See
House Passes Forfeiture Restrictions By Overwhelming Margin –
The Oddest Bedfellows, Even for Washington, But Opposed By Administration – 2 Articles.
and
The Rule of Lawlessness: Police Brazenness In The Kubby Case.
The Fourth And Fifth Amendments, Or Forfeiture and Thievery. The Choice Is Ours.
and
Forfeiture as Enterprise By Kay Lee
and
Nebraska Law Enforcement Colludes With Feds To Cheat State Schools of Money
Stolen Under Forfeiture Laws. No Honor Among Thieves?
and
The Sexist And Racist Implications Of The Supreme Court’s Further Erosion Of Rights
Will Have Greatest Impact In Marijuana Cases – An Op-ed and An Article
and
Kansas Highway Searches Find Far More Marijuana Than Hard Drugs;
Police Admit They Are Having No Effect, But They Are Really Making Things Worse:
Aggravating Drug Problem, Reducing Freedom, Wasting Police Resources. Operation Pipeline
June 27, 1999
From The Arkansas Democrat-Gazette
voices@ardemgaz.com
http://www.ardemgaz.com/info/voices.html
http://www.ardemgaz.com/

By Chris Osher, Arkansas Democrat-Gazette

SEIZURE, FORFEITURE PRACTICES ARE LEGAL THEFT, VICTIMS SAY

Anastasio Ortiz Vega says that when he heard his mother had become ill in Mexico, he gathered up all his life’s savings -- $23,600 he salted away from long hours pouring concrete slabs.

Vega hit the road that November 1994, traveling from Nashville, Tenn., in a Dodge pickup, his money wrapped in a sock and stored in a spare tire for safety. But long before he reached his destination, he was stopped by a West Memphis police officer.

The officer reported that it looked like there was marijuana residue in the spare tire and seized the thick wad of cash. Vega was free to go. But the money stayed.

Welcome to Crittenden County, smack at the high-pressure center of the nation’s flow of drugs and dirty cash.

A nervous gulp, the smell of air freshener or a shaking hand can cause police in this eastern Arkansas county to hand out consent-to-search forms which, if signed, allow them to tear apart cars in search of something illicit.

Many, many times they come up with drugs. Other times they find guns.

But they also find money.

Lots and lots of money.

The seizures in Crittenden County have ended up paying salaries, benefits and travel for police and prosecutors, not to mention contributing to the running of a new jail when tax funds dried up.

Last year local and state law enforcement agencies in Crittenden County raked in $1.36 million in cash. And that’s not counting the $3.17 million tied up by authorities wrangling over what department had the jurisdiction to seize it.

To the police, it’s dirty money. They say they can smell the drugs coming off the cash, see the marijuana debris flying when they shake the bills.

But some who get stopped say they’re caught in an Orwellian nightmare that gives police the right to take their hard-earned savings, even though they’ve committed no crimes.

Similar complaints from throughout the nation prompted the U.S. House of Representatives to pass a bill last week that would make it harder for police and federal authorities to confiscate property before they file criminal charges.

If the bill survives the Senate and becomes law, it’ll be too late for many who’ve passed through Crittenden County, including Vega.

Back in the Nashville suburb where Vega lives, a general contractor who hires Vega to build houses says there was no reason for the seizure.

"I assure you that was very hard-earned money," says Robin York, who estimates Vega often puts in as many as 80 hours working seven days a week. "We’re talking sweat of the brow. He just works like a dog."

The Arkansas Democrat-Gazette had FBI and state background checks conducted on Vega and found no criminal charges ever filed against him.

"I tell them what is true, but they just don’t listen," says Vega, now 46.

There was one final indignity. Before he could get the money, Vega had to sign a paper agreeing to release the police from any liability.

York still fumes about the treatment of someone he says is the hardest worker he’s ever seen, someone far too busy to traffic drugs.

"It’s amazing to me," York says. "It’s just like a police state, one where they can’t prove you’re wrong, but they can keep your money anyway."

DO YOU BELIEVE IN THE WAR ON DRUGS?

