Thursday, August 08, 2013

Left Side of the Aisle #120 - Part 1

Good news on bad news: Civil asset forfeiture

So here's some good news to start off with, although as is too often true these days, the good news has a dark underside.

The good news is that a federal judge has ordered the return of $1 million seized by police during a traffic stop, after police presented only a questionable drug dog sniff as evidence that the money was associated with alleged drug activity.

That's the good news. The entire backstory is the bad news.

In March 2012 Nebraska state troopers pulled Rajesh and Marina Dheri of Montville, NJ, over for speeding. According to court documents, the cops then "obtained consent" to search the car. That right there should raise red flags. The cops didn't say that they had probable cause to search, they didn't even claim reasonable suspicion for a search, they said they "obtained consent." Such "consent" is usually "obtained" by verbal tricks, bullying, or implied threats of detention or arrest if you refuse. Cops have been known to go ballistic if they are told they can't search a car, others have been known to use your very refusal as a basis to claim they have reasonable suspicion that you're doing something illegal sufficient to empower them to search anyway, others have been known to detain drivers, held on the side of a road by an armed cop (sometimes with backup), until a drug-sniffing dog can be brought to the scene, however long that may be.

While certainly such searches do not happen at every or even at most traffic stops, they are common enough that people are frequently advised to let the cops do it, let them search your car, even if they don't have the authority, even if you can refuse, because asserting your lawful and Constitutional rights just causes you more trouble and so the best thing to do is passively surrender to arbitrary authority. In fact, some advise it makes more sense to submit even if you are carrying something illegal, that ultimately you'll be better off behaving as if the Fourth Amendment simply does not even exist.

But the thing about the drug-sniffing dogs brings me back to the case at hand. When they searched the car, the cops found bundles of cash in the trunk - $1 million worth. On that basis, they arrested the Dheris on suspicion of drug activity - even though there were no drugs nor any so-called drug paraphernalia found. The money alone was the excuse for the arrest. Once at the police station, the cops hid the money and a drug-sniffing dog correctly identified the location.

Here's the next red flag: the dogs. Not only are these drug-sniffing dogs notoriously unreliable, I maintain that their use by definition constitutes an invasive search that should require a warrant because they amount to a device being used to detect things not available to human senses, to detect things not available to the eyes and ears (or noses) of the cops. Courts would not - at least I hope they would not - approve of police routinely and without a warrant using an X-ray machine to look inside the trunk of your car, seeing things they otherwise could not see, so why should a dog, enabling them to be aware of smells which they could not smell be any different?

But there's even another thing: According to a variety of studies, somewhere between a third and more than three-fourths of US paper money contains detectable traces of cocaine. Which means almost any pile of bills, even a small one, can produce a so-called "hit" from one of these dogs. So even if the dog is right, it still means nothing in terms of a claim the money is related to illegal drugs.

No matter. Makes no difference. The dog got a hit on the money the cops took from the Dheris' trunk, so the cops decided to keep the money even as they let the couple go because they had no evidence, no cause, to arrest them. No evidence of a crime, but they said they were keeping the money anyway.

You may not have heard of this before, but if you haven't it's time that you did. This is a corrupted and corruption-ridden outgrowth of the War on Drugs. It's called civil forfeiture and it allows police to seize assets based on nothing more than their claimed belief that those assets either are related to illegal drug activity or were paid for with the proceeds of illegal drug activity. They can do this even if they have no basis for any charges against the person possessing the asset. No, I am not exaggerating. Not one bit. This is something the ACLU has been fighting for some time - in fact, several years ago I was for a short while part of an ACLU speakers' bureau and this is a topic I spoke on.

Once an asset is seized, it becomes the responsibility of the person whose property was taken to prove that the asset - whether it be money, a car, a house, or anything else - was not obtained through the drug trade, that is, they have to prove a negative and have the burden of proof in doing it. So it has become sadly commonplace for cops to just keep money or other valuables they find during traffic stop under a claim it's the result of illegal activity and therefore can be seized.

