Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps

from the cops-are-upstanding-individuals-who-play-by-the-rules dept

Asset forfeiture is just cops going shopping for things they want. The analogy -- one prompted by statements made by Sean McMurty, the head of a county forfeiture unit in New Jersey -- works on multiple levels. McMurtry encouraged cops to seize stuff they wanted or needed.

Mr. McMurtry made it clear that forfeitures were highly contingent on the needs of law enforcement. In New Jersey, the police and prosecutors are allowed to use cars, cash and other seized goods; the rest must be sold at auction. Cellphones and jewelry, Mr. McMurtry said, are not worth the bother. Flat screen televisions, however, “are very popular with the police departments,” he said…

Mr. McMurtry said his handling of a case is sometimes determined by department wish lists. “If you want the car, and you really want to put it in your fleet, let me know — I’ll fight for it,” Mr. McMurtry said, addressing law enforcement officials on the video. “If you don’t let me know that, I’ll try and resolve it real quick through a settlement and get cash for the car, get the tow fee paid off, get some money for it.”

That's direct shopping, utilizing law enforcement's version of the five-finger discount. Take what you think you can use. Convert the rest to cash.

With cash in hand, cops can once again go shopping (albeit without the discount) for things they want. Even better, they can hide this shopping from the public and their oversight, stocking their cupboards with surveillance tech they don't want the public to know about and make purchases that would never be approved by those holding the rest of their purse strings.

We've seen this happen (obviously months or years after the fact thanks to the secretive source of funds) in some of the largest police departments in the country. Both the Chicago and New York City police departments have used secret funds to buy surveillance tech. In Chicago's case, the secret slush fund was powered by forfeitures. In New York, it was a fund the city gave explicit permission to the NYPD to spend as it wanted.

Now it's the Boston Police Department being caught… well, not in the act, but, I guess, after the fact(?), thanks to local journalists.

[I]n 2019 the Boston Police Department bought the device known as a cell site simulator — and tapped a hidden pot of money that kept the purchase out of the public eye.

A WBUR investigation with ProPublica found elected officials and the public were largely kept in the dark when Boston police spent $627,000 on this equipment by dipping into money seized in connection with alleged crimes.

There are plenty of funds to work with. Law enforcement agencies and prosecutors in the state directly profit from forfeitures, encouraging cops to perform more seizures and district attorneys to initiate as many proceedings as possible. What's supposed to be draining organized criminal enterprises of much needed cash is instead a slush fund for both entities. District attorneys get to buy what they want and cops get to do their own, off-the-books shopping to obtain controversial tech.

According to the documents obtained by WBUR and ProPublica, the only interaction the city had with this Stingray purchase was confirming there was enough in the forfeiture fund to buy it. When reached for comment, Boston city reps had no idea the Boston PD had bought itself a cell site simulator.

The Boston PD obviously knows it made this purchase but it isn't talking. No comment from the BPD spokesperson. No comment from any PD official.

And this sort of secrecy will remain normal, at least for the immediate future. There is no mandated reporting on spending of forfeiture funds and nothing forcing the Boston PD to run all purchases past its city oversight, no matter what funds it's spending. A proposed ordinance would change that, requiring explicit permission from the city to purchase surveillance gear but it's not law yet.

But a better solution would be to end the practice of civil asset forfeiture, which allows law enforcement to take money from alleged criminals but without having to actually prove the person formerly in possession of the money was actually engaged in criminal activity. An acceptable stopgap would be to take the seized money out of law enforcement's hands, as state rep Jay Livingstone suggests, and reroute it to a state general fund less likely to be abused or the source of secret purchases.

For now, law enforcement agencies are still free to spend off-the-books forfeiture funds on whatever they want. Until that incentive goes away, forfeiture programs will be still be heavily abused.

Filed Under: asset forfeiture, boston, boston police, civil asset forfeiture, surveillance, transparency

Dallas PD Brags About Stealing Money From A Woman At An Airport, Is Now Facing Scrutiny From Its Oversight Board

from the might-need-that-cash-to-treat-all-those-bullet-wounds-in-your-feet dept

In a spectacular bit of self-ownership, the Dallas Police Department (DPD) took to Facebook to brag about stealing money from a person at Love Field Airport.

If you can't read the text or see the picture, it's a photograph of a Dallas PD drug dog standing next to several piles of money. The caption, written by the DPD, says:

We need to get him some treats! K9 Officer Ballentine does it again! On 12/2/21, the Lovefield Interdiction Squad seized over $100,000 with the help of Ballentine. Good job Ballentine!

The post made no mention of what criminal activity was suspected nor why the person was approached and had her money taken from her. Here's how Dallas' CBS affiliate first covered the news:

High praise for a K-9 officer at Dallas Love Field Airport after more than $100,000 was found in a passenger’s luggage.

On December 2 the canine — named ‘Ballentine’ — alerted on an individual checked suitcase. It turns out the bag, that belonged to 25-year-old woman from Chicago who was on a layover at the airport, contained blankets and two large bubble envelopes filled with $106,829 in cash.

A drug dog alerting on cash means nothing. A large percentage of cash in circulation contains trace amounts of illegal substances. The dog was the excuse for taking the cash. The fawning coverage by CBS DFW at least took the time to mention that the woman had not been arrested and that the Dallas PD was pursuing civil asset forfeiture.

Fortunately, the coverage didn't end there. The CBS affiliate asked for more details from the PD. It also sought comment from critics of asset forfeiture, like Dan Alban of the Institute for Justice.

Perhaps the best part of the follow-up coverage -- beyond having most of its runtime given over to critics of civil forfeiture -- is the bold misstatement of the law by the law enforcement agency involved.

A DPD spokesperson also alleged that travelers are not allowed to board a plane with more than $10,000 of cash without declaring it, even on domestic flights.

This simply isn't true. Cash only needs to be declared if it's exiting or entering the country. That's part of customs work. It has nothing to do with the "drug interdiction" these cops were performing. And, obviously, the officers found no drugs so nothing appears to have been interdicted. Instead, the cops walked away with a domestic traveler's money, all because their trained 4-legged stooge did the thing when it detected the odor of drugs on an item often tainted with trace amounts of drugs.

