in Texas and bound for sale in Mexico, and 
undocumented Latin American immigrants. The roads are also a goldmine 
for the local law enforcement officials who patrol them.

Under the Texas Code of Criminal Procedure's Chapter 59, "Forfeiture 
of Contraband," personal assets seized by officers during the 
investigation of possible felonies and a wide range of misdemeanors 
become the property of the municipalities and counties in which the 
apprehensions occur. As these are civil seizures, the law provides 
for hearings in state civil court, where confiscations can be 
challenged and property recovered, but the Legislature did not make 
it easy. For example, an acquittal or dismissal of charges does not 
necessarily mean the confiscation will be overturned. Partly because 
of its proximity to the border, nowhere in Texas has what is commonly 
known as asset forfeiture been put to greater use than on U.S. 281. 
Since the passage of the provision in 1989, Chapter 59 seizures have 
become essential to the operating budgets of cash-strapped rural counties.

In 2006, a Jim Wells County deputy named Ray Escamilla was lauded as 
the nation's leader in captures of "drug seizure money." Over four 
years, the deputy sergeant racked up more than $3 million by working 
the traffic on U.S. 281 and finding reasons to search cars and 
trucks. His seizures of suspect cash and several vehicles enabled the 
sheriff's department in the tax-poor county to pay the salaries of 
additional officers and buy patrol cars, guns, SWAT gear, and four 
dogs trained to find bombs and drugs.

Into this dynamic rolled Javier Gonzalez on that fall day three years ago.

After Javier left the interstate, the enjoyment he felt driving on 
U.S. 281 through the bottomland of the Nueces River lasted until they 
came to the first town, George West. "Young Hispanic officer," Javier 
recalled. "Whatever I did, he stayed right behind me, then the lights 
came on, so I pulled over in the lot of this store. He asked for my 
license, insurance, and registration, then said, 'I stopped you 
because you don't have a front license plate on your vehicle.'" (Auto 
dealers and thousands of Texas motorists harbor the erroneous belief 
that a license plate on the front bumper is optional, and the fiction 
endures because many officers don't bother to make a stop for that.) 
"I told him the car belonged to the man I worked for," Javier said, 
"and showed him that I had the plate inside, on the dashboard. Those 
Mazdas don't have any place on the bumper where you can screw the 
plate on. Officer asked me, 'What do you do in Austin?' I told him, 
and he said, 'You know, it's nice to see a young Hispanic male doing 
well in the world. You don't have any knives, guns, ammunition, or 
large amounts of money, do you?'

"So, there it is. I've got to say, 'You know, I do. I've got several 
thousand dollars to pay for a funeral in a bag back [in the trunk].'

"'You do? Well, let me see it.'"

Javier wasn't required to submit to that search, but he wasn't aware 
of that. "The officer wrote me a warning ticket for not having the 
license plate on the front, then he said, 'Have a nice day. You're 
free to go.' He let me go!"

About an hour of driving passed, interrupted briefly when Javier got 
hungry and ran into a store to buy some road food. Between Alice and 
the little town of Premont he picked up another tail - this one a 
sedan occupied by two officers with the Jim Wells County Task Force.

Only a few weeks earlier, on October 7, state Sen. Juan "Chuy" 
Hinojosa had been stopped on that same stretch of U.S. 281 in Jim 
Wells County and was cited by an officer with the South Texas 
Specialized Crimes and Narcotics Task Force for swerving on the 
roadway and driving an SUV with windows that were tinted too dark. 
The ensuing argument with the officer, in which the senator believes 
he was a victim of ethnic profiling, led to a crusade by Hinojosa in 
the 2005 Legislature to force multi-county task forces to accept 
supervision by the Department of Public Safety. As part of the War on 
Drugs these multi-county task forces operated independently and were 
funded by a governor's office pass-through of federal Byrne Justice 
Assistance Grants. Cosponsored by Democratic state Rep. Terri Hodge 
of Dallas, Hinojosa's bill-which did not affect Chapter 59 of the 
criminal code-prohibited the governor's Criminal Justice Division 
from awarding federal grants to multi-county task forces that were 
functioning as stand-alone law enforcement agencies. Following the 
scandal that consumed one of these task forces in the Panhandle, a 
sordid tale uncovered by Nate Blakeslee (see "Color of Justice," June 
23, 2000), Gov. Rick Perry had already eliminated funding for almost 
all of these region-wide operations in 2006. Recently, the president 
of the Texas Panhandle Peace Officers Association has called for 
their return: "It's like chopping off an arm," he complained to the 
Lubbock Avalanche-Journal.

