City of Albuquerque Sued for Cash Seizures
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.
In July 2002, the State of New Mexico drastically changed it forfeiture laws. Seizures of property are only allowed pursuant to a court order, incident to an arrest or when a law enforcement officer “has probable cause to believe the property is property subject to a forfeiture and that the delay occasioned by the need to obtain a court order would frustrate the seizure”. NMSA 31-27-4. Thus, the only basis for the seizure of cash is that there is probable cause to believe it is subject to forfeiture and a court order would frustrate the seizure.
In New Mexico cash may be forfeited only when the district court finds by clear and convincing evidence that a criminal prosecution has resulted in a conviction. NMSA § 31-27-6 (E).
Under state law, seized money must be deposited with the district court clerk. NMSA § 31-27-8 (A):
Seized currency alleged to be subject to forfeiture shall be deposited with the clerk of the district court in an interest-bearing account.
The state must file a forfeiture action within thirty (30) days or return the cash. NMSA § 31-27-5 (A):
Within thirty days of making seizure, the state shall file a
complaint of forfeiture or return the property to the person from whom it was seized.
The City of Albuquerque continued to seize money that its officers suspected to be related to drug sales. However, the City of Albuquerque has filed no forfeiture actions since the 2002 changes to New Mexico's forfeiture law. Mr. Gutierrez' litigation is designed to discover what is happening to the seized money and it seeks a return along with payment of interest for all persons whose cash was seized. From a review of filed Returns and Inventories for search warrants in 2003, Kennedy & Oliver has compiled a partial list of money seized from subjects of search warrants. The money seized for 2003 totals over $50,000.
Kennedy & Oliver is seeking discovery that would show what the City has done with the money seized. Discovery responses are due May 23, 2005. Kennedy & Oliver intends to seek entry of summary judgment and class certification by early June, 2005.
We are actively seeking potential clients with claims against the City of Albuquerque for its unlawful seizure and retention of money and other property.
In addition, the State Police and other agencies are seeking federal adoption of cash seizures over $5,000. Kennedy & Oliver is also actively involved in litigation to challenge the transfer of state seizures to the federal courts.