Controversy Brewing Over Seizure of Vehicles by Border Patrol

Early on a Monday morning in January, a Red Cab taxi pulled up to a 7-Eleven in San Ysidro, picked up a fare and drove off. Within minutes, Border Patrol agents unloaded the Latino passengers from the back seat, told the driver to “take a walk,” and took the cab, said owner Bill Hedrick.

Nine days earlier, about 1 a.m. on a Saturday, the Border Patrol had seized another Red Cab that also was carrying illegal aliens, said Hedrick.

It turned out that drivers of both cabs had been arrested previously for transporting illegal aliens, Hedrick said, but this time neither driver was charged.

The cars, however, were.

“They told me we’re not getting the cars back,” said Hedrick, who had leased the taxis to their drivers.

Hedrick could go to court to get the cars back, but that might cost more than the cars are worth, he said. Instead, he will try to buy them back at a government auction.

Hedrick’s story is not unusual. The Border Patrol often seizes cars suspected of being used to transport illegal aliens, even when the government does not prosecute the driver or try to prove the owner has committed a crime. The seizures are perfectly legal under laws that allow the government to, in effect, charge the car with a crime in an administrative or civil procedure.

“Sometimes we physically cannot prosecute all of the people we would like to,” said Gene Smithburg, spokesman for the San Diego Sector of the Border Patrol. “Our prosecutions people are working 24 hours a day, seven days a week, and they still can’t keep up.”

“Look at the criminal court system and the number of cases we have here,” added Raymond Edwards, chief of the criminal division of the U.S. attorney’s office. “If the situation is not aggravated--if the driver has no (prior arrests), maybe he picked up his brother as opposed to a commercial venture, or if he was just sitting rather than fleeing--then we move against the car only.”

Sometimes the car is charged even if the driver is found not guilty of smuggling aliens. Attorney Donovan J. Dunnion is defending such a case-- United States of America vs. one 1978 Ford Granada Taxi --which has yet to be heard. Dunnion said it generally takes at least six months for the seizure cases to get to court and, meanwhile, the cars sit idle.

The Border Patrol’s car seizures became an issue last week after the Border Patrol seized three cabs and cab company owners complained that they were being punished for the deeds of drivers to whom they leased their cars.

They said the Border Patrol is asking drivers to screen passengers to make sure they are in the country legally, thereby forcing them to discriminate against Latinos.

But Border Patrol officials charge that cabdrivers knowingly aid Mexican nationals in illegal northward journeys. They say the cabdrivers often wait to pick up fares at prearranged spots in remote border areas and fail to turn on meters, or they charge more than the meter indicates.

The Border Patrol has seized 17 cabs since Oct. 1, but has asked the U.S. attorney’s office to prosecute only six of the drivers, according to figures supplied by Smithburg.

He said the Border Patrol is still holding 15 of the 17 seized cars, two of which have been “forfeited,” or confiscated. Two taxis were returned to Yellow Cab Co., two cases are being taken to civil court, and the rest are under investigation.

The Drug Enforcement Administration, U.S. Customs and, in some cases the FBI, have the same power as the Border Patrol to seize a vehicle and decide administratively whether or not to forfeit the car. In all cases, the owner has the option of taking the case to court, Edwards said.

But attorney Dunnion said the seizure laws don’t “sit well with him.”

“Can you think of another example in our system of justice that allows someone to be both the accuser and the judge?” Dunnion asked. “The property is seized and you must prevail on the court to return it to you. You must show affirmation of your innocence.”

Criminal defense attorney Philip De Massa says car owners often find themselves in the same position as Hedrick.

“I have to tell a client when it will cost him more than the car is worth to get it back in court,” De Massa said.

He said that agencies such as the Border Patrol have too much discretion to decide which cars will be forfeited.

“They have the discretion or the unbridled ability or power to do as they please. If it is a cheap car, (the Border Patrol) may go ahead and let it go if they don’t want to pay storage fees. But if it is a 1984 Mercedes wagon that’s paid for, they’ll probably keep it,” De Massa said.

