Together with the narrow drug enforcement focus of the revised federal law enforcement aid program, the asset retention law has wrought a dramatic shift in police motivation, towards practices which seriously undermine rational law enforcement efforts. As we have seen, many police agencies choose law enforcement strategies that can take fullest advantage of federal forfeiture laws, circumvent their own state forfeiture laws, and maximize property seizures, reducing fairness and crime control issues to an afterthought. Even the alleged mission of the Drug War may become secondary; failed policies are immune to reform because they sustain and profit the law enforcement agencies enlisted in this war.

Police abuses and warped law enforcement policy are only one half of this disturbing story. We have also argued that police self-financing raises serious accountability concerns, and threatens to establish a sector of permanent, independent and self-aggrandizing police forces. This might sound promising to Colonel North or General Pinochet, but it should not be mistaken for a legitimate organ in a democracy.

Agencies that can finance themselves through asset seizures need not justify their activities through any regular budgetary process. As a Justice Department report notes, "one 'big bust' can provide a task force with the resources to become financially independent. Once financially independent, a task force can choose to operate without Federal or state assistance."

When this happens, the predictable consequence is a degree of police secrecy and independence that brings with it some of the risks civil libertarians associate with the term "police state."

One example came to light in 1996, when almost $66,000 was discovered secreted in the former headquarters of the Western Area Narcotics Task Force (WANT) in Paducah, Kentucky. An inquiry followed to determine where the money came from and figure out what to do with it. Investigators learned that the task force had seized large amounts of money which it then used for whatever purposes it wished, unconstrained by audits, reporting requirements or its mission. This problem is endemic to forfeiture beneficiaries, from the Justice Department on down.

The investigation has shed light on the routine operations of this task force, and probably many others as well. Both seizures and expenditures were largely lawless. Like other task forces, WANT made asset seizures a priority, and mandated expected forfeiture growth rates. But WANT met its quotas with much more zeal than care. The police chief estimated that 60% of the money found in WANT headquarters will be returned to the owners because it was not properly seized. Often the seizures had no nexus to any drug transaction. Arrests were delayed for as long as weeks and months, at which point the police took whatever they found on or near the defendant at the time -- even though there was no connection between the seized property and the now distant drug transaction for which they were being arrested. Some seizures were as small as eight cents. Another seizure of 93 cents showed "once again that the officers were taking whatever the suspects were carrying, even though by no stretch could pocket change . . . be construed to be drug money."

The subsequent handling of seized assets was equally lawless. WANT refused to deposit money into a special account through the city's Finance Department. It maintained no system to record seizures, identify particular assets seized with its owner, or indicate whether it had been forfeited. Kentucky's asset distribution formula was disregarded, and cash was retained by the task force in vaults, boxes, bags, lockers and envelopes. One can only speculate on how the money was used, but earlier reports had criticized WANT for improperly diverting its grant money to investigate non-drug activity and cover cost overruns, and diverting personnel and equipment to surveil elected officials and private citizens for what looked like vindictive reasons.

The discovery of secreted cash provoked a major media scandal in Kentucky, but despite the predictions of some task force members that WANT's history would mark it for termination, WANT survived, changed its name, and prospered.

These findings are timely as rising gas prices and a changing economy leave police departments faced with growing budget constraints.  “As agencies become more desperate, there’s the potential for the situation to worsen.  We could see a lot more interest in creative sources of funding,” said Worrall.

Fraud on the court is defined in Black's Law Dictionary as "a lawyer's ... misconduct so serious that it undermines or is intended to undermine the integrity of the [judicial] proceeding." The secret agreements uncovered by the court, with their universal provisions to forebear filing of forfeiture actions or to dismiss existing forfeiture actions, constitute an egregious lack of candor with the court, and candor is necessary to preserve the integrity of the adjudicative process. These secret agreements, covering a period from 2000 to 2007, were intentionally drawn to avoid court supervision and adjudication of forfeitures as required by state law. This concealment was successful until uncovered by the court in 2008, following up on a chance comment by a DTF supervisor. The secret agreements show McKinney's and Hoffman's clear intent to profit from their special positions as public servants invested with a public trust. Invariably, while avoiding mention of attorney fees, the public money is directed away from general fund accounts into DTF accounts, from which McKinney's and Hoffman's 25% claims are paid.

 … The court notes McKinney drafted a court order seizing a credit union account. McKinney then negotiated and signed a secret agreement which was used to transfer money from the credit union account without the court's knowledge and in direct violation of the court order. The forfeited funds were transferred to a DTF account not authorized by the legislature for receipt of forfeited assets for local units of government and without any itemization or accounting for local law enforcement costs.

