Sunday, November 21, 2010

Counties upset DPS doesn't share more asset forfeiture income from I-40

An article in the Amarillo Globe News says the Department of Public Safety often takes cases to federal court to get a bigger portion of the assets seized and cut out local District Attorneys. Reports the Globe-News ("Cashing In: Who benefits the most from seized currency?" Nov. 21):
DPS officials said the I-40 corridor, which runs through seven counties in Texas, is one of the busiest in the state for criminal activity. Drug cartels and smugglers often use the highway to transport narcotics, weapons, humans and illegal profits from coast to coast.

Perhaps no issue proves more quietly contentious in the local law enforcement community than how the seized currency - about $14.6 million in 51/2 years - is divided among agencies hungry for revenue in a struggling economy.

In the end, only about 6.4 percent - or roughly $935,000 - of those seizures have remained in the area to benefit regional law enforcement agencies and taxpayers, according to hundreds of pages of documents released by the DPS in response to a public information request by the Amarillo Globe-News.

Records indicate DPS officials often choose to bypass Panhandle state courts in exchange for Amarillo's federal court when the largest amounts of money are at stake. It's a decision that has left some I-40 district attorneys frustrated and raised concerns the federal court route gives DPS an easier and larger payday at the expense of local counties and taxpayers.
At issue: DPS gets a larger cut in federal court:
Documents from the DPS indicate if a forfeiture case is filed in state court, the agency generally receives about 65 to 70 percent of the final profit, depending on a predetermined agreement that varies by county. Local counties get the rest. The federal government typically gets nothing, according to DPS records.

If the case is filed federally, the DPS usually receives about 80 percent of the forfeiture, and the federal government keeps about 20 percent.

In return, local counties - even those where the seizure occurred - won't get a penny, unless a county can prove a significant role in the investigation.
BLOGVERSATION: Reacting to this post, Pete at Drug War Rant offers an excellent (if perhaps unlikely) suggestion for asset forfeiture reform to take the profit motive out of drug enforcement.


Anonymous said...

The issue is the federal drug penalties are more severe, especially if the possessor is also in possession of firearms.

I like the federal court system. Cases are not going to get accepted unless the officer has done a credible investigation.

And because these shipments are crossing state lines, federal court is the proper venue. When the trafficker cooperates, it also leads to the DPS and feds being able to apprehend those higher up on the food chain.

Local DA's do not have the means to investigate these cases beyond their local area.

Don Dickson said...

It's not even that complicated. In forfeiture matters Texas law imposes a burden of proof that are shifted to the bad guys in federal court. It has little to do with the quality of the investigation.

This was a well-researched and well-written article. What the author was trying to say without being too blunt about it is that DPS would be crazy to file these forfeiture cases in state courts.

I made an interesting discovery not long ago. Seized funds cannot be used to pay officers' salaries, for reasons which ought to be relatively self-evident. But they CAN be used to pay overtime. Makes me go hmmm.

Don Dickson said...

LOL that "are shifted?"

That "is shifted."

Been a long day. :-)

Gritsforbreakfast said...

Don, can you describe the burden of proof issues a little more? Are you saying if my property is seized, in federal court the burden is on me to prove it SHOULDN'T be seized instead of on the state to prove that it should?

David O'Niell said...

Actuallu, here in New Mexico- the cases are prosecuted federally since the feds' Fourth Amendment protections are lesser than New Mexico's- the pretextual/ profile stops would have trouble passing NM's stricter decisions-
they regularly stop drivers for "fee penalty misdemeanors"- infractions like no seatbelt, etc., remove the driver to the dashcam in front of the unit, and make gratuitous prattle about itinerary, etc. to placate the dashcam mic, let the driver go w/ a warning, and as sson as they turn away, drop the "You're free to go, but I have a few more questions for you" prelude to the bullied- consent search that is iminent.
Scripted, and pretty nauseating to watch.

Anonymous said...

Grits, it's my understanding that in these drug related seizures, the burden of proof is on the trafficer to get the funds back, even if there is no conviction. My understanding may be erroneous.

I've wondered if other I-40 states are as rigorous in apprehending, seizing assets as DPS is in the Panhandle.

Charles in Tulia

David O'Niell said...

