A local law enforcement agency that took more than $1,300 in cash from a man during an arrest does not have to return it, the Colorado Court of Appeals ruled on Thursday.

In 2015, Arapahoe County Sheriff’s deputies saw Hubbert Roy asleep in his parked vehicle. They learned he had a warrant and arrested him. In the process of searching Roy and his vehicle, the deputies found $1,310 in cash, a scale with white powder residue and bottles of prescription medication with labels naming different people. 

Investigators suspected that given his low income, the cash came from the sale of narcotics. Even though Roy testified the money had come as a gift from a friend, and the Arapahoe County District Court judge found the friend credible, the court still presumed the money was associated with his illegal possession of drugs.

Under the Colorado Contraband Forfeiture Act, money that is “used to facilitate” drug possession or distribution is contraband subject to seizure, based on probable cause. In enacting the law, the General Assembly noted it was “designed to benefit the public good by appropriating contraband property for use by law enforcement.”

If the amount of money seized during an arrest is in excess of $1,000, there is a presumed substantial connection to criminal activity, so the defendant would need to show credible evidence that it was not so.

In Roy’s case, the appellate judges did not believe he presented sufficient evidence in the face of the drugs and paraphernalia officers discovered at the time. Moreover, Chief Judge Steve Bernard wrote, the friend who gave him the cash did not appear to be correct about the timing of the gift.

“The government is allowed to seize the property under a theory that your continued possession of the item is a public nuisance,” wrote Denver criminal defense attorney H. Michael Steinberg on his website about Colorado’s forfeiture laws. “They can then seize it, and in many cases hold onto it for a long time without a hearing or any ability to challenge its seizure and impending forfeiture.”

A 2017 issue brief from General Assembly staff indicated that most forfeited property, including bank accounts and cars, are in connection with drug offenses. In 2018, state and local agencies seized property worth $12 million, with Arapahoe County taking assets in excess of $108,000.

The case is People v. Roy.