North Carolina trucking company owner awaits $40K refund from police

Last week, the case took another twist when the same appellate court ordered that the decision be “published,” a legal step that adds another layer to the lengthy case.

And as the lawyers fight it out in court, Johnson’s operations have been affected, he said. “They still haven’t given me my money back and it still hurts my business,” he said in an interview with FreightWaves.

What might have been just another legal dispute over the ownership of the cash has become something of a cause célèbre. The Washington-based Institute of Justice (IJ) is now representing Johnson. That group represents clients that it believes are victims of government overreach.

Dan Alban, an attorney with the IJ, pointed to the fact that the decision in May ordering the cash be returned to Johnson was not published at that time. That does not mean the order was not made public. Rather, Alban said, if the decision on the seizure was to have any legal standing in future cases regarding confiscation, it needed to meet the legal definition of having been published.

In a short decision handed down by the Arizona Court of Appeals last week, the same court reversed itself and in a brief opinion ordered the decision published. Thus the decision impacting Johnson can be a precedent in future cases involving government seizure.

But there’s a more immediate factor. Alban told FreightWaves that the publication of the May decision in Johnson’s favor now puts the state on the spot: Does it take the appellate decision ordering the money returned to Johnson back to the lower court that at first sustained the confiscation of the $39,500, or does the ruling get appealed to the Arizona Supreme Court? (As of Monday, the state had not filed a response to the publication of the decision, which only came down last week).

In August 2020, the amount of money Johnson brought to Arizona might have been enough to buy a used vehicle. J.D. Power, whose monthly numbers on used vehicle prices are considered an industry benchmark, reported in September that the average sleeper tractor sold at auction during August of that year went for $42,090.

Johnson said he was planning on buying the truck through an auction conducted by Richie Brothers (NYSE: RBA), a leading auctioneer of used industrial equipment. 

But even if Johnson got his money back tomorrow, the latest J.D. Power survey of used truck prices puts a 2017 model at almost $70,000, with higher prices for more recent vintages. Those are far greater figures than the potentially returned cash.

According to the recap of the case in the appellate court’s decision, the Drug Enforcement Bureau of the Phoenix Police Department had been told of Johnson’s travel itinerary from a “confidential informant.” That itinerary called for Johnson to fly from North Carolina to Phoenix, staying less than 48 hours. The ticket was booked less than 24 hours before the flight.

The combination of the informant’s statement and the quick turnaround raised a red flag for Phoenix police, particularly in light of another fact: Johnson had several drug-related arrests on his record. (The recap of the case only states he had arrests. It did not refer to any convictions). 

“Three detectives waited for Johnson at baggage claim,” according to the recap. “Johnson consented to a search and the detectives found $39,500 in cash between Johnson’s two bags.”

Johnson was not charged with any crime — he still hasn’t been — but Phoenix authorities moved to confiscate the money. In a probable cause hearing, Johnson said he got the money from both his trucking business and a loan from a family member. His plan was to fly to Phoenix to buy a truck at auction, and he believed he could get a better deal by paying cash. The purchase would have boosted Triple J’s fleet to three trucks, according to Johnson.

The state’s argument was that Johnson’s actions fit the profile of a drug courier: lots of cash wrapped in bundles held together by rubber bands, and a short-term reservation with a quick turnaround home. Additionally, a detective testified Johnson couldn’t say specifically how much he was carrying.

The lower court in Arizona ultimately ruled for the state, saying, according to the appellate decision, that Johnson “failed to prove he owned the money by a preponderance of evidence.”

“As between two possibilities — that [Johnson] flew with his own cash to possibly buy a truck, or that [he] was transporting the proceeds of drug transactions — the latter is more likely,” the lower court ruled.

That Maricopa County court referred to other factors in its decision as well. It said Johnson signed a “disclaimer of ownership,” which put him on record as saying he didn’t know who owned the money.

The lower court said it was possible Johnson signed the disclaimer “because he was scared.” But when everything is put together, the Maricopa court said Johnson did not meet the burden of proof that the money was his.

But the appellate court decision — the one that was just ordered to be published — said the lower court had “erred by conflating evidence of probable cause with evidence of ownership in finding that Johnson failed to prove ownership of the money.”

“In finding that Johnson failed to prove ownership … the court relied in part on evidence of probable cause for the forfeiture, including that Johnson was carrying cash for the truck rather than using a bank, the money was hidden and stored in a suspicious manner, and there were several indicia of criminal activity present, including the last-minute flight purchase, the short trip, and that Johnson was carrying ‘so much cash’ that smelled like marijuana,” the appellate court said in its decision. “But evidence that Johnson fit the drug courier profile, by the state’s own argument, went to probable cause, not ownership. Accordingly, the court committed legal error by considering evidence of probable cause in finding that Johnson failed to prove ownership.”

“The burden of proving probable cause is on the state,” the appellate court wrote. The three-judge panel voted unanimously in favor of Johnson.

The arguments in favor of Johnson put forth by the IJ on its website, with the legalese stripped out, are more direct.

Calling Johnson the “proud owner and operator of a small trucking business just outside Charlotte,” the IJ said Johnson had “saved his money until he had enough to purchase a third semi-truck.”

“And based on his research, Jerry was confident he could find a good deal at an auto auction in Phoenix,” it adds.

The IJ described the state’s case for holding the money as “completely circumstantial.”

And it added that the lower court had put the burden of proof on Johnson, “essentially requiring Jerry to prove his own innocence. It also absolved the state of its burden of proof, its duty to prove by clear and convincing evidence that Jerry’s money was connected to criminal activity in order to forfeit its property.”

As for Johnson, he has two drivers with Triple J. He said he mostly dispatches his dry van vehicles up and down the East Coast, usually keeping his company’s business no further north than Pennsylvania.

But it’s with two trucks, not the intended three. “The police said it was legal to carry the money and yet they seized the money,” Johnson said. “I am still baffled how they did that.”

(The reference to the police saying it was “legal to carry the money” comes from a statement in the appellate court’s decision about the ownership: “During the hearing, the court twice said that Johnson met his burden of proving ownership because he testified that was his cash, and . . . that’s sufficient.”)

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