After $11K seized at airport, man to get money back plus interest

COVINGTON, Ohio — A man who lost $11,000 to deputized federal agents in a so-called civil seizure because his luggage smelled like marijuana is getting all his money back from the government plus interest in a settlement filed with the federal courts Tuesday.

In June 2015, Charles Clarke II sued with assistance from the Institute of Justice, a Washington-based legal advocacy agency, to get his money back from the seizure, which occurred in February 2014.

At the time, two local police officers, including one from Covington and one from the police force at the Cincinnati/Northern Kentucky International Airport, took Clarke's money after a ticket agent reported that his luggage smelled like pot. A drug dog also indicated marijuana was present near the cash that Clarke was carrying in his pocket.

The officers felt that was enough proof to seize the money, even though Clarke was not charged with any drug crimes and no drugs were found. Clarke was arrested and charged with resisting arrest, but those charges were later dropped.

Clarke, who said at the time he was headed back to Florida with the cash to pay his college tuition, was never charged with any drug crimes.

The two officers were working for a federal Drug Enforcement Administration task force at the airport, giving them federal power to take assets and cash if drug activity was suspected. That can happen even without a criminal arrest.

Neither Clarke nor the government admitted they were wrong in the settlement.

"However, to avoid the uncertainty and expense of further litigation of this matter, the parties agree to settle and compromise this action," the two sides wrote in the settlement.

Clarke declined comment through Institute of Justice lawyers. But Institute lawyer Darpana Sheth said that he was "relieved that this ordeal was finally over."

"What a great early Christmas present," Sheth said. "But seriously, he was very lucky to file a claim early on and that we were able to help him. Otherwise, he would have been out of luck, especially since the burden of proof is on the property owner and not the government. In the greater scheme of things, such settlements are rare, although we are finding more success when we try to defend people."

Sheth said that Clarke should receive his money within a month, saying the total interest is not known but that it "shouldn't be more than a few hundred dollars."

Kyle Edelen, spokesman for the U.S. Attorney's office for the Eastern District of Kentucky, which handled the case for the government, said the settlement had "resolved" the issue and declined further comment.

Earlier this month, the federal judge overseeing the case expressed skepticism over the government's case.

"Frankly, the fella sounds like he's telling the truth," U.S. District Court Judge William O. Bertelsman said at a hearing.

A 2015 Cincinnati Enquirer investigation found that the local 13 law enforcement agencies that are part of CVG's DEA task force earned more than $7.5 million in such seizure money in the last five years. Nationally, local police and federal agents have seized more than $4.1 billion since 2006 using federal civil forfeiture laws.

Under the program, local agencies can work as federal agents and take the money, keeping up to 80% of what they seize after legal proceedings are complete. The government can keep it if the owner cannot prove the goods are "innocent" and not being used for or received from illegal means.Yet while the government tracks how much is taken in, what is distributed to local agencies and what is bought with the money, no data on how many arrests were made is kept.

"That puts the onus on the property owners, many of whom can't afford lawyers to get their assets," Sheth said. "In this case, there would have been no way Charles could have gotten his money back if not for some pro bono help from the Institute of Justice. The legal fees alone would have eaten up all his life savings."

In that same hearing this month, Bertelsman did not allow the case to be used as an overall test on the constitutionality of the federal seizure/forfeiture program.

Seizures/forfeitures have become increasingly controversial, spurring a bipartisan criminal justice reform effort that includes libertarian Republicans such as U.S. Sen. Rand Paul, R-Ky., and U.S. Rep. Thomas Massie, R-Garrison, who has called the program "legal robbery." In addition, the ACLU and other civil rights groups have joined in.

Eighteen states have reformed their own forfeiture laws in the last five years, and Ohio is considering such a move in the coming year. Another four states have prohibited local agents from participating in the federal seizure program as well, according to Lee McGrath, the Institute of Justice's legislative counsel.

"State legislatures should not allow their authority to be circumvented by police chiefs who prefer to outsource their forfeiture litigation to the federal government because it's easier and it pays better," McGrath said.

Follow James Pilcher on Twitter: @jamespilcher


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