Pennsylvania Says Legal Medical Marijuana Means Cops Can't Just Sniff Their Way Into Warrantless Searches

from the follow-my-snoot-to-granted-suppression-orders! dept

The legalization of marijuana is changing the probable cause equation all over the nation. What used to be an easy bust and/or a great way to engage in warrantless searches is no longer guaranteed. Probable cause on four legs -- police drug dogs -- can't automatically justify further intrusion by police officers. A drug dog trained to detect the odor of now-legal drugs is now more a hindrance than an enabler of warrantless searches.

The other subjective contributor to warrantless searches -- "odor of marijuana" -- is no longer an automatic pass for government intrusion. Both factors -- dogs sniffs and cop sniffs -- are almost impossible to challenge, seeing as they rely solely on the officer's subjective interpretation of animal activity and/or odors in the air. Fortunately, we'll be seeing less and less of this dubious "evidence" in the future as marijuana legalization continues around the country.

The Supreme Court of Pennsylvania is the latest to declare the odor of marijuana to be indicative of nothing, much less justification for warrantless searches. (via FourthAmendment.com)

This case begins like so many others: with a pretextual stop. Two officers -- one still in training -- pulled over a car the troopers had decided to follow for dubious reasons. From the decision [PDF]:

The troopers were on routine patrol in a marked police vehicle on Emaus Avenue in the area of the Liberty Park at Allentown apartment complex in Allentown, Pennsylvania, when, at approximately 12:30 a.m., Trooper Prentice observed a vehicle make a U-turn on Allenbrook Drive and then proceed east on Emaus Avenue. Despite the fact that the troopers did not observe any criminal activity, Trooper Prentice decided to follow the vehicle because no other cars were around, the vehicle appeared to be traveling at a fast rate of speed, and it was past midnight.

The troopers performed a traffic stop after the car supposedly "failed to stop" at a white line in front of a stop sign. Trooper Heimbach (who was training with Trooper Prentice) approached the car and claimed to smell burnt marijuana. Trooper Prentice claimed to smell both forms of marijuana: burnt and raw. Maybe this trooper shouldn't have bothered testifying. Here's the court's footnote:

At the suppression hearing, Trooper Prentice testified that he smelled both burnt and raw marijuana. However, the trial court found incredible his testimony that he smelled raw marijuana.

Both people in the vehicle presented cards showing they were permitted to buy and consume medical marijuana. Both troopers, who no doubt relied on "training and experience" to justify the stop, seizure, and search, were apparently unfamiliar with the details of the state's medical marijuana laws.

Notably, at the time of the stop, Trooper Prentice was aware that green, leafy marijuana was legal for medical purposes, but he was unsure how a patient was permitted to ingest this product for medical purposes. In addition, Trooper Prentice believed that no smell is produced when a patient utilizes a vaping pen to inhale medical marijuana. Trooper Heimbach was unaware that green, leafy marijuana was legal for medical purposes. She too was unsure how medical marijuana was ingested.

The search of the car -- predicated on credible and incredible testimony about marijuana odor(s) -- uncovered "non-prosecutorial amounts" of raw marijuana on the vehicle's floor and a Ziploc bag containing less than a gram of weed. The bigger find was the handgun, found rolled up in a jacket stuck halfway under the driver's seat. This led to the criminal charges that led to this motion to suppress the evidence recovered during this search.

The Supreme Court -- like the trial court -- found that a recent (2019) decision about concealed weapons applied to this case. Residents of the state are allowed to legally carry concealed handguns. Thus, the presence of a concealed weapon does not automatically infer illegality. The same goes for marijuana, which can be legally obtained and consumed by state residents with medical marijuana cards, like the two people pulled over in this case.

We conclude that the MMA [Medical Marijuana Act] makes abundantly clear that marijuana no longer is per se illegal in this Commonwealth. Accordingly, the enactment of the MMA eliminated this main pillar supporting the “plain smell” doctrine as applied to the possession or use of marijuana. Indeed, so long as a patient complies with the dictates of the MMA, that person can legally possess and consume various forms of medical marijuana, including the plant itself. Accordingly, the smell of marijuana alone cannot create probable cause to justify a search under the state and federal constitutions.

At best, the court says, the odor of marijuana can only be a factor in determining probable cause, and a very weak factor at that, especially in cases where people stopped by law enforcement have presented legitimate medical marijuana cards.

