ACLU JOINS MAN'S FIGHT OVER SEIZED MONEY

Hector Herrera walked into Omaha's Eppley Airfield with luggage at his
side, money in his pocket and visions of a sunny afternoon in Phoenix.

His flight plan skidded to a halt, however, when narcotics agents who had
watched Herrera pay cash for his ticket asked him to take a detour to a
room with a drug-sniffing dog.

No drugs were found. No charges were filed. Yet the agents confiscated the
$4,000 Herrera had in his pocket.

They said the police dog detected the smell of illegal narcotics on the
bills. That, they said, fueled their suspicion that the money was tied to
drugs.

Herrera said he had earned the money. He later showed pay stubs to the
agents, which he thought should have proved it.

Two months later, though, the cash remains in government custody - caught
up in the complex world of federal forfeiture law in which police have
broad powers to seize suspected drug proceeds, and people like Herrera, an
immigrant from Mexico, face significant legal barriers to get it back.

Even though a new federal law that took effect last month is supposed to
remove some obstacles, civil rights advocates say minority populations
remain vulnerable because they are targeted more frequently by agents
looking for drug couriers.

"There is this heightened suspicion about a young person of color who
travels and buys a ticket with cash," said Amy Miller, legal director of
the American Civil Liberties Union in Nebraska. "Once their money is taken,
it is a slow and lengthy process to get it back."

Nebraskans have had little success regaining cash taken under federal
forfeiture laws.

About 235 cases that involved nearly $4 million in seized currency were
closed during a two-year period ending July 2000.

Of that amount, only 9 percent of the money was returned to the owner,
according to the U.S. Marshal Service, which keeps track of forfeitures
handled by Justice Department agencies.

Nationally, the return rate for seized money is even lower. In the past two
fiscal years, the U.S. Marshal Service closed cash forfeiture cases worth
$577 million. About 4 percent of that money was returned, according to the
agency's records.

Local law enforcement officials say they do not keep track of how often
agents seize money, find no drugs and file no charges.

U.S. Public Defender David Stickman in Omaha said such circumstances are
not uncommon.

The new law was borne out of concern that citizens' property rights were
being trampled.

That drugs would be detected on cash also is not uncommon. Studies have
shown that most of the currency in circulation is tainted with drug
residue, Stickman and others said.

"The percentage is so high that there really should be no significance
attached to the fact that a trained drug-smelling dog would detect it," he
said.

Two months after the June 16 seizure of Herrera's cash, Herrera received
the official forfeiture notice from the Drug Enforcement Administration,
which allowed him to begin his battle to reclaim the $4,000.

Herrera then filed a claim of ownership to contest the forfeiture. He paid
the court $400, a bond intended to weed out frivolous suits in cases
involving seized cash. Property owners won't have to pay an up-front bond
under the new law, but they could face a fine later if a judge determines
that the case was frivolous.

Now Herrera is awaiting word on whether the U.S. Attorney's Office will
defend the forfeiture in court.

Because the ACLU has agreed to take on Herrera's case for free, he won't
have to risk paying thousands of dollars in attorney's fees.

"This is an important one for the ACLU," said Tim Butz, director of the
organization's Nebraska office. "There are issues of racial profiling and
unlawful seizure. We don't think Hector Herrera is the only one out there
who has gone through this."

Perhaps the most criticized slice of forfeiture law has been the burden of
proof. Under the old law, people such as Herrera who were trying to get
their money back had to prove that it should not be subject to forfeiture.
The new law shifts the burden to the government. It is unclear, though,
whether that will apply to Herrera's case.

Herrera, 30, said he has little money or knowledge about the legal hurdles
that stand between him and what he called his life savings, earned through
jobs such as delivering pizza and flowers.

Still, he said, he has felt the sting of discrimination, and that's what
helped push him to fight.

He consulted with his priest, the Omaha Human Relations Department and
several lawyers before turning to the ACLU.

"I killed myself for a year to make this money," he said in an interview at
the apartment he shares with four roommates. "More than the money, I'm
interested in clearing this problem because it's not right."

Herrera, who currently works for a drywall company, helps support a
10-year-old daughter in Mexico and came to Nebraska a few years ago with
the hope of making more money.

Terri Teuber, a spokeswoman for the Nebraska State Patrol, which was
involved in the airport search, declined to say much about Herrera because
his forfeiture case is pending.

She would not, for example, say why he was stopped. She did say Herrera's
ethnic background was not a reason.

"We would not seize money from someone unless our officers were confident
it was involved with drug trade or illegally obtained," Teuber said.

Elaborating on what made agents suspicious would "tip our hand," she said,
and harm future operations.

Neither Teuber nor the U.S. Marshal Office would provide a racial or ethnic
breakdown of people from whom money was seized. They said that would
require a hand search of internal documents.

Herrera gave this account of what happened on June 16:

He bought a ticket at Eppley Airfield for a Southwest Airlines flight from
Omaha to Phoenix, where he planned to visit friends, then see his mother,
who was in Tucson visiting from Mexico.

An officer in plain clothes approached Herrera as he waited to board the
plane. Asked if he had drugs or money, Herrera told the agent that he had
money. The officer asked for permission to search him, and Herrera agreed.
He was escorted to a lower floor. During a search conducted with the help
of a drug-sniffing dog, the officer confiscated Herrera's cash.

After leaving the airport without his money, Herrera immediately went to
see the Rev. Damian Zuerlein, pastor of Our Lady of Guadalupe Church in
south Omaha, who then called the State Patrol.

Zuerlein said he was told by a State Patrol official that Herrera paid cash
for his ticket on the same day of his flight and acted nervous. Both are
red flags to agents, Zuerlein said.

Herrera's ticket also showed a return flight in 24 hours. Herrera said
later that he thought he could push back the time after he figured out how
long he might stay.

Carrying large amounts of cash is not uncommon for Mexican nationals, said
Zuerlein, whose parish is predominantly Latino immigrants. Many don't have
checking accounts or credit cards.

Herrera returned to Eppley the same afternoon with the ticket he did not
use and got a later flight because he did not want to miss the chance to
see his mother. He left with only a few hundred dollars borrowed from friends.

After talking to Herrera and others involved, Zuerlein said, he believed
that Herrera was treated unjustly.

"It just looks too much like profiling," he said.