Dan Peruchi says he’s one of the innocent.

He says he was headed back home to Texas from Indianapolis, happy with his purchase of a 1969 Oldsmobile Toronado, when he made the mistake of traveling through Crittenden County.

He says he made the trip several times a year, always carrying cash to give him more buying power at the car auctions he frequented.

But on that November 1992 day, a West Memphis police officer pulled him over just past the Arkansas-Tennessee border for going 10 miles over the speed limit.

Then came the consent to search form.
See
American Drivers Association Campaigns Against Traffic Searches;
Arizonans 2 to 1 Back Pot By Prescription -- NORML Weekly Press Release

And soon the $18,890 that Peruchi had tucked up in the springs of the car’s back seat was gone. The officer who confiscated it said the cash looked like it had marijuana residue on it.

"I showed him the titles to the cars I had bought and taken back down," says Peruchi, now a 42-year-old father of four who lives in a suburb of Fort Worth. "It wasn’t my first trip up there."

He says he also pointed out the book he carried that listed all the cars built from 1946 to 1975 and how many parts were made for those cars.

None of it mattered.

No criminal charges were filed from that traffic stop. No evidence of drug dealing was ever produced. For all anyone knows, Peruchi is just a man who likes to buy and sell cars. But he lost his money and won’t get it back.

A friend of Peruchi’s who lived in Indianapolis confirmed that Peruchi had visited him days before the seizure while on a car-buying trip. Peruchi’s estranged wife also confirmed that he regularly traveled to Indiana to buy used cars with money saved up from construction jobs. An FBI background check showed no criminal record for Peruchi.

"They can go out there and do whatever they want to do and whenever they want to do it," says Peruchi, who never challenged the forfeiture. "And nobody can do anything about it. To me, it’s communist."

But it’s all legal under forfeiture laws.

Rooted in English common law, forfeiture first surfaced in America in 1862 when Congress authorized the seizure of the estates of Confederate soldiers. During Prohibition, from 1919 to 1933, Congress extended forfeitures to attack bootleggers. In 1970, forfeiture reappeared with the passage of the Comprehensive Drug Abuse Prevention and Control Act, which targeted the assets of convicted criminals.

But in 1984, the federal law was changed dramatically to allow federal authorities to take property without filing criminal charges, let alone getting convictions.

And there was a bonus: Police got to keep forfeiture proceeds to help finance their war on drugs.

Arkansas passed its own forfeiture law in 1971, which gave local police enhanced seizure powers similar to those now used by the federal government.

Nowhere in Arkansas have those forfeiture laws been put to more use than in Crittenden County, where three law enforcement agencies troll the highways in search of cars to stop.

There, motorists must travel Interstate 40 under the watchful eyes of the Arkansas Highway Police, the West Memphis Police Department and the Crittenden County sheriff’s office. In all, $8.23 million and nearly 300 cars have been seized in the county since 1996.

‘KILLING THE SNAKE’

Drugs course along I-40, considered by police a major pipeline for traffickers headed to the East Coast. Police see so much illegal trade that they’ve nicknamed the interstate’s lanes, calling those headed east the drug lanes and those headed west, on the route to Mexico, the money lanes.

"That marijuana will fetch $100 a pound at the Mexico border," says Mickey Thornton, head of the Crittenden County sheriff’s narcotics unit. "In Arkansas, it goes for $700 a pound. In New York, $24,000 a pound. That’s a hell of a return on your investment."

James Hale III, the Crittenden County prosecutor who handles forfeitures, does what he can to cut into those profits.

"To kill the snake, you take the head off," he says. "The head is the money. No doubt."

Since 1996, he’s pushed 369 forfeitures through his county’s courthouse, more than double the number in any other Arkansas county.

"If I think it’s drug money, I don’t mind taking it from them," Hale says.

"Not one bit."

Not all searches result in a seizure, and there are safeguards to protect innocent citizens, Hale says. Police must get permission before they can search a car, he says.