Even better, the follow-up contains a ridiculous statement from another law enforcement officer:

Jody Barr, also with WJZY, asked TSA spokesperson Mark Howell about asset forfeiture, pointing out that TSA rules do not prohibit traveling with large amounts of cash.

“It says here, TSA rule 100.4, is traveling with large amounts of currency is not illegal,” Barr told Howell.

“Yeah, it’s not, it’s not. And that’s why I said it’s allowed. But again, when it’s in the screening checkpoint, again, like I said, if there is a large amount of cash, or if the way that it’s packaged, it looks strange, then we’re going to contact law enforcement,” Howell responded.

That's an admission by the TSA that it looks for cash -- something that's not illegal or dangerous. It should be keeping an eye out for contraband and terrorists. But that part of the job is something it doesn't do particularly well. However, it does seem to be able to locate cash for cops or federal officers to take -- something that doesn't do anything to improve the security of transportation.

The DPD also offered another comment, one that said little more than its drug interdiction team hangs out at the airport with Ballantine and goes sniffing around until they find something. Cash is always a welcome discovery, since it can be taken without all the hassle of determining criminal charges or actually engaging in an investigation.

There's a bit more to add to this story. The local oversight board wants the PD to explain why it took this person's cash.

“What I want to know are what are the rules? And did this woman break them? And it’s not clear to me that she did,” said Brandon Friedman, who sits on the city’s Community Police Oversight Board.

At its meeting Tuesday night, he expressed alarm at the lack of explanation from Dallas Police.

“I understand that they’re sensitive, confidential topics that may be part of an investigation that they can’t divulge to the public. But, somebody with oversight responsibility needs to be told,” said Friedman.

The DPD is supposed to send someone to attend next month's meeting of the oversight board and answer questions about this seizure. And lawmakers in the state have offered their criticism of the DPD's actions, meaning it is now facing more scrutiny than usual. Whether or not this will result in any changes to DPD procedures remains to be seen. But one thing is certain to be altered. We can pretty much guarantee this will be the last time the PD brags about taking money from people on social media. Future seizures will go unreported, at least by the Dallas PD, which means it will be a bit more difficult to determine how often it utilizes civil asset forfeiture to take property from people on domestic flights.

Filed Under: civil asset forfeiture, dallas police, legalized theft

DEA Gives Former Marine Back $86,900 Cops Took From Him During A Nevada Traffic Stop Caught On Body Cam

from the one-of-America's-longest-running-scams dept

Because law enforcement just can't stop taking money from innocent people, here's another roadside shitshow that has resulted in an attempt to force the government to give back money it flat out stole.

This one has a couple of twists. First, it involves body cameras, so the whole depressing farce can actually be watched as it unfolds. The second twist is the federal government, which arrived (via cell phone) to pitch in with the theft.

This is what happened to Stephen Lara, 16-year military veteran and innocent person, as he traveled through Nevada on his way to visit his daughters in California.

On his drive from Texas to California, a Nevada Highway Patrol officer engineered a reason to pull him over, saying that he passed too closely to a tanker truck. The officer who pulled Stephen over complimented his driving but nevertheless prolonged the stop and asked a series of questions about Stephen’s life and travels. Stephen told the officer that his life savings was in the trunk. Another group of officers arrived, and Stephen gave them permission to search his car. They found a backpack with Stephen’s money, just where he said it would be, along with receipts showing all his bank withdrawals. After a debate amongst the officers, which was recorded on body camera footage, they decided to seize his life savings.

That's the short version. That's also the sanitized version. The longer, more excruciating depiction of these events can be seen here:

His motion [PDF] for the return of the $86,900 the NHP took from him goes into greater detail, including the fact that the officers left him stranded on the road without even enough money to finish his trip to California.

It explains the origin of the cash:

Lara made the trip with the $86,900 in cash that is the subject of this motion—his life savings, which he was holding in the hopes of purchasing a house for his daughters. Lara has kept his savings in cash for as long as he can remember, although all his income goes through banks before he withdraws it. Lara took his savings with him on the trip because there had been several property crimes in his parents’ neighborhood, and his parents planned to be out of town for a portion of the time Lara was away; thus, he did not feel comfortable leaving that much money behind.

The huge stack of receipts -- which can be seen on the officer's body cam footage -- also explains the origin of the cash, all of which was traceable directly to Lara's bank accounts and from those accounts to the sources of income.

The traffic stop was obviously pretextual. The officer who pulled him over didn't even bother following up on the alleged violation (following too closely) and went directly into asking a bunch of questions about drugs, contraband, cash, etc. Lara was upfront about the cash. He even gave the officer permission to search the vehicle.

When the trooper saw the cash, he called in another officer to help him seize it. And that officer brought a dog, which made everything ok.

Then, a sergeant from NHP arrived. He had Lara’s money placed in a nearby field and instructed the officer who pulled Lara over to have his dog search for it. The dog found the money and purportedly alerted to the presence of drugs. The sergeant then ordered that the money be seized. At Lara’s urging, the officers inspected his ATM receipts and even took pictures. The money, bundled together using his daughter’s hair ties, was placed in an evidence bag. Although no DEA agent was present, Lara was given a receipt telling him to contact a DEA agent. Lara was then told he was free to go.

The drug dog was the permission slip -- the thing that told the officers they could ignore all the documentation bundled with the cash. Of course it would alert on cash. Almost all cash in circulation has drug residue on it. And it's not like this fact isn't well known.

The other permission slip was the DEA agent. Although the agent was never on the scene, he was on the phone with the trooper (these conversations can be heard in the body cam recordings). The NHP trooper sought a federal adoption of the seizure via the DEA, making it easier to avoid state limitations or restrictions on cash seizures.

The money was taken from Lara on February 19, 2021. Calls to DEA were unfruitful but finally forced the agency to issue a notice of seizure on April 5, 2021. As the Institute for Justice (which is representing Lara) pointed out, this delay violated federal civil asset forfeiture law. The DEA had 90 days to either give the money back or proceed with the forfeiture. It chose to do neither.

But even if the DEA had done what it was supposed to, this would still be bullshit. There was likely no legal basis for the stop. There was no reason for the extended questioning. And there was definitely no reason -- given the complete lack of suspicion expressed by any officer involved that Lara was involved in anything illegal -- for the NHP and DEA to walk off with Lara's money.

