In George Albin versus Bakas,
Taylor, Danko, Maldandado, Hooper and O’Leary (New Mexico state
police and their superiors), Case number 26,134
26, 2007, the Court of Appeals for the State of New Mexico examined
state police officers who seize cash under the authority of New
Substances Act are required to comply with the requirements of the
Act, or whether they may instead transfer the cash to the federal
bring a forfeiture action under federal law, then receive from the
government a portion of the proceeds.
In a tremendous victory for compelling police agencies to abide by state forfeiture reform laws, the appeals court ruled: "Just because the officers subsequently decided to transfer the cash to the federal government for the purpose of bringing a federal forfeiture action did not entitle them to ignore New Mexico law.” Plaintiff George Albin is represented by Joseph P. Kennedy of the law firm Kennedy & Oliver, P.C., Albequerue. Joseph Kennedy is also amember of FEAR and contributes pleadings to FEAR's Brief Bank II.
When New Mexico State
Senator Duncan Scott (R-Albuquerque)
introduced legislation in 1994 to "overhaul New Mexico's criminal asset
forfeiture law," he said the major change requires that forfeited funds
property go to the state general fund rather than allow agencies to
they seize. The law existing at that
time “perverts law enforcement incentives," Scott said. "Police
become more interested in chasing Mercedes rather than chasing violent
criminals because they get to keep the flashy car. Our Founding Fathers
envisioned three separate branches of government, and the existing
law allows law enforcement agencies to become both the tax collector
legislature for themselves."
New Mexico forfeiture law now requires: 1) a criminal
conviction of the owner before property may be forfeited; 2) the value
property to be forfeited must not unreasonably exceed the financial
derived from, or loss caused by, the related crime; and 3) that
forfeited property beyond costs of storage and restitution to victims
deposited in the general fund to be used for drug treatment, education
substance abuse prevention.
However, under federal law police agencies that transfer seized
property for “adoption” by federal courts have continued to enjoy up to
80% of the
proceeds returned directly to the seizing agencies. The
court of appeals held in Albin that procedural
requirements of New
Act are mandatory, stating:
We acknowledge that the use of “adoptive seizures” is apparently wide-spread and follows a long history of forfeiture collaboration between state and federal agencies. We do not address whether, to what extent, or how an “adoptive seizure” to allow a federal forfeiture to proceed may be accomplished under the Forfeiture Act. Our holding in this case is limited: when property is seized by state police officers for forfeiture, compliance with the Forfeiture Act is required even if the state intends to transfer the property to the federal government to pursue a federal forfeiture action pursuant to an “adoptive seizure.” In this case, Defendants violated the Forfeiture Act.
The case began in during a traffic stop in October 2002 in which the passenger, John Albin, consented to a search that resulted in the seizure of small amounts of marijuana, psylosibin mushrooms, marijuana paraphernalia, 18 Xanax pills, a knife and $23,100 in cash. Passenger Albin pleaded no contest to one misdemeanor count of possession of a controlled substance, and received a deferred sentence of 364 days in jail. (Under New Mexico law once the period of deferment expires without further criminal activity all charges are dropped with no actual jail time served.)
George Albin sued the state
police officers for illegally transferring the seized currency to the
Marshals, but the District Court of Santa Fe dismissed his complaint in
summary judgment for the state police officers. The New Mexico court of
reversed that summary judgment, holding that defendant state police
entitled to avoid all requirements of the state’s forfeiture laws
because they intended to transfer the property to the federal
The appeals court in Albin agreed with the Maryland Court of Appeals that a state police agency “is not free to circumvent State law altogether when it decides to forgo State forfeiture proceedings in favor of federal forfeiture proceedings." 1 New Mexico’s Forfeiture Act directs that: “Seized currency alleged to be subject to forfeiture shall be deposited with the clerk of the district court in an interest-bearing account.” The New Mexico Court of Appeals held that:
Depositing the cash with the district court clerk as directed by the statute brings it under the direct jurisdiction and supervision of the district court. The clerk deposits the money into a trust fund checking account, which holds all money that belongs to litigants or might be refunded to litigants. NMSA 1978, § 34-6-36 (1968). The clerk is only authorized to pay money out of this account in accordance with a written order of the district court filed with the clerk. Id.
