The following is extracted from the September 13, 1998, Vicksburg Post:
"Rulings toughen property forfeiture procedures"
Vicksburg Post, September 13, 1998
JACKSON (AP) - Law enforcement officers will face more stringent guidelines in seizing property in drug crimes under two decisions issued recently by the Mississippi Supreme Court.
In one case, justices said the seizure of a Meridian man's 1984 Chevrolet Corvette for a trace of crack cocaine
was excessive. They ordered the return of Kevin Williams' car. A second decision returned bank accounts to Earnest Conrod of Sunflower.
Three dissenting justices said one of the rulings will hurt law enforcement's ability to use forfeitures as a tool in drug
enforcement. Law officers and prosecutors disagree on how much the court's guidelines might limit forfeitures. Defense lawyers say the rules are needed to curtail abuses that cost people expensive property for small violations.
Justice Bill Waller Jr., writing for the majority in the 5-4 decision that called for returning Williams' Corvette, said
the value of the property compared to the magnitude of the crime must be weighed along with the property's
connection to the crime.
Justice Jim Smith, in a dissent, said the ruling "effectively removes the teeth from the statute which attempts to 'take
a bite out of crime' by making drug dealers and users think twice about using their personal or real property for
Justice Chuck McRae, in a separate dissent, said the state "plunders" property through forfeitures. McRae said the
majority ignored the issue of double jeopardy punishing a person twice for the same crime with a civil and criminal
District Attorney James M. Hood of Oxford, who argued the Corvette case to the Supreme Court while he handled forfeitures for the attorney general's office, said the ruling will make it much tougher to take property in drug crimes.
Hood said city and county law officers who use forfeitures to hit drug dealers in the pocketbook could feel the financial pinch themselves. Some drug task forces depend on forfeitures to pay their 25 percent match to federal grants they use to fund operations.
No single agency keeps figures on the value of drug forfeitures in the state. Some are handled by city and county
agencies, some by the Mississippi Bureau of Narcotics and some by federal prosecutors when the cases go to U.S. District Court.
Hood estimated state and local agencies got more than $1 million in forfeitures in 1993, but he said the value declined in the past five years as drug sellers responded by placing property in other people's names and using other people to move money. The threat of losing cars and houses in the past has posed a deterrent to drug dealers, Hood said.
"Dope dealers are gun-shy of selling dope at their house, where they are most comfortable, because they are afraid they will forfeit it," Hood said. Bureau of Narcotics Director Tom Blain and Special Assistant Attorney General Lisa Lynn Blount agree the rulings will make forfeitures harder.
But Blain and Blount said bureau agents already pass over forfeitures in cases involving small amounts of drugs.
Blain said, "It will have a bigger impact on other agencies than on ours."
Meridian attorney Joseph Kieronski Jr., who represents Williams, said, "I think it does provide for some
safeguards on private property. There were abuses."
"It's a smidgen of cocaine they had to rub off his teeth, and they want to forfeit a very expensive car. You couldn't
even weigh the amount (of drug) that was found," Kieronski said.
Williams was arrested Sept. 16,1992, after a tipster told a member of the Meridian/Lauderdale County Narcotics
Task Force that a known crack seller had approached a black Corvette. After officers searched the area to no avail, the officer who received the tip saw the black Corvette from his office window, the Supreme Court opinion said.
Two officers saw Williams put something in his mouth as they drove alongside the Corvette. One of them grabbed
him by the throat in an attempt to keep him from swallowing and the other grabbed his right hand. He swallowed, so they swabbed the inside of his mouth with a rubber glove. Officers also found a crack pipe in Williams' hand and a book of matches and a piece of metal tubing in the car.
The tubing and foil match container tested positive for cocaine. Williams, who admitted he had a rock of crack, pleaded guilty to possession of cocaine. The judge placed him on a good behavior program that allowed him to wipe the charge off his record. Williams paid a $2,500 fine, plus restitution and court costs totaling $264.50.
Over Williams' protests, Lauderdale County Circuit Judge Robert Walter Bailey ordered the Corvette forfeited to
the state in a separate civil proceeding on Dec. 23, 1993.
