HaCKeRz Kr0nlcKLeZ 1/HaCKeRz Kr0nlcKLeZ.iso/drugs/forfeiture.texas

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From: [e-mail] (William Alves)
Newsgroups: alt.drugs,misc.legal,talk.politics.drugs
Subject: Texas Observer article on drug war forfeitures
Message-ID: <[e-mail]>
Date: 5 Dec 91 03:18:02 GMT

The following story appeared in the _Texas_Observer_, a monthly
primarily political publication, (c)1991 by the _Texas_Observer_
reprinted here on the USENET by permission. Any other reprinting or
reproduction of this article without the written permission of the
_Texas_Observer_ is prohibited.

Texas Observer
307 W. 7th St.
Austin, TX 78701
[phone]

This article is a regional follow-up to the Philadelphia series of stories
about  civil property forfeiture in the War on Drugs, and adds some
interesting information.

By James Cullen

You arrive at Houston's Intercontinental Airport on a flight from New
York City. You head for a bank of telephones to make a call, then you
walk briskly to catch public transportation into town. A plainclothes
officer stops you and asks to examine your baggage. A drug-sniffing dog
reacts to your suitcase . You're hauled aside and strip-searched. Police
find no drugs, but you are carrying $20,000 in cash. Why? That's your
business, you say? Not any more. The cash is presumed guilty and is
seized by the U.S. government.

Far-fetched? Tell that to Kevin Belcher, a Detroit businessman who was
carrying $18,256 to buy classic cars at an auction in El Paso when he
was stopped on March 2 in Dallas/Fort Worth Airport. Belcher, a former
New York Giants center, apparently fit the drug-courier profile, and
Texas officers were notified that a security screener at Detroit's Metro
Airport had spotted a big, burly black man carrying a large amount of
money in his jacket pocket. Narcotics agents in Dallas seized the money.

Ethel Hylton, a native of Jamaica who lives in New York City, has yet to
recover the $39,110 that agents took from her nearly three years ago in
Houston's Hobby Airport. Shortly after she arrived on a flight from New
York, a Houston officer and a federal drug agent stopped the 46-year-old
naturalized American citizen in the baggage area and told her a drug
sniffing dog reacted to her luggage. Although they found no contraband
in her bags or during a strip search of her person, they found the cash
in her purse. They seized all but $10, despite her explanation that the
money came from an insurance settlement and her life's savings and that
she planned to buy a home in Houston.

Those cases were among those turned up by the Pittsburgh Press in a 10-
month investigation of drug seizure and forfeiture. The newspaper, in an
August series, reported that in 121 "drug courier" stops where money was
seized although no drugs were found, black, Hispanic and Asian people
were the targets in 77 percent of the cases.

Civil liberties lawyers also complained to the Observer that blacks and
Hispanics are routinely stopped and searched in Texas airports and bus
stations as well as on the highways. Officials of the U.S. Drug
Enforcement Administration said agents follow guidelines for identifying
likely drug couriers.

A black man who was stopped and searched at Austin's Robert Mueller
Airport on Oct. 18, reportedly because he fit the profile of a drug
courier, has filed a lawsuit against the City of Austin. J. LeWayne
Kelly, an apartment manager who also works as a drug and alcohol
counselor, said he was wearing jeans, cowboy boots, a St. Edwards
University t-shirt and was carrying a briefcase when he went to the
airport to pick up a friend arriving on a flight from Midland. Two
Austin Police Department officers detained him and searched Kelly,
telling him he fit the "profile," Kelly said.

Casting a Wide Net

Since passage of the federal Comprehensive Crime Control Act in 1984,
civil libertarians have become increasingly concerned over the
government's use of the law to stop people coming off domestic flights
who appear to fit a "drug courier profile." Applying a doctrine from
relatively obscure admiralty law, which traditionally covered maritime
issues, the asset forfeiture statute allows the government to seize
property, even in cases where the owner is not charged with a crime,
because the government believes there is probable cause the assets were
tainted by illegal activity. The owner must then prove the assets were
obtained legher illegal activity. These seizures, which also
involve vehicles, aircraft, property, jewelry, weapons, electronic
equipment, works of art and business interests, carry their own civil
liberties concerns. But in at least 78 cases in the Houston area in
fiscal 1991, cash was seized because the carrier looked suspicious to
officers and did not have what police thought was a good excuse for
carrying large amounts of money.

Special Agent Thomas Lentini, spokesman for the DEA's Houston office,
said the agency made 83 seizures off domestic flights in Houston and El
Paso in the fiscal year that ended Sept. 30, confiscating a total of
$1,977,229. The agency later returned the money in only one case,
Lentini said.

While the mere presence of cash is not illegal, Lentini defended the
presumption that a large amount indicates suspicious activity. "I just
don't feel there's a lot of [legitimate] businesses where people carry a
large amount of cash," he said.

