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Despite court order, Aurora refuses to return seized cash

December 9, 2010 8:24 AM

Aurora is trying to keep a little more than $190,000 it seized from two brothers after one of them was pulled over in a traffic stop that didn't even result in a traffic ticket.

Officials have refused to hand back the money even though a judge has sided with the brothers. The matter is due back in court today.

Jesus Martinez, 27, was carrying $190,040 when his pickup truck was stopped by an Aurora police officer about 8:30 p.m. Oct. 18 near Indian Trail and Timberlake roads.

The police officer confiscated the cash, and the city has informed Martinez and his brother, Jose, 34, that Aurora will seek to keep it through civil forfeiture, a procedure that allows police agencies to seize property where the legal standard is lower than proof needed in a criminal forfeiture.

The brothers are home remodelers. Neither has been charged with a crime in this case, and neither has a criminal record, according to Kane County court records.

"I've never seen anything like this in 30 years of practice," said Aurora attorney Patrick Kinnally, who is representing the brothers.

A month after the stop, Kinnally filed a complaint arguing that Aurora had no right to keep the money. Eleven days after that, Kinnally and lawyers representing Aurora appeared before Kane County Circuit Judge Michael Colwell.

"Their lawyers basically said the city was going to file for forfeiture," Kinnally said. "The judge asked on what basis. The lawyer said, 'We don't know,' and the judge said: 'This is America. Give it back.'"

The judge ordered the city to return the $190,040, along with a month's interest and costs. But Kinnally said that when he brought the order to Aurora, the city refused to turn over the cash, saying it planned to appeal the judge's order.

Aurora argued that the judge had overstepped his authority, but the 2nd District Appellate Court in Elgin rejected the appeal on Monday on technical grounds.

Aurora's legal department has not responded to requests for information. And it now appears that the city no longer has the cash.

Jesus Martinez received a certified letter last weekend from U.S. Customs and Border Protection. Dated Dec. 2, the letter states the Department of Homeland Security/Immigrations and Customs Enforcement seized the money from Aurora, and that the cash is subject to forfeiture under U.S. codes dealing with drug transactions.

Geneva attorney Kathleen Colton, who initially was approached by the Martinez family, said the brothers are "absolutely not involved in drugs or drug dealing."

Colton did defend another Martinez brother and a cousin on 2002 drug charges. The men were convicted, but an appeals court later overturned the convictions. The charges against them were dropped, though both men were deported because they were not in the U.S. legally.

According to the complaint filed by their lawyer, Jesus Martinez and his passenger cooperated with the Aurora officer who stopped them. Martinez consented to be personally searched, and he allowed police to search his pickup. A canine unit was called in to assist.

The officer found the sack of cash and asked Martinez about it; he said it was the family's savings. Colton said Jesus Martinez had just picked up cash his brother had collected from other family members and was on his way to his father's to give him the money so his father could pay off his mortgage and retire to Mexico.

-- Clifford Ward