GUILTY UNTIL PROVEN
INNOCENT
Asset-Forfeiture Laws Were Meant To Combat
Drug Crimes.
Instead They Have Become A Means To Trample Your
Rights
> FIVE DAYS before Christmas 1995, Cheryl Sanders of
Long Beach, Calif.,
> was driving on Interstate 10 in Sulphur, La., when
she was stopped by
> three police officers. They told her she had been
speeding. But
> instead of giving Sanders a ticket, they handcuffed her
and took her
> to a local jail, where she was made to disrobe and submit
to a search.
> No drugs were found on her or in her car, nor did she have
a criminal
> record.
>
> "You're free to go now," a policeman
told Sanders. "But we're keeping
> your car."
>
> Under
Louisiana's civil asset-forfeiture law in 1995, police could
> seize
vehicles on little more than suspicion that the owner was a drug
> dealer.
Sulphur police said that the trunk of Sanders's Lincoln Town
> Car
contained a 2 1/2-inch-deep compartment under a false bottom
> capable of
concealing narcotics.
>
> Sanders, who had purchased the car used
only six months earlier,
> didn't know what they were talking about. She
hired an attorney, and
> after seven months a judge ruled that the city
had to return her
> property since the police seizure lacked probable
cause. By then she
> had had to sell the car to pay her legal
bills.
>
> "They stole my car," Sanders complains. "It was
highway
> robbery."
>
> Sanders is one of countless citizens
who feel the same way about a
> series of controversial laws enacted as
part of the war on drugs. In
> 1984 Congress authorized federal law
enforcement agencies to seize any
> property purchased with drug money or
used to facilitate the drug trade.
>
> Many states then enacted
their own versions of the statute to allow
> local prosecutors and police
agencies to grab a person's money or
> property based on the belief that a
drug connection is more probable
> than not. Critics charge that these
laws allow the seizure of assets
> on virtually anything more than mere
suspicion of a link.
>
> In criminal law you're presumed innocent
until proven guilty. But
> under most civil asset-forfeiture statutes the
burden of proof falls
> on individuals to prove in court that their
property is free of any
> involvement with illegal drug activity. Even to
challenge a seizure
> under federal law, the owner must post a bond of ten
percent of the
> property's value or $5000, whichever is less.
>
> Driving Away Business
>
> WITH THIS SORT OF POWER at the
government's disposal, excesses and
> abuses are inevitable. An episode
involving the Red Carpet Inn in
> southwest Houston is a case in
point.
>
> On February 17, 1998, Acting U.S. Attorney James DeAtley
announced
> that the government was going to seize the property in
response to
> drug activity that the owners were "facilitating by not
taking steps
> to prevent." Jason Brice was stunned. To prevent criminal
activity by
> guests and visitors, the co-owner and manager of the Red
Carpet Inn
> had signed a trespass affidavit with the Houston Police
Department,
> giving officers the right to patrol the grounds and question
patrons.
> He also hired night security guards, required guests to show
driver's
> licenses to obtain a room, and installed video cameras in the
parking
> lot.
>
> Then the Houston police and city
attorney's office wanted the Red
> Carpet Inn to raise its room rates from
$29 a night, a move they
> believed would keep out drug users. Brice
resisted, arguing that he
> had to keep rates down in this low-income area
to compete with the six
> other hotels and motels located nearby.
>
> According to Brice, the police presence on his property
intimidated
> innocent customers. "It scared them and began to drive away
our
> business.'' He withdrew the trespass agreement, which had given
police
> free rein on his property. Three weeks later U.S. Attorney
DeAtley
> filed a lawsuit seeking forfeiture of the motel. The complaint
alleged
> that the operators "had knowledge that the Defendant Property
was
> being used to facilitate drug transactions and consented to the use
of
> the property to facilitate the illegal activity."
>
>
Brice was particularly enraged that the government cited "32 calls for
>
police service (that) resulted in narcotics or currency being seized"
>
during 1996 and 1997. By his count he and his security guards
> themselves
had initiated many of these calls.