Yet, as the Superior Court highlighted, despite the enactment of the MMA, the CSA still renders possession of marijuana illegal for those not qualified under the MMA. Thus, the smell of marijuana indisputably can still signal the possibility of criminal activity. Given this dichotomy, we conclude that the odor of marijuana may be a factor, but not a standalone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search.

Officers can no longer follow their noses to warrantless searches… at least not without some other indicator of undisputedly criminal activity.

Applying such jurisprudence to the facts presented, we conclude that if lawful possession of an item due to legislative authorization to possess it cannot, in and of itself, permit an officer to infer criminal activity for purposes of effectuating a Terry stop, lawful possession of an item pursuant to legislative authorization is alone insufficient to satisfy the more stringent requirement of probable cause of criminal activity required to conduct a warrantless search of a vehicle.

And away goes the evidence. And, more importantly, away goes the super-subjective "standard" that previously allowed warrantless searches just because a cop said they smelled something. No drug dogs were used in this case, but it's only a matter of time before the state courts address the issue of K-9 units granting permission for searches based on nothing more than the detection of a legal substance. Stay tuned!

Filed Under: 4th amendment, marijuana, pennsylvania, warrantless searches

Comcast Wants A Cookie For Suspending Its Bullshit Broadband Caps For a Few Months

from the do-not-pass-go,-do-not-collect-$200 dept

For years, Comcast has slowly but surely expanded its pointless and arbitrary broadband usage caps and overage fees into all of its markets (picture the boiling frog metaphor, with you as the frog). And for most of that time, the company avoided doing so in the Northeast where it faces more competition from competitors like (uncapped) Verizon FiOS. But recently, likely fearing an incoming Biden FCC willing to do its job, Comcast rushed to finally push these useless, confusing, and expensive restrictions into the Northeast. In the middle of a pandemic. When people were already struggling to pay for basic utilities and rent.

Needless to say, lawmakers weren't happy about it. Massachusetts lawmakers were quick to complain about the practice, noting that price gouging captive customers during a financial and health crisis isn't a good look. This morning, Pennsylvania AG nabbed headlines after Comcast announced it would be pausing the expansion of usage caps for a few months (until July):

"The Philadelphia-based cable giant said it would postpone the new charges after Pennsylvania Attorney General Josh Shapiro (D) raised concerns that Comcast’s policy threatened to disproportionately harm cash-strapped Americans who are learning, working and communicating primarily online."

There are a couple problems here. One, The Washington Post (like a lot of outlets) never even informs readers that the caps are technically unnecessary. They're literally the monopolistic price gouging of captive customers using technically unnecessary nonsense. That's kind of important context, without which the reader walks away possibly thinking Comcast is somehow being altruistic here. This is pretty standard practice for a mainstream US tech press which has a violent allergic reaction to calling a duck a duck (in this case, monopolistic price gouging).

Two, I know from my conversations with Massachusetts lawmakers last week that briefly suspending the caps for a few months was Comcast's idea. It was their base offer in negotiations, and they're unwilling to go further. As such, what's portrayed here as a savvy win for PA AG Josh Shapiro is really just him agreeing to let Comcast get away with doing what is effectively nothing. These restrictions shouldn't exist in the first place. Suspending them for just a few months in one portion of the country is an empty gesture. Comcast will simply bring them back once the PR heat dies down a bit.

If there's an area the modern FCC and state regulators have failed miserably, under both parties, it's broadband caps. It shouldn't take a pandemic to realize that monopolies imposing costly, confusing, and unnecessary restrictions to drive up the already high cost of broadband access isn't a great idea (such restrictions are also also abused competitively in the streaming space). And, with only the occasional exception, and despite endless, breathless yammering on about the "digital divide," most federal and state regulators clearly couldn't give any less of a shit.

Filed Under: broadband caps, covid, fees, josh shapiro, pennsylvania, usage caps
Companies: comcast

Pennsylvania Cops Are Still Abusing Asset Forfeiture To Help Themselves To People's Cash

from the if-only-the-legislature-gave-a-damn dept

Asset forfeiture remains one of the most abused law enforcement practices in the country. While some attempts have been made to rein in this abuse, in most locales, it's just considered a useful law enforcement tool with minimal downsides.

