San Jose Mercury News
Sunday, August 29, 1993

Front Page


LAW FILLS COPS' COFFERS BUT INVITES ABUSES

By GARY WEBB
Mercury News Sacramento Bureau

After Kay Van Sant's 30-year-old son was arrested on drug trafficking charges
last spring, the Bakersfield police marched into her bank and drained her
checking account of $3,912. Van Sant, a self-employed bookkeeper who hasn't
lived with her son in 10 years, has never been accused of a crime. And she
hasn't gotten her money back.

Miluska Portilla and Percy Ormeno, T-shirt vendors who live in Daly City, lost
$1,045 when San Francisco police raided their house looking for drugs. No
drugs were found. No arrests were made. The only thing police officers found
was a piece of paper that they said was a record of narcotics sales -- a
document the prosecutor who took their cash admitted he'd never seen.

Roberto De La Torres' pickup was seized in March after his cousin was arrested
in it with a pound of marijuana. De La Torres, who speaks no English, wanted
to explain that he'd loaned the truck to his cousin before leaving on a
Mexican vacation. He never got the chance. Announcing that ``the court doesn't
speak Spanish,'' a Kern County judge awarded De La Torres' pickup to the
police, ignoring his pleas for an interpreter.

These tales and dozens like them are the untold story of California's asset
forfeiture law, a 5-year-old experiment designed to combat the overlords of
the state's multibillion-dollar illegal drug industry. The state's top law
enforcement officers call the experiment -- which they estimate has resulted
in at least $1 billion in seizures -- an unqualified success, and are pushing
to make it permanent.

But a three-month Mercury News investigation found a very different world --
one of widespread abuses, where suspicion and hearsay can cost you your car,
your cash, your house, the pictures on your wall and the clothes in your
closet; where the police seize property first and ask questions later; where
you're guilty unless you prove otherwise -- and if you can't afford a lawyer,
too bad.

It is a world where, if you're poor or ignorant, you stand almost no chance of
winning -- even if you happen to be innocent.

Police and prosecutors ``have gone crazy with this law,'' said attorney Robin
Walters, who ran the Kern County district attorney's asset forfeiture unit for
two years. ``They're rabid. They'll take anything, whether it has anything to
do with drugs or not, because they know most people will never be able to get
it back.''

No one knows how widespread the problem is, because there is no statewide
oversight and no real accountability. But cases of abuse are on file in almost
every courthouse in the state.

Law enforcement spokesmen deny the law has spawned a statewide bounty hunting
system. Such ``alleged horror stories,'' they say, are just propaganda.

``To date, out of all the scores and scores and scores of asset seizures under
California law, there's not been a problem with one single case. Not one,''
said Mike Carrington, a spokesman for Gov. Pete Wilson's Office of Criminal
Justice Planning, which gets 10 percent of all forfeitures made in the state.
``There has never, ever been a problem. That's how the record stands.''

Others who have been more directly involved disagree.

``These seizures have been legal street robberies,'' said former Los Angeles
narcotics detective Robert R. Sobel, who ran one of Los Angeles County's most
productive anti-drug squads in the late 1980s. Sobel and Eufrasio Cortez -- a
former California Narcotics Officer of the Year -- recently told a federal
corruption jury in Los Angeles that members of their task force routinely lied
under oath, falsified police reports, invented informants, planted drugs and
beat suspects to get money and valuables from them. So far, 12 officers have
been convicted of various crimes.

The way asset forfeiture works is quite simple: If police officers believe
you're a drug dealer, they can take nearly anything you own. No crime is
required; no arrests are necessary.

You have 10 days to contest the seizure, or your property is gone forever.
It's up to you to prove to the district attorney that your assets are
drug-free.

And don't assume receipts, property titles or paycheck stubs will necessarily
suffice. You're guilty until proven innocent.

``Everybody's always got a receipt for something,'' scoffed Deputy District
Attorney Kyle Hedum, who handles forfeiture cases for Yolo County. ``You ought
to hear some of the stories I hear. These people are dopers, and it's my job
to take that money.''

If you fail to persuade the district attorney, your only recourse is to go to
court. Most cases in California never get there, because it usually costs more
to get the property back than it's worth. If you lose, your assets are divided
among the district attorney (13.5 percent), police (76.5 percent) and the
state (10 percent.)

In many instances, people who lose assets are drug dealers. But not always.

``I don't doubt that there may have been an abuse here and there, but the
Department of Justice and most of the local agencies I know about are very
cautious and very conservative when it comes to using this law,'' said Joe
Doane, chief of the attorney general's Bureau of Narcotic Enforcement.