Hood said the car was worth about $7,500. In Conrod's case, the Narcotics Bureau sought forfeiture of his 19179 Ford van and two bank accounts totaling $7,275.51.
The Supreme Court said the forfeiture of the van was proper because Conrod drove the vehicle when he negotiated with undercover officers to buy cocaine. But the justices said testimony from a Bureau of Narcotics Agent failed to tie the bank accounts to drug transactions. The court said agents seized about $90,000 from Conrod a day after he negotiated the drug purchase. That money was forfeited in federal court. Conrod is serving a federal prison sentence on a drug conspiracy charge.
Clarksdale attorney Azki Shah, who represents Conrod, said authorities also sought forfeiture of the store and
apartment complexes Conrod owned. Those forfeiture actions were dropped because there were large liens
against the property, Shah said. Shah said the court ruling in Conrod's case will force agencies to present more proof of a connection between property and drugs. "It gives more protection to the defendant," Shah said. "It gives the courts a little more direction in how to evaluate the evidence and make a decision on what should be forfeited."
Blount, who defended the Conrod forfeiture for the narcotics bureau, said the agency had awaited rul-ings in that
case and the Williams case hoping for guidelines. Attorney Bill Gowan, who handles forfeitures for the Hinds Coun-ty sheriffs office, said the rulings leave unanswered questions.
"What they have done is say these are excessive without giving the benefit of a checklist of what is excessive," Gowan said.
During the fiscal year that ended June 30, the Bureau of Narcotics got $252,759 in cash from forfeitures and turned over $126,960 of that to city and county agencies, Blount said.
At a glance
JACKSON (AP) - Here's what courts must weigh in drug/property forfeiture cases:
The connection between the offense and the property and the extent of the property's role in the offense.
The role and culpability of the owner.
The possibility of separating the offending property from the remainder.
Whether, after a review of all relevant facts, the forfeiture divests the owner of property which has a value that is
grossly disproportionate to the crime or grossly disproportionate to the culpability of the owner.
Source: Mississippi Supreme Court
Mackinac Center Forfeiture Reform Study
The Mackinac Center for Public Policy has recently released study on forfeiture and recommends 9 reforms for Michigan. For further information, visit the URL below.
Updated: Wednesday, Aug. 19, 1998 at 17:27 CDT
Asset forfeiture practices are poisoning the body politic
AUSTIN -- And in other news . . . The War on Drugs is ripping up the Constitution, endangering American liberty and encouraging law enforcement officers to act like bandits. The unpleasant ramifications of the War on Drugs are too numerous for one column, but the area of asset forfeiture
deserves special consideration.
* On Oct. 2, 1992, a team of officers from the Los Angeles police, the Park Service, the Drug Enforcement Administration, the Forest Service, the California National Guard and the California Bureau of Narcotic Enforcement
staged a raid on the home of Donald Scott, a 61-year-old rancher, near Malibu. Armed with high-powered weapons, flak jackets, a battering ram and a presumably legal search warrant, they kicked in the door and rushed through the house. Scott's wife began screaming; he went to her side with a gun and was shot to death before her eyes.
The officers found no marijuana plants, other drugs or paraphernalia. It turned out that Scott was bitterly opposed to all drug use.
According to `The Nation' magazine, a subsequent investigation revealed that there was no credible evidence of marijuana cultivation on Scott's ranch; that the Sheriff's Department had knowingly sought the search warrant on legally insufficient information; and that much of the
information supporting the warrant was false, while exculpatory evidence was withheld from the judge. As they invaded the property, the officers -- with two forfeiture specialists in tow -- had a property appraisal of Scott's $5 million ranch and instructions to seize the ranch if 14
marijuana plants were found.
* In a much-noted case, a Detroit woman had her car seized after her husband was found using it to dally with a rostitute. The Supreme Court upheld the forfeiture, even though the woman was clearly not involved in her husband's illegal activity.
* A 72-year-old grandmother in Washington, D.C., lost her home after letting a nephew, who was suspected of drug dealing, stay there overnight.
* The owner of an air charter business in Las Vegas lost his livelihood when he unknowingly chartered a plane to a drug dealer.
