Just imagine: You’re driving along a highway, listening to your favorite song and going about your business when you see those red and blue lights in your rear view mirror. The traffic stop goes normally until the officer notices a large stack of cash in your wallet. They ask where you got it and what you plan to do with it. You tell them it’s none of their business.

They search you and your car and are unable to find any signs of illegal activity, but they decide to take your money anyway on the suspicion that it might have been involved in some sort of drug deal. After all, who else but a drug dealer would carry this much cash on them?

The officer thanks you, walks away with your money and drives off. You haven’t been charged with anything, and you’re left scratching your chin and wondering what happened.

This may sound like an impossible situation in modern day America, but the ghost of archaic cannabis enforcement policies has come back to haunt pot companies across the country. Civil asset forfeiture laws have once again become a hot topic now that an armored vehicle company is suing law enforcement officials for allegedly seizing millions of dollars of legally-obtained medical marijuana funds. With New Mexico preparing to open the doors on its adult-use cannabis market, should business owners be concerned about the dangers of working with cannabis cash?

Civil Asset Forfeiture

Many years ago, the practice of civil asset forfeiture came to the attention of the public when it was made clear that law enforcement agencies around the nation were operating under policies that allowed officers to seize and keep property and cash believed to have been involved in a crime without needing to prosecute a suspect or even charge anyone.

Law enforcement agencies claimed to employ the method as a way to halt the funding of gangs and criminal organizations, but some were accused of using the policy to unethically line the pockets of their departments.

Funds seized with this policy can be tied up for years while its rightful owners jump through hoops to prove that they were lawfully gained. In the meantime, law enforcement is able to use those funds toward its own ends. It could almost be seen as a system for police to gain interest-free loans that may not ever have to be paid back.

N.M. Did the Right Thing

Outcry in New Mexico ensued after an Institute for Justice investigation uncovered disturbing comments made during a 2014 Vehicle Forfeiture Conference. The Las Cruces city attorney at the time, Pete Connelly, gleefully told a group of law enforcement agents that civil forfeiture laws gave officers carte blanche to take money from citizens confused by cannabis laws.

“I got to thinking. This morning, in the paper, everybody is running around liberalizing marijuana or thinking about it. Putting it on the ballot. Taking it off the ballot. And I thought, boy, what a trap. You liberalize marijuana so somebody can sell it, they sell the marijuana out of the house, then you seize the house, [for] like 10 bucks of marijuana and you get a $300,000 house. What a deal. That’s really exciting. They get what they want, and you get what you want. And the title of that article in the [Wall Street] Journal was ‘What’s Yours Is Theirs,’ and I wanted to turn it around as ‘What’s Theirs is Yours.’”

The very idea that a city attorney would be purposely seeking to take entire homes over minor infractions was disturbing enough, but the laughter that could be heard in footage of the event was even more shocking.

In 2015 New Mexico became the first state to pass a law outright banning asset forfeiture without a criminal conviction. The law also stipulated that funds taken from civil forfeiture would be added to the state general fund and would not go directly to law enforcement.

The law was approved unanimously by legislators but was seemingly at odds with law enforcement agencies in the state. Former San Juan County Sheriff Ken Christesen, then-chairman of the New Mexico Sheriff’s Association told Albuquerque Journal at the time, “A lot of equipment and overtime wouldn’t happen because the counties don’t have the money. You’ll get less law enforcement.”

Christesen’s predictions have, of course, proven false with time.

Stay in Your Lane

That should be the end of it, but in January a Colorado-based armored vehicle company filed a lawsuit alleging that law enforcement officers in California and Kansas have been wrongfully seizing cash from the company as it transports money from cannabis companies to financial institutions.

According to Empyreal Logistics, law enforcement agencies in Kansas and California have been systematically targeting their armored vehicles and seizing funds as they are transported to banks. It sounds something like highway robbery but is completely legal under federal and state laws.

The company claims that it is in compliance with all local laws and is only transporting money that has been validated by a bank or federal credit union, but law enforcement is accusing it of potentially laundering drug money. A request filed under the Kansas Open Records Act resulted in copies of dashboard camera recordings of officers discuss tagging Empyreal license plates to make it easier to target them.

Last month a federal judge denied Empyreal’s request for a temporary restraining order against the San Bernardino County Sheriff’s Department, and the lawsuit is currently open.

New Mexico companies have nothing to worry about at the moment. We’re lucky to not only have laws in place that protect us from unethical civil forfeiture practices, but we also have more than one financial institution located in our borders that are willing to work with cannabis companies. Unfortunately it means options for those companies are limited.