updated November 12, 2009

November 12, 2009:
Police property seizures ensnare even the innocent
Money raised by Metro Detroit agencies increases 50% in five years

by George Hunter and Doug Guthrie / The Detroit News

Local law enforcement agencies are raising millions of dollars by seizing private property suspected in crimes, but often without charges being filed -- and sometimes even when authorities admit no offense was committed.

The money raised by confiscating goods in Metro Detroit soared more than 50 percent to at least $20.62 million from 2003 to 2007, according to a Detroit News analysis of records from 58 law enforcement agencies. In some communities, amounts raised went from tens of thousands to hundreds of thousands -- and, in one case, into the millions.

"It's like legalized stealing," said Jacque Sutton, a 21-year-old college student from Mount Clemens whose 1989 Mustang was seized by Detroit police raiding a party. Charges against him and more than 100 others were dropped, but he still paid more than $1,000 to get the car back.

"According to the law, I did nothing wrong -- but they're allowed to take my property anyway. It doesn't make sense."

While courts have maintained the government's right to take property involved in crimes, police seizures -- also known as forfeitures -- are a growing source of friction in Michigan, especially as law enforcement agencies struggle to balance budgets.

"Police departments right now are looking for ways to generate revenue, and forfeiture is a way to offset the costs of doing business," said Sgt. Dave Schreiner, who runs Canton Township's forfeiture unit, which raised $343,699 in 2008. "You'll find that departments are doing more forfeitures than they used to because they've got to -- they're running out of money and they've got to find it somewhere."

Continued at:

October 2007:

Court rules sailboat formerly owned by President J. F. Kennedy not subject to forfeiture:
Government had no right to sell the sloop, nor does it have any right to pocket proceeds from that sale.
by Judy Osburn

First the government obtained a forfeiture judgment against the Star Class sloop “Flash II” without bothering to notify Dr. Kerry Lane, a successful anesthesiologist and principle owner of the prized sailboat. The Flash II was formerly owned by the young future president J.F. Kennedy when he triumphed by an unprecedented four and a half minute margin in the 1936 Atlantic Coast Championships.

Attorney Brenda Grantland achieved Dr. Lane’s first victory in this case in August 2006, when the First Circuit Court of Appeals vacated the default judgment that had been obtained in Dr. Lane’s absence. The appeals court held that due process requires the government to at least attempt to locate innocent owners with an interest in seized property.  The First Circuit remanded  U.S. v. One Star Class Sloop Sailbot Built in 1930 Named Flash II to the district court in Massachusetts for further proceedings in which Dr. Lane had an opportunity to be heard.  In the meantime, however, the government sold the sailboat at auction without a minimum reserve, causing the boat to be sold at only about one tenth of it’s appraised  value.

At trial the government conceded that Dr. Lane was totally innocent of any wrongdoing or negligence. Nevertheless, the government argued that Flash II was subject to forfeiture as proceeds traceable to drug money pursuant to 18U.S.C. § 981(a)(1).  Boat restorer Ole Anderson had organized the consortium of investors who provided funding to purchase and restore the Flash II.  The government attempted to support its theory that drug money could be traced to the Flash II through its cooperating witness, Gary Milo, who had pleaded guilty to trafficking 11,000 pounds of marijuana, for which he received a mere 18 days’ imprisonment due to his cooperation in building a forfeiture case against the Flash II.  Milo testified that during the course of his lengthy illegal career he had hired Ole Anderson on a couple of occasions and that he paid him $16,000.

Ms. Grantland argued that the government offered no more than mere suspicion that any of the funds used by Ole Anderson to pay for maintenance of the Flash II included any portion whatsoever of Gary Milo’s $16,000 in tainted currency.  If Gary Milo’s drug proceeds became commingled with Ole Anderson’s untainted funds, “whether in a bank account or in a tattered suitcase,” argued Grantland, “the government's burden of showing that money in the account or an item purchased with cash withdrawn therefrom is ‘traceable to’ illegal activity will be difficult, if not impossible, to satisfy.”1  The forfeiture statute’s term “traceable to” means exactly what it says, Grantland continued in a post-trial memorandum, and the government's theory of forfeitability fades away without a trace once Gary Milo's drug money is transferred to Ole Anderson.   

On October 1, 2007, the district court ruled that, although the government’s contention that some of the funds used to refurbish the Flash II are traceable to the drug proceeds of the government’s cooperating witness Gary Milo is “theoretically possible,” the government failed to carry its burden of proof under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).

Not only was Dr. Lane a completely innocent owner, but no portion whatsoever of the sailboat seized and sold by the government had been subject to forfeiture. “Accordingly,” District Judge William G. Young ruled, “the sloop was not forfeitable. Because the sloop was not forfeitable, the government had no interest in the sloop and therefore no right to dispose of the sloop.”
Click here to continue.

(Pleadings from this case available to FEAR's Brief Bank II subscribers.)

A few examples of recent creative asset forfeiture schemes:

Highway Robbery—One man's painful journey through South Texas' addiction to asset forfeiture,” Austin-based writer Jan Reida provides a detailed account of  “agreed judgments, ” by which South Texas police, “working the traffic on U.S. 281 and finding reasons to search cars and trucks, ” intimidate travelers into forfeiting all rights to contest the seizure of any currency they have with them.  (May 16, 2008 edition of the Texas Observer.)

Like the Sheriff of Nottingham, the word of police became law across Bradenton.

We have recently seen a frightening increase the use of so-called forfeiture “agreements” whereby police completely bypass any judicial oversight. Until recently, for years police in Bradenton, Florida, police frightened citizens into signing so-called “forfeiture agreements” that waive all rights to contest the forfeiture of whatever currency police discover during a road side stop.