The good news is public pressure works. The Institute for Justice has been instrumental in forcing the DEA to hand back money it has stolen from innocent people. The problem is, of course, that not every case gets this sort of effective representation. And in many cases, the amount is big enough to matter to the people it's taken from, but not big enough to justify spending the amount of money needed to force the government to return ill-gotten gains.

In this case, it worked. Shortly before Lara's story went national, the DEA agreed to return his money to him. Along with the IJ, Lara is suing to have the Nevada's forfeiture laws found unconstitutional. But beyond the return of the money, securing a copy of footage of the stop is a crucial win. It shows exactly how these stops unfold and the machinations of law enforcement officers to take cash from people they allege are criminals, but who are apparently not criminal enough to charge with any crimes.

Filed Under: body camera, civil asset forfeiture, dea, legalized theft, nevada, nevada highway patrol, police, stealing money, stephen lara

Baltimore Police Department Sued For Seizing Phones, Cash, And Jewelry From Crime Victims Recovering From Shootings

from the adding-insulting-of-rights-to-shooting-injuries dept

It's not enough that law enforcement can seize property if it pretends it must be linked to some criminal endeavor, even if the cops can't be bothered to actually find any direct evidence of said criminal endeavor… or even bring charges against forfeiture victims. It's not enough that almost anything can be seized when accompanied by criminal charges, which can lead to officers stripmining someone's residence while serving warrants.

When alleged criminals are difficult to find, sometimes the cops just take stuff from crime victims. Multiple people are suing the Baltimore Police Department for grabbing all sorts of property from shooting victims while they were hospitalized and recovering from their injuries.

It would seem these seizures would be illegal, but the Baltimore PD pretends it's all about rounding up evidence -- even when said "evidence" has nothing to do with the crime being investigated.

On an unusually warm spring evening in the early days of Covid-19, Amber Spencer turned out to celebrate her boyfriend’s birthday at a front stoop cookout in East Baltimore.

Suddenly, bullets flew, hitting her in the chest. When she turned to run, a bullet struck the back of her head and lodged itself in her skull. Then Spencer lost consciousness.

“When I came to, I had been shot in the head. I asked, ‘Where’s my phone?’ and my mom said, ‘The police took it,’” she said.

And once this property is gone, it's gone. The BPD has no interest in giving up what it's taken, even if the crime is no longer being investigated.

To date, none of the plaintiffs or their loved ones have been able to get their property back even though none of the four is accused of a crime.

It's not just phones. It's whatever crime victims happened to have on them when they were assaulted by actual criminals. This is from the lawsuit [PDF] seeking to have these seizures found unconstitutional.

Plaintiff Damon Gray is a 23-year-old Black man who resides in the City of Baltimore, Maryland. On June 29, 2019, a stranger shot Mr. Gray approximately seven times in the back, neck, and chest while Mr. Gray was walking in and around Catherine Street in the southwest area of Baltimore. Mr. Gray was transported by ambulance to the hospital where BPD officers seized without consent his cell phone, a bracelet, a necklace, and several articles of clothing. These items remain in BPD custody.

While it's possible the clothing might have some evidentiary relevance in terms of recreating the crime and performing ballistic examinations, it's difficult to see how a phone adds anything to the evidentiary mix, much less the victim's jewelry.

This isn't an aberration.

Plaintiff Amber Spencer is a 27-year-old Black woman who resides in the County of Baltimore, Maryland. Just before midnight on March 20, 2020, a stranger shot Ms. Spencer in the head and chest while she was attending a cookout near 1800 North Chapel Street in Baltimore, Maryland. After the shooting, Ms. Spencer was transported by ambulance to Johns Hopkins Hospital, where BPD officers seized her personal property without her consent, including her cell phone, jeans, shirt, shoes, car key, and approximately $400 in U.S. currency. These items remain in BPD custody.

The same questions are raised here, but with the addition of shoes (the victim was shot in the chest and head), car keys, yet another phone, and $400 in cash that cannot possibly have anything to do with the criminal act being investigated.

Plaintiff Faye Cottman is a 36-year-old Black woman who resides in the City of Baltimore, Maryland. On March 14, 2019, a woman that Ms. Cottman did not know shot Ms. Cottman and her then-11-year-old son in the head while he was playing with his brother at a playground in the Cherry Hill area of Baltimore, Maryland. BPD officers arrived at the scene and seized Ms. Cottman’s personal property without consent, including her jacket, cell phone, wig, and shoes. Despite numerous unsuccessful attempts to reclaim her personal property from BPD, these items remain in BPD custody.

Once again, this appears to be BPD officers taking all of a hospitalized person's belongings and then refusing to return them.

One more time:

Plaintiff Audrey Carter is a 58-year-old Black woman who resides in the City of Baltimore, Maryland. On June 9, 2018, her son, Dwayne D. Cheeks, was shot and killed in the 2200 Block of Germania Avenue in Baltimore City. BPD officers seized, inventoried, and logged in the Evidence Control Unit (“ECU”) all of Mr. Cheeks’s effects, including his driver’s license, cell phone, a lottery ticket, keys, and cash.

In this case, the victim's mother was able to talk the BPD into giving her back her son's cash. That happened in December 2019, a year-and-a-half after officers took control of it. The BPD refused to give back anything else officers took. Worse, the department claimed the rest of "evidence" officers had seized had been destroyed.

Not only did officers take property, but they took advantage of unconscious shooting victims in other ways. Faye Cottman's phone was warrantlessly searched by officers while she recovered from surgery. The officers claimed the phone was "evidence," remarked that they were able to search "pretty far back" in her messages to see if she had had any communications with the shooting suspect, and then refused to give the phone back despite closing the investigation in September 2019.

In some cases, victims were not given inventory lists of the property seized or any receipt showing the BDP had taken their property, making it extremely difficult to talk the department into giving them back their stuff. In other cases, officers and detectives stonewalled requests, citing COVID policies or ongoing investigations. Even when investigations concluded, the BPD made no effort to return seized property. And, in the case described above, the BPD destroyed property officers knew was being sought by its previous owners, in direct contravention of their own evidence policies.