Hale says he’s eager to give money back to those who can show it’s legitimate. He says he’s especially sensitive to truck-leasing companies and is quick to return trucks to those who can document ownership.

But don’t count on just any old receipt, paycheck stub or title convincing Hale that money is clean.

"Anyone with half a lick of sense can gin out records on a computer all day long," Hale says.

And don’t expect to get a speedy trial in a seizure case; a forfeiture trial is civil, not criminal, and civil trials are a lower priority for courts. Just getting your day in court can take months, if not years.

"The bottom line is most people can show where their money is from," Hale says.

Carmelo Ramirez says that’s just what he wanted do.

When a sheriff’s deputy found less than a hundredth of an ounce of marijuana with the $12,500 Ramirez had stashed in the dashboard of his friend’s car, the money and car were seized in March 1995.

Ramirez protested that he earned the money selling Amway products and begged the deputy for enough for a bus ticket to take him and his girlfriend back to Milwaukee. But the deputy told Ramirez he’d have to prove he was telling the truth before he’d get a dime.

(Marijuananews note: I think that we should apply this standard to the Drug Czar’s office and the DEA.)

Ramirez was never charged with any crime. And he has yet to get any of his money back—even though a lawyer furnished receipts showing Ramirez regularly used cash to buy Amway goods. Now a porter who lives in the Bronx, Ramirez says that the experience devastated his business, that he gave up on fighting long ago.

"It was all my money," Ramirez says. "All my money."

‘WAR ON THE CONSTITUTION’

Defense lawyers say cases like that of Darrell Verkeler are the untold stories of forfeiture laws.

Verkeler saw his legal bills pile up after a Crittenden County sheriff’s deputy found about 4.2 ounces of amphetamines on Verkeler’s son, then 29, and impounded the 18-wheeler the son was driving.

Days later the elder Verkeler got a chilly response when he drove the 100 miles down from Black Rock, in Lawrence County, to tell the deputy he had no idea his son was using amphetamines without a prescription and to get the rig back for the family’s trucking firm.

"You might as well forget it," Verkeler recalls a sheriff’s employee telling him even after he produced receipts documenting that the truck payments had come out of his checking account. It took two months and the hiring of a lawyer before he could drive his truck off the impound lot.

"It wasn’t right what happened," says the 55-year-old Verkeler, whose son ended up with probation for the drug charge.

Defense attorneys agree. They say cases like Verkeler’s demonstrate that the concept of "innocent until proven guilty" has vanished.

"Forfeitures have fueled the war on drugs, and now they have made the war on drugs into a war on the Constitution," says Little Rock defense lawyer John Wesley Hall Jr.

(Marijuananews note: Hall is a member of the NORML Legal Committee.)

It’s a whole new world—one where prosecutors don’t have to charge people with crimes to take their cars or cash away. The burden is on the owners to prove their innocence to get their property back. And if they can’t afford an attorney, the court won’t furnish one on their behalf at taxpayer expense, as is done in criminal trials.

"The result is that many, many innocent people end up having their money stolen by state and local police," says E. E. "Bo" Edwards, a Little Rock native who is chairman of a task force on forfeiture abuse for the National Association of Criminal Defense Lawyers.

Prosecutors and police argue that forfeiture strikes drug dealers in the pocketbook, where it hurts most.

"I’m not going to say it’s not abused sometimes," says Capt. Sam Williams, head of the special investigations division for the Little Rock Police Department. "But by and large, asset forfeiture was meant to take assets away from drug dealers. And it works."

But while police tout their multikilogram cocaine busts and $3 million cash seizures, not all the cases bring in millions. Nearly 64 percent of the seizures in Crittenden County since 1996 involved cash amounts of less than $500, according to an analysis of court records.

‘DON’T ENTER THIS STATE WITH MONEY’

Eliazar Cantu, 44, never got back the $6,000 he had wrapped up in duct tape and stored under the back seat of his car.

The West Memphis police officer who stopped him in February 1993 reported that Cantu smelled like marijuana and seized the cash. Cantu says he was headed to Oklahoma and planned to use the money to pay to breed his mare back in Fowler, Ind., with a stud with a good pedigree.