I spent over 20 years involved in the farcical "war on drugs", working for U.S. Customs who had border search authority where there was a nexus- these highway stops are 100% profiling, or 95% pretext/ profile stops and 5% stopping a vehicle with snitch or UC information- stopping on the road out of expediency or to stop in a specific HIDTA District. The prosecutions are federalized due to the interstate nexus, Commerce Clause-
and the weak Fourth Amendment protections v. some states.
The civil forfeiture provisions for Feds is also easier than states-highway cash siezures are highway robbery- based on profile stops and coerced consent.
They can sugarcoat it all they want but it is patently un Constitutional.
I thought Operation Pipeline was dead after the federal profiling decision- we even had to sign documents that we wouldn't profile in entry situations- where you "present yourself for Inspection" under the border search authority we posessed.

Anonymous said...

There's a second article about seizure in this morning's (Monday) AGN.

Charles in Tulia

Charles B. "Brad" Frye said...

I'm wondering if there is the same type of "arrangement" for I-10 (San Antonio to Beaumont) and US 59 (Houston and north). I practice a lot in Harris County and handle quite a few forfeiture cases and it "seems" that most of the cash forfeiture cases originate with the Sheriff's Office, HPD or one of the area municipal PDs, NOT with DPS. I wonder if the "phenomenon" cited in the Amarillo article holds true for down here.
Seems so.....
Brad Frye
Houston, Texas

Don Dickson said...

Grits, as I understand the law, (and mind you, I've never handled a civil forfeiture matter), Texas law imposes a burden on the state to demonstrate that the seized cash or assets were used in or derived from a criminal enterprise. In the federal system, almost the opposite is true -- law enforcement gets to keep the goodies unless the putative owner comes forward and demonstrates that (1) he is the owner, and (2) that the goodies were used in or derived from a lawful activity.

I know where I'd file. :-) said...

I was involved in a case in Tx where they took my property but got it back because I had proof of where the property was purchased with legitimate funds and there was no indictment or trial.
They kept everything connected with growing my own but gave me back my gun and laptop.
I think it got to the cops when I told them at least no one in Mexico was being beheaded to provide my medicine.
And since it is such a small town
and small grow,they knew I was not dealing anything.
The whole war on drugs is unconstitutional and has caused America more harm than all the negative effects of the drugs they can't stop.
If the only way to stop the cartels and criminals from making money off of drugs is to reduce the demand or legalize and regulate them,please tell us how to reduce demand.
If anyone knows how to convince people that they don't need to feel euphoria,increased energy
or boosted self confidence we need
that knowledge spread about because putting people in prison
for drugs ain't working.
We have spent more than a trillion dollars on the war on drugs and there are more drugs available and more people using them than ever,
The drug czar wants more money to continue doing the same thing with the same results,guaranteed.
The very definition of insanity.

Jerri Lynn Ward said...

Why,when I read this, do I keep imagining a bunch of serge-clad asses sticking up in the air while surrounding a trough?

Hook Em Horns said...

Don and David are both right. Many of my professors are in agreement that asset forfeiture is patently unconstitutional.

Anonymous said...

Federal forfeiture causes of action are found in numerous statutes. After the reform act of 2000, though, the overwhelming majority of civil forfeiture causes of action places the burden on the state just like under 59 in Texas. However, like the feds Texas also has a civil asset forfeiture cause of action in ch. 18 which shifts the burden (after proving pc) to the Defendants. It's limited to illegal guns, property related to child porn, illegal gambling, dog fighting, etc.

Anonymous said...

Forfeiture is becoming more and more prevalent in this country. To see the hundreds of pages of property our Government has seized from its citizens and plans to keep go to ""--(only the US Attorney link is active now). The Government can seize your property on mere probable cause--a very low standard. They will typically begin with an "administrative" forfeiture, hoping you will go away and just let them keep your stuff. If you have the audacity to file a claim, the will begin a "judicial" suit against you (all real property must be judicial)---The Government can win by "the preponderance of the evidence"--a much lower standard than "clear and convincing evidence" or beyond a reasonable doubt, that they should be able to keep your property. Also, while the Government may seize your property and start a civil suit---they often can ask the
judge ex parte (without YOUR input)
if they could "stay" the case while pursing a criminal investigation. If they do that, your property can sit and sit, sometimes for years, as you have no legal way to get before the court. THEN your property can be
held and/or seized in SOMEONE else's criminal trial (criminal
forfeiture), and tied up there for years also. Because you will ONE DAY get your day in court--either at the "ancillary hearing" at the
end of the criminal trial, or in the civil suit (when and if they ever get there)---you have received all the "due process" you are entitled to. Courts have held that "years" is not too long to wait.