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Robert Loeb is a criminal defense and gambling attorney in Chicago.  He is the co-author, with I. Nelson Rose, of Blackjack and the Law, which is available on www.amazon.com. 

We're talking highway robbery, except the bad guys are supposed to be the good guys.  Cash seizures and civil forfeitures have become a scandalous national epidemic.  We've gone from exchanging beads for the most valuable real estate in the country, to cash (the official coin of the realm), to checking accounts, to credit cards, to wire transfers, and now, to swiping a cell phone to pay for goods and services.  We are becoming the anything-but-cash society; carrying cash has become suspicious, and cops have become the highway robbers.

Consider the following actual court case. A frequent, perhaps professional gambler, has gotten lucky.  Okay, he went on a winning streak, the likes of which usually occurs only in dreams. He's been playing a new game that has a really large advantage for the player. In a two week period, our hero has just won over $600,000 in various casinos around the country. He has tried to stay under the radar of the casino so that he can continue to play this great game.  He has played anonymously so that he doesn't find himself in some database of advantage players. He is driving home with most of the money locked in a suitcase, which is locked in his trunk.  He finds himself driving a tiny bit over the speed limit, less than six car lengths behind the car in front of him on an Arizona highway. He finds himself being pulled over by the state police.  He gets out of the car, nervous and sweating because he has his life savings in that rental car, while the officer asks him questions.  Long story short, the cop calls for a drug detecting dog, who alerts him on the cash in the trunk of the car.  When asked where he has been and where he is going, he decides to answer the question and says he is driving home from New Mexico to Nevada, but the cop finds a receipt from a Mississippi hotel on the front seat.  This leads to a search of the trunk, and he finally finds himself in a two year battle, trying to prove in the courts that the seized cash is legal.

Seizures started out in conjunction with lawful arrests for real, actual crimes.  An officer would arrest a drug dealer, charge the perp with a drug crime, and seize the cash that the dealer had in his pocket as being the proceeds of the crime.

Times have changed.  These days, police departments are helping to fund themselves, and to purchase new law enforcement toys, by seizing cash from citizens. Is there probable cause for the search?  Is there probable cause for the seizure?  Is the money clean or dirty?  Do police officers care about constitutional rights if they can help pay their salaries and get promotions seizing and keeping the money?

Local police departments presume, even in the absence of any evidence, that large amounts of cash are the product of illegal activity.  What is a large amount of cash?  $600,000 is a large amount of cash by anyone's standards.  How about $1500? Everything is relative; $1500 might be a tiny bankroll for an active gambler, but to many police officers, any amount that exceeds the cash in the officer's pocket is a large amount.

Officers arrest people who are guilty of a crime all the time.  Certainly they arrest real criminals more often than they encounter gamblers.  They perform searches of suspects often, and recovery money from criminals often. And often the cash on the arrestee is in fact the proceeds of a crime, and is legally forfeitable.  And so police feel validated when they investigate some, uncover a crime, and legally keep the proceeds of a crime.

It is also a reality that even well-intentioned police feel they have done their job and protected the public when they remove guns and drugs from the street.  Many, and perhaps most police officers, feel that they have done a good job when they recover guns or drugs, EVEN IF they have violated someone's constitutional rights in obtaining those guns or drugs.  Many feel that an improper search is merely a technical, secondary type of slip, but that removing guns and drugs is the all-important primary goal of those who serve and protect.  So, when in doubt, they search, seize, and arrest.  Let the courts sort it out later. 

On the theoretical and good side of things, we have a Constitution.  We have a 4^th Amendment that prohibits unreasonable searches and seizures without a warrant.  We have a 5^th Amendment, which allows us to legally decline to answer questions from police.  And we have other Constitutional provisions that require due process and proof before the government can take our property.

Within the law, however, we have this so-called "war on drugs," a war that has exceeded the Thirty Years War by more than a decade, a war that we still seem to be losing.  In the name of this "war on drugs," we allow pre-textual stops based on technical, and the most minor traffic violations, just as an excuse to explore whether someone has drugs on them.  The law allows canine sniffs for drugs, which are sometimes accurate but not always.  While some courts recognize that most cash in circulation in the United States has been tainted by coming in contact with the residue of illegal drugs, most courts allow an alert from a drug dog to help supply "probable cause" for the search, seizure, and arrest of an individual.  We have forfeiture laws that have withstood constitutional challenges.  Ordinarily, the burden of proof ought to be on the government to prove that seized money is related to criminal activity, but many of the forfeiture laws make it the burden of the citizen to prove that the source of the money is clean.

On the practical, real life side of things, it's not so simple.  The forfeiture laws allow the government to keep seized funds while the citizen goes to the time and expense of trying to prove that the funds have a legal source.  The courts move exceedingly slow, and have technical hurdles that are often unrealistic.  For instance, after money has been seized from an individual, he has to comply with filing requirements and deadlines.  Often he was to post a bond (i.e., post his own additional money), just to have the right to try to get his own money back (i.e., the money that was seized by the government). He has to pay a lawyer, such that even if he succeeds in court, he will still be on the losing end of things, because the legal fees are usually not recoverable.  And those legal fees present another kind of obstacle, because they can approach or even exceed the amount of money seized.  This makes it a losing proposition to even try to get your money back, unless it is a really large amount of money that was seized. 

This situation has reached scandalous proportions.  It affects gamblers much more than it affects others, because gamblers carry cash more often and in greater amounts than other people.  Al of this leads to the question, "what can gamblers to do avoid cash seizures?"

Dos and Don't's 

Remember our hero whose cash was seized in Arizona?  The battle continues, and he may or may not get it back.  He may not have timely paid all of his income tax.  He may or may not have a lien on the money from the IRS.  He may or may not have cashed out over $10,000 at a time at the casinos, and he may or may not have structured those transactions.  Gamblers need to avoid being the victim of cash seizures, AND they need to be in a position to succeed in getting the money back when a seizure has already occurred.  The following suggestions will not hold true for all gamblers, and there are so many variables.  The recreational gambler who bets relatively small is in a very different kind of situation than the professional gambler who is always travelling and who has to carry a huge amount of cash; therefore, many of these suggestions will be applicable or useful to some, but not all readers. 

First, let's discuss avoiding a seizure in the first place...

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