Cantu, who also has no criminal record, says he never contested the seizure, figuring the rules were stacked against him.

"By the time I get a lawyer, it will cost me another $2,000, and then they will postpone court, and by the time they end it, I will get nothing," Cantu explains.

Hale scoffs at those like Cantu who don’t fight for their money.

"Now, if someone took $19,000 of my money, by God I’d be back," the prosecutor says.

Those who aren’t drug dealers can get their day in court, Hale argues.

But to get that day in court, they must act quickly. The rules allow 30 days after the receipt of a certified letter from the prosecutor’s office to contest the charges.

That law can be fiercely enforced in Crittenden County.

Hale once pushed for a lawyer’s secretary to take a polygraph test when she claimed she had mailed legal papers protesting a forfeiture on the 30^th day.

Bobby Brummett found out just how hard it is to get seized cash back.

Brummett hired an attorney to fight the seizure of $26,575 police found in a briefcase he had in the trunk of a rental car in February 1997. Brummett says he didn’t know about the seven marijuana cigarettes his friend, Steve Larson, stored in a shaving kit for their trip from Grand Rapids, Mich., to Dallas. Brummett says he told the police where to find the briefcase and explained he planned to use the cash to buy a 1964 Corvette in Dallas. And Larson said he never told Brummett about the marijuana.

But the West Memphis police officers who stopped Brummett decided the money was tainted.

When Brummett, now 46, showed up for a trial in Crittenden County Circuit Court months later, he learned the paperwork hadn’t been completed and he would have to make a return trip.

Worried about the legal bills and the cost of another trip to Arkansas, Brummett agreed to let the prosecuting attorney’s office keep half.

"It was pretty much my life’s savings they ripped me off of down there," Brummett says. "I wish I could put up a big sign that says, ‘Don’t enter this state with money.’ "

Federal forfeitures are even tougher to challenge.

To seize property under federal law, the government has to show probable cause, a standard no greater than what is needed to get a search warrant. But to get the property back, its owner must establish by a "preponderance of the evidence" that the property wasn’t used in a crime.

The window for contesting a federal forfeiture is smaller: 10 days. Plus the property’s owner needs to put up the lesser of $5,000 or 10 percent of the seized item’s value to file those papers.

Regardless of the differences in federal and state laws, both generate plenty of money for law enforcement.

Last year, the U.S. Justice Department took in $449 million from forfeitures, nearly five times the amount it collected in 1986.

"We think it’s vital to law enforcement," says Robert Sharp, the U.S. Justice Department’s deputy chief for the asset forfeiture laundering section. "It’s one of those tools Congress has approved, and we try to maximize it to the best we can. It’s been very effective so far."

A TROUBLED HISTORY

Forfeitures might rake in cash, but they haven’t done much to promote cooperation among Crittenden County law enforcement agencies.

"Apparent improper or nonexistent bookkeeping procedures were utilized by the drug task force," says a synopsis from that report. "No forfeiture property, with exception of vehicles, has been listed on Drug Task Force inventories or audited as project income. A petty cash fund apparently was maintained and was unaudited for a lengthy time."

Public auctions of seized properties also were held without proceeds going into the proper account, according to the report.

The state police also investigated an allegation that Lt. James Sudbury of the West Memphis Police Department took $260 in seized food stamps and hired a criminal informant to buy steaks for a task force barbecue.

Sudbury denied the allegation, but three officers, who were not named in the report, stated that they had heard partial conversations about the alleged event.

Donna Kane, a drug task force secretary, who admitted using drugs in the past, told the investigators that Sudbury gave her a portable stereo and a purse, along with three seized guns.

And Sudbury told the state police that he took home a seized refrigerator for a while when his own refrigerator conked out. Sudbury’s former wife and children also reported that Sudbury had given them a radar detector, an answering machine, a telephone and a $300 fishing rod that allegedly had been seized.