The California Legislature began experimenting with the idea of allowing
police and prosecutors to profit from suspected drug crimes in 1989. Since
then, tens of thousands of forfeitures have taken place. Last year alone, more
than 6,000 forfeiture cases were filed in California.

But the experiment is scheduled to end this year, and that prospect has the
law enforcement establishment frantic, because many agencies are using the
money to pay salaries and overtime, furnish their offices and pay rent -- uses
that were never intended when the law was enacted.

`THEY HAVE TO HAVE IT'

``Much like a drug addict becomes addicted to drugs, law enforcement agencies
have become dependent on asset forfeitures,'' said Deputy Attorney General
Gary Schons, who helped write the state's forfeiture laws. ``They have to have
it.''

State Attorney General Dan Lungren agreed: ``We can argue about semantics, but
the fact of the matter is this is the lifeblood of local law enforcement.''

Because statewide reporting requirements do not exist -- and some counties
have not revealed how much they've made -- it is impossible to know exactly
how much the forfeiture laws have brought to police coffers. The Department of
Justice estimates that of the estimated $1 billion in seizures, $180 million
has been forfeited since 1989.

To keep that pipeline flowing, the law enforcement lobby has launched a
high-pressure campaign in Sacramento to make the law permanent and to expand
it so money and property will be easier to get. Other lawmakers -- an unusual
coalition of liberals and conservatives -- are trying to roll it back, arguing
that police and prosecutors have become more interested in seizing cash than
in fighting crime.

The anti-forfeiture movement is being led by Assemblyman John Burton, D-San
Francisco, head of the powerful Assembly Rules Committee. On the
pro-forfeiture side are Senate Minority Leader Ken Maddy, R-Fresno, and
Attorney General Lungren. Both groups are meeting now and are supposed to
present a compromise bill to the Legislature in the next few weeks.

The courts also are taking another look at forfeiture. In recent months, the
U.S. Supreme Court has handed down two rulings defining the outer limits of
the federal forfeiture laws. Local prosecutors, though, say the decisions will
have little impact.

STRIPPING AWAY SAFEGUARDS

While their impact may be debatable, the court decisions are the first time
anyone has succeeded in halting the steady expansion of the forfeiture law.
Since the first modern forfeiture laws went on the books in the late 1970s,
police groups have waged a patient and extraordinary lobbying campaign that
methodically stripped away nearly every safeguard wary legislators had written
to prevent police profiteering:

-- The amount of proof the state needed to win a forfeiture case in court has
been reduced three times, from guilt ``beyond a reasonable doubt'' to the
current standard of ``more likely than not.'' Now, forfeitures are being
granted on nothing more incriminating than the lack of a job or a drug dog's
behavior around a stack of $20 bills.

Sean Thomas of Los Angeles had $14,500 taken from him by the California
Highway Patrol and Bakersfield police in November because they didn't believe
his explanation that he was a rap music promoter and that the money had come
from ticket sales -- even though a record company executive had confirmed the
existence of Thomas' production company for police.

``The story of being a rap concert promoter or rap group promoter is widely
used by both black as well as Hispanic narcotic traffickers,'' the police
report said. ``The $14,500 was seized pursuant to asset forfeiture.''

Thomas, a black man with no criminal record, was a passenger in a van that had
been stopped for speeding. No drugs were found, and no drug arrests were made.
Yet Thomas lost his money because the legal fight to recover the funds became
too expensive.

-- The amount of drugs necessary to seize a vehicle -- originally set at a
level high enough to keep the law focused on major narcotics dealers -- has
been cut in half twice. The variety of drugs that can cause forfeitures has
been broadened to include common prescription pain relievers.

Greg Augustus of Sacramento was jailed on drug trafficking charges last year
because he was found with $230 and 10 Vicodin tablets, a painkiller his doctor
had prescribed for crippling arthritis. The evidence for his arrest: talking
to another person ``as if possibly he was engaging in a narcotics
transaction.''

The charges were dropped, and Augustus had to go to court to get back his $230
-- which, ironically, he'd just received from the Sacramento Police Department
as a settlement for an accident claim in which a police car had crashed into
his vehicle.

``I wouldn't have gone to jail if I hadn't had the money on me,'' said
Augustus, who lives in a poor section of Sacramento called Del Paso Heights.
``It happens all the time in the Heights because they know some people are
scared to go back and get it.''