The justifications for these seizures don't work. And if the BPD expects crime victims to believe officers are operating in good faith, it would ensure property is returned as soon as an investigation concludes. It would also seek consent from fully cognizant crime victims, rather than stripping them of their belongings while they undergo surgery or recover from their wounds. And if they really need to see the contents of someone's phone, they need to obtain warrants supported by probable cause, rather than taking advantage of situations where crime victims can't actually provide consent to engage in warrantless searches.

Filed Under: baltimore, baltimore pd, civil asset forfeiture, evidence, police, theft

DEA Racks Up Two Forfeiture Losses In One Week, Returns $100,000 In Stolen Cash To Victims

from the real-loser-here-is-still-US-citizens-and-their-tax-dollars dept

In the past week, the federal government has twice(!) been forced to return money it stole from travelers just because it could. In both cases, American citizens were trying to board domestic flights at US airports. And in both cases, despite it not being illegal to carry large amounts of cash on domestic flights, the government decided the cash had to have been illegally obtained, and moved forward with forfeiture proceedings.

The first case involves 58-year-old Kermit Warren, a New Orleans native who was accosted by federal agents at the Columbus, Ohio airport. Warren had $30,000 on him which he had planned to use to buy a tow truck for his scrap metal business. Unfortunately, the sale fell through, forcing him to purchase a one-way flight back home.

Warren's cash caught the eye of a TSA screener. Screeners are supposed to look for threats to transportation security (that's right in the agency name) and/or contraband. US currency is not contraband but it is definitely on the TSA's radar, thanks to the DEA's purported "anti-drug" efforts. The DEA actually pays screeners to search for cash. Screeners have responded by locating cash far more frequently than explosives or contraband.

The TSA alerted the DEA. Agents showed up and questioned Warren. They didn't like his answers -- some of which were untruthful (he falsely claimed to be a retired cop). But it really wouldn't have mattered what Warren's answers were. The DEA wanted the cash and even sworn affidavits from multiple family members and business associates wouldn't have changed what happened next.

The DEA brought in a drug dog as a seizure permission slip. The dog (completely unsurprisingly) "alerted" on the money, having "detected" the odor of drugs. Almost all cash in circulation has drug residue on it. That should not be considered probable cause, much less reasonable suspicion. Despite making vague allegations Warren was involved in the illicit drug trade, the DEA let him go. But it kept the money.

Warren fought back, a move the government clearly didn't anticipate. It lost spectacularly.

[P]rosecutors eventually backed down after Warren’s lawyers presented them with several pieces of exonerating evidence, including text messages with the owner of the truck and financial documents showing his income over the years.

In addition to returning all of the seized money – $28,180 – prosecutors agreed to dismiss the case against him with prejudice, meaning they cannot go after the money at a later date.

However, it wasn't a total loss for the government. It managed to deter any future losses from this case by getting Warren to agree not to sue agents for violating his rights.

As part of the deal, Warren agreed not to pursue legal action against the government.

And, even though the government agreed to return his money, it still hasn't. Apparently it needs a few more weeks to find the money it took from him. On top of that, the government has no apology for stealing a citizen's cash and then sticking him with the burden of proof. All the government needs is an unproven allegation to take cash, which is completely the opposite of the way the judicial system is supposed to work.

The second case involves the same elements: a US airport, a domestic flight, some cash, the TSA, the DEA, unsubstantiated claims about drug dealing, and the theft of tens of thousands of dollars from an innocent citizen.

On January 7, 2020, [New York filmmaker Keddins Etienne] was flying from John F. Kennedy International Airport to California, where he planned to work on two projects: a documentary about the impact of forest fires on cannabis producers in Mendocino County and a remake of Takeshi Kitano's 2000 film Brother, about a Japanese gangster who flees to Los Angeles after his boss is killed in a battle with another Yakuza clan. Etienne had lined up interviews for the documentary, and he had about $69,000, mostly in hundreds and fifties, to hire crew members, rent equipment, and cover other expenses.

Because his work would take him to some "shady places," Etienne says, he stashed the money inside an old, broken Xbox that he put in his carry-on bag. "I didn't want anyone to suspect that I had any type of cash on me," he says. "I was hiding the money from the usual suspects, so to speak." Instead, the money was snatched by a DEA agent, Antonio LoGrande, who arrived at the Transportation Security Administration (TSA) checkpoint where Etienne was screened after Etienne told a TSA officer what was inside the Xbox.

Agent LoGrande then made some coy remarks ("You know what this looks like, right?") and then sent Etienne packing, albeit without the cash he had packed.

Etienne fought back. He secured the representation of longtime TSA critic/current lawyer Jon Corbett, who started the process of recovering the stolen money. The government fought back as well, digging through Etienne's bank accounts, apparently in hopes of finding transactions to hang a "structuring" charge on, since it was unable to find anything linking the seized cash to illegal sources.

The DEA also offered to give Etienne some of his money back if he would just walk away from the forfeiture after the feds took their 10% skim ($6,852) off the top. Etienne and Corbett rejected this offer, maintaining their original assertion that the government was entirely in the wrong. Shortly before the deadline to move forward with its forfeiture, the government decided to return all of Etienne's money to him -- eight months after it helped itself to his cash at an airport checkpoint.

Unlike the Warren case, the government wasn't able to talk Etienne into not suing the government over this bullshit forfeiture. The government tried to escape from that, too, but -- for once -- the attempt to dodge a civil rights lawsuit failed. DEA Agent LoGrande argued he should be immunized from the suit by qualified immunity, but federal judge Frederic Block wasn't willing to entertain the government's specious rationalizing.

According to Corbett, Block "made it clear that he did not like the government's position at all" and "basically told the government that they really want to consider settling." Through mediation, the government agreed in August to pay Etienne an additional $15,000, a bit more than the $13,749 in "legal fees and costs" that the lawsuit said he "spent defending against the abusive process instituted against him."

With two failures in one week, you'd hope the government might be slightly deterred from seizing people's cash just because they tried to board a plane while carrying it. But it's likely this will have no effect at all. First off, the government is taking money that belongs to citizens and, at best, occasionally returning the same amount it seized. The percentage of cases that end with the government shelling out for legal fees is probably less than a rounding error. And even when the government is forced to pay for screwing over US citizens, it's US citizens who end up picking up the tab.