Pennsylvania has some of the worst asset forfeiture laws in the nation. And it shows. Law enforcement has occasionally been benchslapped by judges for traveling past the wide boundaries granted to it by local legislators. In one case, a judge stopped the state from seizing a grandmother's house just because her son sold officers $140-worth of marijuana from the residence.

In another case, a judge excoriated officers for stripping a house of everything with possible resale value under the pretense that anything of value in it must have been purchased with drug money.

The Drug Task Force does not seize furniture or clothing, silverware, or other items that have low resale value. They focus upon items that have high resale value. That is not a problem in itself, until the police begin to ignore that there must be a nexus to drug dealing or drug money to seize those higher high value assets. [...] In this case the Drug Task Force personnel ignored the need for such a nexus and engaged in a shopping spree, for the benefit of their budget, based solely on the property's resale value.

The problems continue in Pennsylvania. Courts stop what they can when they see obvious abuse, but they never see most forfeiture cases because seizures require money and legal talent to challenge, which are things most forfeiture victims don't have on hand.

Without a lawyer, people stand little chance. Of the 32 cases The Appeal and Spotlight PA reviewed, the state returned cash or property only when a lawyer got involved, according to case records from the Office of the Attorney General. Out of the $608,000 seized and subsequently prosecuted, the attorney general’s office gave back less than $60,000 after negotiating with property owners' lawyers.

In more than 75% of the cases reviewed, no challenge was raised or the challenge was raised improperly. Both led to the same outcome: the state taking possession of the seized assets.

In some cases, Pennsylvania law enforcement has deemed seized cash to be "guilty" simply because it's been in circulation. The article cites two studies detailing how much drug residue ends up on cash, which has the possibility of turning innocent people into suspects Pennsylvania cops have no interest in charging criminally. A 2008 study showed 42% of currency had trace amounts of meth on it. A 2009 study said nearly 90% of currency is contaminated with cocaine residue. If Pennsylvania cops can't find another pretext to seize cash, they'll test the cash itself for drug residue and go from there.

Out of 11 cases reviewed by The Appeal and Spotlight PA in which no charges were filed, the attorney general’s office justified seizing people’s money after testing the cash for drug residue in 10 of them.

Much of what law enforcement seizes comes from traffic stops. But these stops were so pretextual and bereft of probable cause, roughly a third of all criminal cases arising from traffic stops by drug interdiction officers were thrown out. That hasn't stopped cops from stopping people and trying to talk them out of their cash. They've just become a little more careful and a little less likely to copy-paste non-specific boilerplate like "criminal activity was observed."

But the main point of forfeiture in Pennsylvania is to enrich the agencies participating in it. For all the talk about cracking down on the dangerous drug trade, very few serious criminal charges are tied to forfeitures.

In about one-third of the cases reviewed, police seized cash from people who were never charged with a crime or even issued a traffic ticket. One-quarter of the cases resulted in misdemeanor convictions, and another quarter resulted in felony convictions.

This is how the system works. It has been streamlined for maximum law enforcement efficiency. It serves only the agencies that directly benefit from it. And unless legislators are willing to take on powerful law enforcement interests, it is never going to change.

Filed Under: asset forfeiture, legalized theft, pennsylvania, police

Pennsylvania Supreme Court Says Compelled Password Production Violates The Fifth Amendment

from the so-it's-back-to-beating-arrestees-with-phonebooks-I-guess dept

The Fifth Amendment prevents compelled production of passwords, the top court in Pennsylvania has ruled. (h/t ACLU) It joins a handful of other state courts finding passwords to be testimonial, including Indiana, Illinois, and Florida. Unfortunately, there's no SCOTUS opinion uniting the states, so Fifth Amendment coverage remains spotty.

Securing rights remains the job of unsympathetic defendants. The state's child porn prosecution is likely to stall out with its main supply of potential evidence inaccessible. Despite the defendant basically admitting the computer law enforcement seized contained other child porn images ("we both know what's on there") and that he alone used the computer and could decrypt it, the court says [PDF] the state's foregone conclusion assertions aren't enough to render the Fifth Amendment useless.

That was the state's argument: the seized computer likely has child porn on it, based on the defendant's admissions and the investigative work that tracked porn downloads/uploads to his address. The state's Superior Court found the government's arguments persuasive, but only by drastically narrowing the scope of its focus.