The regionwide task forces are unlikely to return in anything like 
their previous form, but the law co-authored by Hinojosa and 
negotiated by Perry's staff authorizes the governor's office to 
continue awarding grants approved by the DPS to task forces made up 
of law enforcement agencies within a single county. Austin's Scott 
Henson, a widely read criminal justice blogger, says that scuttling 
most of the regionwide task forces significantly reined in abuse of 
highway interdictions and Chapter 59 confiscations. "But what 
happens, especially in South Texas, is that some of these county 
jurisdictions have come to rely on confiscations as a way to 
supplement their budgets."

Between 2005 and 2007, according to county reports submitted to the 
Attorney General's office, agencies along Highway 77-the Kingsville 
Crime and Narcotics Task Force, the Kleberg County sheriff, a Kleberg 
County constable and the Kenedy County sheriff-reported total assets 
from forfeitures and seizures of $4,486,938. They returned only 
$41,920 to defendants who appealed through the civil process. (The 
reports to the state do not describe how seized money was spent.)

During the same period, on U.S. 281, the Jim Wells County sheriff and 
allied police departments of Premont and Orange Grove reported total 
assets through forfeitures and seizures of $2,027,736. In neighboring 
Brooks County, south on U.S. 281, the sheriff's department reported 
assets of $1,777,649. Sharing in this wealth of income was Frank 
Garza, the 79th district attorney, who serves both Jim Wells and 
Brooks counties and defends the counties in court. Garza's office saw 
to it that none of the properties were returned on appeal.

The two Jim Wells County Task Force officers wore their uniforms and 
the car bore the colors and insignia of the sheriff's department. "I 
move over to the right to let someone by, and the guy stays right 
with me," Javier remembers. "I speed up a little to pass up a truck, 
zoom, he comes around and is right back on my bumper."

The patrol car was equipped with a video camera on the dash. It 
videotaped everything that occurred between the patrol car and the 
Mazda, and a fair amount of the conversation was audible, though the 
traffic was heavy. A burly sergeant named Edward Valadez approached 
Javier and told him to get out and follow him to the space between 
the cars. The second officer positioned himself near the patrol car's 
right headlight. "Where you headed?" Valadez demanded, after looking 
at Javier's license and insurance. "You don't have a driver's 
license?" he barked into the car at Clifford. "ID card? You don't 
have a photo ID or what?"

Valadez paced around the back of the Mazda. "How do you know this 
guy?" he asked Javier, referring to Clifford, keeping up his 
interrogation as he looked inside the car. "You're not on probation 
or anything, are you? Ever been arrested before?" He gestured at a 
spot on the highway shoulder. "Just stay right there, okay?"

The sergeant told Javier that he'd been stopped because of the 
missing front license plate. For the next few minutes, Javier tried 
to explain why the plate was on the dash and who the car belonged to; 
he kept trying to get Valadez to look at the warning ticket he'd 
gotten in George West.

Just as the George West officer had done, Valadez asked Javier if he 
had any knives, guns, ammunition, or large amounts of money. For the 
second time in an hour, Javier acknowledged having several thousand 
dollars in the car.

As soon as Javier said that, the officer's change of expression and 
body language could clearly be seen on the videotape. A backup patrol 
unit veered around to a halt in front of the Mazda. A uniformed 
officer hustled out of the car with a look on his face that that did 
not appear friendly. A stunned Clifford was ordered out of the car 
and told to spread his legs and put his hands on the Mazda's hood. An 
officer patted him down.

Valadez walked past Javier stretching a cord that, it turned out, was 
a leash. The officer came back into view with a dark-ruffed German 
shepherd. He told Javier to empty his pockets, and when Javier did 
that, producing a small fold of dollar bills, the dog made a lunge at 
his hands.

The dog's lunge was a critical component in the officers' assertion 
that they had probable cause to proceed.

"Good boy," Sergeant Valadez commended the German shepherd, after it 
had sniffed out the trunk. Someone produced a battery-operated wrench 
or screwdriver to loosen a panel; the shrill whine rose above 
eighteen-wheelers driving past.

On the tape, Javier didn't move a step as they proceeded with the 
search. He looked around, he watched the traffic, he glanced at his 
watch, he tried to carry on a conversation with the one officer 
standing nearby. Now and then the officer replied.

Judging from the number of officers who soon prowled the scene, a 
second backup unit must have pulled up to the rear. Eighteen minutes 
after Valadez followed the Mazda to a halt on the shoulder and turned 
on the camera, the posteriors of several hefty officers were arrayed 
on both sides of the Mazda; the German shepherd squeezed between them 
to get in on the hunt. When they found the gym bag and opened it, the 
dog gave the bucks a few sniffs then looked around, panting.