Forfeitures are in rem proceedings under New Mexico law. [Citations omitted.] The effect of the legislative directive to deposit currency alleged to be subject to forfeiture into an account subject to the direct jurisdiction and supervision of the district court is that the district court acquires jurisdiction over the currency and maintains it to the exclusion of any other court, be it a state court or federal court. Since 1935, when the United States Supreme Court decided Penn General Casualty Co. v. Pennsylvania, ex rel. Schnader, 294 U.S. 189 (1935), it has been well settled that the court that first acquires control of the res subject to forfeiture retains exclusive jurisdiction over it to the exclusion of any other court. Id. at 195. In keeping with this precedent, we reject the suggestion made by Defendants that federal forfeiture statutes preempt [New Mexico’s] Forfeiture Act. Therefore, the federal court could not obtain jurisdiction over the cash unless, and until, the state district court relinquished its own jurisdiction and control of the cash. See, e.g., United States v. One 1987 Mercedes Benz, 2 F.3d 241, 244 (7th Cir. 1993) (finding that even though no state forfeiture proceeding had commenced, the federal government had to comply with state law requiring a turnover order from the district court before the federal government could obtain jurisdiction over seized property subject to adoptive forfeiture); Scarabin v. Drug Enforcement Admin., 966 F.2d 989, 995 (5th Cir. 1992) (requiring the DEA to “first seek a turn over order from the state court, or wait until that court relinquishes control over the res” before proceeding with a federal forfeiture complaint); United States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120, 122-23 (7th Cir. 1991) (requiring that the federal government seek a turnover order from the state court before seizing the property in question because “[a] local police department may not take seized property and just pass it on as it pleases to the FBI in flagrant disregard of state laws mandating judicial authority for such turnovers”), superseded by statute as stated in United States v. Sixty-Two Thousand Six Hundred Dollars, 899 F. Supp. 378 (N.D. Ill. 1995).
of complying with his duty to deposit the cash with the clerk of the
court, Agent Carr immediately made the decision to contact the DEA “to
seizure of the currency,” and placed the cash “in evidence for
until a decision was made on what procedure to follow.
A second material requirement of [New Mexico’s] Forfeiture Act was subsequently violated. The Act directs: “Within thirty days of making a seizure, the state shall file a complaint of forfeiture or return the property to the person from whom it was seized.” [Citation omitted.] Instead of filing a forfeiture complaint against the cash within thirty days, the State Police kept it in its personal custody from the time it was seized on October 20, 2002, until December 3, 2002, when the cashier’s check was delivered to the United States Marshal Service. The State Police officers circumvented this additional requirement of the Forfeiture Act. If the cash had been deposited with the clerk of the district court, it would have been under the exclusive jurisdiction of the district court, with the consequence that with no state forfeiture complaint being filed with thirty days, Passenger could have petitioned the district court to order the cash returned to him. The Forfeiture Act clearly contemplates that the authority and jurisdiction to determine the status of the cash lies with the district court and not the State Police acting independently of statutory requirements.
Through informal arrangements, local police departments agree to notify the DEA when they seize property which may be subject to forfeiture pursuant to federal narcotics laws. Upon a DEA request, the local police department will transfer the property to the DEA, which will treat the property as if it had been seized by federal authorities. That is, the DEA will “adopt” the seizure. The DEA will then institute federal forfeiture proceedings against the property. Once the forfeiture is complete, the DEA is authorized to “split the pot” with the cooperating local police department. 2
descriptions of an “adoptive
seizure” from various sources are collected in Cavaliere v. Town of North Beach,
646 A.2d 1058, 1060 (Md. Ct. Spec. App. 1994) (noting that although not
expressly authorized in the federal statutes or regulations, the United
States Attorney General
has permitted the DEA to “adopt” seizures made by local officials and
forfeiture procedures with respect to that property as part of a
effort with state and local officials to fight drugs). See 21
U.S.C. § 873(a)(2) (2000) (authorizing
the Attorney General of the United States
to cooperate with local and state agencies
concerning traffic of controlled substances
“in the institution and prosecution of cases in the courts of the
United States”); 21 U.S.C. § 881(e)(1)(A) (2000) (authorizing the
Attorney General of the
United States to “transfer” property forfeited in a federal action “to
State or local law enforcement agency which participated directly in
the seizure or forfeiture of the property”); Internal Revenue Service
(07-15-2002), available at http://www.irs.gov/irm/part9/ch07s02.html
(stating that the
state police often opt to turn over
the currency to the federal government when
state forfeiture law prohibits forfeiture or when it would be more
to proceed under federal law).