Highway Robbery

On August 30, 2013, I published a blog titled, "Who Can You Call When the Police Are the Ones Robbing You?

sjdgoingonrecord.blogspot.com/2013/08/who-can-you-call-when-police-are-ones.html

This expose featured the phenomenon of "civil asset forfeiture," the practice of federal, state, and local law enforcement seizing property of U.S. citizens, even in cases where no charges were filed.

Unfortunately, although there have been some attempts at reforms at the federal and state level, the practice continues unabated.

The laws regarding CAF, came into being during the 1980s in response to drug trafficking and the consequent money laundering involved.

Mark Overton is currently the police chief in Bal Harbour, Florida, and formerly served as the head of a federal drug task force in South Florida. “Those laws were meant to take a guy out for selling $1 million in cocaine or who was trying to launder large amounts of money. It was never meant for a street cop to take a few thousand dollars from a driver by the side of the road,” he said.

Private companies have sprung up across the nation that train police in the techniques of "highway interdiction." Anything can trigger a traffic stop, and once pulled over, law enforcers can seize all property in your car, on your person, or even the car itself, without citing an infraction. Such things as tinted windows, air fresheners, energy drinks, and even fast food wrappers (suspicion of munchies caused by marijuana use) are enough to justify the confiscations.

CAF is such a windfall for police departments that an online network allows officers to brag about their seizures and share "trophy shots" of cash, drugs, jewelry, cellphones, tablets, and other electronics.

Ginnifer Hency suffers from multiple sclerosis. On the advice of her neurologist, Hency began using medical marijuana, which is legal in her state of Michigan. She is also a registered caregiver who under Michigan law is allowed to transport and distribute marijuana to other patients covered by statute.

Even though Hency was in full compliance with Michigan law, a DEA task force raided her home, with children present, and confiscated every belonging in her house.

Although a St. Clair County judge dropped the charges against Hency, law enforcement officials have refused to give back her belongings.

“They have had my stuff for 10 months, my ladder, my iPad, my children’s iPads, my children’s phones, my medicine for my patients. Why a ladder? Why my vibrator?”

The most recent case to reach mainstream attention is that of Joseph Rivers. Rivers, a 22 year old black man, was traveling by Amtrak from his home in Michigan to Los Angeles to seek his dream - producing music videos. Towards this end, Rivers had worked and saved for years, and family members, who believed in him, scraped up some hard-earned money in support.

Rivers, as a young, black male had had trouble in the past dealing with banks, and he had his entire nest-egg of $16,000 in cash with him on April 15th, when a DEA agent boarded the train at the Albuquerque, New Mexico station, and began questioning travelers about where they were going and why.

When Rivers informed the agent that he was headed for California to start a business, Rivers consented to a search of his belongings. The agent seized the cash.

Rivers remarked, "The officer decided to take my money because he stated that he believed that the money was involved in some type of narcotic activity. This officer took everything that I had worked so hard to save and even money that was given to me by family that believed in me. I told him I had no money and no means to survive in Los Angeles if they took my money. He informed me that it was my responsibility to figure out how I was going to do that.”

Rivers was never charged with a crime.

"We don’t have to prove that the person is guilty," said the Albuquerque DEA agent. "It’s that the money is presumed to be guilty."

Rivers' attorney, Michael Pancer, said, “What this is, is having your money stolen by a federal agent acting under the color of law. Rivers was the only passenger singled out for a search by DEA agents – and the only black person on his portion of the train."

A fellow passenger who witnessed the encounter, provided Rivers with the means to return home to Michigan, his dream seized by the state.

In fiscal year 2014, Justice Department agencies made a total of $3.9 billion in civil asset seizures, versus only $679 million in criminal asset seizures.

Another case that made national headlines occurred in April of 2013. Two professional poker players were stopped by Iowa state troopers as they traveled west on Interstate 80. The officers seized over $100,000. The state police then contacted authorities in the gamblers home state of California, who raided the men's homes, confiscating even more property.

In addition to monetary loss, however, the victims of CAF, also lose peace of mind. One of the poker players, William Davis, said, "It has had widespread and deep impacts on my life, It's my primary focus right now. It's made me aware of the things I was unaware of. And made me angry."

In an article about Joseph Rivers, in the Albuquerque Journal from Wednesday, May 6, 2015, reporter Joline Gutierrez Krueger observed, "Agencies like the DEA can confiscate money or property if they have a hunch, a suspicion, a notion that maybe, possibly, perhaps the items are connected with narcotics. Or something else illegal."

Or nothing at all.

Like the long arm of the law, the tentacles of civil asset forfeiture can grasp anyone the government sets its sights on.

Lyndon McLellan, the owner of a gas station/convenience store/diner in North Carolina received an urgent call from his store manager one day in July, 2014. McLellan arrived at his business to find more than a dozen officers from the NC Alcohol and Law Enforcement Bureau, the local police department, and the FBI waiting for him.

Two FBI special agents informed McLellan that he was being charged with "structuring." The agents produced paperwork which showed two deposits to the store’s account at Lumbee Guaranty Bank made within a 24-hour period totaling $11,400. The statements indicated he had a history of consistent cash deposits of less than $10,000, which is illegal. He was then informed that his bank account, with assets of $107,702.66, had been seized by the IRS. A call to his bank confirmed the seizure.