The practice of asset forfeiture has received criticism from both the 
right and left. "Our focus is not the civil liberties scope of the 
issue," says Marc Levin, a policy analyst with the Austin-based Texas 
Public Policy Foundation. "We're concerned more with fiscal integrity 
and transparency of government. We don't object to these funds being 
used to help make law enforcement safer and more effective, but we're 
seeing a tendency in some prosecutors' offices to employ them as 
slush funds-using them to pay for booze and parties and favors to 
political cronies."

"There are two large problems with these laws," says Scott Bollock, 
an attorney with the libertarian-leaning Washington, D.C.-based 
Institute for Justice. "It's one thing if property is confiscated as 
a result of criminal convictions. But it's very different when these 
are civil confiscations. The property owner doesn't have the same 
protections he or she would have if it were a criminal prosecution. 
Here the burden of proof is on the individual to get the property 
back. That's investing way too much power in government. The second 
large problem is that the system creates a profit incentive for 
government to try to seize someone's property. The money from these 
confiscations goes directly back to the police and prosecutors. It 
invites a kind of legal bounty-hunting."

Yet the practice has become such an important contributor to local 
government budgets, particularly those of district attorneys, that 
legislators are loath to change the system. Oscar Garza, a retired 
colonel of the Jim Wells County Sheriff's Department who lives in 
Premont, describes a situation that is more complex and nuanced than 
a cynical shakedown scheme under the guise of the War on Drugs. "In 
the mid-nineties," Garza says, "working with a DEA officer I made the 
department's first confiscation under Chapter 59. It was a residence 
that brought $324,000 into our budget. After that, as we learned more 
about it, the confiscations started paying for just about everything: 
our uniforms, firearms, bulletproof vests, cameras, radar and radio systems.

"For example, Jim Wells County budgeted the Department two patrol 
cars a year. We'd buy six or eight, go through them with just the 
wear and tear. In these smaller counties there's just not enough tax 
base and budget. Our sheriff used the confiscation fund to put 
cameras and officers in our schools. Because of the fund the task 
force could have 15 to 20 officers working the roads on a given day. 
And they make some very good interdictions. But they've got to use 
street smarts, know how to be careful, how to work with their 
supervisors, and be sure they have witnessing officers and probable 
cause. They'd better have a little bit of heart. If they get hit with 
a civil rights suit, that's going right up the chain of command. But 
it's not just that. Not everyone on the road with currency is a 
crook! If someone gets charged with money laundering, that 
electronically goes straight to Austin, and now it's part of that 
person's criminal record. You can ruin lives. In 60 days they may get 
their money back through the civil appeal, but they've got to spend 
$5,000 on an attorney and worry themselves sick trying to get that 
felony charge expunged from their criminal records. And they're 
thinking and saying, 'What kind of country is this?'"

In the incident report detailing Javier's stop, titled "Money 
Seizure," Sergeant Valadez wrote, "While Mr. Gonzalez was talking to 
me, I noticed a tremble in his voice. When Mr. Gonzalez pulled his 
Driver's License from his wallet his hands were trembling as he was 
giving me his license. ... I noticed that both Mr. Gonzalez and Mr. 
Clifford appeared to be very uneasy and unsure of themselves, when 
they were speaking about their travel. ... As I attempted to run my 
K-9 partner Ben III, and as I got my K-9 out of the patrol car, I 
noticed that he went directly to Mr. Gonzalez and was responding to a 
narcotic odor emitting from his person."

Javier's hands could not be seen moving on the tape, and whatever he 
said was inaudible. It could well be that the men were intimidated by 
the big sergeant and Ben III, the German shepherd, but that two-page 
report typed two days later would contain the only accusation that 
either of the two men had been using drugs.

Twenty-three minutes after the sergeant turned on his roof lights, 
Javier and his friend were handcuffed and taken in separate cars to 
the Premont fire station, where the suspects were questioned apart 
from each other and the Mazda was disassembled in an unproductive 
search for drugs and more money. A Jim Wells County deputy drove to 
the district clerk's office in Alice with the arresting officer, a 
lieutenant named Carlo Tanguma, and returned to Premont with a brief 
notarized affidavit that the money was being seized as contraband.