At no point is the government playing with its own money, so without intercession from Congress or court precedent finding forfeitures completely unmoored from criminal charges unconstitutional, the TSA and DEA will engage in business as usual. And that "business" does nothing to make travelers more secure or curtail the buying and selling of illicit drugs.

Filed Under: asset forfeiture, cash, civil asset forfeiture, dea, jon corbett, keddins etienne, kermit warren, legalized theft, tsa

Institute For Justice Survey Shows How Philadelphia's Forfeiture Program Preyed On Poor Minorities

from the I-guess-the-gov't-feels-minorities-just-haven't-been-oppressed-enough dept

The Institute for Justice managed to kill off most of Philadelphia's severely abused civil forfeiture program in 2018. Litigation resulted in a consent decree that banned law enforcement from seizing cash amounts less than $250 and seizures of less than $1,000 were forbidden unless accompanied by criminal charges or if the seizure was to be used as evidence in a trial.

This consent decree was necessary because the Philly PD had abused the system for years, taking minute amounts of cash off anyone they arrested as part of a catch-and-release program where alleged criminals were free to go but the PD held onto the cash. Officers were also caught buying seized houses at auction, flipping them to turn a profit, and incentivizing even more bogus property seizures.

Of course, the PD took the "evidence" loophole and ran with it, seizing vehicles as supposedly instrumental to prosecutions that never happened before auctioning them off and pocketing the money.

The Institute for Justice has doubled back on the impetus of its lawsuit against the city of Philadelphia, surveying victims of forfeiture programs and coming up with plenty of reasons why residents should be thrilled these programs are now (mostly) dead.

Its report [PDF] on Philly forfeiture surveyed 407 residents, resulting in data that shows the PD targeted minorities frequently and poor minorities most frequently of all.

The demographic characteristics of Philadelphia forfeiture victims look quite different from those of Philadelphians overall. Figure 1 disaggregates the racial and ethnic makeup of the sample, showing the large majority of respondents were Black. Indeed, as Figure 2 shows, Philadelphia forfeiture victims are more likely to be Black than the general population. They are also more likely to earn lower incomes and be unemployed and less likely to have a college degree or own their homes. These results suggest Philadelphia’s civil forfeiture machine disproportionately entangled members of disadvantaged communities.

This is partly a result of biased policing efforts, which continues to be a problem for law enforcement everywhere, not just in Philadelphia. But targeting low income residents also ensured the Philly PD would be more likely to retain ownership of seized property. Residents making less than $50,000 a year had lower amounts taken from them and often lacked the funds to seek their property's return. With legal fees approaching $3,500 for a successful return effort, most chose to simply walk away from the forfeited property, rather than spend time and money they didn't have fighting against a system designed to deter them from retrieving seized property.

When it comes to forfeiture in Philadelphia, no job is too small:

Police seized as little as $25 in cash, a cologne gift set worth $20 and crutches.

As the report points out, the median value for seized property was just $600. More than 50% of seizures were amounts less than $600. Nearly 70% were for less than $2,000. Less than one-quarter were for more than $3,000 -- an amount that might turn a legal battle for the return of property into a breakeven effort.

But even the initial step in recovering property was often bypassed by the city. You can't try to reclaim property if there's no record of the police taking it from you -- something police officers appear to have used to their advantage.

More than half of respondents—58%—never received a receipt for their property at the time of seizure, and two thirds did not receive any information from police about how to begin the process of getting their property back. A simple receipt may not sound like much in the grand scheme of the complex civil forfeiture process, but people who received a receipt at the time of seizure were eight times more likely to get their property back than those who did not.

As for the argument that confiscating cologne sets and crutches is essential to fighting crime, the stats don't back that up. In most cases, forfeitures were completely removed from criminal convictions or even criminal charges.

Of those respondents who ultimately lost their property to forfeiture, more than half (56%) were never charged with a crime, and three-quarters were never found guilty of any wrongdoing—that is, they were not convicted of a crime, nor did they enter into any sort of plea deal with the court.

As we've covered extensively at Techdirt, abusive forfeiture programs aren't unique to Philadelphia. They're everywhere. It's only in recent years that legislators have decided to do something about abuses entities like the Institute of Justice have highlighted, reported on, and sued about for years. Things are changing for the better in many places, but more work still needs to be done to push cops back to earning their money honestly, rather than just taking stuff because they can.

Filed Under: asset forfeiture, bigotry, civil asset forfeiture, legalized theft, philadelphia, poverty, racism
Companies: institute for justice

Appeals Court Says Couple's Lawsuit Over Bogus Vehicle Forfeiture Can Continue

from the you-brought-this-on-yourself,-so-called-'forfeiture-attorney' dept

Another attempted government theft has been thwarted by the courts. The Ninth Circuit Appeals Court has ruled in favor of a couple whose vehicle was carjacked by Arizona law enforcement officers while their son used it for an extended road trip.

Here's AZ Central's summary of the events leading to the lawsuit the Ninth has revived:

Terry and Ria Platt had loaned their 2012 Volkswagen Jetta to their son in the spring of 2016 for him to use on a vacation. Their son was driving from the East Coast back to Washington on Interstate 40 when an Arizona Department of Public Safety trooper stopped him in Navajo County for having tinted windows.

Members of the Navajo County Drug Task Force had a K-9 unit search his car and found a small amount of marijuana for personal use and over $31,000 in cash, according to court documents. Law enforcement seized the vehicle and money on suspicion they were being used or planned to be used for illegal purposes. But none of them were ever charged with a crime.

This is pretty much the standard origin story for forfeitures: cops stop car, find some reason to search it, and walk off with whatever cash they can find. In this case, they decided to take the car, too.

But there are few additional wrinkles here, which show just how much the incentives of forfeiture have perverted the process. The Appeals Court decision [PDF] notes the car's owners tried to challenge the forfeiture using the processes made available by the state, but that was brushed aside by the entity directly profiting from the seizure.