>
> After months of wrangling,
the government dropped its suit, in return
> for Brice's agreeing to make
some minor security improvements to the
> motel. Meanwhile, his business
had incurred $60,000 in legal fees.
>
> In a blistering editorial,
the Houston Chronicle accused the U.S.
> Attorney of overstepping his
bounds. "Good people should not have to
> fear property seizure because
they operate businesses in high-crime
> areas."
>
> "No
Credible Evidence'
>
> ACTUALLY, NO PROPERTY is safe from
highhanded asset forfeitures. In
> 1990 the U.S. Attorney's Office grabbed
a house in Ft. Lauderdale,
> Fla., because, they claimed, cocaine had been
offloaded from a boat
> onto the property by three men who were
subsequently arrested for drug
> trafficking. The house's owner, George
Gerhardt (who had already died
> of cancer), allegedly knew one of the
three defendants.
>
> During a one-day nonjury trial before a
federal judge on October 26,
> 1992, the government's flimsy case
evaporated. The cocaine defendant
> who had been acquainted with Gerhardt
testified that Gerhardt had no
> knowledge that drugs were unloaded at his
house; he was not even in
> the country at the time. Other witnesses
testified that Gerhardt
> detested drugs and drug users.
>
>
The government brought two informants from prison to testify. One
>
claimed to have once met someone he knew as George, whom he described
> as
five feet, six inches tall, overweight, gray-haired and in his 60s.
>
Gerhardt was five feet, ten inches tall, slender, blond-haired and 47
>
years old at the time of the alleged meeting.
>
> In a strongly
worded judgment, U.S. District Judge James Paine ordered
> the government
to relinquish the house for distribution to Gerhardt's
> heirs. "Gerhardt
was an innocent owner," wrote the judge. "No credible
> evidence" to
suggest otherwise had been produced.
>
> Lack of credible evidence
figured in another egregious
> asset-forfeiture case involving Billy
Munnerlyn and his wife, Karon,
> who operated an air charter service. One
day Billy flew a businessman
> from Little Rock, Ark., to Ontario, Calif.
The passenger was a
> convicted drug trafficker Munnerlyn had never met.
Nevertheless,
> Munnerlyn was arrested, as was his passenger. A search of
the
> passenger's possessions turned up $2.8 million in cash.
>
> Munnerlyn was released a few days later, and criminal charges
against
> him were dropped. But the government kept his $500,000 jet and
his
> $8500 charter fee, based on suspicion that they were linked to a
drug
> transaction.
>
> Munnerlyn's home and office were
searched, the DEA's application for a
> warrant stating that such a search
could reveal evidence of his
> involvement in drug trafficking "in the
form of personal and business
> records." Nevertheless, Munnerlyn was
subject thereafter to no further
> criminal proceedings. But the
government didn't return his plane.
>
> Munnerlyn fought the
seizure in court for two years, until a federal
> jury ruled in his favor.
The judge set aside the verdict and ordered a
> new trial, so the
government refused to release his plane. Broke and
> bitter, he eventually
reached a settlement in which he paid $7000 for
> the jet's return and
agreed to allow the government to keep the
> original $8500 charter
fee.
>
> Burden of Proof
>
> AS EXPERIENCE. with this
powerful tool has grown, even some law
> enforcement officials have become
uneasy. Says Steven Kessler, former
> head of the asset-forfeiture unit at
the Bronx, N.Y., district
> attorney's office, "The focus is no longer on
combating crime. It's on
> fund-raising."
>
> Joseph McNamara
would certainly agree. During his 15 years as police
> chief of San Jose,
Calif., he felt the pressure firsthand. One day he
> saw a proposed budget
that included no funds for police equipment.
> When McNamara questioned
this, his boss, the city manager, replied
> half in jest, "You guys seized
$4 million last year. I expect you to
> do better this year."
>
> With such perverse incentives in place, McNamara believes many of
the
> nation's police agencies have become addicted to asset
forfeiture,
> with serious consequences for our system of law. "When cops
are put
> under pressure to produce revenue, bad things happen," he
says.