Gerald Goldstein, a San Antonio lawyer who handles asset forfeiture and
civil liberties cases, said law enforcement officers have come to rely
on a "drug courier" profile, as described in federal court cases and
approved by the U.S. Supreme Court in 1989. These guidelines include:
arrival from or departure to an identified drug-source city; carrying
little or no baggage or several empty suitcases; an unusual itinerary,
such as a rapid turnaround time for a lengthy airplane trip; use of an
alias; carrying unusually large amounts of money; purchasing airline
tickets with a large amount of small-denomination bills; and unusual
nervousness. "Secondary characteristics" include use of public
transportation, such as taxis, in departing from the airport,
immediately making a telephone call after deplaning, leaving a false
call-back telephone number with the airline or frequent travel to drug-
source or destination cities. But Goldstein said agents can use those
characteristics to legitimize their hunches to stop virtually any
traveller, allowing what he called a strong potential for abuse.

Probable Cause Hairdos?

Greg Gladden, a Houston lawyer, said he has represented more than 50
people stopped by Houston police and drug task force members at Houston
airports and bus stations for what in some cases amounted to little more
than "probable cause hairdos," such as dreadlocks. "It's pretty hard to
walk through the airport and not get stopped if you're of Jamaican
heritage," Gladden said. For minorities, he said, "If you have a lot of
money on you and no drugs, you're not going to get past the police with
it. They're going to take it."

Lentini of the DEA denied that minorities are routinely stopped. The
decision to stop is based on "an individual's actions, not by the color
of his skin," the agent said. "We also stop white businessmen in three-
piece suits," he said, although the agency does not record the races of
individuals stopped.

Based on his experience, Gladden said it appears to be standard
operating procedure for Houston police to stop people based on racial
characteristics. "They'll say he was nervous, he was going from Houston,
a known drug-source city, to New York, a known distribution city, or
vice versa," Gladden said of the reasons used to justify a search. "I
don't ever hear about white folks getting stopped and relieved of their
money at airports, but a whole lot of Jamaicans do, and it's not because
white folks are not wandering around with a whole lot of cash.
Occasionally it will happen, but it's usually the result of a tip."

Gladden said many of the people he represents are Jamaicans who have
confidence in neither police nor banks. "There really are a lot of
people Q a lot of immigrants especially Q who keep money at home, in
shoe boxes and coffee cans," he said. He also said he suspects many
people - particularly undocumented aliens who are prone to carry cash Q
never even try to get the money back.

Gary Trichter, a Houston lawyer, said he has represented approximately a
dozen clients whose money was seized. "They are disproportionately
younger - 40 and below - and they are male and either a minority -
Hispanic or black - or a Caucasian with long hair or facial hair," he
said. He also said Houston police seem to target people on flights to or
from Miami or Fort Lauderdale. "In effect, they are saying that
everybody in Miami is more likely to deal in controlled substances than
anybody from Wichita," he said. "If you have an accent - Jamaican or
Hispanic - or if you have an Hispanic surname, there is a greater
probability you will be targeted."

In the Austin airport case, Kelly, who has a degree in criminal justice
from St. Edwards University, said he was so upset by the stop that he
conducted his own investigation and was told by airport employees that
police seemed to target blacks and Hispanics. A white friend hung around
the airport wearing the same outfit a few days later but was not
stopped, Kelly said. Police got no windfall from Kelly, since he only
had $6 on him, but with the Austin-based Texas Civil Rights Project he
filed suit in Travis County Court-at-law under the Equal Rights
Amendment of the state constitution, seeking $20,000 damages for
himself, $5,000 in punitive damages from the police and an injunction to
end searches based upon drug courier profiles.

Austin city officials defended the actions of the officers. "As far as
we've been able to tell, this was done properly," said Deputy City
Attorney Charles Griffith. Police use the DEA profile, he said, and
racial characteristics "are not" a part of that profile. Airport task
force members seized and turned over to the DEA $327,670 in 11 cases
during calendar year 1990, including at least one case where police
seized $133,000 from a white couple, and $121,457 in 14 cases through
Sept. 13, 1991, Assistant City Attorney Pat Rehmet said.

In the case of Belcher, the Pittsburgh Press reported the owner of four
oil-change outlets in Detroit explained that he was carrying the cash to
buy classic cars at auction. The money was seized in part because drug-
sniffing dogs reacted to the money. But the newspaper also reported that
tests of currency in 11 cities, including Austin and Dallas, showed 96
percent of the bills tested positive for traces of cocaine. The
newspaper also noted that trainers have testified that drug-scenting
dogs can react to clothing, containers or cars months after marijuana
has been removed.

In the case of Hylton, the newspaper reported that police seized all but
$10 of the $39,110 they found in her purse, despite her explanation that
the money came from an insurance settlement and her life's savings and
that she planned to buy a house in Houston. The Press reported that it
verified her jobs, substantiated her claim that she received $18,000
from an insurance settlement and found no criminal record for her in New
York City. Nevertheless, she has yet to recover the money, according to
the Press.

The newspaper, after reviewing 25,000 seizures made by the DEA across
the nation, said it found 510 cases where innocent people, or those
possessing a small amount of drugs, lost their possessions to police,
including  some where property was used by others for drug cultivation
and trafficking. Eighty percent of the people who lost property to the
federal government were never charged with a crime, the Press said. And
most of the seized items were not "luxurious playthings of drug barons,"
but modest homes, cars and savings of ordinary people.