After receiving [a forfeiture] notice, persons with an interest in property subject to forfeiture proceedings face a choice between two avenues for protecting their property rights. They may “file either a claim with the court . . . or a petition for remission or mitigation of forfeiture with the attorney for the state” within thirty days of the notice, “but may not file both.” If a property owner does not pursue either option, then the state’s attorney may proceed in court with “uncontested forfeiture.” In uncontested forfeiture proceedings, the state need only establish probable cause to believe that the property is subject to forfeiture; it need not prove the factual basis for forfeiture by clear and convincing evidence, as required for contested forfeiture proceedings.

The Platts chose the first option: filing a petition for remission or mitigation. This is supposed to be followed by the government conducting an investigation of the forfeiture (to obtain more proof that the seized property is tied to illegal activity) and issuing a written declaration, which then starts the clock (30 days) on the filing of a counterclaim by the property's owners.

That didn't happen here. The county's "asset forfeiture attorney," Jason Moore, read the Platt's petition and basically said it never existed.

Here, the Platts allege, no written declaration of forfeiture issued. Instead, Moore unilaterally determined that the petition was defective. Without notifying the Platts of any defect or affording an opportunity to correct it, he proceeded as though the forfeiture were uncontested, representing to the Superior Court in his application for forfeiture that “no timely claim or Petition for Remission has been filed.”

It wasn't until the Platts responded to this obvious bullshit with a claim of property in an Arizona court that the forfeiture attorney finally said what was wrong with the petition he had ignored -- a statement prompted by this new threat to his "uncontested" forfeiture.

[The] Platts proposed to construe Moore’s purported application for forfeiture as the written declaration of forfeiture that should have been issued in response to their petition, which would have afforded them thirty days within which to file a claim against the property. Moore promptly moved to strike that claim, asserting for the first time that the Platts’ petition for remission or mitigation was defective because, although it had been signed, it did not state that it had been “signed under penalty of perjury.”

Sick of all of this (and now represented by the Institute of Justice [working pro bono]), the Platts sued the state, county, and the attorney. They sought a declaration the state's uncontested forfeiture program violates due process rights. They also alleged Jason Moore himself had violated their rights with his attempted forfeiture.

Most of those claims did not survive the district court's review of the case. But the "forfeiture attorney" is still potentially on the hook for his actions, which included returning the vehicle to the Platts five months after it was impounded and, more damningly, two weeks after he was sued. So is the state, which will have to continue to defend its forfeiture program, which obviously can be very easily abused.

The court says the program in Arizona has some serious problems. Specifically, it allows this exact chain of events to occur.

This obvious vulnerability in Arizona’s forfeiture regime to a procedural due process challenge cannot be mitigated by interpretative sleight-of-hand. Even if we were to interpret Arizona’s command that those who choose to file a petition “may not file” a claim until a declaration of forfeiture has issued as limited to those who file valid petitions, see A.R.S. § 13-4309(2), it would remain the case that a state’s attorney could unilaterally deem a petition invalid without alerting the petitioner.

The claim against the law is revived. So is the "biased adjudicator" claim against the government's attorney, since he was directly involved in attempting to short-circuit an already deficient process to gain ownership of the seized vehicle -- something his office would directly benefit from.

The district court’s assessment that Moore’s conduct did not delay the return of the Platts’ car likewise does not affect our standing analysis. The district court concluded that the Platts “filed their claim more than a month before the September 20, 2016 deadline that would have applied for Moore to mail a declaration of forfeiture, and before the deadline that would have applied for them to file a claim in response to a declaration of forfeiture.”

First, the district court’s analysis ignores the potential that an unbiased adjudicator would have assessed the merits of the Platts’ petition and issued a declaration of remission, not a declaration of forfeiture, by September 20 (as Moore’s ultimate decision to return the car and abandon the forfeiture suggests is likely). Second, this analysis assumes that the Platts secured procedural due process upon the filing of their claim, not upon the return of their car. The filing of the claim could only provide due process if Moore’s motion to strike would have failed. As we have explained, that is at best unlikely, and cannot preclude the Platts’ standing to challenge the statute.

We accordingly reverse the dismissal of the Platts’ (state law) biased adjudicator claims.

The lawsuit moves forward. Hopefully, it will result in a decision that forces the state to rewrite its forfeiture rules to, at the very least, respect due process rights. And there's always a chance a rewrite might address the perverse incentives that encourage the behavior seen here.

Filed Under: 9th circuit, arizona, asset forfeiture, civil asset forfeiture, ria platt, terry platt

DEA Returns $87,000 It Helped Nevada Law Enforcement Steal From An Ex-Marine

from the 'everything-checks-out,'-they-said-while-they-helped-themselves-to-his-m dept

Another bullshit forfeiture has attracted national press attention. This one has some added bonuses, like local cops stating on (body cam) that the easiest way to get their hands on the seized money would be to ask the feds to come in.

It's the usual stuff: a pretextual stop, a bunch of questions unrelated to the alleged violation, and the theft of a person's money based on nothing more than an officer's speculation about its origin. (alternate link)

The Nevada trooper first told Stephen Lara the highway patrol was educating drivers “about violations they may not realize they’re committing,” and that he’d been pulled over for following a tanker truck too closely. Eventually the trooper admitted having an ulterior purpose: stopping the smuggling of illegal drugs, weapons and currency as they crossed the state.

Lara — a former Marine who says he was on his way to visit his daughters in Northern California — insisted he was doing none of those things, though he readily admitted he had “a lot” of cash in his car. As he stood on the side of the road, police searched the vehicle, pulling nearly $87,000 in a zip-top bag from Lara’s trunk and insisting a drug-sniffing dog had detected something on the cash.

The drug-sniffing dog was wrong, apparently. Or even if it was right, it was detecting something present on almost all cash in circulation: drug residue. No actual drugs were found in Lara's car.

What was found was $87,000 in cash, but $87,000 supported by a stack of receipts from ATMs, showing Lara had pulled this cash from his own accounts. That lined up with Lara's story, which the Highway Patrol didn't even find unbelievable. It also lines up with comments from someone unlikely to burnish the reputation of someone who is (allegedly) $18,000 behind on child support payments. Matt Zapotosky of the Washington Post tracked down Lara's ex-wife, Kimberly Olson, who confirmed his predilection for having lots of cash on hand.

