Americans for Forfeiture Reform

Yesterday, in a 6-3 opinion authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court determined that the Fourth Amendment is offended when police, without reasonable suspicion, extend a traffic stop to conduct a drug-dog sniff. Rodriguez v. United States, USSC No. 13-9972, 2015 WL 1780927 (April 21, 2015), reversing United States v. Rodriguez, 741 F.3d 905 (8th Cir. 2014).

Rodriguez could be an attempt at what Professor Orin Kerr has dubbed, elsewhere, in other contexts, a Fourth Amendment equilibrium adjustment.

To flesh out the conjecture, Rodriguez was decided after Reuters UK revealed the existence of the DEA's Special Operations Division/parallel construction program, a domestic intelligence-sharing program that secretly provides state and local police with possibly inadmissible (and possibly illegally obtained) intelligence of cash or drugs. While many suspected parallel constructions were occurring, the proof was lacking.

Until Rodriguez, police were free to find a traffic violation (or allege a violation that could not be easily disproven), extend the stop to run a drug-dog search that wasn't treated as a search for purposes of the Fourth Amendment (United States v. Place, 462 U.S. 696 (1983)), register a positive drug-dog sniff alert of dubious probative value, and then use that alert to 'discover' (and seize) cash or drugs that police already knew existed (via DEA intelligence), without having to reveal (or expose to judicial scrutiny) the true provenance of the possibly inadmissible evidence. Courts, however, were not privy to the fact that they were being used to sanction seizures prefaced on general and extrajudicial dragnets, thinking, instead, that the seizures were the products of articulable and reasonable suspicions developed within the stop.

Following Rodriguez, creating a parallel discovery of the cash or drugs that police already know of, via drug-dogs, requires executing the drug-dog search within the time it takes to conduct the mission of the traffic stop or finding articulable reasons to extend and expand the traffic stop for a drug-dog non-search search. This will often prove difficult. Where articulable reasons are absent, police will be confronted with foregoing seizure, commissively defrauding the court, or exposing the true provenance of the evidence to judicial supervision. Rodriguez, thus, is an incremental step towards restoring the background from which the court decided cases like Place; Illinois v. Caballes, 543 U.S. 405 (2005); and possibly even Florida v. Harris, 568 U.S. ___ (2013).

Note: A version of this post was originally published August 5, 2013. 

The revelations that the DEA has a secret Special Operations Division (SOD) that uses NSA and CIA intelligence to spy on Americans suspected of drug crimes should be in taken in context of the DEA’s use of federal civil forfeiture to profit from drug prohibition. Reuters reports:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses. (John Shiffman and Kristina Cooke, U.S. directs agents to cover up program used to investigate Americans, Reuters, 5 Aug. 2013)

AFR Research Director Scott Meiner notes that:

“While the techniques described are universally bad, they carry special concern in forfeiture cases–where intelligence tips of a driver carrying cash (for legitimate or illegitimate reasons) compels officers to create parallel constructions to obfuscate from the courts and the public the real reasons why drivers are pulled over: so the department can score forfeiture proceeds.”, said AFR Research Director Scott Meiner.  “Informed police departments can use SOD tips to pull over cars that they know have cash (whether it is legitimate or illegitimate) and then apply a K9 sniff (with seeming random innocuity) and find the cash that they knew existed. A positive sniff (which is an inevitably positive sniff given what we know of cuing errors) validates the purported connection to drugs and thus justifies the forfeiture to the courts.”

This is particularly problematic in civil asset forfeiture, as federal law allows the seizure and forfeiture of property in a civil, not criminal process, and there is no federal requirement that criminal charges be filed when the government is interested in a civil forfeiture.

More broadly, the use of SOD to spy on Americans by the DEA calls into question not just the use of asset forfeiture in highway stops, but also in other aggressive forfeiture-related tactics such as the use of confidential informants and forfeiture “specialists” who hunt for property to seize. Two recent cases are instructive in this regard:

• The 2008 “reactivation” of DEA informant Anthony Chambers, who was caught lying under oath in court at least 16 times and was fired by the agency in 2000. Chambers is known as the “highest-paid snitch” in DEA history and is responsible for over 445 drug arrests, as well as millions of dollars seized by the DEA and other agencies.
• The attempted forfeiture of Russ Caswell’s motel property in Tewksbury, MA. The DEA attempted to seize the Motel Caswell after Vincent T. Kelly, a DEA forfeiture specialist, claimed he had found reports of drug crimes happening at the Motel Caswell in newspapers going back over a decade. It seems more than a little odd that DEA forfeiture specialists read decades-old newspaper articles looking for property to seize; is it possible that this justification for the Motel Caswell forfeiture is a “parallel construction”?

Indeed, asset forfeiture is now a major revenue stream for federal law enforcement. Sarah Stillman reports in the New Yorker:

Forfeiture in its modern form began with federal statutes enacted in the nineteen-seventies and aimed not at waitresses and janitors but at organized-crime bosses and drug lords. Law-enforcement officers were empowered to seize money and goods tied to the production of illegal drugs. Later amendments allowed the seizure of anything thought to have been purchased with tainted funds, whether or not it was connected to the commission of a crime. Even then, forfeiture remained an infrequent resort until 1984, when Congress passed the Comprehensive Crime Control Act. It established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. Soon states were crafting their own forfeiture laws.