But the seizures add up to big money, and the prospect of sharing the
proceeds from forfeitures gives local and state law enforcement agencies
an incentive to step up their operations (See "Have Badge, Will Travel,"
TO, 10/18/91). During the 1990 fiscal year, $23,389,683 in drug-related
assets was seized by 50 regional drug task forces in Texas. That amount
does not include money seized by local law enforcement agencies
operating on their own. The Texas Department of Public Safety seized
$9,783,563 in currency during 1990.

Ken Magidson of the asset forfeiture division of the U.S. Attorney's
Office in Houston, said the forfeited money cannot be used for operating
expenses, but it helps participating law enforcement agencies update
their equipment and vehicles without using tax money. He believes there
are safeguards against abuse. "There's always a potential for abuse in
any program that involves money I but I think, based upon the guidelines
that are in place, that there is a tremendous amount of oversight," he
said.

Take the Fifth, Lose the Property

While those whose cash or property may seek its return, the forfeiture
attorneys said it is a difficult process that is stacked in the federal
government's favor. In the discovery phase, federal prosecutors may
inquire into any financial dealings the claimant may have had, including
their tax returns for the previous five years. If they can force the
claimant to plead the Fifth Amendment constitutional right against self-
incrimination, that may be grounds to throw out the claim, Gladden said,
because the prosecutor can argue that the claimant is withholding
evidence. "They can zero in on things that are calculated to scare you
away," he said.

Claimants thus face a legal dilemma, Gladden said. "You have to waive
your Fifth Amendment rights if you're going to have a snowball's chance
in hell of getting your money back," he said. But even those who are not
involved in the drug trade may not welcome a prosecutorial look at their
finances. "If they catch you in a lie, they can give you 10 years in
prison for perjury. If you tell the truth, they can file [charges] on
you for something else you tell them about," he said.

Even if the plaintiff gets the money back, Gladden noted, the attorney
gets his fee, which usually is at least one-third of the disputed
amount. Gladden estimated he settled with the U.S. Attorney's office in
10 to 15 forfeiture cases last year. In those settlements, he said, his
clients received 10 to 85 percent of the money, depending on the facts
and how willing his clients were to fight for full reimbursement.
State law offers more protection from seizures than federal law, since
state prosecutors must still show some connection between the money or
assets and the criminal activity. In a May 3, 1989, search of the
Columbus home of Apolonia Reyes in Colorado County, for example, police
seized $5,559 and other items after an informant allegedly made a $25
controlled purchase of 0.12 grams of white powder containing cocaine.
Police found no cocaine or other illegal drugs during the subsequent
search, nor were the marked bills used in the "buy" recovered, according
to court records. There were no arrests and charges against Reyes were
not filed until the following November, after Reyes petitioned the court
for the return of the cash, which was shown to have nothing to do with
drug sales, and four scales, which Reyes' wife testified were used to
weigh food.

The First Court of Appeals in Houston in February ruled that the state
should return the seized cash and scales. "While the circumstantial
evidence may make it more likely than not that [Reyes] had been engaged
in illegal drug activity, it fails to raise even a surmise linking the
$5,559 and the scales to this activity, and it gives rise to inferences
equally consistent with the proposition that appellant obtained the
money, and used the scales, legitimately," the court said.

Because of the different treatment under state law, Gladden said many
police departments refer cases to the state's district attorney only if
they find drugs. "If you have dope and money, they're going to bust you
and they're going to charge you with possession of dope in the state
courts and seize the money in state courts because it goes to the DA's
office and the county basically gets all of it," he said. "But if they
stop you and you don't have dope, but you have a whole bunch of money,
they're going to have some dog bark at the money and that will be their
evidence to indicate it must be drug money."

Narcs Everywhere

Narcotics agents also can count on help from a network of informants
that does not only include convicted drug traffickers who help set up
drug transactions for police. Among those who received some of the $24
million paid out of the Asset Forfeiture Fund last year, the Press
reported, were airline counter clerks  who report passengers who paid for
their tickets in cash or otherwise acted "suspiciously"; operators of X-
ray machines who report large amounts of money in baggage; and some
package handlers who, according to police affidavits and court
documents, open "suspicious" packages and alert police to what they
find. Typically, the newspaper reported, informants get 10 percent of
the value of whatever is found.

Lawmakers and prosecutors say the asset forfeiture law is an important
key to breaking lucrative rings of drug dealers, but Goldstein said
citizens give up their Fourth Amendment protections against unreasonable
searches and seizures at their peril. "The government has made the
presumption that it's a crime in America to possess cash. The
presumption is if you have cash, it must be ill-gotten," Goldstein said.
"And I'm not sure our recent bank and savings-and-loan problems haven't
taught us we're better off to keep it in cash."

Kelly said he opposes drug use and supports law enforcement, but his
Austin airport experience has caused him to reconsider the means police
use to stop drug traffic. "I have certain constitutional rights and I
don't think we should give up our rights to some mythical drug war," he
said. He also said narcotics agents were looking in the wrong place for
drug money. "They ought to check the briefcases I at the banks [because]
that's where the drug money is."