Applying the foregone conclusion exception, the Superior Court, contrary to the trial court, focused on the password itself, and reasoned that the Commonwealth established the computer could not be opened without the password, that the computer belonged to Appellant and the password was in his possession, and that this information was “self-authenticating” ― i.e., if the computer was accessible upon entry of the password, the password was authentic.

While the government would like the court to believe that the compelled production of passwords is like demanding a key to a locked box, the court disagrees. There is Supreme Court precedent that guides this analysis, even if the Supreme Court has yet to rule on compelled password production.

First, the Supreme Court has made, and continues to make, a distinction between physical production and testimonial production. As made clear by the Court, where the government compels a physical act, such production is not testimonial, and the privilege is not recognized. See Holt; Doe II. Second, an act of production, however, may be testimonial when the act expresses some explicit or implicit statement of fact that certain materials exist, are in the defendant’s custody or control, or are authentic. See Fisher; Hubbell. The crux of whether an act of production is testimonial is whether the government compels the defendant to use the “contents of his own mind” in explicitly or implicitly communicating a fact.

Fifth Amendment protections may be limited in cases like these, but they're not nonexistent. The government has an evidentiary burden to meet before it can demand production of passwords.

[U]nder a foregone conclusion analysis, the Supreme Court has reasoned that an act of production does not render communication testimonial where the facts conveyed already are known to the government such that the evidence sought “adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411. Thus, what is otherwise testimonial in nature is rendered nontestimonial, as the facts sought to be compelled are a foregone conclusion. As described above, for the exception to apply, the government must establish its knowledge of: (1) the existence of the evidence demanded; (2) the possession or control of the evidence by the defendant; and (3) the authenticity of the evidence.

The state simply doesn't have it here. It has a computer that, if unlocked by a compelled password, would become "self-authenticating." The defendant's assertions about his control of the computer isn't enough to clear these hurdles. Most of the state's "foregone conclusion" about available evidence (with the exception of a single, verified child porn image transferred from the defendant's IP address to investigators during the investigation) is nothing more than a strong hunch. That's not enough.

In sum, because the Commonwealth has failed to establish that its search is limited to the single previously identified file, and has not asserted that it is a foregone conclusion as to the existence of additional files that may be on the computer, which would be accessible to the Commonwealth upon Appellant’s compelled disclosure of the password, we find the Commonwealth has not satisfied the foregone conclusion exception.

This ruling does not go so far as to cover compelled production of biometric features, however.

Because we are dealing with a motion to require an individual to recall and disclose a memorized password to a computer, in essence, revealing the contents of one’s own mind, we need not address the related, but distinct, area involving biometric features like fingerprints, thumbprints, iris scanning, and facial recognition, or whether the foregone conclusion rationale would be appropriate in these circumstances.

But the court hints it would likely find in the state's favor if the decryption key was a fingerprint.

[N]ot only are these communications not before our Court, it is the United States Supreme Court that long ago has created the dichotomy between physical and mental communication.

Also of note is this: supporting briefs filed on behalf of the government by other state governments appear to contain threats of anti-encryption legislation if courts continue to allow the Constitution to protect defendants from self-incrimination.

In a joint amicus brief in support of the Commonwealth, various states provide an interesting history of modern encryption, press the troubling consequences of Appellant’s position ― including the altering of the balance of power, rendering law enforcement incapable of accessing large amounts of relevant evidence ― and warn that adopting Appellant’s position could result in less privacy, not more, in the form of draconian anti-privacy legislation.

There's nothing quite like multiple state governments claiming they'll strip away privacy protections if they can't ignore Constitutional protections. When it comes to weighing the interests of all involved stakeholders, it appears the government's interests weigh the most.

Filed Under: 5th amendment, compelled speech, passwords, pennsylvania, self-incrimination

Pennsylvania Prosecutor Built A Surveillance Network Using Forfeiture Funds And Compromised Chinese Cameras

from the who-says-the-system-doesn't-work dept

A new report from Mike Wereschagin for The Caucus details the disturbing surveillance network that's been set up around Pittsburgh, Pennsylvania using a fortuitous combination of forfeiture funds and zero oversight. The camera network utilizes cameras made by blacklisted Chinese firms and appears to have no statutes or guidelines governing its use.

The entity behind this surveillance network isn't one of the law enforcement agencies that patrol the area. Instead, this is the work of a local prosecutor who seems willing to ignore anything that resembles best practices for government surveillance.