* Last year, NBC's `Dateline' did a prize-wining expose of the practice of Louisiana sheriff's deputies of stopping motorists with little or no cause and seizing cars and cash under the state's forfeiture laws. The deputies started a slush fund with the money. According to Dateline, deputies used
the fund to pay for a ski trip, pizza and doughnuts; thousands of dollars were unaccounted for.
According to the `Wisconsin State Journal,' all this started in 1984, when Congress passed the Comprehensive Crime Control Act, which allowed drug money and "drug-related assets" to be funneled into the police agencies that seize them. Between 1985 and 1991, the Justice Department collected more than $1.5 billion in illegal assets; in the next five years, it almost doubled this intake, according to a report by `The Nation.' Local law enforcement agencies fight to "federalize" their drug busts because if a U.S. attorney "adopts" a forfeiture, 80 percent of the assets are returned to local police, whereas under many state laws, forfeited assets go to school funds, libraries, drug education or other programs. According to `The Nation,' some small-town police forces have increased their budgets by
a factor of five or more through seizing assets.
This is also deforming the efforts to control drugs; police forces can get far more money by busting small-time marijuana buyers in reverse stings (where the cops sell drugs to unsuspecting customers) and then seizing their assets than they can by, say, going after major methamphetamine dealers who work on street corners.
This entire practice is rapidly becoming worse and worse, causing more and more injustice, police lawlessness and distorted law enforcement priorities. This is one of those times when the right and the left can unite in opposition to government abuse. The American Civil Liberties Union
and the National Rifle Association have opposed these practices; Rep. Barney Frank, the liberal Democrat, and Rep. Bob Barr, the conservative Republican, both support reform; `The Wall Street Journal' is as concerned as `The Nation.' Surely the property-rights people, who seem to consider the Endangered Species Act a threat to liberty, would like to join the ACLU on this one.
The political problem is that we have created a monster. Law enforcement just loves asset forfeiture laws; agencies have practically become self-financing through these abuses. And when the coppers of the nation stand in unison and say, "We need this for law 'n' order," mighty few politicians are willing to go against them. (Envision the ads in their re-election campaigns: "My opponent sided with the drug dealers and against the police officers of our fair state.")
The only way to get the politicians to undo what they have done is to build public pressure to stop this outrageous practice. Take pen in hand . . .
Molly Ivins is a columnist for the `Star-Telegram.' You may write to her at 1005 Congress Ave., Suite 920, Austin, TX 78701; call her at (512) 476-8908; or email her at firstname.lastname@example.org
Send your comments to email@example.com
In a Detroit Free Press article, "Pretrial property seizures unfair, conservatives say" http://www.freep.com/news/mich/qforf21.htm dated July 21, 1998, L.L. BRASIER says the following and more:
A conservative group is urging an overhaul of laws that let authorities seize criminal suspects' property, saying the laws are often used against law-abiding people.
The Mackinac Center for Public Policy, a nonprofit Midland-based think tank, studied dozens of property seizures and found the laws "allow government to violate the very property rights it is charged with protecting."
The report, from a group with ties to the Republican Party, broadens support for changes, which have been championed in the past by liberal groups such as the American Civil Liberties Union.
In Michigan, police and prosecutors can seize money, cars, homes and other assets if they believe they were derived through criminal activity. And they can keep the property if they can show in court there was a likelihood a crime was committed, even if no one is convicted.
. . .
Kochan studied dozens of forfeitures, including the case of Joseph Puertas, a Clarkston man whose family saw $5-million worth of assets seized last December.
Police charged Puertas with drug dealing, even though they found no drugs during a raid on his family's homes and businesses. The case is based on an informant who says he bought drugs from Puertas in 1997.
. . .
U.S. Rep. John Conyers, a Detroit Democrat who received a copy, called the study "a great public service."
Conyers, a high-ranking member of the House Judiciary Committee, has been working on legislation to curb forfeitures. He pledged Monday to incorporate the center's recommendations into any new laws.
The report mentioned is located at the Mackinac Center, http://www.mackinac.org/studies/s98-03.htm
Looks like an interesting site.
DA says practice will continue despite ethical objections raised by some
By Gloria Padilla and Jacque Crouse
Express-News Staff Writers
Seized property aids police coffers
From sheets and pillowcases to partial interest in an off-Broadway play to the $4 million in cash found by a San Antonio police officer last week, law enforcement agencies are taking some of the profit from crime and suspected criminal activity.