Javier says that after he was served with this affidavit, one of the 
officers warned he was going to be charged with felonies including 
money laundering and possession of contraband, and that his 
employer's car would be confiscated as well, if Javier did not sign 
an "agreed judgment" that forfeited all his rights to the $10,032. "I 
hadn't done anything!" Javier says. "But now I was looking at going 
to jail. I'd have to make bond, I'd have to pay an attorney, I'd have 
to come back down there for a trial. So I signed it. The money, I 
figured they got that, it's gone."

Javier retained an Austin lawyer, who notified the veteran district 
attorney in Alice, Joe Frank Garza, that they were contesting the 
confiscation. Garza told him the 30-day deadline for contesting the 
seizure had expired.

Up to that point, power had resided with the confiscating officers 
and officials of Jim Wells County. But in pressuring Javier to sign 
the agreed judgment at the fire station in Premont, the officers of 
the county task force had made a key mistake. Chapter 59 reads: "A 
peace officer who seizes property under this chapter may not at the 
time of seizure request, require or in any manner induce any person, 
including a person who asserts an interest in or right to the 
property seized, to execute a document purporting to waive the 
person's interest in or rights to the property."

Javier's attorney sought help from a veteran litigator in Austin 
named Malcolm Greenstein. The competing arguments moved back and 
forth in court for nearly a year, then the same district judge who 
had signed the agreed judgment told attorneys for Jim Wells County 
that they could not claim immunity from civil suit, and in August 
2006 a San Antonio appeals court affirmed the order. Garza's office 
then offered to return the $10,032 to Javier but declined to 
reimburse him for his attorney's fees. At this point the plaintiff 
didn't just want his money back. He was outraged. He wanted 
justice-call it vengeance if you want. He wanted damages. Working 
with another well-known trial lawyer, Joe Crews, Greenstein filed a 
civil rights suit in federal court in Corpus Christi. At one of the 
hearings, attorneys retained by Jim Wells County argued that the 
German shepherd's jerk toward Javier when he pulled dollar bills out 
of his pocket verified the sergeant's contention that Javier smelled 
like he'd been handling drugs, giving the officers probable cause to 
proceed. Judge Janis Jack replied that the canine lunge proved 
nothing, since virtually all currency in passing through cash 
registers, wallets, and hands absorbs scents that the dogs are 
trained to react to. She assigned an arbitrator and told the 
attorneys to seek a settlement of the case.

This winter and spring, while Javier Gonzalez's civil rights lawsuit 
worked its way through arbitration, the district attorney of Jim 
Wells and Brooks counties, Joe Frank Garza, came under fierce 
political attack in his race for re-election over his management of 
Chapter 59 asset forfeitures. The accusations of his opponent, Alice 
attorney Armando Barrera, dovetailed with the broad policy objections 
articulated by critics like the Texas Public Policy Foundation. 
Barrera produced audits from the attorney general's office alleging 
that between 2000 and 2006 Garza directed over $3.2 million in Jim 
Wells County Task Force forfeiture funds to his office. He alleged 
the money was used to pay for things like salary bonuses and travel. 
Chapter 59 confiscations became a key issue in the March election, 
and Garza, a 16-year incumbent, lost by about 400 votes.

Two weeks after the election, Javier Gonzalez traveled with 
Greenstein and Crews to Corpus Christi to meet with the court's 
arbitrator and lawyers representing the other side. Since the 
incident on U.S. 281 three years ago, Christopher Clifford had moved 
back to Kentucky and Javier had prospered, opening a state vehicle 
inspection service on Austin's outskirts called Rain or Shine. 
Greenstein told his client that in addition to winning damages in a 
settlement, they hoped to obtain a binding legal agreement that the 
authorities with a stranglehold on U.S. 281 would not use such 
tactics against other innocent motorists.

Javier laughed with some bitterness. "You've gotta be kidding! 
They're never gonna give that up!"

The client was right. Greenstein and Crews won a tacit admission of 
wrongful detention and confiscation but not a promise to cease and 
desist, because the suit did not have class-action status-there was 
only one plaintiff. The settlement contained language by which the 
county denied all accusations, and in mid-April the commissioners' 
court agreed to an award of $110,000 and payment of Javier's attorney's fees.

Javier's Aunt Maria died on December 12, 2005, a few weeks after he 
endured the stop by the Jim Wells County officers. The news of her 
death came in the middle of the night. Family members in Austin 
packed in haste and left at once in a Suburban. Javier did not drive. 
They buried her, as she wished, on the other side. He hasn't been 
back since. Now that he has won his settlement he could fly or take a 
long overland route and attend to the last detail nagging at him: a 
tombstone for her unmarked grave.
- ---
MAP posted-by: Richard Lake