Structuring is another facet of civil asset forfeiture. Again, originally put in place to catch illegal money laundering from drug trafficking, the government now has it both ways. Banks must submit reports to the Department of the Treasury for cash deposits of more than $10,000, but the government also receives “suspicious activity reports” on deposits below that amount.

McLellan’s attorney, Robert Johnson, said this was how McLellan “came onto the government’s radar.”

Johnson, who is also a lawyer for the Institute for Justice, continued, “The government has a financial incentive to broadly apply the forfeiture laws. When an agency like the IRS takes money under the forfeiture laws, that money goes back into the pockets of the agency and it’s available to the IRS to fund law enforcement activities without appropriation from Congress. It’s a powerful incentive for law enforcement to abuse civil forfeiture laws.”

The government offered McLellan a settlement deal to return 50% of his money. Such deals are commonplace as most victims either do not or cannot afford to hire attorneys or fight in court for years for the return of their property.

Lee McGrath, legislative counsel, again for the Institute for Justice remarked, "Forfeiture gives law enforcement and other members of the executive branch the sword and the purse. When those two combine, there is a high probability of corruption.”

Jason Snead, a Heritage Foundation research associate, stated, “In criminal cases, defendants are innocent until proven guilty. Civil forfeiture cases flip this basic legal tenet on its head. Once the government shows that your property is subject to forfeiture, the burden is on you as the owner to disprove the government. In effect, you are asked to prove your own innocence in order to win back your property. That is a high hurdle to clear.”

Steve Wilson of Mississippi Watchdog.org reports, "The Mississippi city of Richland has a new $4.1 million police station, a top-level training center and a fleet of black-and-white Dodge Charger police cars. All of it paid for through civil forfeitures of property and cash seized during traffic stops."

Wilson further reports, "Richland’s four-officer interdiction team has racked up huge forfeiture numbers. In 2014, the team seized $506,400 in cash and property, helping boost the city’s civil forfeiture account to more than $2.3 million. The city also reported $400,000 in revenue from fines and court costs. Those numbers are actually down from past years. In 2013, the department seized more than $1.2 million in cash and property."

Deputy Ron Hain of Kane County, Illinois, only minutes from where I live, commented, “All of our home towns are sitting on a tax-liberating gold mine.”

Hain is a marketing consultant for Desert Snow, a leading interdiction training firm based in Guthrie, Oklahoma.

A Washington Post investigation into CAF found that in "case after case, highway interdictors appeared to follow a similar script. Police set up what amounted to rolling checkpoints on busy highways and pulled over motorists for minor violations, such as following too closely or improper signaling. They quickly issued warnings or tickets. They studied drivers for signs of nervousness, including pulsing carotid arteries, clenched jaws and perspiration."

The Post failed to note that such symptoms would be a natural reaction to any traffic stop when a civilian is confronted by a uniformed, armed officer.

The investigation went on to describe how the process can work in the field:

In December 2012, David Frye, the full-time lead trainer with Desert Snow was working in his capacity as a part-time deputy with the Seward County, Nebraska Sheriff’s Office. He pulled over John Anderson of San Clemente, California, who was driving a BMW on Interstate 80 near Lincoln. Frye issued a warning ticket within 13 minutes for failing to signal promptly when changing lanes.

He told Anderson he was finished with the stop. But Frye later noted in court papers that he found several indicators of possible suspicious activity: an air freshener, a radar detector and inconsistencies in the driver’s description of his travels.

The officer then asked whether the driver had any cocaine, methamphetamine, heroin or large amounts of cash and sought permission to search the BMW, according to a video of the stop. Anderson denied having drugs or large amounts of cash in his car. He declined to give permission for a search. Frye then radioed for a drug-sniffing dog, and the driver had to wait another 36 minutes for the dog to arrive.

“I’m just going to, basically, have you wait here,” Frye told Anderson.

The dog arrived and the handler said it indicated the presence of drugs. But when they searched the car, none was found. They did find money: $25,180.

Frye handcuffed Anderson and told him he was placing him under arrest.

“In Nebraska, drug currency is illegal,” Frye said. “Let me tell you something, I’ve seized millions out here. When I say that, I mean millions.... This is what I do.”

Frye suggested to Anderson that he might not have been aware of the money in his vehicle and began pressing him to sign a waiver relinquishing the cash, mentioning it at least five times over the next hour, the video shows.

“You’re going to be given an opportunity to disclaim the currency,” Frye told Anderson. “To sign a form that says, ‘That is not my money. I don’t know anything about it. I don’t want to know anything about it. I don’t want to come back to court.'”

Frye said that unless the driver agreed to give up the money, a prosecutor would “want to charge” him with a crime, “so that means you’ll go to jail.”

An hour and six minutes into the stop, Frye read Anderson his Miranda rights.

These are but a small sample of some high profile cases. The vast majority of seizures are in small amounts taken from people during routine traffic stops. It has reached a point in this country where a law enforcement officer can arbitrarily invent a reason for stopping anyone, and arbitrarily invent a reason for suspicion allowing a search and seizure at will, with high stakes incentive to do so.

It's high time civil asset forfeiture was on the public's radar.

Photo by Steve Wilson

Richland, Mississippi's new $4.1 million police station

funded entirely through civil asset forfeiture