Over the past several years, millions of seized dollars have been handed over to local law officers to help bankroll their fight against criminals.
People suspected of criminal wrongdoing often have walked away from seized goods and let court forfeiture proceedings go unchallenged -- even though they face no criminal charges.
District Attorney Steve Hilbig said that while some people may argue it's wrong to go after cash and property when there is only a suspicion of illegal activity, his office will continue to do it.
"In many cases there may never be sufficient evidence to charge somebody (with criminal wrongdoing)," Hilbig said. "There is no such crime as illegal possession of money. But if our common sense tells us it is illegal money, we will go after it."
A prime example, Hilbig said, is the $4 million in cash San Antonio Police Officer David Sczepanik came upon during a routine truck inspection last week.
Police seized the money, but the driver, apparently unaware of his cargo, was not charged with a crime. The $4 million has not been claimed.
"Last time I checked, Frost Bank did not use 18-wheelers to transport money, they use armored trucks," Hilbig said.
U.S. Attorney Bill Blagg said asset forfeiture laws give law
enforcement another tool to "take the profit out of otherwise
During the first six months of 1998, Hilbig's staff obtained $289,363 in forfeitures. The U.S. attorney's office here had forfeitures of $5,219,793 throughout the district from January through July.
Assistant U.S. Attorney David Rosado, in charge of asset forfeitures in El Paso, said his office routinely sees cars, trucks and airplanes -- including a Lear Jet worth $1 million that once was the property of Mexican drug kingpin Amado Carillo Fuentes.
Forfeiture cases are filed against cash and personal property believed to be derived from illegal activity -- usually drug trafficking -- and are separate from criminal actions taken against the property owner.
Most federal forfeitures are civil. While most have involved drug cases, Rosado noted new federal laws have prompted forfeitures in cases involving health care fraud, counterfeiting and immigration.
"The theory is that no matter what the crime, people should not be allowed to profit from it," he said. "Some people contest forfeiture, some do not."
Rosado said most forfeiture actions are not contested, though some civil cases are.
"We have had people come in and say they were renting the house to their nephew, for instance, and that they had no idea he was growing marijuana in there," Rosado said. "If they can show that is the case, we don't seize the property."
While the majority of the forfeiture cases involve cash and vehicles, other items occasionally surface.
A few years ago, the state of Texas became the owner of eight pairs of brand new shorts, still in their wrappers, after the owner failed to claim them in court. The shorts -- size and color unspecified -- were kept by the state along with $775 in cash, sheets, pillowcases and other items because no one answered the lawsuit.
The items had been confiscated by police during a drug raid and were later sold at auction.
Federal prosecutors in the Western District of Texas do both criminal and civil forfeitures, and over the years have seized homes, ranches, race horses, vehicles, boats, airplanes and jewelry.
"When I was in the Eastern District of Texas, the most unusual thing we ever had forfeited was a part interest in an off-Broadway play," said Darryl Fields, a U.S. attorney's office spokesman.
A marijuana trafficker had used drug proceeds to buy a stake in the play, making it a seizable asset.
"We got royalty checks for about two years, as long as the play was running," Fields said.
Assistant District Attorney Leslie Sachanowicz, who handles many forfeiture cases in state court, could recall only one case in which the owner of the money demanded a jury trial. A Rio Grande Valley man claimed the money stashed in a hollowed-out phone book was a personal loan from his friend "Gordo" in Florida.
The man's attorney, Arturo Cantu of McAllen, argued his client, who had no criminal record, had done nothing wrong. The jury awarded the $7,900 in question to the state.
Cantu said most people do not challenge forfeiture proceedings because it is "too expensive to fight."
The legal fees will run from $10,000 to $20,000 for a jury trial on a forfeiture case, he said.
The forfeiture statute does not allow those fighting the action to recover attorney's fees from the state if they prevail in court.
Cantu said he lowered his fee in the phone book case because he felt what was done to his client was unjust.
Cantu added, "It's very hard to bring evidence you're not a drug dealer."
In cases where there is a possibility that criminal activity may have been involved, Cantu said, people may have the money to launch a legal battle but hesitate for different reasons.
