*********** BEGIN FORWARDED MESSAGE *********** On 12/13/2003 at 8:11 AM Judith Loring <jloring@cybernet1.com> wrote: Organization: Forfeiture Endangers American Rights http://www.fear.org/ FEAR also offers a low-volume announcements list and digests for all lists 12/12/03 Dear Leon and/or the Group--looking for some advice, hints, suggestions, whatever: I'm an attorney fighting a forfeiture case. Facts are that the adult son of my clients was found dead in a motel room. Cops called and part of what they did was to search the deceased's clothes and wallet. Found some (small amount) of drugs & paraphernalia as well as cash in his wallet. Amount varies from $4,500 to $4,832 to $5,000. State filed suit to forfeit, naming as defendants the deceased and his father, but not the mother who is an heir at law as well as being a known claimant prior to the filing of the forfeiture action. I know I have several procedural arguments but am wondering specifically if the cops needed or should have obtained a search warrant before searching the deceased, his clothes, his wallet, whatever. They did get a warrant before searching his vehicle as his parents refused consent and they were on the registration. I'm thinking a search warrant should have been obtained prior to going through the deceased's possessions, especially pockets in his clothes and wallet, where the bills of money were found. If so, then evidence should be suppressed and returned to the family. Cops also took and kept the wallet and a cell phone; did not mention in their forfeiture action, but have not returned or offered to return those items, though did return the vehicle after they searched it (and left a couple of pills which my clients found later!) I'm also thinking that when the forfeiture action was filed, it should have been entitled State vs.. $ rather than State vs.. a dead guy and only one parent. Forfeiture actions are, I thought, to be "in rem", i.e. against the property. Is that enough of a technicality to get the whole thing tossed out of court? At the time the state filed the complaint, it knew the decedent was dead for crying out loud! How does one sue a deceased person on a forfeiture complaint? And, because of his death, no criminal charges were brought whatsoever. (note: autopsy report claims "cocaine toxicity" was cause of death. Deceased didn't like cocaine, his drug of choice was more in the line of heroin, but, in any event, I understand that to die from cocaine toxicity, one would have to have huge amounts in one's system. Here, the deceased had numerous medical problems including a recently sprained and swollen ankle, and death could also have been caused by cancer and/or a blood clot breaking loose from the ankle injury. What's the standard of proof -- or whatever-- for a coroner to conclude cause of death being cocaine toxicity? Can that be challenged? State appears to be using that as more justification that the money was also dirty) I do have 4 or 5 affidavits from parents and relatives tracing the $, was not from drug deals, was on the deceased, who lived in New Mexico, drove to Montana, to buy an automatic transmission truck, which would be easier for him to drive given all his medical problems. I really think I can win this one and have filed a motion for summary judgment with, I think, enough to now throw the burden of proof back to the state. The forfeiture complaint was very poorly written, probably a form our sheriff came up with. All it does is recite all the facts of the cops finding the deceased, what they did, etc., and then in the spot where it is supposed to say why forfeiture is justified, there is an incomplete, hanging sentence: "Forfeiture is appropriate in that." is basically what is said. And the cops rely on a lot of hearsay, a supposed Crime Stoppers Tip and a confidential informant with hearsay information which the State, at least so far, has refused to disclose, to try to tie! the deceased in with a person who lived in this area. The deceased had not lived here for about 7 months, returned for a friend's wedding, brining cash with him to buy a vehicle. Any thoughts or suggestions? Thank you in advance. Judith Loring Attorney at Law Stevensville, Montana 59870 jloring@cybernet1.com --------------------------------------------------------------------------- Attachment: http://www.mapinc.org/temp/part6634.html Organization: Forfeiture Endangers American Rights http://www.fear.org/ FEAR also offers a low-volume announcements list and digests for all lists List update: mailto:owner-fear-talk@mapinc.org?Subject=FEAR-talk-update List unsubscribe: mailto:fear-talk-request@mapinc.org?Body=unsubscribe *********** END FORWARDED MESSAGE *********** ****************************************************** FEAR also offers an unmoderated discussion list and digests for all lists List unsubscribe: mailto:fear-list-request@mapinc.org?Body=unsubscribe Swap to digest: mailto:owner-fear-list@mapinc.org?subject=digest ******************************************************