Sudbury, now a captain with the West Memphis Police Department, says he was made a target by a disgruntled state trooper who was a member of the task force and by an ex-wife who wanted to make him look bad for a custody battle.

"There was no criminal wrongdoing by anybody," Sudbury says.

Kane says she regrets her past drug history and that she returned the items Sudbury gave her.

Sudbury says he gave the secretary one of the guns for protection while the officers were away and allowed her to take another gun home for a couple days to show her child. He couldn’t recall the third gun. Sudbury says he gave the secretary the other items when she asked for them when he was taking them out to a trash bin.

He says the state police investigation prompted improved bookkeeping and the elimination of the drug fund’s petty cash account. The Police Department no longer seizes any items other than drugs, money or vehicles, Sudbury says, because the other items generate too much paperwork and are too difficult to track.

Thornton, now head of the sheriff’s drug task force, also was investigated that year.

Thornton told the state police he put $33 in a vest pocket during the execution of a search warrant at a home and forgot to turn the cash in as evidence. He later told the state investigators that he had found the money in an envelope in his camera bag.

Thornton also told the state police he gave a seized .38-caliber pistol to his father. The gun eventually was returned.

"It was all on the up and up," Thornton says now.

‘HANDS IN THE TILL’

The same year that state police investigated the task force, it split in two, with one faction becoming part of the sheriff’s office and the other falling under the West Memphis Police Department.

The state investigation certainly added to tension at the task force, Sudbury says. But he says the real reason for the split was money.

"The drug task force was extremely successful, and we seized a lot of money, and there were some politicians who couldn’t get their hands on the money, and the only way they could get their hands on it was to dissolve the task force," Sudbury says.

Even with the task force divided, forfeitures continued to generate big bucks. Last year the West Memphis Police Department got $505,096 in forfeiture cash, nearly 17 percent of its operating budget. The Crittenden County sheriff’s office took in $532,829, about 11 percent of its operating budget. The prosecutor’s office got $223,597.

Of that, $172,289 went to salaries in the prosecutor’s office, including all of Hale’s annual $32,000 salary. A bookkeeper was paid $46,510.

The forfeiture fund ponied up the $1,961 for Hale’s father, James Hale Jr., another prosecutor, to attend a conference on gangs held in the resort town of Jackson Hole, Wyo. Forfeitures also paid for new video-imaging equipment for presentations to juries.

There will be even more to divvy up once authorities resolve a $3.17 million case, which has wound its way from a weigh station off I-40, where the money was seized, to the Arkansas Supreme Court.

The Arkansas Highway Police, which made the seizure one spring night last year, turned the cash over to federal authorities, in part to keep a greater share. Under federal procedures, the seizing agency can keep up to 80 percent of the money. Hale has argued the money belongs in the state system, which limits agencies to $250,000 of a forfeiture and requires any excess to go to the state.

The Arkansas Supreme Court in March sided with Hale. The money hasn’t been distributed, though, because the highway police are considering an appeal to the U.S. Supreme Court.

The argument, Hale says, boils down to money and who gets to keep it.

"We’ve created a monster, and I don’t know if we can curtail it or not," says Mike Everett, a Democratic senator who represents Crittenden County in the state Legislature. "Everyone has their hands in the till, and they’re hollering and screaming to stop us from doing anything about it."

No one knows how many other agencies have tried to dodge the state’s $250,000 limit.

For years, state officials failed to monitor forfeitures even though state law 5-64-505 requires police agencies to file reports with state officials on how much forfeitures generate. Millions of dollars have flowed to hundreds of law enforcement agencies throughout Arkansas with almost no state supervision.

"When you start dealing with money and drugs, everyone knows you have to have accountability and double accountability," says Bill Hardin, the state drug director. "I have none now."

Last June, Hardin finally got an assistant, a staff member on loan from the Arkansas National Guard, to help him round up some of the reports state law requires prosecutors and police to file on forfeitures.

REFORMS ON HORIZON

Change is around the corner.