Revenue gains were staggering. At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993. (Last year, the department took in nearly $4.2 billion in forfeitures, a record.) The strategy helped reconcile President Reagan’s call for government action in fighting crime with his call to reduce public spending. In 1989, Attorney General Richard Thornburgh boasted, “It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.” (Sarah Stillman, “Taken“, The New Yorker, 12 Aug. 2013)

Ethan Nadelmann, executive director of the Drug Policy Alliance, called for Congress to act, saying “It’s remarkable how little scrutiny the DEA faces from Congress or other federal overseers. With an annual budget of over $2 billion as well as significant discretionary powers, DEA certainly merits a top-to-bottom review of its operations, expenditures and discretionary actions.” We might add that it’s time for Congress to specifically review the DEA’s discretionary asset forfeiture authority and access to unappropriated forfeiture revenues. Prior to 1984, the US was able to fund its federal and state law enforcement through direct legislative appropriations. It’s time for Congress to reassert its power of the purse and end the ability of federal law enforcement to chase profits without accountability.

The history of how the states adopted civil asset forfeiture is an obscure and under appreciated part of the War on Drugs (emphasis mine):

Four years ago, the U.S. Congress amended the federal Uniform Controlled Substances Act to permit the civil forfeiture of property of virtually any kind, including money, when the property could be directly linked to illegal drug transactions. As a result of that amendment, federal agents in fiscal year 1980-1981 were responsible for the forfeiture of over five million dollars in assets from Michigan drug busts in which local law enforcement agencies often played a major role. These assets benefitted the federal treasury, but had Michigan's laws contained similar forfeiture provisions those funds could have been retained by state and local law enforcement agencies for use in the state in the fight against drug trafficking. However, state officials have no authority under current state law to forfeit assets related to drug violations using the civil law's lower standard of proof. The federal Drug Enforcement Administration has made available a model law for states to use in making their laws parallel to the federal act.... [T]he legislature ought to act to adopt some form of that model law so that law enforcement agencies and substance abuse programs in the state could make use of forfeited assets that otherwise would go to the federal government. [Michigan State House Legislative Analysis, SB 645, September 21, 1982.]

Kevin Glaser, a retired narcotics officer who currently serves as current vice president of the Missouri Narcotics Officers Association, has a very important quote in an article in today's St. Louis Riverfront Times that really deserves a lot more attention. To wit (emphasis mine):

"If we seize $50,000 from a drug seizure and it is drug proceeds, it's forfeited through the state of Missouri to the school fund to fund our schools. That sounds good. They have $50,000 to play with now. In actuality, though, what happens is our state legislators, when they're divvying out the money to the schools, and they see that $50,000 go into the school fund from asset forfeiture, they take out $50,000 they were gonna contribute to the school fund. The school fund does not make an additional $50,000 off of that. That's the way asset forfeiture has been since it came into effect.

What law enforcement has done is, seeing that there's really no good coming to Missouri from asset forfeiture because other than funding general revenue - that's all it really does - we utilize federal forfeiture, which allows us to take that $50,000 seized from the drug proceeds and then we can, applied through a court system that has several checks and balances to make sure it was a very factual and legitimate seizure, then that $50,000 -- and actually it's only 80 percent of that because the federal government gets 20 percent right off the bat -- but 80 percent of that $50,000 can come back and be used by local law enforcement for very specific -- buying equipment, buying cars, -- there are very specific requirement, you just can't go out and spend it randomly on whatever you want. It can be utilized by the police department to further enhance the department and drug investigations and criminal investigations.

In other words, Kevin Glaser has a problem with the idea that the Missouri Legislature might do their duty and *gasp* appropriate funds to public uses that aren't law enforcement. Indeed, under federal asset forfeiture, Missouri law enforcement does not *really* need the consent of the legislature to receive or spend public dollars...which is really the point of having a legislature in the first place.

Addendum: Carl Bearden, who served as the Speaker pro tem of the Missouri House of Representatives from 2005 to 2007, says of Glaser's statement:

Responding to a tip from the DEA, the Iowa City Police Department (ICPD) stops family’s car with a K-9 unit. K-9 (of course) alerts to vehicle. Officers don’t find any drugs. Officers, however, find family has $48,000 in cash. Officers take the money. Family claims money was intended to buy property from relatives. Family claims that the sale didn’t go through. Family says they were driving home with the money when ICPD pulled their vehicle over. Family demands the return of their money. ICPD says they gave the money to federal authorities. Family sues in Iowa court for return of the money. County Attorney argues local courts lack jurisdiction over the matter because the money was given to federal authorities. ICPD and County Attorney claim federal authorities thinking about forfeiting the money. Called to provide witnesses on the seizure and transfer, ICPD sends (apparently) uninformed sergeant as witness. Sergeant speculates on the case:

“Iowa City Sgt. David Droll, who took the stand as a state witness during the hearing, said that although he did not conduct the initial traffic stop, it was his understanding that a DEA official contacted the Iowa City Police Department on March 16 and informed them that the vehicle being driven by Overton was to be stopped as part of an ongoing narcotics investigation.

“My take on this was that it came from the DEA. They made the phone call to one of our officers that got the ball rolling,” Droll said. “I believe there is an ongoing drug investigation, but it’s not being done by the Iowa City Police Department.”

Little additional information was made available during the hearing about the DEA investigation and none of the three Iowa City officers who conducted the traffic stop or searched the vehicle attended the hearing.” Mitchell Schmidt, Sides Debate Legality of Police Seizing Couple’s $48K, Iowa City Press-Citizen, May 13, 2014.

Thus far, neither federal or local authorities have raised charges against the money or the family. The family is, however, without its money. Further, the family faces fighting two costly legal battles, in federal and local courts.

Mitchell Schmidt, reporting for the Iowa City Press-Citizen, quotes the presiding district court judge as saying that he is profoundly  troubled by the situation.

As for the ICPD, they stand to receive up to 80% of the proceeds of the seizure if the money is ultimately forfeited by federal authorities. Insidiously, under federal guidelines, the ICPD is free to spend the windfall on overtime salaries for the very officers who seized the cash on a DEA tip.