Search and Seizure Law Blog

Kennedy & Oliver is happy to report that it is one step closer to a complete resolution of its class action against the City of Albuquerque related to the seizure and disposition of cash from citizens. Kennedy & Oliver is in the process of receiving and organizing police reports and assuring that the City of Albuquerque is abiding by state law in regard to seizure and disposition of cash. Once individual victims have been identified, Kennedy & Oliver will notify victims of their rights and the process for claiming damages.

On April 26, 2006, the Second Judicial District Court in Bernalillo certified a class of all people whose cash Albuquerque police officers have seized and retained beyond thirty (30) days from July 1, 2002 to the present. Since April 26, 2006, Kennedy & Oliver has been successfully obtaining information from the Albuquerque police related to identities of individuals whose cash Albuquerque police seized.

The lawsuit was brought as a result of a change in New Mexico law on drug forfeitures. On July 1, 2002, New Mexico law changed the process for seizures and forfeitures of cash that law enforcement alleges is the proceeds of drug sales. The law requires that the police deposit the seized cash with the district court clerk and that police return the cash or file a forfeiture complaint against an individual within thirty (30) days of seizure.

Through its representation of indivdual clients, Kennedy & Oliver discovered that the City of Albuquerque police department was ignoring the law. Kennedy & Oliver filed a lawsuit to force the Albuquerque police to disgorge itself of thousands of dollars of seized cash. The Albuquerque police department has admitted its errors and agreed to the class action format as an appropriate method of returning the seized cash to individuals.

Kennedy & Oliver also has pending lawsuits against Bernalillo County, the New Mexico Department of Public Safety, Dona Ana County and Cahvez County for their handling of cash seizures.

If your cash was seized in the State of New Mexico by a state officer, please contact us to discuss possible representation.

On Friday, July 22, 2005, a jury in the United States District Court for the District of New Mexico awarded L.S., a nine year old child, $1.2 million in compensatory damages and $2 million in punitive damages. On May 8 2002, a substitute teacher molested L.S. and two of her first-grade classmates at Esperanza Elementary School in Farmington. L.S. suffered Post-Traumatic Stress Disorder as a result of the molestation. Sanchez v. Brokop, CV 04-134 (D.N.M., Magistrate Judge Leslie Smith, sitting by consent)

Kennedy & Oliver have joined forces with Albuquerque lawyer Glenn Smith Valdez to challenge the State of New Mexico's practice of bypassing the New Mexico Forfeiture Act in favor of the more profitable federal forfeiture route. The New Mexico State Police have ignored the New Mexico Forfeiture Act since it became effective on July 1, 2002. Kennedy & Oliver and Glenn Smith Valdez represent a man whose now deceased brother's cash the New Mexico State Police seized and transferred to the federal government in direct defiance of state law. Albin v. Bakas, et al., CV 2004-1682 (First Judicial District Court, Santa Fe County)

In Gonzales v. City of Albuquerque, 03cv1150, Kennedy & Oliver represents a young man whose cash (4,378) an Albuquerque police detective seized from his home and held illegally for seven months. Kennedy & Oliver filed a civil rights suit for return of the money, interest and attorney fees when the City of Albuquerque failed to return Mr. Gonzales' money. On February 16, 2005, Kennedy & Oliver was able to depose the APD detective (Burge) about the City of Albuquerque's seizure of cash. Detective Burge's testimony reveals an agency whose officers are ignorant of the law and indifferent to the instructions of their own supervisor to stop seizures and forfeitures of cash.

In a report released to the City of Albuquerque Police Department and to the media and public, the New Mexico Attorney General states that her office is unable to locate over $58,000 APD officers have seized from 2002 to 2004. While the report indicated that the City of Albuquerque suspected employees of the evidence room of theft, the Attorney General declined to prosecute citing concerns about APD's supervision and record keeping. The attorney general's report is an important first step. However, the report fails to address the unlawfulness of the APD seizures of cash in the first instance.

Assistant Attorney General Michael Cox wrote the following memorandum for public release:

On April 7, 2005, Kennedy & Oliver filed suit on behalf of Gabriel Gutierrez, and a class of similarly situated plaintiffs, to redress the City of Albuquerque's illegal seizure of cash from citizens and to demand an accounting of all cash seizures from July 1, 2002 to the present. On July 14, 2003, City of Albuquerque detectives seized $5,760 from Mr. Gutierrez' home. On March 25, 2005, The City of Albuquerque, upon order of the court, issued a check to Mr. Gutirrez in the amount of $5,760. Mr. Gutierrez' action, filed in the Second Judicial District Court (CV 2005-2801), seeks interest on his wrongfully converted money and return of all principal and interest on all other cash seizures.