"They don't want to waive their Fifth Amendment right (against self-incrimination)," he said.
Hilbig's office has a contract with most local law enforcement agencies that gives his office a percentage of the forfeiture.
After the seized assets become state or federal property, the law requires the forfeited funds be spent on law enforcement.
"We share our funds with the smaller suburban cities like Leon Valley and Live Oak," Hilbig said.
Forfeiture money has been used to buy cameras for DWI patrols and computers.
In the federal system, Fields said, 80 percent of the cash from federal forfeitures must go back to local law enforcement, and 20 percent goes into Justice Department coffers.
Be afraid. Be very, very afraid.
>From today's USA Journal Online http://www.usajournal.com
Warrantless Drug Raid Produces Fatality
USA Journal Online
DALLAS -- Six members of a Houston police department gang task force have been suspended with pay after a raid they executed in mid-July resulted in the death of the suspect.
Pedro Oregon, a 23-year-old Hispanic, was living at the address and, according to reports, had locked himself inside his bedroom after officers burst in through the front door. According to published accounts the officers decided to break down the bedroom door to get to Oregon. When they did, they sprayed the room with gunfire. Thirty-three
bullets later, Oregon lay dead on the floor, shot a dozen times, including nine times in the back.
A post-incident investigation, however, showed that the officers had no warrant to enter or search Oregon's premises. Further, the informant they used was not registered with the department -- in accordance with
Houston PD rules covering drug informants -- and police ultimately found no drugs in Oregon's apartment.
A gun officers said Oregon had pointed at them was never fired either, a later examination revealed.
Tony Cantu, a Hispanic activist in Houston, told AP "They went knowingly and consciously in search of their own heroics and forgot to abide by the rules."
Other critics say they're not sure if that rendition is accurate, but certainly the officers were required to get a warrant and to abide by departmental rules.
One police officer, who spoke with USA Journal under condition of anonymity, says he's been involved with several of these types of raids. And, he says, no matter how bad you want the suspect, you've got to do it right or it will never hold up in court -- no matter what you find inside the apartment or home. He added that you could easily find
yourself a defendant on a courtroom witness stand if you made the wrong decision.
"As far as the gunplay is concerned," he said, "if the officers felt their lives were being threatened then they have a right to defend themselves." But, he added, if they had gotten the proper paperwork and better information, maybe they wouldn't have even raided the house in the first place.
"It's frightening that officers would illegally enter a residence and shoot a man in the back," said Paul Nugent, an attorney Mr. Oregon's family hired. "Evidence seems to indicate that he was shot in the back while he was on the floor. We think he dove to the floor for cover when the police kicked in the door."
"We hope there is a vigorous investigation," Nugent added. "The family is afraid there will be a whitewash and the officers' actions will somehow be justified."
The Dallas Morning News reported on Saturday, August 8 that an unidentified Houston police source said "that one of the officers who burst into Mr. Oregon's bedroom around 1:30am on July 12 shouted that [the suspect] had a gun." Afterward, the paper said, an officer's gun went off and struck another officer, knocking him to the floor. The
other officers, thinking Mr. Oregon was firing at them, opened fire. The wounded officer was wearing a protective vest and was not seriously injured.
Harris County District Attorney John B. Holmes, Jr. says "it's possible the officers could not be indicted for the shooting because under the law, a person may not resist an arrest, even if it is illegal," said the Dallas Morning News. He also told the newspaper that it would be proper for them to use deadly force against Oregon, under those circumstances
[involving the victim's gun].
Attorney Nugent said Oregon had no criminal record, was a soccer player and coach, had a history of hard work and was drug-free.
"They killed the wrong man, the made a mistake," he told AP. ***
The following article, "Feds move to seize cash removed from trains", is reported by AP on 8/11/98:
Feds move to seize cash removed from trains
ALBUQUERQUE (AP) -- The U.S. attorney's office is asking a judge to approve government claims to more than $100,000 seized earlier this year by a drug task force officer from Amtrak train passengers.
Officer Jeannette Tate seized $53,590 from a man traveling from Pittsburgh to Los Angeles last Jan. 7. Three weeks later, the same agent took $59,950 from another man traveling from Milwaukee to San Diego via Los Angeles.
