By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
John Bailey's tale involves paperwork, bureaucrats, attorneys, clerks, Latin, gratuitous use of the word "pursuant," a seven-month Kafkaesque man vs. machina existential run-around and myriad references to statutes 13-4304 through 13-4311 subsection M of the Arizona criminal code.
Sorry. But it must be so. For this is a story about a guy trying to get an old truck back from the Arizona Department of Public Safety.
The truck is a two-tone gray 1987 Dodge Dakota with powder-puff blue interior and 110,000 miles on the odometer. The only person who could and does love this truck is Bailey, a burly 49-year-old Tucson waiter.
On October 14, Bailey was either, as he claims, a naive and overly trusting guy in the wrong place at the wrong time, or, as the DPS alleges, a co-conspirator in the operation of a methamphetamine lab.
That day, Bailey, along with several other people, was over at a buddy's house in a tony neighborhood of Tucson when police raided the home. They found a sophisticated meth lab in the man's garage.
Bailey's friend apparently had a unique recipe for his crank. One of the ingredients: Chloroform.
Police searched Bailey's truck, which was parked outside the house. They found an unused glass pipe and a seven-week-old receipt that included a product that contained chloroform.
Bailey says he bought the pipe at a head shop because he planned to have a glass-blower make copies of it. Glass pipes were expensive in the area, he says. He figured he could have the pipes made cheaply, then sell them for a better price at area street fairs.
He says he bought the chemical product to get rid of gophers in his yard. His buddy told him the chemical was great for eliminating gophers and black widows. Bailey says he had no idea the chemical contained chloroform, nor, he says, did he know chloroform could be used to make meth.
"If I had known what it was for, do you think I would have kept the receipt around?" Bailey says. "I wasn't involved in the drugs. I think everybody's been in a situation where they had a friend who they still considered a friend even though there were things they were involved with you didn't like. I was just at the wrong place at the wrong time."
Shortly after the raid, Bailey was charged with one felony conspiracy charge. His truck was seized. Bailey was released.
Several days later, unbeknownst to him, the criminal charge was dismissed, although it was the type of dismissal reserving prosecutors the right to refile charges.
His truck, however, was not dismissed.
Arizona defense attorneys have long argued that law enforcement has unconstitutionally broad power to seize people's property in drug cases. They say that law enforcement agencies are addicted to the money and that this addiction has led to forfeiture-hungry agencies from which it's sometimes hard to retrieve property.
The flip side, forfeiture proponents say, is that forfeiture is a powerful deterrent in the war on drugs. Hit criminals where it hurts -- in the pocketbook. And the proceeds from seized property bolster important police work. When it works, forfeiture laws make the criminals pay for drug enforcement instead of law-abiding citizens.
Under the seizure and forfeiture laws, regardless of the dismissal of criminal charges, the DPS can proceed with the forfeiture of the property. Forfeiture is treated as a civil matter, so the level of evidence needed by the state is lower.
In the Bailey case, all the case officer had to do was file papers asking the Pima County Attorney to go ahead with asset-forfeiture proceedings. According to state statutes, the DPS had 60 days after the arrest to file for forfeiture or return the property. The DPS can file after that 60-day window only if a formal complaint has not been received demanding the return of the property.
In Bailey's case, no paperwork was ever filed.
In December, after two months of not hearing about his case or his truck, Bailey called the county attorney's seizure office. He says he was told the complaint against him hadn't been turned over to the prosecutor. He was also told there was no record of a forfeiture proceeding being brought against his truck. He was told to take the papers proving that charges had been cleared to the DPS impound facility. He was told he'd be given his vehicle back that day.
So on December 23, Bailey went to the DPS facility to pick up the truck. Because he had been told by friends that he might "get a run-around," he brought his tape recorder.
He presented his papers to a clerk. The clerk called someone, presumably one of the officers in charge of the case. The clerk then turned to Bailey and told him that his vehicle was being forfeited and that he had been sent a notice of pending forfeiture letters to both of his known addresses.
He called the county seizure office. Officials there said, again, that no papers had been filed.
On January 15, Bailey called the county seizure office again. He asked if any forfeiture action had been taken against his car. He was told no.
He tried to reach Officer Bob Marquez himself. None of his calls was returned.
So Bailey went in search of an attorney. Two attorneys told him to "give it up," he says.
And indeed, that's what people are often told when they talk to attorneys about getting seized property back.
"Generally, if the property is worth less than $10,000, it isn't worth fighting," says Steve Sherick, a Tucson attorney who is also vice president of the Arizona Attorneys for Criminal Justice.
"Here's how it works," he says. "I call up a prosecutor and say, 'Hey, can we get that back?' and he or she says, 'Hell no, we're going to forfeit the thing.' Then I go back to the client and explain that they're looking at three or four grand in attorney's fees and, since the burden of proof is so low for the state, you might lose. People who don't have a lot of money are finished right there. It's awful."
Of course, this is assuming forfeiture action is being taken against the property. But in Bailey's case, it hadn't been.
Tucson attorney Tom Hartzell agreed to help Bailey find out if his vehicle had in fact been forfeited. For $110, Hartzell would write two letters inquiring about the status of the vehicle, reminding the DPS it had 60 days after the seizure to file for forfeiture, and asking that it be released. So, on February 17, Hartzell sent one letter to the Pima County forfeiture division and one to the Tucson DPS Assets Seizure and Forfeiture Office.
Hartzell made more than 10 calls to Marquez. No response.
"I have seen people get the run-around, but I've never seen anything quite like this," Hartzell says.
Earlier this month, New Times tried reaching Marquez. No response.
About three weeks ago, Hartzell began calling to track the whereabouts of his two letters. They apparently had been lost.
Hartzell began his preparations to sue. He probably wouldn't make a dime, but "it was the principle of the thing."
Finally, about two weeks ago, DPS officials began looking into the lost truck and its lost paperwork and what was going on with the Tucson officer who wouldn't return anybody's phone calls. What they found, says a DPS spokesperson, was a drug officer desperately behind on his paperwork.
Marquez has been assigned to desk duty to catch up. The DPS also will investigate why Bailey was told his truck was being forfeited when it was not.
DPS, meanwhile, has also found Hartzell's letter dated February 17 formally complaining that the state had missed the 60-day window to take the truck.
DPS has decided to immediately release Bailey's truck.
"This was an unfortunate incident and something we'd like to think is very isolated," says DPS spokesman Andy Vidaure. "Basically, it all goes back to one officer dropping the ball."
Bailey picked up his truck last week. He was ecstatic and effusive in thanking those who had helped him.
But there is one little problem.
At the same time Marquez was delinquent in filing the forfeiture papers on Bailey's truck, he was also delinquent in finishing the report on Bailey's criminal case from seven months before.
Vidaure says the DPS hadn't given up on the meth lab case as Bailey had assumed. Vidaure says the drug charges should be refiled against John Bailey sometime in early May.
"Oh God," Bailey said upon hearing that criminal charges were still awaiting him. "This is hitting me like a bomb. They said they were still coming after me? They told you that? I hadn't heard a thing. I didn't do anything illegal. I just figured they realized that."
But at least he has his truck.