Stating that "a lack of uniformity and accountability in forfeiture procedures across the state has undermined confidence in the system," the Arkansas Legislature this year passed a reform package sponsored by Sen. Wayne Dowd, D-Texarkana, Sen. Jim Hill, D-Nashville, and Rep. James Luker, D-Wynne.

The new laws, already signed into law by the governor, will: Bar transfers of forfeitures to federal court unless authorized by a circuit court judge.

Mandate that the state get a 20 percent cut of anything over $20,000 generated locally in forfeitures annually. That money would go to the state’s beleaguered Crime Laboratory system, where testing on drug evidence often lags for six months.

Require new inventories of all items seized and a new disposition report that shows how courts rule on seized property. Agencies that fail to file such reports with the state’s drug director will be barred from sharing in any more forfeiture money or state grants.

Force prosecutors to put evidence before a circuit court judge on all seizures, even if nobody files a protest. The old law allowed prosecutors to forfeit property administratively if nobody filed papers seeking a day in court and if the amount was less than $100,000.

However, a companion bill that would have financed the hiring of three new employees for the state’s drug director languished in the last legislative session.

"We will do the best we can with what we have," says Hardin, who had argued that the new employees were needed to keep up with the new reporting requirements.

The U.S. Congress, stoked by a series of high profile reports, also is taking notice.

U.S. Rep. Henry Hyde last week shepherded a reform bill through the House of Representatives. The bill attracted an unlikely alliance of supporters including the National Rifle Association, the Trial Lawyer’s Association, the limited-government proponent Cato Institute and the American Civil Liberties Union.

Hyde’s push comes after a series of high-profile controversies, including reports that New York police confiscated cars of people on the basis of drunken-driving charges.

Among Hyde’s proposals:

• Shifting responsibility to the government to show by "clear and convincing evidence" that seized property should be forfeited.
• Allowing courts to release property back to owners pending final disposition of a case.
• Providing lawyers to those who can’t afford them to sue for return of their seized property.
• Permitting people to sue the government for damage to seized property.

Hyde’s changes, which now go to the U.S. Senate for consideration, had the backing of U.S. Rep. John Conyers Jr., a Michigan Democrat, who has said the government should only have the right to seize property after convictions.

"Frankly, there is suspicion that much of forfeiture is just to enrich the particular police jurisdiction," Conyers says.

But West Memphis Police Chief Robert Paudert says his officers aren’t out for money. Rather, it’s drugs his officers want to stop—the very drugs suspected of inciting a drive-by shooting earlier this year that lodged bullets in the head, side and leg of a 3-year-old girl asleep in her bedroom.

After that shooting, he reclassified two officers assigned to the interstate to a street interdiction team that patrols city neighborhoods. Paudert recently put one of the officers back out on the interstate in hopes of snaring drugs headed to Memphis—drugs he says eventually trickle back into West Memphis.

He tells critics of his officers to go visit that injured girl, the one who now is having to relearn how to use her right arm.

But such a visit probably wouldn’t clear up Salvador Cantu’s suspicions. Those were generated by his own experience in Crittenden County, where he was stopped for careless driving in June 1996. A deputy searched his car and took $29,000 from him.

Cantu says his family planned to move back to McAllen, Texas, from Calumet, Ill., and his father had given him the money to take to an uncle in Texas for safekeeping.

Cantu, now 26, has just one question: If there was marijuana on the money, how come the Mississippi County sheriff’s deputy who stopped him earlier in the day didn’t find any?

The Democrat-Gazette confirmed that Cantu was stopped in Mississippi County earlier that day. The deputy there counted the money but chose not to seize it, issuing Cantu a warning for driving without a front license plate.

Cantu got his money back months later but only after providing records that showed the family sold a house for $88,000 in 1995.

Now, whenever Cantu takes a trip, he makes sure he doesn’t go through Arkansas.

"You can’t even drive through that state," says Cantu. "They’ll pull you over for any reason."
(Marijuananews note: Arkansas is a beautiful state, with many good people. The travel and tourist industries should take a long hard look at this problem.)