“I get on PSA in the mornings and a lot of guys get on that plane that look a little different or run out of the restrooms to get on the plane at 6:30 a.m. They could seize the plane, but there would be a big hullabaloo if they did that. But these little cabdrivers, they don’t make any money.”

In the San Diego area, the Border Patrol seized 1,265 cars and trucks worth $3.09 million during the last fiscal year, and 1,278 vehicles worth $2.52 million the year before. “Our seizures are thoroughly investigated. Any vehicle forfeited is very thoroughly investigated,” Smithburg said.

He said that while 15 cabs have been seized in six months, more than 2,000 illegal aliens have been pulled out of cabs and most of the time the drivers and cars are released.

“Cabdrivers pick up illegal aliens all the time, but we’re not able to connect them with an overt act,” he said. “Maybe the law would let us take the car in every case, but I don’t think the public would like it.”

Smithburg declined to give names or specifics of the cases involving the 17 cabs that have been seized. He said that in five of the six cases presented to the U.S. attorney, the drivers had been arrested previously on transporting charges.

Transporting illegal aliens is a felony that carries a maximum penalty of a $2,000 fine and/or five years in jail per count. Last year, the U.S. attorney prosecuted 5,350 people on smuggling-related charges.

Cab company representatives and Border Patrol officials met once again Tuesday to discuss the seizure problem, but came to no formal agreement, Smithburg said.

“Both sides are working together in a cooperative manner to try to solve the problem. We don’t want to seize cabs, but we will if the smuggling is going to continue,” he said.

He said the Border Patrol seized two cabs over the weekend and returned one to Yellow Cab Co.

Bill Hilton, a vice president of Yellow Cab, said that the Border Patrol also returned a cab last week that was driven by Arthur Grieshammer, who had been on the job five days before his cab was seized the previous weekend. He is an employee of Yellow Cab.

Hilton said he was told the car was returned because “it was not a good seizure.”

Grieshammer was stopped by a sheriff’s deputy for picking up a fare outside his jurisdiction. He said that his passenger spoke English and was well-dressed and that the meter had been running, indicating that the passenger was a legitimate fare. Nonetheless, Grieshammer said, Border Patrol agents were called to interview his fare, and Grieshammer was handcuffed and held at the Border Patrol headquarters overnight, and his car was seized.

Hilton said that criminal charges were not filed against two of his other drivers whose cabs were seized, and he was uncertain about the fourth. He said he did not know if the other three seized cars would be returned.

“They do charge the cab with a civil crime, and I don’t know how it defends itself. It’s very strange. . . . I don’t see where the car committed a crime,” Hilton said.

William Odencrantz, regional counsel for the Immigration and Naturalization Service in Los Angeles, explained, “It is the crime of transporting. The fact that illegals in a car are being transported is an offense that the vehicle committed. . . .

“If you use a vehicle to commit a criminal offense, the federal government is going to take the vehicle based upon it being the means used in the offense. If you find 100 pounds of pot in a car, the car is seizable for transporting 100 pounds of pot. It is being used in the commission of a criminal offense.”

The seizure is treated administratively or, if requested, in civil court, where the government must prove that there is probable cause that the car was used to commit a crime. A driver would be charged in a criminal case in which guilt must be proven beyond a reasonable doubt, which is a more stringent standard.

“A (criminal) conviction is not necessary to forfeit a car. They are two different things,” he said.

After a car is seized, the Border Patrol sends a letter informing the owner of the seizure. The owner may go to the Border Patrol office for an interview to seek its return and then may either petition in writing for the return, or pay a bond and take the case to a federal court.

Edwards said the U.S. attorney’s office handles about 200 forfeiture cases at any one time.

If the case is not taken to court, it is decided administratively by a Border Patrol vehicle seizures agent and is reviewed by his supervisor, Smithburg said.

If the Border Patrol decides not to return the car, or if a court rules against the owner, the car is sold at a government auction, held monthly.