Bradenton’s Herald-Tribune examined the City’s forfeiture agreement program and “found cases in which police took money from people who were arrested on crimes other than drug charges, or who were not arrested at all. Several people said they did not know what they were signing.”

A Florida Court ordered the City of Bradenton to either return $10,020 seized in 2006 from Delane Johnson pursuant to such an “agreement,” or to properly pursue a forfeiture proceeding through the courts. Police had no evidence that Johnson was a drug dealer, thief, or had committed any crime whatsoever. But, suspicious of a black man in possession of a large amount of cash, and very desirous of that money, Bradenton police arrested Johnson on an obscure misdemeanor charge: failing to report a business transaction that exceeds $10,000. Prosecutors refused to file the bogus charge. But while police still had Johnson in custody with no lawyer, they got him to sign a form giving them that $10,020.

Attorney Varinia Van Ness took Johnson’s case to court. Judge Peter Dubensky called the City's use of the contract form "unconscionable" and said it used false pretenses to trick Johnson into a senseless agreement. The city had no basis for even seeking forfeiture, the judge wrote, and "should have known its defense was frivolous." In addition to ordering return of the money, Judge Dubensky ordered the City to pay attorney Van Ness’ fees in the amount of $7,490.

The City of Bradenton appealed.  A Florida appellate court vacated the judgment, based upon its finding that Johnson’s writ of mandamus was not an appropriate legal avenue for return of the money, nor to determine whether the City had a right to use forfeiture contracts generally. But the appeals court invited Johnson to return to the lower court to continue his fight for due process and justice. 

Seeing the futility of continuing its frivolous defense on remand back at the lower court, the City pulled off its final underhanded blow in the case.  The Bradenton police chief declared a “complete victory” regarding the appeals court reversal of Judge Dubensky’s court order to return the cash and pay attorney fees. But the City then suddenly returned Johnson’s money plus interest to him—and thus avoided paying attorney Van Ness’s  initial court ordered fees of $7,490 plus her  fees and costs incurred litigating the City’s appeal. (See: Herald Tribune, “Lawyer gets ‘paid’ for fighting Bradenton.” ) 

The original court order for return of money plus attorney fees, holding Bradenton’s use of strong arm forfeiture agreements to be an unconstitutional violation of due process remains vacated.

Meanwhile, a little farther north in Texas, according to according to a November 2003 Dallas Morning News article, Dallas cops will let you go if you if you won't fight their seizure of your goods, the North Central Texas Narcotics Task Force struck deals with a man who beat his prostitutes and forced them to have his name tattooed on their bodies, another who cooked an estimated half-million dollars worth of methamphetamine, a cocaine dealer, and others for lighter punishments in exchange for cash, cars, motorcycles, jewelry and other property that the task force needed to fund its operations. These criminals each received sentences of probation in exchange for not contesting the forfeiture of assets used to fund the task force. Denver McCarty, a former task force prosecutor, said he offered the deals to a half-dozen defendants during the last two years because the task force needed the money to stay in business.
"If we don't have enough money by the end of the grant year, we're all out of a job," he said. "You kind of knew what kind of forfeiture money you needed to have, or everybody's going home."
"I think it looks bad," said Bruce McFarling, a former North Central Texas task force prosecutor who is now a state district judge in Denton County. "It would be a matter of, we're letting criminals go because they're paying property. Someone with more property will get a better deal than someone else."
Because these buy-offs from criminal prosecution are usually made in private it’s difficult to gauge how widespread such exchanges of prison time for forfeiture deals have become. But according the Dallas Morning News, “published reports indicate this type of private buy-your-way-out-of-jail deals occurred in New York, Massachusetts, Ohio, Arkansas and Wisconsin during the time period immediately preceding the November 2003 article.
"It just keeps going on. What's to stop it?" David B. Smith, co-chairman of the National Association of Criminal Defense Lawyers' Forfeiture Abuse Task Force told the Dallas Morning News in 2003. "Each DA has his own little fiefdom. If he's elected, there's no one above him who can stop it except the public."

Corruption In Hamilton Ohio: Civil Asset Forfeiture - The story of Earl Cavin Sr.

When Punishment Is So HarshThat Forfeiture Seems Incidental -The Story of the Avery Family of Kentucky

An American Gulag

Is There A HoleWhere My HouseUsed To Be? The story of Jackie Kubinski and her family

Trails End: A Memorial to Donald Scott

On October 2, 1992 Malibu California millionaire Donald Scott was shot to death inside his own home, during a raid by Los Angeles Sheriff's Department and agents from five federal law enforcement agencies. ... The report of the Ventura County District Attorney, Michael Bradbury, concluded that the police lied to obtain the search warrant, that there had never been any marijuana cultivation on the property, and that the raid was motivated by a desire to forfeit the multi-million dollar ranch. Despite the DA's dramatic conclusions, no officer was ever indicted, or even lightly disciplined for the lies or the killing.

William Tanner: One Victim of Forfeiture Abuse

Rock-A-Rolla Records update: Long time FEAR member, Jo Anne Dews, loses her forfeiture case, and IRS pounces, by Tom Flook.

Forfeiture Victims Tom and Barbara Rowland Have Happy Ending, by Tom Flook

Victim Story of Dr. Richard Low, M.D., by Bob Bauman

NJ Forfeiture Victim Fights Back, story of forfeiture victim James Guiffre

Perseverance Pays Off! (forfeiture victim wins back money from state franchise tax board)by Kathy Bergman

A Victim Thanks FEAR for Our Work On Double Jeopardy, by Sunni Liston

No More Bail Bonds by John Paff

Afraid: Sunni's Forfeiture Victim Story by Suzanne ("Sunni") Liston

Forfeiture Victims The Joneses by John Paff