Olsen said she thought Lara might have kept his money out of the bank in part so he would not have to turn it over in child support. But she noted that even when they were married years ago, Lara “just liked to have his cash” and made frequent withdrawals.

She said Lara did not seem to spend an inordinately high amount but liked to “show off” the cash itself, and spend it on his kids. She said she did not think he was a drug trafficker.

Of course, the trooper who pulled Lara over had none of this information. But he did have a stack of ATM receipts that appeared to indicate the source of the funds. Ultimately, none of that mattered. The Highway Patrol wanted the money, so they found a way to get it. Despite one trooper stating he thought Lara was legit, the law enforcement agency sought outside help to make it easier to retain at least a portion of the $87,000.

Video of the stop, recorded on multiple body cameras, shows a trooper and Lara having a genial conversation, with Lara agreeing to be searched. The troopers pull the cash from his trunk and remark that the bills seem to be new. Lara points them to the receipts, which he says prove the money is his.

“As odd as it is, everything lines up,” a trooper says at one point.

In the video, Lara tells the troopers he does not trust banks. At one point, a sergeant on the scene calls someone — apparently a DEA agent — to confirm the forfeiture process.

“It’s too easy to do an adoption,” the sergeant says.

It is too easy. That's one thing that's been obvious for years. States have belatedly realized a lot of forfeiture amounts to little more than state-ordained armed robbery. But restrictions deployed at state level can almost always be bypassed by asking the feds to step in. And forfeiture adoption policies require the federal government to kick back a certain percentage of the take to the locals who initiated the seizure.

So, that's how things went for Lara. Nevada troopers took his cash, called in the DEA, and the DEA initiated the forfeiture. That happened back in February of this year. Lara challenged the seizure. Then he went public with his accusations. And that appears to be what has triggered a belated change of heart by the DEA, six months after it took control of Lara's money.

It was only after Lara got a lawyer, sued and talked with The Washington Post about his ordeal that the government said it would return his money.

But that's not the end of it for the law enforcement agencies involved in this. Lara may be getting his money back but he's not abandoning his litigation. He's trying to secure a ruling blocking the Nevada Highway Patrol from utilizing the federal adoption option to get a cut of cash it might have trouble securing on its own.

Some of the damage has been undone. But let's not forget the government kept Lara's money for six months for no other reason than it was "too easy to do." That's unacceptable.

Filed Under: asset forfeiture, cash, civil asset forfeiture, legalized theft, nevada, nevada highway patrol, police, pretextual stop, stephen lara

Forfeiture Case Shows Cops Don't Even Need Drug Dogs To Alert To Engage In A Warrantless Search

from the EXTREME-SNIFFING-ACTION! dept

Another magical drug dog case has surfaced, showing yet again why cops like having "probable cause on four legs" on hand to turn stops into searches and searches into seizures. This forfeiture motion [PDF] -- highlighted by Brad Heath -- starts with a stop and quickly devolves into ridiculousness.

A drug investigation involving investigators working with ONSET (Ohio Northeast Smuggling Enforcement Team) culminated in the traffic stop of one of the targets, Emmanuel Trujillo Trujillo. Already suspected of drug trafficking, the stop got a whole lot more interesting for officers once some loose cash was spotted.

Deputy Spires approached the pick-up truck and made contact with the driver, Trujillo Trujillo. While speaking with Trujillo Trujillo, Deputy Spires learned that he did not possess a valid driver’s license.

Deputy Spires observed a large amount of United States currency below Trujillo Trujillo’s feet on the floorboard of the pick-up truck and requested assistance from Franklin County, Ohio Sheriff’s Office Canine Unit Deputy Zach Cooper (“Deputy Cooper”) and his canine partner “Indy” to conduct an open-air sniff of the pick-up truck.

Roughly twenty minutes later, the drug dog arrived. And failed to do what the deputies wanted it to do.

Deputy Cooper arrived at the traffic stop at approximately 6:22 p.m. and approached the pick-up truck with canine Indy. Deputy Cooper noticed that Indy showed an extreme change in behavior when sniffing around the passenger side door and its open window. Indy’s sniffing increased as he stayed and intently sniffed the passenger side door area. As the team moved on, Deputy Cooper noted similar behavior from Indy when he approached the tailgate area of the pick-up truck.

There was no alert from Indy. Just a lot of sniffing. But even the lack of an alert wasn't going to keep these officers from searching Trujillo's vehicle. Since the four-legged cop wouldn't give them permission for a search, the deputies decided to give that permission to each other, with Indy's apparently implicit consent.

Deputy Cooper advised Deputy Spires that Indy did not indicate on a pure odor source, but he believed that Indy’s extreme sniffing behavior indicated that a narcotic odor was present within the pick-up truck.

And with that the search was on. The deputies discovered more cash, receipts for cash transfers, some paperwork from a Chase Manhattan account, and a non-contractor 1099 miscellaneous income form showing $27,815 in compensation to Trujillo. The search did not, however, turn up any drugs, despite the extreme sniffing allegedly demonstrated by the drug dog.

The deputies took $19,104 from Trujillo at this stop. From there, they went to Trujillo's storage unit and took another $32,050. Finally, law enforcement -- using information gleaned from this extreme sniffing -- searched Trujillo's house, where officers found even more cash as well as the drugs the deputies assumed they would find during their initial search of the truck.

And, as if to prove the deputies were right to assume the drug dog had meant to give them explicit permission to search the truck for drugs, there's this additional information in the forfeiture motion.

TFO Taylor changed gloves, obtained the bag containing the United States currency seized from the pick-up truck, and opened it. TFO Taylor took a MX908 test strip and wiped it on the rubber bands holding the currency together. TFO Taylor placed this test strip into the MX908 and received a positive result for the trace presence of cocaine.

So what? I'll bet if TFO Taylor borrowed some cash from someone in the HSI (Homeland Security Investigations) office and tested it, he would very likely have rung up another positive result for the trace presence of cocaine. This is an unlisted "feature" of most US currency. A positive test means nothing more than the bill tested has been in circulation.

