To Protect and Collect

Taking Cash Into Custody

A Special Report On Police And Drug Money Seizures

ACROSS U.S., POLICE DODGE STATE SEIZURE LAWS

Police and highway patrols across the country are evading state laws to improperly keep millions of dollars in cash and property seized in drug busts and traffic stops.

Most states don't want law enforcement agencies to profit so easily from such confiscations -- they see it as a dangerous conflict of interest.  For that reason, they have passed laws blocking seized property from going directly back to police, and many states designate seizures to be used for other purposes, such as education.

But a yearlong examination by The Kansas City Star reveals that police agencies in every one of more than two dozen states checked by the newspaper have used federal law enforcement to circumvent their own laws and keep most of that money for themselves.

It works this way: When police seize money, they call a federal agency instead of going to state court to confiscate it.  An agency such as the Drug Enforcement Administration accepts the seizure, making it a federal case.  The DEA keeps a cut of the money and returns the rest to police.  State courts -- and their generally more-restrictive forfeiture laws -- are bypassed altogether.

Law enforcement says that's not illegal and that without the money, police would be handcuffed in fighting crime.  But millions of dollars that lawmakers in some states have designated for education, drug treatment programs and other purposes instead end up back in the hands of police.

For example:

A North Carolina State Highway Patrol trooper stopped a driver last year on Interstate 95 for tailgating.  A police dog signaled drugs were in the Toyota, where troopers found $105,700 and two grams of marijuana.  The driver denied owning either the drugs or the money.  The highway patrol gave[ it ] the money to the DEA, which returned more than $80,000 to the state patrol, even though North Carolina law generally requires sending seized money to education.

In June a Georgia trooper stopped a 1996 Monte Carlo for speeding on I-95.  After the driver and passengers gave conflicting stories, the trooper searched the car and found a hidden compartment containing $7,000, which the driver said was from savings.

The patrol turned over the money to the DEA, which in January returned $5,440 to the patrol.  Under Georgia law forfeited money should go to the state's general fund.

In 1996, the Missouri Highway Patrol stopped a Volkswagen Golf for speeding, searched it because the occupants seemed suspicious and found $24,000.  No drugs were found and no one claimed the money.  The patrol gave it to the DEA to be forfeited, the legal term for confiscation.

(The case took a bizarre turn last year when a family that bought the car at auction discovered an additional $82,000 in the gas tank.  The DEA took that money, too.)

Missouri law sends forfeiture money to a public school fund.

Beyond the money diverted from public funds, critics are just as troubled by the weakening of a basic American civil liberty -- the Bill of Rights protection against improper search and seizure.

The federal hand-offs, critics say, also create an opportunity for police to profit from their own actions.  Indeed, they trace an increasing outcry over aggressive or illegal searches by police nationwide back to the profit motive.

"If you think that by conducting an illegal search and seizing people on the highway you can increase the number of times where you can take assets, it is going to become a big motivating force," said Ira Glasser, executive director of the American Civil Liberties Union.

This may be one of those rare issues that elicits protests across the political spectrum -- from the ACLU to the National Rifle Association.

Americans don't realize that forfeitures often occur to "ordinary people who happen to find themselves in a situation in which they are simply suspected of having been somehow involved in criminal activity, whether those suspicions ever prove out or not," said Roger Pilon, a vice president at the Cato Institute, a Libertarian think tank.

"The line between a free society and a police state is usually broached in small steps."

But many police complain that state laws are too restrictive, sometimes preventing them from taking the money that fuels drug operations.

Others readily admit they avoid state laws because they need to use seized money to fight the war on drugs -- their own cities and states may not provide the funding otherwise.

"A lot of state agencies, like the GBI, prefer to work federal cases because we know it will go directly into our asset forfeiture bank," said Mark Jackson, director of legal services for the Georgia Bureau of Investigation.

Some federal officials contend the cases collected by the newspaper prove nothing.

"In a country this big, you can find cases all over the lot," said Jerry McDowell, director of the Justice Department's asset forfeiture and money laundering division.  "I don't think police agencies are in the business of profiting."

Besides, he said, it's legal for police to send seizures to federal agencies because most state laws do not specifically prohibit that.

"We certainly don't want to subvert state law, and we don't want states to subvert our law," McDowell said.

But most states do prohibit simply handing off seizures -- their laws give jurisdiction over seizures to state courts, The Star has found.

What that means, say legal experts and judges who have examined the little-known state provisions, is that police cannot simply hand off seizures to federal agents to avoid state requirements.  They need a court order first.