McKinney's actions are purposeful, deceitful, and directly against the interests of his clients, the Muncie Common Council and the Delaware County Council. He knowingly and willfully violated a court order and sought to conceal this action from the court. By his actions, McKinney intentionally subverted the check and balance system established by the Indiana General Assembly in civil drug forfeitures, substituting his judgment for that of the court as well as the fiscal bodies of Muncie and Delaware County.

The court notes that in the civil drug forfeitures which McKinney allowed to come to default or agreed judgment, he universally makes a statement which is untrue, which is either known by him to be untrue, or made by him with reckless disregard for the truth: the accounts he labeled general fund accounts and advised the court to place forfeited money into were not general fund accounts. …

… The court notes that McKinney's conduct in civil forfeitures and companion criminal cases gives rise to an inference of conflict of interest. A deputy prosecutor prosecuting a criminal action, while also proceeding with a civil forfeiture involving the same defendant, raises serious questions involving financial interest and whether it results in conveying the impression that justice is for sale. …

… McKinney was ready and willing to use the legitimacy and authority of the judicial system in pursuit of civil drug forfeitures, but he was unwilling to submit his actions to judicial scrutiny. His actions, considered jointly or severally, constitute a fraud on the court.

In 2006, a Jim Wells County, Texas deputy named Ray Escamilla was lauded as the nation’s leader in captures of “drug seizure money.” Over four years, the deputy sergeant racked up more than $3 million by working the traffic on U.S. 281 and finding reasons to search cars and trucks. His seizures of suspect cash and several vehicles enabled the sheriff’s department in the tax-poor county to pay the salaries of additional officers and buy patrol cars, guns, SWAT gear, and four dogs trained to find bombs and drugs.

…“But what happens, especially in South Texas, is that some of these county jurisdictions have come to rely on confiscations as a way to supplement their budgets.”

Between 2005 and 2007, according to county reports submitted to the Attorney General’s office, agencies along Highway 77—the Kingsville Crime and Narcotics Task Force, the Kleberg County sheriff, a Kleberg County constable and the Kenedy County sheriff—reported total assets from forfeitures and seizures of $4,486,938. They returned only $41,920 to defendants who appealed through the civil process. (The reports to the state do not describe how seized money was spent.)

During the same period, on U.S. 281, the Jim Wells County sheriff and allied police departments of Premont and Orange Grove reported total assets through forfeitures and seizures of $2,027,736. In neighboring Brooks County, south on U.S. 281, the sheriff’s department reported assets of $1,777,649. Sharing in this wealth of income was Frank Garza, the 79th district attorney, who serves both Jim Wells and Brooks counties and defends the counties in court. Garza’s office saw to it that none of the properties were returned on appeal.

… [T]he practice has become such an important contributor to local government budgets, particularly those of district attorneys, that legislators are loath to change the system. Oscar Garza, a retired colonel of the Jim Wells County Sheriff’s Department who lives in Premont, describes a situation that is more complex and nuanced than a cynical shakedown scheme under the guise of the War on Drugs. “In the mid-nineties,” Garza says, “working with a DEA officer I made the department’s first confiscation under Chapter 59. It was a residence that brought $324,000 into our budget. After that, as we learned more about it, the confiscations started paying for just about everything: our uniforms, firearms, bulletproof vests, cameras, radar and radio systems.”

Valadez asked Javier if he had any knives, guns, ammunition, or large amounts of money. For the second time in an hour, Javier acknowledged having several thousand dollars in the car.

As soon as Javier said that, the officer’s change of expression and body language could clearly be seen on the videotape. A backup patrol unit veered around to a halt in front of the Mazda. A uniformed officer hustled out of the car with a look on his face that did not appear friendly. A stunned [passenger] was ordered out of the car and told to spread his legs and put his hands on the Mazda’s hood. An officer patted him down.

Valadez walked past Javier stretching a cord that, it turned out, was a leash. The officer came back into view with a dark-ruffed German shepherd. He told Javier to empty his pockets, and when Javier did that, producing a small fold of dollar bills, the dog made a lunge at his hands.

The dog’s lunge was a critical component in the officers’ assertion that they had probable cause to proceed.

“Good boy,” Sergeant Valadez commended the German shepherd, after it had sniffed out the trunk. … 
Continued at: http://www.texasobserver.org/article.php?aid=2760