The district attorney for Pennsylvania’s second-most-populous county has assembled a network of advanced surveillance cameras in and around Pittsburgh and has enlisted colleagues in four surrounding counties to extend its reach into their jurisdictions.

Unlike other law enforcement agencies that have deployed this technology, though, Allegheny County District Attorney Stephen Zappala Jr. outsourced its monitoring to a private company, gave other police departments access to it with no written restrictions on how they can use it and purchased Chinese-made cameras that are so vulnerable to domestic and foreign hacking that the Department of Defense considers them a national security threat.

The cameras purchased by the DA's office come from two Chinese manufacturers that have been blacklisted by the federal government because of their security flaws. Dahua Technology Co. and Hangzhou Digital Technology Co. provided the cameras used in Pittsburgh. As of August 13, federal installations are no longer allowed to purchase from these companies or utilize any already-purchased equipment. The cameras in use around Pittsburgh don't belong to any federal agency, but that doesn't eliminate the security threats posed by their ongoing use.

The DA's spokesperson, Mike Manko, says the Chinese cameras that phone home aren't a problem because, well, only random Pittsburgh residents (and their vehicles) are affected.

Hacking is “not a significant concern,” Manko wrote.

“We do have security protocols that would let us know of an intrusion, and other than being able to see the feeds of the cameras, the access to any type of information is extremely limited,” Manko wrote.

Yep. No big deal. Just foreign operatives watching US citizens via cameras these operatives sold to a US government agency. Hangzhou, the other camera provider for the DA's camera network, is a subsidiary of China's state-run China Electronics Technology Group.

The cameras already utilize license plate reader tech. The documents obtained via public records requests show these images are retained for up to six months. The DA's office claims there's been no breach of this system via its insecure cameras, but the hands-off approach the DA has taken to regulating use doesn't exactly instill confidence in the office's attention to detail.

Manko said access to the network is “limited, protected and subject to audit.” It’s unclear under what conditions, though. The Caucus requested copies of agreements governing the use of the cameras and, in response, Zappala’s office said none existed.

And, as if it wasn't enough that the DA's office doesn't appear to care that Chinese operatives might be helping themselves to camera feeds, the DA's office thinks adding facial recognition tech to the mix is the next step forward, starting with the possibly-compromised cameras already installed in local schools.

“Down the road is facial recognition,” Dick Skrinjar, a project manager in Zappala’s office, told the Downtown Clean + Safe Community Forum in Pittsburgh’s Cultural District in February.

“Any idea how many kids in public schools are on probation?” Skrinjar asked.

Two thousand, he told them.

“We have their pictures,” Skrinjar said. “We can put them in the system and restrict where these people go, and keep them out of areas they’re not supposed to be in.”

Well, I guess if you're going to emulate Chinese-style surveillance tactics, it makes sense to use Chinese cameras. The DA's spokesperson agreed that discussions with school administrators about facial recognition tech have taken place but nothing is in place at the moment. But it definitely sounds like when this tech is inevitably rolled out, it will be in schools first. According to the spokesperson, "no other use of facial recognition has been pursued."

Pittsburgh students are going to be the DA's lab rats for facial recognition tech. Keep that in mind once the statements about solving serious crimes or capturing dangerous criminals are made in defense of facial recognition rollouts by the DA or local law enforcement. Also keep in mind that asset forfeiture makes this sort of thing possible, giving the DA's office money it can spend without having to run its plans past anyone else in the local government. This makes cobbling together a problematic surveillance system like the one in use here that much easier.

Filed Under: allegheny county, asset forfeiture, chinese cameras, forfeiture, pennsylvania, pittsburgh, security, stephen zappala, surveillance
Companies: dahua technology, hangzhou digital

Pennsylvania Legislators Quickly And Quietly Passed A Law That Strips Power From Its Reform-Minded DA

from the dirty-deeds-done-with-amazing-alacrity dept

The residents of Philadelphia elected Larry Krasner as their new DA in 2018. Krasner promised reforms to the criminal justice system. And he delivered. He secured 33 resignations from prosecutors and staff who didn't feel they could back his reforms. Shortly after this, he received the best possible (inadvertent) endorsement for his reform efforts, one that took the form of criticism from the head of the local police union.

Krasner eliminated cash bail for nonviolent defendants and made it clear he would not tolerate misconduct or abuse by police officers. More importantly, he did more than talk. Two officers were criminally charged for performing an illegal stop of a pedestrian and Krasner secured an indictment from a grand jury against a cop who shot an unarmed man in the back.

