Court Affirms State’s Authority to Confiscate Illicit Drug Sale Money

Money and other proceeds allegedly gained from illicit drug transactions can be seized and held by authorities throughout a trial, even if it prevents criminal defendants from hiring lawyers of their choice, a state Court of Appeal has ruled.

The appeal court, opening the way for state authorities to confiscate millions of dollars annually from drug defendants, held that such seizures are valid under a newly passed state law and do not violate the constitutional right to counsel.

In a 2-to-1 decision, the panel rejected claims that authorities should not be able to seize assets needed for attorney fees merely by showing there was “probable cause” to believe the assets came from illegal drug deals.

“The (law’s) deterrent purpose of stripping drug dealers of the advantage of securing private attorneys with illicit funds obviously cannot be accomplished if the defendants are allowed funds for private counsel throughout the criminal proceedings,” Appellate Justice Carl West Anderson wrote for the court.

Defendants who are rendered indigent by the loss of their assets can still be represented at trial by a state-paid attorney, Anderson noted.

The ruling, the first on the issue by a state appellate court, is binding on trial courts throughout California unless overturned by the state Supreme Court. An appeal to the state high court is planned, attorneys said.

The decision, issued late Monday, was assailed by an attorney for one of five defendants who had challenged the seizure of $1,100 to $80,000 in assets pending their trial on narcotics charges in San Francisco.

“This decision will have a devastating impact if it is upheld,” said Ellen L. Chaitin. “It gives authorities an enormous amount of power that can be abused. Prosecutors, in effect, can pick and choose who will be the defense lawyers.”

State Assistant Atty. Gen. John A. Gordnier welcomed the decision and expressed confidence that it would be upheld. “This is a very important ruling on a critical issue that is arising all over the state,” he said.

Few Acquittals

Gordnier said “many millions of dollars” could be seized annually under the decision. In only “very few” cases, he said, are defendants likely to win acquittal and thus be entitled to recover the seized assets.

He added that, while specific data are not available, it is probable that “many hundreds, perhaps thousands” of drug defendants eventually could be affected by the decision. The case arose from an effort by the defendants to obtain the return of money that had been seized and held by San Francisco police pending forfeiture proceedings.

At issue was a 1986 state law enacted to allow state authorities to seize allegedly illicit drug proceeds during trial, as federal officials may do under federal law. Backers of the state legislation estimated that $73 million in illegally gained assets were seized in California the year before under the federal forfeiture law.

Judges in both the San Francisco Municipal and Superior courts held that the constitutional right to counsel allowed defendants to keep sufficient assets to hire lawyers of their choice. In its ruling, the appeal court conceded that federal courts have been divided over whether the federal law was intended to apply to property used to pay attorneys’ fees. But the panel said it had chosen to follow the reasoning of a recent ruling by a federal appeals court in Richmond, Va., upholding the confiscation of money intended for legal counsel.

Court’s Reasoning

Anderson, quoting from the federal court opinion, observed, “the drug kingpin’s certain knowledge that he may have at his beck and call lawyers whose fees run into hundreds of thousands of dollars may make him less apprehensive about continuing his business.”

The court acknowledged widespread concern among defense lawyers about the effect such a ruling may have on the attorney-client relationship. But, the panel said, it is up to the Legislature to change the law to protect assets for legal counsel if it wished to do so.

Anderson’s opinion was joined by Appellate Justice William R. Channell. In dissent, Appellate Justice Marc Poche said that the case should have been dismissed because prosecutors had not met legal deadlines for appealing the lower court rulings that provided for return of the seized assets to the defendants in the case.