Online at:
http://www.kokomoperspective.com/article.asp?5078

 No crime commited, punishment remains

By Pat Munsey
Perspective Staff Writer
In late 2000, the Howard County Drug Task Force raided three local
businesses and seized thousands of dollars in property and cash they
alleged were associated with drugs. Water pipes, rolling papers and an
assortment of other merchandise were taken from Cosmic Harvey’s, Karma
Records and Elvie’s.

Gary Elvers, owner of Elvie’s, fought the charge of dealing in
paraphernalia against him and got the charge dropped. That was in 2001.
More than two years later, the business owner lost in his attempt to get
all of his seized property and money returned.

Howard County Prosecutor James Fleming filed a complaint for forfeiture
against Elvers, arguing that the property seized was related to illegal
activity, and he won -- despite the fact that Elvers wasn’t found guilty
of any crime. On June 24 of this year, the court ordered that only the
non-case portion of Elvers’ merchandise would be returned to him,
according to the case summary. 

But Kokomo Police Chief Tom DiNardo stated to the Perspective that all of
the merchandise was returned to Elvers at the end of the case. Elvers
disputed DiNardo claim.

“They’re greedy,” said Elvers. “You don’t even have to be charged
with a crime for them to seize your property. They kept my money, but they
also kept or broke in excess of $10,000 in merchandise. And I have no legal
recourse, even though I was cleared of the charges.

“I certainly couldn’t afford them to take that merchandise. I find it
grossly abusive, and they didn’t even bother to file for forfeiture in
the other cases.”

Indiana Code 34-24-1 allows law enforcement to seize property, and if a
forfeiture case is filed and won by the State, it keeps the property. At
the national level, Congress expanded civil forfeiture law in 1984 to allow
property to be seized just on suspicion of drug activity. The idea was to
prevent drug dealers from being able to return to the life they built with
the illegal proceeds of drug dealing.

But, according to Indianapolis attorney Stephen Dillon, asset forfeiture
laws has robbed citizens of their rights.

Dillon is a defense attorney specializing in defending drug cases for the
past 29 years. He also is the chairman of the Indiana chapter of NORML --
The National Organization for the Reform of Marijuana Laws -- and a
nine-time Libertarian candidate.

Dillon successfully defended Elvers, getting the charges against his client
dropped, but he characterizes the forfeiture action associated with the
case as legalized theft. 

“They don’t need a conviction or even criminal charges. They don’t
even need a case,” said Dillon. “They can do this to anyone. We don’t
have rights anymore in this country. I’ve had clients who have been
stopped at the airport and had their money taken from them and never given
back.

“I’ve had a client who was involved in a traffic stop with $25,000 in
his trunk. They seized the money because a passenger was smoking a
marijuana cigarette.”

Dillon explained that since a forfeiture action is civil in nature, the
state isn’t required to prove beyond reasonable doubt that the items
seized are related to illegal activity.

“All the state has to do is prove through a preponderance of evidence
that the property or money was related to some illegal activity,” said
Dillon. “They just have to tip the scale in their direction. They don’t
have the same burden of proof as they do in a criminal case. It’s a very
sad commentary.

“And there is no statute of limitations on when they can seize the
property. You have no speedy trial rights in these cases, either.”

Dillon also protests the forfeiture laws because the intended recipient of
the proceeds no longer get them.

“According to the law, all seizures are supposed to go to the common
school fund,” said Dillon. “Instead, the cops or the prosecutors get to
keep it. And if a snitch turns you in on a seizure case, he typically gets
a percentage.

“I have had a narcotics officer in the Indianapolis Police Department
tell me that he wouldn’t do the work if he couldn’t seize the property.
When an officer says that, we have a problem.

“I have had many cases where police officers have stolen cash, guns and
drugs during seizures. In one case, my client was speeding around I-465
with five pounds of pot in the car. The officer wrote in the report about
the five pounds, and sent it to the state lab for testing. But the lab
receipt was for four pounds. Law enforcement takes advantage of the war on
drugs and violates our constitution.”

The cases Dillon described did not take place in Howard County, nor did
they involve local law enforcement. Only Elvers’ case was based locally.
 

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