Such civil forfeiture has a long history; it was one of the things that drove the American Revolution and one of the things the part of the Fourth Amendment referring to people being secure in their effects against unreasonable seizure was designed to prevent - although it didn't take long for such seizures to be approved in cases such as piracy on the grounds that it was much easier to go after the ships and booty than the actual pirates, who might be continents away.

Even so, civil forfeiture was not widely used beyond such limited cases - not, that is, until 1984. That's when Congress passed the Comprehensive Crime Control Act, which established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Now, the value of assets seized didn't go to the general fund, most of it went to the cops and prosecutors. Put another way, the cops now had a profit motive for seizing property. The result? At the Justice Department, proceeds from forfeiture went from $27 million in 1985 to $556 million in 1993 to $4.2 billion in 2012.

Soon, states were crafting their own similar forfeiture laws. There are now states and localities where major parts of their police budgets are the result of assets, including money, seized under civil forfeiture. In fact, there have been some places where it literally became a racket, with local cops deliberately targeting people with out-of-state plates, especially minorities with out-of-state plates, for traffic stops with the specific intent of claiming their property was drug-related and taking it.

Most victims don't even try to get their money or goods returned because they don't have the money to fight back or because the legal costs involved would be more than the asset is worth. Remember, this is a civil matter, not a criminal one, so you have no right to an attorney and so any legal costs get paid out of your own pocket. What's more, many areas put up extra roadblocks: For example, people often have to put up bonds just to keep their stuff from getting sold before they can even try to get it back. For another, there are filing fees: Washington, DC, for one, requires a fee of $2500 just to file to try to get your stuff back.

And don't think this is just something "out there" somewhere. The Institute for Justice, in a state-by-state study of forfeiture laws called "Policing for Profit," gave Massachusetts an F, calling its civil forfeiture regime "terrible."

More recently, it's been revealed that over the three-year period 2009-2011, the most recent data available, Massachusetts cops and prosecutors have seized as much as $33 million in property via civil forfeiture.

Middlesex County officials have seized not only cash, cars, and bank accounts, but cell phones, computers, an engagement ring, GPS devices, and Lottery scratch tickets. Despite claims that such seizures are intended to punish drug dealers by taking away their stuff, County DA Gerry Leone said police usually don’t seize property that would cost more for upkeep, calling whether or not to seize property "a business decision."

Meanwhile, among the "other law enforcement purposes" on which Worcester County spent money it obtained by seizures were bottled water, attendance at conferences, tree-trimming services, and the purchase of a Zamboni - which, if you don't know, is the machine used to smooth ice at hockey and ice-skating rinks. No, the issue is not just "out there." It's right here.

Getting back to the case of the Dheris, the money taken - stolen would be a better word - was not even theirs. It belonged to a friend in Los Angeles who had saved it over 15 years of working as an exotic dancer and who kept it in a safe deposit box because she doesn't like banks. The Dheris were taking the money to New Jersey where it was to be invested in a nightclub to be jointly owned by the friend and the Dheris.

Unlike too many, the Dheris could and did fight back. And two weeks ago, on July 23, US District Judge Joseph Bataillon ruled that "'lots of money' is not a sufficient basis in and of itself for a forfeiture," and that there is "no nexus between the currency and any illegal activity" while dismissing the dog sniff as "inconsequential." He ordered that the money be returned - with interest.

So that is good news and this particular story has a happy ending. But too many other times civil forfeiture has simply been a means for cops and prosecutors to fatten their budgets and not even to "fight the bad guys" but to pay bonuses and buy everything from popcorn machines to boats.

In 2000, Congress reacted to increasing complaints of misuse of the law at the federal level by passing the Civil Asset Forfeiture Reform Act, which requires that federal prosecutors prove “a substantial connection between the property and the offense” in order to justify a seizure. Unfortunately, that only applies to federal law enforcement, not to the states, not to Massachusetts. It's long past time for that to no longer be the case. If civil forfeiture can't be contained to its original, limited purpose, then it should be done away with altogether. If local cops want a new popcorn machine, let the local taxpayers pay for it.


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