>
> And bad things do happen. The Arkansas Democrat-Gazette
reported this
> past summer that the sheriff in St. Francis County
privately sold
> seized cars to himself and others at prices at or below
appraised
> values. (Such sales were legal at the time.)
>
>
flew a businessman from Little Rock, Ark., to Ontario, Calif. The
>
passenger was a convicted drug trafficker Munnerlyn had never met.
>
Nevertheless, Munnerlyn was arrested, as was his passenger. A search
> of
the passenger's possessions turned up $2.8 million in cash.
>
>
Munnerlyn was released a few days later, and criminal charges against
>
him were dropped. But the government kept his $500,000 jet and his
> $8500
charter fee, based on suspicion that they were linked to a drug
>
transaction.
>
> Munnerlyn's home and office were searched, the
DEA's application for a
> warrant stating that such a search could reveal
evidence of his
> involvement in drug trafficking "in the form of personal
and business
> records." Nevertheless, Munnerlyn was subject thereafter to
no further
> criminal proceedings. But the government didn't return his
plane.
>
> Munnerlyn fought the seizure in court for two years,
until a federal
> jury ruled in his favor. The judge set aside the verdict
and ordered a
> new trial, so the government refused to release his plane.
Broke and
> bitter, he eventually reached a settlement in which he paid
$7000 for
> the jet's return and agreed to allow the government to keep
the
> original $8500 charter fee.
>
> Burden of Proof
>
> AS EXPERIENCE. with this powerful tool has grown, even some law
>
enforcement officials have become uneasy. Says Steven Kessler, former
>
head of the asset-forfeiture unit at the Bronx, N.Y., district
>
attorney's office, "The focus is no longer on combating crime. It's on
>
fund-raising."
>
> Joseph McNamara would certainly agree. During
his 15 years as police
> chief of San Jose, Calif., he felt the pressure
firsthand. One day he
> saw a proposed budget that included no funds for
police equipment.
> When McNamara questioned this, his boss, the city
manager, replied
> half in jest, "You guys seized $4 million last year. I
expect you to
> do better this year."
>
> With such perverse
incentives in place, McNamara believes many of the
> nation's police
agencies have become addicted to asset forfeiture,
> with serious
consequences for our system of law. "When cops are put
> under pressure to
produce revenue, bad things happen," he says.
>
> And bad things do
happen. The Arkansas Democrat-Gazette reported this
> past summer that the
sheriff in St. Francis County privately sold
> seized cars to himself and
others at prices at or below appraised
> values. (Such sales were legal at
the time.)
>
> House Judiciary Committee chairman Henry Hyde (R.,
Ill.) has led a
> bipartisan effort to reform the federal civil
asset-forfeiture law.
> His bill would shift the burden of proof to
government agencies before
> assets can be seized. It would also eliminate
the requirement that
> property owners file a bond to challenge any
seizure, allow judges to
> order property released pending the disposition
of forfeiture cases
> and give individuals more time to contest seizures
in court.
>
> "It is obvious that something needs to be done about
civil forfeiture
> run amok," Hyde says, and Rep. John Conyers, Jr. (D.,
Mich.), ranking
> Democrat on the House Judiciary Committee, agrees. "The
civil
> asset-forfeiture law," he says, "contradicts fundamental
principles of
> traditional American jurisprudence." With both Democrats
and
> Republicans, liberals and conservatives, lining up in support,
the
> bill passed by an overwhelming 375 to 48.
>
>
Nevertheless, the Clinton Administration claims the Hyde bill would
>
undermine law enforcement and favors a narrower reform. Meanwhile, no
>
action was expected in the Senate until early this year.
>
> Roger
Pilon, a constitutional scholar with Washington's Cato
> Institute,
believes strongly that overhaul of the asset-forfeiture law
> is needed to
safeguard the nation's constitutional protections against
> unreasonable
search and seizure. "Forfeiture has a place in law
> enforcement," he
says. "But like every tool it must spring from
> principles of justice if
it is to service justice."