One federal court in a Louisiana case even derisively likened the evasion maneuver to a trick football play.  The court wrote:

"NFL sportscasters might call the handoff from the Sheriff's Office to the DEA, followed by the lateral back from the DEA to the Sheriff's Office, a 'flea-flicker.' "

James Madison, Thomas Jefferson and other founding fathers determined forfeiture would be used only on a limited basis -- to seize foreign ships for failure to pay customs duties, for example.

As a result, the Bill of Rights protects Americans from illegal searches and seizures: No person shall "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Two hundred years later, much has changed with the advent of the war on drugs.

But it was up to the Justice Department to write the guidelines to implement the law -- and that's where critics say the intent of the law was twisted.

In addition to addressing joint investigations led by federal agencies, the Justice guidelines created a process called "adoption."

Under adoption, state and local police could give their seizures to the federal government -- even if a federal agency had not been involved.

The Justice Department "turned around and permitted the forfeiture laws to be used basically to circumvent state law," Hughes said.

As a result, private citizens are now more vulnerable to forfeiture because circumvented state laws often provide more protections than federal forfeiture laws.

For example, some state laws protect people from having property forfeited by police unless they're charged with a felony.

But under federal law, authorities don't even need a criminal charge to forfeit property.

In fact, experts estimate that the great majority of forfeitures occur without a criminal charge.
 

Most state laws require that forfeitures be ordered by a judge. Federal law enforcement has the power to order forfeitures without a judge -- and does in most cases.

And it's costly to contest a federal forfeiture.  Defense attorneys estimate it costs at least $10,000, so many won't even accept a case unless the value of the seizure is large.

Although many people whose property is seized are no doubt guilty of a crime, that doesn't mean all are.

Charlotte Carroll, a disabled, 64-year-old Maryland woman, could lose her house because police found a third of an ounce of cocaine and other drugs that some of her children left there.

Under Maryland law, a house usually can't be forfeited without a criminal conviction.  Police tapped the federal government to forfeit the three-acre property, which has been in Carroll's family for a century.

"I got sick, so sick in my stomach and started crying," Carroll said.  "I'm just praying."

Carroll, who has osteoarthritis and receives $500 a month from Social Security disability, has never been convicted of a crime, her attorney said.

In 1997 and 1998, the St.  Louis Metropolitan Police Department received back more than $2.5 million.

In 1998 alone, the Georgia Bureau of Investigation took back $1.7 million.

(Both those figures include proceeds from joint investigations.)

And in a single case in Indiana, a state trooper stopped a truck for speeding on Interstate 70. Troopers found $811,470 and turned it over to the DEA, which this year returned almost $500,000 to the state police and $121,000 to a sheriff's department that helped.

Wisconsin law mandates that forfeiture money goes to public schools, but only $16,906 went into Wisconsin's education fund during the year ending in June 1999, according to the state treasury department.  During just six months of the same period, local law enforcement gave the federal government $1.5 million in seizures.

In Kentucky, no forfeited money has gone into a substance abuse fund for at least four years, even though some should under state law.

In fact, The Star found that police circumvented[ folo ] their laws even in states that would have given them back much of their seizures had they gone through state court.

But The Star found that more than two-thirds of all states appear to prohibit handing off money to federal agencies without permission of a state court.

Those states have requirements that courts have called "turnover orders." Many of the provisions read like the one in Illinois:

"Property taken or detained under this section ...  is deemed to be in the custody of the law enforcement department or agency employing the seizing officer subject only to the orders and judgments of the circuit court having jurisdiction over the forfeiture proceedings."

That means only a state judge can transfer a seizure to a federal agency, legal experts say.

"This statute is not difficult at all," said David Harris, a University of Toledo law professor and constitutional expert.  "The state court has jurisdiction."

A half-dozen state and federal court decisions have backed that interpretation.

Joseph McNamara, former San Jose and Kansas City police chief, said city officials can take some of the blame for the federal hand-offs.

He recalls one year in San Jose his department's tentative budget had no money for equipment, so McNamara asked the city manager why.

"He kind of waved his hand dismissively and said, 'Well, you guys seized $4 million last year, I expect you to do better this year,' " McNamara said.

"The real narcotic here is the money," said Glasser of the ACLU.  "It becomes a stream of income that they learn not to do without and then they have to generate more of it."

Source: Kansas City Star (MO)
Copyright: 2000 The Kansas City Star
Contact: letters@kcstar.com Address: 1729 Grand Blvd., Kansas City, Mo.  64108
Feedback: http://www.kansascity.com/Discussion/
Website: http://www.kcstar.com/
Author: Karen Dillon, The Kansas City Star Note:
Part 1a of a two part series
Next: Part 1b, http://www.mapinc.org/drugnews/v00/n680/a04.html