The seizures were made while the train was stopped in Albuquerque.
In the former case, an informant reported individuals in a certain compartment had not left their room since Chicago. Agents found the compartment ticket was purchased with cash. A search warrant was obtained to search a wrapped package, which contained the $53,590.
In the latter case, the agent was refused permission to search but the luggage was seized after a drug-sniffing dog showed interest, and the $59,950 was found.
"Was it ever this bad in the former U.S.S.R.? We now have to deal with paid informants at the airline ticket counters -- on the alert for suspicious looking people, have our autos searched if we happen to be "driving while having dark skin", and now our property can be seized on the train if we "have not left our room since Chicago". How about walking? Is that safe?" -Leon
On June 1, 1998, L.L. BRASIER, Staff Writer for the Detroit Free Press published the article,
"Family's assets at center of fierce battle over seizure" http://www.freep.com/news/locoak/qseize1.htm
Following are a few quotes and comments from that article:
On a cold night in December, 100 law enforcement officers armed with 17 search warrants and drug-sniffing dogs swept down on Joseph Puertas and his family in north Oakland County.
[I believe that "100 law enforcement officers" is an indication of the sickness of our times. Our government, with its unlimited spending activities and unlimited borrowing, has no restraint in its policing actions (including military actions). When they attacked Randy Weaver's mountain home because he built a sawed-off shotgun, they came in with men and equipment that cost the taxpayers millions of dollars a day. The same approach is evident when they prosecute citizens. Some how, some way, we need to put a collar on their unlimited spending proclivities.]
Convinced Puertas, who had spent time in prison on a drug conviction, was running a major cocaine operation, officers raided the homes and businesses of the 70-year-old, his wife, his three sons and daughter. They found no drugs. They found no drug paraphernalia. They found no records of drug transactions. In fact, police discovered only one small plastic bag of powder at the Puertas family's bowling alley in Orion Township, and that was Slim Fast. What they did find was large quantities of cash in the family's safes. That cash is now at the center of a legal battle in Oakland County Circuit Court, a battle that is representative of a larger national debate. The Oakland County prosecutor charged Puertas (pronounced PUR-tez) with dealing drugs, despite the fruitless raids, and plans to keep more than $5.1 million in assets:
About $3.2 million from the sale of the bowling alley,
$1.9 million in cash,
Jewelry and coins worth several thousand dollars.
They can keep the assets -- which police say they believe would have been in a bank if not illegally gained -- whether or not they convict Puertas.
. . .
"Why would they forgo thousands of dollars of interest they could have made if they had put their money in the bank," asked prosecutor James Halushka, director of warrants and investigations for the Oakland County Prosecutor's Office. "If this isn't dirty money, why didn't they put it in the bank?"
[Well, there you go -- what more proof do you need to heist all that money. It is illegal not to have your money in a bank isn't it? Just how do you think the government can keep track of your financial activity if you don't do it through a bank?]
Police admit that without drugs as evidence there are problems with the prosecutor's case against Puertas and James Talley, 43, an employee also charged with dealing drugs. For one, the entire case is based on testimony from Joseph Patrick Sweeney, a self-confessed drug addict with two prior felony convictions and one pending. "Is this the strongest case we've ever had? Not at all," said State Police Lt. Mark Menghini, commander of a multi-agency narcotics enforcement team which handled the case. "Can an informant mess you up? Of course. But it's up to the court to decide."
[From looking at similar cases, I would say that the Puertas' are in deep doodoo. Having "a self-confessed drug addict with two prior felony convictions and one pending." as a witness smacks of a mighty powerful case in these times. In fact, the Puertas were nailed as part of a plea bargain (and a large bounty) by Sweeney to save his own ass.]
Regarding the Puertas money, Menghini said, "This is not the gestapo. If he can prove it's legitimate money, we'll give it back to him."
[Wow, you can't argue with that! How many other thugs you might meet on a dark street and be relieved of all your possessions, would make you that kind of offer?]
You must read this article. It just gets better. If any of you do not have access to it, let me know and I will email you a complete copy.
-- Email: firstname.lastname@example.org
"[T]o live outside the law, you must be honest," -- Bob Dylan
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