This is a stop worth challenging. The deputies admitted they did not see an alert from the drug dog before engaging in a search. That means it's also a seizure worth seizing. And it's yet another data point showing cops love drug dogs because their mere presence at a stop can be converted into probable cause. Even better, these "partners" can't offer up testimony that might undercut assertions made by their handlers. Win-win. Apparently, the drug war needs all the wins it can get, even if certain combatants have to obtain them dishonestly.

Filed Under: asset forfeiture, civil asset forfeiture, drug dogs, emmanuel trujillo trujillo, evidence, legalized theft, ohio, onset

Massachusetts District Attorney Delays Forfeiture Proceedings For Years, Some Involving As Little As $10

from the bringing-down-crime-lords-at-$10-a-pop dept

We all know how lousy civil asset forfeiture is. In lieu of actual criminal charges, cops (and feds) just seize any property they can get their hands on, turning other people's money into pure profit for law enforcement agencies. Money they can often spend with little to no oversight.

It's a profitable venture. Cops steal more than actual crooks do, netting billions a year across the nation. The legal process for forfeiture asks very little from law enforcement -- rarely more than a mild hunch the seized funds are linked to criminal acts. The government has a very low bar to meet in most cases. For the people who've suddenly seen their money taken away, the bar is much higher.

In most cases, the government gets to decide when forfeiture proceedings begin. It also doesn't have to make much of an effort to notify forfeiture victims that proceedings have begun. That leads to a lot of default wins for government agencies. The amount of money it takes to hire a lawyer to challenge a forfeiture is often more costly than the funds seized, leading to even more government "wins." Every cheap win is treated like a victory in the war on crime, even when it's usually nothing more than the government making some random person poorer.

In the state of Massachusetts, one particular District Attorney is ensuring there's no due process when it comes to asset forfeiture. Thanks to severely lax laws, there's no lower limit for seizures, which means the DA's office is more than happy to help cops nickel-and-dime people to figurative death. There's also no legal obligation for the office to move forward with forfeitures in a timely fashion.

This has led to the DA's office waiting for as long as possible to initiate some proceedings. And, since the office takes home a percentage of every successful forfeiture, it does as little as possible to ensure those who've had their money seized are made aware that proceedings are imminent. Saurabah Datar and Shannon Dooling have done some digging to produce this enraging report for ProPublica. (h/t @pakanukeha)

In an investigation with ProPublica, WBUR also found that Worcester County District Attorney Joseph D. Early Jr. regularly stockpiles seized money, including that of people not charged with a crime, for years, and sometimes decades.

In more than 500 instances between 2016 and 2019, WBUR found that funds had been in the custody of the DA’s office for a decade or more before officials had attempted to notify people and give them a chance to get their money back. One case dated back to 1990.

This is an obvious mockery of due process. And it has been the standard operating procedure for the Worcester County DA for more than 20 years. Not that anyone cares. Or could even be allowed to care. Nearly nonexistent reporting requirements means state and county oversight likely have no idea this is how the DA is handling forfeitures. Since there are no better rules on the books, there's nothing compelling DA Early to change how he handles his forfeiture business.

Operating in an accountability vacuum, the DA's office engages in bullshit like this:

Take, for instance, Commonwealth of Massachusetts vs. Twenty Eight Thousand Three Hundred Fifty Six Dollars Fifty Cents ($28,356.50) In United States Currency. At first glance, the sum seems to reflect proceeds from a substantial drug bust. But court documents actually list 109 separate names and seizures — including one as low as $11 — spanning nearly 20 years.

Among the names in this giant batch in 2018 was Jones-Bernier, whose $95 had been taken four years prior. He was listed in an ad the DA’s office ran in the Worcester Telegram & Gazette, as having no known address. Jones-Bernier didn’t know his name had appeared there until he was contacted by WBUR. He said Early’s office could have sent a letter to his home address, which was on his driver’s license at the time of the arrest.

This is how you end up with default "victories" that ensure the DA's office scores some cash while doing nothing to serve the interests of the public. Nothing about this deters criminal activity. The DA's office isn't helping cops put bad people away and disrupt major criminal organizations. This is the work of a government-funded pickpocket.

WBUR’s analysis of Worcester County forfeitures from 2017 through 2019 found that more than half of the seizures in these cases were for less than $500. In one incident, Fitchburg police seized $10 from a man listed as homeless. In another, Sturbridge police took $10 from a 14-year-old boy.

Stealing is the DA's business. And business is good.

His office brought in nearly $4 million in forfeitures in just the latest four years, from fiscal 2017 through 2020, according to analyses by the state’s trial court.

Despite all evidence to the contrary, the DA continues to claim this is a worthwhile venture, rather than the petty theft it appears to be.

Early said he’s proud that his office has spent large sums of confiscated money on youth programs and drug prevention. “I love taking the drug dealers’ money. I love taking their lifeblood and putting it back into the community,” he said.

Taking $10 from a 14-year-old is giving back to the community? Did you at least throw the homeless person's $10 bill into the general fund to support shelters? Is your county more free of drugs since you've thrown your weight behind shaking down citizens for spare change?

All signs point to no. Here's the data: Worcester County is still one of the most dangerous counties in the nation. Lifting loose cash from random residents hasn't improved things at all. If there's any downward trend noticeable here, it's got nothing to do with the supposedly drug warring DA. It has to do with the general trend towards lower crime rates that has been ongoing for years all around the nation. Here's the county's crime rate per 100,000 people, sourced from the FBI's crime data.

And the cops in Worcester are just as lousy as the District Attorney.

Worcester taxpayers have paid more than $4 million since 2010 to settle almost 30 lawsuits against the police department, according to records gathered by the group Defund WPD.

[...]

The payouts across the 27 settlements range from as low as $8,000 up into the millions. There are also more than a dozen lawsuits against Worcester police that haven't been settled yet.

Seems like the $4 million forfeited by the DA's office over the last four years would have covered the PD's lawsuits for an entire decade. Maybe that's where those funds should go. But until legislators in Massachusetts get serious about reforming this obvious abuse of an ideal, government employees like DA Early will continue to treat residents like ATMs.

Filed Under: asset forfeiture, civil asset forfeiture, district attorney, drug war, due process, joseph early, legalized theft, massachusetts