-- The kinds of property that can be seized -- at first limited to boats and
airplanes -- have been expanded to include real estate, computers,
motorcycles, campers, televisions, compact disc players and anything else the
person may have purchased in the five years prior to the seizure. Weapons were
added to the list in 1990, and a Department of Justice forfeiture manual
advises police to seize every gun found on the premises during a drug raid,
even if they were legally obtained and have no connection to drug trafficking.

The Mercury News found cases in which police had seized such items as a set of
tires and rims, a child's Nintendo game, a belt buckle and a jar of pennies.

Sacramento attorney Phil Cozens said that when police raided an apartment
owned by one of his clients, they were very discriminating about which assets
they seized.

``They took a bottle of Lafitte Rothschild 1984, but strangely enough, they
left a bottle of Dom Perignon 1982,'' said Cozens, a former prosecutor. ``They
took some very bizarre red wines and left champagnes and whites.''

-- The amount of money police and prosecutors can keep from forfeitures has
soared from nothing under the original law to 90 percent under the current
law, with the difference coming at the expense of drug prevention programs. In
1983, the California Department of Mental Health was receiving 50 percent of
all forfeiture dollars. Now, it gets a maximum of $1.5 million a year --
roughly 3 percent.

Up until 1988, police lobbyists had a standard reply to lawmakers who worried
that innocent people might be harmed: Forfeiture, they reminded them, could
only be used if the owner had been convicted of drug trafficking.

A FINAL BARRIER: CONVICTION

But in 1988, a bill carried by Assemblyman Richard Katz, a Los Angeles
Democrat, knocked down that final barrier. Convictions were no longer required
-- and the money started rolling in.

``When that statute was written, everybody saw dollar signs,'' said Rich
Bradshaw, a budget officer with the state Justice Department.

An internal 1988 Justice Department analysis of the Katz bill predicted that
``aggressive enforcement . . . could eventually produce as much as $10,000,000
a year for California's law enforcement agencies.''

The estimate was off by more than 500 percent.

From 1988 to 1989, the value of asset forfeitures in California soared from $7
million to $30 million. In 1991, it was $55.8 million.

PROGRAM FEEDS ITSELF

``That's not because law enforcement is greedy and selfish and will only do it
when they get the money,'' Attorney General Lungren assured a legislative
panel recently. Rather, he said, it's because the money allows the hiring of
more prosecutors and narcotics agents, which produces more forfeitures.

Since the current forfeiture law went into effect in 1989, drug arrests in
California have declined dramatically, but asset forfeiture cases have
continued to increase. Defense lawyers say they are seeing an unusual number
of clients who have lost cash and property but have not been charged with a
crime.

``They're more interested now in the money than in catching crooks,'' said
attorney David Weiner of Cameron Park in El Dorado County. ``A lot of them
would rather let the guys go so they can come around later and pop them again.
The whole thing has grown into a monster.''

The narcotics bureau's Doane agreed that the lure of easy money has warped the
views of some law enforcement officials.

``There are a lot of people both in and out of law enforcement who believe
that income generation is the primary point of the law,'' Doane said. ``To me,
that's not even part of the equation. It's nice if we do (get the money), but
if we didn't, it's OK by me.''

A LAW GONE TOO FAR?

Even some narcotics agents believe the law has gone too far.

``Truthfully, I would like to see this swung a little bit more back to the
conservative approach,'' said Sgt. Dearl Skinner, who handles forfeiture cases
for the Sutter County Sheriff's Department. ``I wouldn't mind if I had to get
a conviction of possession for sale.''
But Skinner acknowledged that his view is not a popular one with most police,
particularly those in urban counties.

``They just don't have the manpower to go out and make the (criminal) cases,''
Skinner said. ``I mean, what they're hoping is that they just file the
(forfeiture) paperwork and the people won't file a claim, . . . and then it's
automatically theirs.''

Contra Costa County District Attorney Gary Yancey, however, thinks the law is
too restrictive and chafes at the ``loophole'' that prevents him from seizing
property used for growing marijuana.

``If an individual is growing marijuana in his house with hydroponics and
whatever, it's the equivalent of a meth(amphetamine) lab or manufacturing rock
cocaine,'' Yancey told the Legislature recently. ``You ought to be able to
take the whole thing.''

Attorney General Lungren also said he thinks the law doesn't go far enough.
He'd like to see it expanded so that the state would be able to seize an
entire apartment complex if the landlord knew one of the tenants was selling
drugs.

To critics who argue police are already running wild with this law, Lungren
says the system has plenty of checks and balances. While the cops might be
making the seizures, he said, it's the district attorneys who are making the
decisions about whether or not to keep the property.

