DOJ: Calling the Police When You See Crime on Your Property Isn’t Enough to be an Innocent Owner

The United States argues in the trial of United States v. 434 Main Street, Tewksbury, Mass. (the Motel Caswell) that simply calling the police and cooperating with law enforcement isn’t enough to present an innocent owner defense in a civil forfeiture proceeding:

In particular, courts have held that it is not sufficient for a claimant who is a landlord, motel owner, or other person who leases its premises to third parties, to show that it had called the police when it learned that someone was committing a criminal offense on the defendant property. To the contrary, such claimants are not only required to call the police, but to institute procedures (e.g., installing security devices, hiring a security guard, restricting access to the property to registered motel guests or tenants, restricting occupancy to registered guests, restricting access to non-public areas, evicting criminals) that are likely to be effective in preventing continued criminal activity.

We’ve belabored the point that this is precisely the kind of taking that is supposed to be illegal under the “Safe Harbor” provision of the 2000 Civil Asset Forfeiture Reform Act. As Henry Hyde, House Judiciary Chairman, appearing at the Senate Judiciary hearings on CAFRA, July 21, 1999, noted:

It provides a uniform innocent owner defense, and that was involved in the case Senator Biden talked about where this motel in a very tough neighborhood, a crime-ridden neighborhood, had drug transactions going on. And the owners repeatedly reported it to the police, withheld permission. You try to evict some drug dealers sometime; I wish you a lot of luck. But the police couldn’t do it, and the police took his property, and he finally got it back after the Houston newspapers raised hell and wrote editorials, and I have them here. So an innocent owner defense is where you do everything you can. You report it to the police, you withhold permission for these illegal transactions, and that gives you a safe harbor.

Much of the pre-CAFRA outcry over the need for a robust innocent owner provision focused on the forfeiture of the Red Carpet Inn in Houston. In 1998, the Houston Chronicle editorialized:

U.S. drug-forfeiture laws allow prosecutors to seize property and initiate forfeiture proceedings against owners if the property was used in illegal narcotics activity. This, despite the fact that motel personnel called police to the address dozens of times to report drug-related activity. Do prosecutors now require that business owners be more successful in running off dangerous criminals than the police?

In the Red Carpet case, the government alleges the owners did not implement all the security measures suggested by law enforcement officials and, therefore, gave “tacit consent” to the drug activity taking place on the premises. One of the recommendations was to raise room rates. Perhaps another time, the advice will be to close up shop altogether.