Local law enforcement isn't happy. Neither are many politicians. As Akela Lacy and Ryan Grim report for The Intercept, moves have been made to blunt Krasner's reform efforts.

Lawmakers in Pennsylvania have quietly muscled power away from reformist District Attorney Larry Krasner, passing new legislation giving authority to the state’s attorney general to prosecute certain firearms violations in Philadelphia — and nowhere else in the state. The provision will expire in two years, or just after Krasner’s first term ends.

The bill silently sped through the legislative process. It was referred to the Judiciary committee on June 11th and signed into law by the governor on July 2nd. That's amazing turn-time for a bureaucracy. It appears there are plenty of state legislators who prefer their prosecutors to be hard-nosed punishers, rather than actual arbiters of justice who realize the normal way of doing things (cash bail, stiff sentences, over-prosecution of minor crimes) contributes very little to anyone's idea of "justice."

Krasner's office has responded by pointing out the obvious.

In a statement, Krasner’s office said the move is an attempt by the legislature to undermine the will of voters who turned out in record numbers to elect him. “District Attorney Larry Krasner was elected by an overwhelming margin to push for badly needed criminal justice reforms in one of the most highly incarcerated big cities in the country, and he has serious concerns about what Act 58 does, the potential precedent it sets, and what it signifies for the justice movement at large,” said spokesperson Jane Roh, referencing the legislation the new law amends.

Unfortunately, sometimes you have to point out the obvious to put something on the record in black-and-white -- something the legislators who hastily shepherded this bill through the state legislature can't ignore. And there's more to it than a bunch of legislators yearning to stick it to the new reformer. It appears some legislators were completely unaware targeting Krasner was the goal of this legislation.

Multiple legislators made statements to The Intercept indicating the version the House approved did not match the Senate version, which was apparently surreptitiously changed to narrow the focus of the bill to Philadelphia and Krasner in particular. The version these legislators voted for gave smaller towns better access to attorney general resources. The final bill does none of that. All it does is wrest power away from Krasner and hand it to the state's AG.

Meanwhile, the AG's office is claiming this has nothing to do with Krasner -- whose power it preempts -- and everything to do with the city's gun violence problem. But this is bullshit because the problem the AG's office and supportive legislators have with Krasner's exercise of prosecutorial discretion is that he exercises it too often.

Supporters of the legislation say Philadelphia was singled out not because of Krasner, whose office would still technically have jurisdiction over the offenses, but because the city is home to the bulk of the state’s gun violence. “The Philadelphia DA continues to have the authority to prosecute these crimes, should he decide to start enforcing the law,” Republican Rep. Rob Kauffman, who sponsored the bill and worked directly with White to craft the amendment, wrote in a statement to The Intercept. “This wasn’t done statewide because prosecuting these gun offenses doesn’t seem to be a statewide issue.”

If Krasner passes on gun cases, the AG can now prosecute instead. Prosecutorial discretion means nothing when another prosecutor can push cases dropped by a city DA. The city has found one way to undermine a DA who actually changed things. I'm sure they'll keep experimenting until they can undo the good he's done.

Filed Under: criminal justice, criminal justice reform, da, larry krasner, pennsylvania, philadelphia, prosecutors

Judge Rips Drug Task Force For Going On Asset Forfeiture 'Shopping Sprees'

from the tough-to-tell-who-the-real-criminals-are-in-this-case dept

A Pennsylvania judge has delivered an earful to the York County Drug Task Force and its handling of property forfeitures. Christopher Hawkins, represented by Korey Leslie (who was kind enough to email me the ruling the York Dispatch couldn't be bothered to post with its article), challenged the seizure of two vehicles and a bunch of electronics from his house. Hawkins was arrested after a controlled heroin purchase. There appears to be no question Hawkins participated in drug dealing. But that doesn't excuse the government's decision to take two cars and some TVs from him as "evidence."

Judge Craig T. Trebilcock doesn't like anything about the Task Force's seizures, since it appears to be more concerned with taking things with resale value, rather than property with an actual nexus to drug distribution. The opinion [PDF] repeatedly calls Task Force detectives out for their lack of credibility and the dollar signs continually dancing in their eyes. The Task Force originally seized four vehicles from Hawkins before returning two of them for a lack of drug nexus. But it still couldn't connect the two it kept.

