Matthew T. Mangino
October 17, 2014
The U.S. Department of Justice has made it possible for local law enforcement agencies to fund some of their policing practices through collaborative civil asset forfeitures. The process known as Equitable Sharing drives revenue to local crime fighting agencies, but not without consequences.
The Comprehensive Crime Control Act of 1984 was a component of the Reagan-era war on drugs. The intent of the act was to tap into the illicit profits of drug kingpins. The loss of profits would make the drug trade less alluring and bolster enforcement practices by permitting forfeiture-related revenue to be used to pay informants, purchase equipment, pay investigators and finance complex law enforcement investigations.
The new law also allowed local law enforcement to get in on the action. Pursuant to the act, local law enforcement agencies were entitled to receive a portion of the net proceeds of forfeitures sought collaboratively with federal authorities — up to 80 percent of the seized assets.
In difficult economic times there is an incentive to fund local police departments with money other than from the pocket of taxpayers.
The problem is that not all the forfeited funds were coming from convicted drug dealers or from anyone convicted of a crime. The Washington Post analyzed the spending reports of thousands of DOJ asset forfeitures totaling $2.5 billion and found 81 percent came from cash and property seizures in cases in which no indictment was filed.
The easy money led to an aggressive form of policing known as “highway interdiction.” A vehicle is stopped for a traffic violation, is searched and cash is seized. Owners must prove that their money or property was acquired legally in order to get it back. According to Reason Magazine, “your property is guilty until you prove it innocent.”
Here is how a person not charged with a crime can lose a large sum of cash: A police officer stops a vehicle for a minor traffic violation and then searches the vehicle based either on the “consent” of the occupants or if the K-9 unit shows up and provides a “dog alert.” A dog alert is when a trained K-9 becomes agitated while sniffing around a stopped vehicle for the scent of drugs. If the dog “hits” on a vehicle there is enough probable cause to search the vehicle.
How reliable are dog alerts?
The U.S. Supreme Court ruled last year that as long as a drug-sniffing dog is well-trained his performance on the job really doesn’t matter.
Justice Elena Kagan wrote that it was enough that a dog’s “satisfactory performance” in a certification or training program provided sufficient reason for an officer to trust its alert, even though errors “may abound” when dogs get put to the test in the field.
“Law enforcement units have their own strong incentive to use effective training and certification programs,” Kagan wrote.
The incentive for some police departments may be different than Kagan envisioned. Since 2001, there have been about 62,000 cash seizures on highways and elsewhere without search warrants or indictments and processed through the Equitable Sharing program, according to The Post.
The potential abuses of asset forfeiture have long been recognized. In 2000, Illinois Congressman Henry Hyde, fought for the passage of the Civil Asset Forfeiture Reform Act — with the intent of making it more difficult for the federal government to seize property without evidence of wrongdoing.
This past July, Kentucky Sen. Rand Paul introduced the Fifth Amendment Integrity Restoration (FAIR) Act. The bill changes the burden of proof in federal forfeiture cases making it more difficult for the government to prove the basis for the forfeiture of assets in court.
The FAIR Act would also abolish the Equitable Sharing Program. The act would make it less likely that police and prosecutors would confiscate the assets of individuals guilty of nothing more than driving around with cash in their car.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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