Update - Albuquerque Police Illegal Cash Seizures
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.
As posted previously, New Mexico radically altered its forfeiture laws in July of 2002. (New Mexico law on cash forfitures). The forfeiture law changes made the forfeiture of cash more difficult for law enforcement. In fact, a supervisor at APD issued a memorandum instructing his subordinates to stop seizing cash.
Apparently, APD detectives have ignored their supervisor's directive for over three years:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ELIAS GONZALES,
Plaintiff,
vs. CIV 03-1150 BB/WDS
THE CITY OF ALBUQUERQUE,
ROBIN BURGE and KEVIN FULLER,
City of Albuquerque Police Officers,
Defendants.
DEPOSITION OF ROBBIN BURGE
Wednesday, February 16, 2005
9:00 a.m.
500 Fourth Street, Northwest
Suite 105
Albuquerque, New Mexico 87102
PURSUANT TO THE FEDERAL RULES OF CIVIL
PROCEDURE, this deposition was:
TAKEN BY: MR. JOSEPH P. KENNEDY
ATTORNEY FOR PLAINTIFF
REPORTED BY: GERALD R. SCHULTZ, N.M. CCR No. 230
PAUL BACA PROFESSIONAL COURT REPORTERS
500 Fourth Street, Northwest
Suite 105
Albuquerque, New Mexico 87102
Q. All right. Now, did you ever become aware
of a change in forfeiture law in July of 2002 in the
State of New Mexico?
A. Yes.
Q. How did you become aware of that?
A. The deputy chief put out a memo about the
double jeopardy law.
Q. What chief? I'm sorry.
A. Ruben Davalos, the deputy chief.
Q. He actually wrote a written memorandum
about the double jeopardy law?
A. Yes, and about we were no longer allowed to
PAUL BACA PROFESSIONAL COURT REPORTERS
500 FOURTH STREET, NW - SUITE 105 - ALBUQUERQUE, NM 87102
(505) 843-9241
do the seizures based on that.
Q. Did the memorandum contain anything as far
as working with the DEA on seizures, that you know of?
A. No. No.
Q. Okay. So your recollection is, the
memorandum said that we--and when you say "we," do you
mean the City of Albuquerque or the detectives?
A. The police department.
Q. The police department.
A. Well, specifically SID, because he was our
deputy chief.
Q. Okay. That SID could no longer do
forfeitures?
A. Forfeitures based on the double jeopardy.
Q. Okay. Forfeitures of cash related to drug
transactions?
A. Yes.
Q. All right. Was there anything written as
to what you would do with cash? Say you execute a
warrant where you find drugs, clearly a sales
situation going on, and you find cash. Is there any
written--anything written in Ruben Davalos' thing as
to what to do with that cash?
A. No.
Detective Burge, in referring to "the double jeopardy law" is referencing the Nunez decision, 2000 NMSC 13, which held that forfeiture of cash and criminal prosecution in separate proceedings violated the double jeopardy clause of the New Mexico Constitution. The 2002 state statute was written, in large part, to codify Nunez. Thus, we can infer that Deputy Chief Davalos' referenced memorandum was written shortly after Nunez was decided.
Detective Burge and other detectives continued to seize cash despite the Davalos directive:
Q. DEA. Okay. And since, say, 2002 have
you--other than Elias Gonzales, have you had the
occasion to seize cash from any other suspects or
criminal defendants?
A. Yes.
Q. And can you estimate about how many times?
A. Since Elias?
Q. Yes, let's do that.
A. I don't know.
Q. Okay. Do you have a standard procedure as
to what you do with the cash you seize?
A. Yes.
Q. What do you do?
A. We count it and then it gets tagged into
our evidence unit.
Q. Okay. And what happens to it there?
A. It goes to evidence.
Q. That's it?
A. That's all I know.
Detective Burge and other detectives failed to complete forfeiture paperwork on cash seized:
Q. Okay. But, again, there's no--that you're
aware of, there's no written policies or procedures as
to how you should handle that money at this point in
time?
A. Like what?
Q. Like, you know, officers should put the
money into evidence within ten days.
A. Do the seizure paperwork like through the
city or give it to a federal agency within that ten
days. There was some-- It was when that double
jeopardy stuff was coming through, we were told not to
do it. I tried finding that memo--I can't find
it--that Ruben Davalos wrote. There's some confusion
PAUL BACA PROFESSIONAL COURT REPORTERS
500 FOURTH STREET, NW - SUITE 105 - ALBUQUERQUE, NM 87102
(505) 843-9241
121
over that. So, I mean, there was a bunch of things
going on. The state statute was-- I mean, I even
talked to some of the narcotic guys about it and, you
know, they say they are confused about it.
Q. Okay. So prior to Ruben Davalos's
memorandum, there was some sort of paperwork within
ten days that you had to file and send to-- And I
forget who you told me.
A. You do your--you do your report, and then
there's a cover sheet where you put your case number--
Q. Right.
A. --a bunch of other useless information, and
then you put like a vehicle, money, whatever it is
that you seized, and then we had other officers--or
there were civilians, actually, who did the seizure
stuff, whether it be a vehicle, money, or whatever.
Q. Okay.
A. Then you just put it in their box and then
they take it, and I don't know what happens after
that.
Q. Okay. But that procedure was suspended
with the Ruben Davalos memorandum?
A. And then that double jeopardy case that
came down.
Q. Right.
PAUL BACA PROFESSIONAL COURT REPORTERS
500 FOURTH STREET, NW - SUITE 105 - ALBUQUERQUE, NM 87102
(505) 843-9241
122
A. And I think all of APD was confused over
all of that.
Q. Okay. So the procedure that you just
described about filling out the paperwork, you didn't
do it in the Elias Gonzales situation?
A. No.
Q. All right. Because it had been suspended
or ended: is that fair?
A. Yes.
Q. And is it fair to say, there's no clear
communication as to what was going to take its place
or how to proceed from there?
A. That's fair, yes.
Confusing to some, I suppose. An APD supervisor wrote a memorandum that there are to be no more forfeitures. APD detectives ignored their supervisor, continued to seize cash and continued to tag cash into evidence. Seems clear to me - the money was piling up in evidence.
Again, the real evil underlying the missing cash fiasco is APD detectives' decision to ignore state law. APD detectives decided to ignore state law and the directive of their supervisor. The Attorney General's office has failed to hold anyone accountable. Hopefully, we will be able to insure that APD follows the law in the future through the Gonzales and Gutierrez litigation.