Detective S. testified that the Dodge Neon and the Mercedes were kept by the police because "we thought there was clear and convincing nexus between drugs and those vehicles" However, no credible facts were provided by Detective S. to substantiate these conclusions. During cross examination. Detective S. indicated the vehicles did not play any role in the drug transactions on the 22nd or 23rd.

The only thing Detective S. offered as evidence of this drug nexus was a statement by Hawkins that he used the Mercedes to "meet people for money primary for drugs." But, as the court notes, this statement was not corroborated by any other detectives involved in the arrest and seizure, nor was it recorded in any fashion. The court, however, knows exactly why these two vehicles were seized, even if the Task Force members won't admit it.

Detective S. testified that there was no lien on either the Neon or Mercedes Benz, the apparent sole distinguishing factor as to why they were seized, instead of the other vehicles.

The detectives also couldn't offer a good explanation for the seizure of two flatscreen TVs from the house. One claimed Hawkins wasn't working, so he couldn't have purchased them with legal funds. Again, the court points out Hawkins offered proof of his employment with a temp agency and lived with his girlfriend, who had a full-time job. And again, the court knows the Task Force just took the TVs because it thought it could turn them into cash quickly.

[T]here was no factual evidence to support the conclusion that Mr. Hawkins (or another resident) could not legitimately afford a television being present in his home. The task force seized the property simply because it had resale value.

The judge also calls out the perverse incentives that have led to the task force appearing before him repeatedly to forfeit televisions, video game systems, and vehicles -- all without making much of an effort to tie these items to illegal activity.

Forfeitures… result in additional income streams to the very officers seizing the property, a source of concern to this Court.

The court notes that the state's forfeiture laws are Constitutionally sound. But not when they're applied the way the York County Task Force applies them. The court says the task force engages in "arbitrary" seizures that violate citizens' due process rights. Then Judge Trebilcock hammers the point home:

This case is being decided on the facts of this case alone. It is important to note, however, that overzealous forfeiture actions by the Drug Task Force in the time frame of this case have not been isolated in nature. Dozens of forfeiture actions are brought before this court each year. While the property seized may vary from case to case, with some cases involving automobile, firearms or other property, a disconcerting pattern is evident that Drug Task Force officers seize big screen TVs that are present in the property regardless of any link to drug money or illegal activity. In addition, they disproportionately seize all game systems and video games, present in the property. The decision as to which property to seize is driven, in the words of Detective S., by which property has resale value.

The Drug Task Force does not seize furniture or clothing, silverware, or other items that have low resale value. They focus upon items that have high resale value. That is not a problem in itself, until the police begin to ignore that there must be a nexus to drug dealing or drug money to seize those higher high value assets. [...] In this case the Drug Task Force personnel ignored the need for such a nexus and engaged in a shopping spree, for the benefit of their budget, based solely on the property's resale value.

The court goes even further than this. It suggests the Drug Task Force also uses these seizures to coerce confessions or plea deals from defendants. It says it may not have happened in this case, but the court is sure it has happened in the past. Going forward, the York Drug Task Force will be under the microscope every time it tries to forfeit property.

[I]n the absence of reform and a greater demonstration of responsibility in future Drug Task Force practices, this issue will remain to be decided to the voluntariness of plea deals, questions of double jeopardy, and the personal or institutional liability/culpability of those officers who seize private property unlawfully.

In the future, Trebilcock's court will also be requiring hearings for all forfeiture -- hearings that defendants will be allowed to attend and testify at on their own behalf, even if they're currently incarcerated. Trebilcock signs off his scathing opinion with this:

Taken in its entirety, the testimony of the officers in this case indicates that the police made the subjective assessment that the Defendant is too poor, absent drug dealing, to have nice possessions. This was nothing more than a hunch, unsupported by any investigative rigor, and clouded by an overzealous desire to forfeit the possessions.

Not enough judges are willing to go this far when criticizing law enforcement's abusive practices. This probably won't result in a come-to-Jesus moment for the Task Force, unfortunately. It may decide these drug cases now have a federal nexus and ask Uncle Sam to help them keep robbing people. But at least they know they're no longer welcome to pull this bullshit in Trebilcock's court, so it's a start.

Filed Under: asset forfeiture, christopher hawkins, pennsylvania