``That, I think, is some protection against a misunderstanding that some
people have that somehow law enforcement goes out there and grabs whatever
they think they can find and then refuses to allow people to have their
property back,'' Lungren testified recently.

What he didn't mention was that a district attorney often has a more direct
interest in keeping the items than a police officer does. Under state law,
13.5 percent of the money a forfeiture case produces goes to the district
attorney's office. In many counties, that money is used to pay the salary of
the prosecutor handling the case.

--


Is Anyone Immune?
Before you decide your assets couldn't possibly be seized under the state's
forfeiture laws, you should know what items authorities would look for in your
house or on you to make their case that you're a drug dealer. Here is a sample:

# $20 and$100 bills: The Sacramento County District attorney's Office says
those denominations are always suspect because "drugs are most frequently sold
in $20 and $100 sizes."

# $5, $10, $20 and $50 bills: In Bakersfield, they're on the lookout for those
denominations because, in the district attorney's opinion, they are
"consistent with street-based sales of illicit drugs."

# Pagers or Beepers: Possession of a pager or beeper always raises eyebrows,
particularly if police don't think you need one. Cases were found in which
police decided an assistant manager of a muffler shop and a mechanic did not
have jobs "that would normally require a pager." That was cited as evidence of
drug dealing.

# Written notes: They can come back to haunt you if police think they're
"pay/owrs transactions straight.  Terry Dalere, a 41 year old farm worker, had
his pickup, four guns, and $18,631 seized from his bank account last year
because Delano police found six marijuana plants growing in his back yard.
Dalere was charged with selling marijuana. As evidence, police produced what
they said was a pay/owe sheet. The note, Dalere said, was a list of families
that had chipped in money to buy a slaughtered cow. The trafficking charges
were dropped, but Dalere had to hire a lawyer to get his money back.

# Nothing: When all else fails, there's always the approach Sacramento police
took with Stephanie Robinson, who lost $1,245 last year after a pinhead-sized
bit of methamphetamine was found between the front seats of her car. Since a
search of her house and her body turned up nothing but the money, police
decided the "lack of narcotics paraphernalia" and "the lack of the suspect
being under the influence" suggested she'd gotten the money from drug sales.San Jose Mercury News
Monday, August 30, 1993

A1

SWEEPING LAW LEAVES POOR, VULNERABLE WITH LITTLE RECOURSE

By GARY WEBB
Mercury News Sacramento Bureau

Prosecutors like to tell the story of the 1989 Sylmar raid in Southern
California, when police burst into an unguarded warehouse and found $12.2
million in cash, just sitting there, surrounded by 21 tons of Colombian
cocaine.

If it weren't for asset forfeiture laws, they say, some drug dealer would have
gotten his money back. Instead, it went to police.

But for every Sylmar, there are hundreds of Paula Martinezes. Martinez, a
single mother from south Sacramento, had $244 taken from her in December when
police found a half-ounce of marijuana in her cigarette pack.

The money was from the $307 welfare check Martinez gets to support her
8-year-old daughter.

``I was without money for the whole month,'' said Martinez, 23, who was fined
$60 for marijuana possession. ``I had stuff on layaway in the stores for my
little girl for Christmas. And I told them that, and they still didn't care. I
had to borrow the money from my Mom to get my little girl some presents for
Christmas.''

Mike R. Galli, the deputy district attorney who prosecutes Santa Clara
County's forfeitures, calls such cases ``an abomination of the law. . . . We
don't play ball that way here. The law is designed to take the money from
people who are trafficking in narcotics. It's not meant to be legalized
thievery.''

A Mercury News investigation found that major narcotics dealers -- who can
secrete assets around the globe and hire lawyers and accountants to defend
them -- are often successful in fending off forfeitures. It's people like
Martinez -- the poor, those who speak little English and casual drug users --
who lose. They were never intended to be forfeiture targets under California's
law in the first place.

Taking their money, said forfeiture lawyer Justin Scott of Sacramento, ``is
like shooting fish in a damned barrel.''

Because of the way the law works, people who are victimized by forfeiture can
do very little about it, particularly if they don't have bank accounts or
don't keep detailed financial records. Many Hispanic families, prosecutors and
defense lawyers agreed, are especially vulnerable to forfeiture because they
tend to keep their cash at home or with the most senior man in the family.

CASH SEEN AS SUSPICIOUS

``There is a presumption now that if you have cash at your house, over
whatever figure the police think is appropriate, then it must be from drug
money,'' Scott said. ``Of course, it could be from anything, but people,
according to the cops, don't keep cash at home.''

All it takes to lose your money is an unconvincing or undocumented explanation
of where you got it.

Unlike criminal defendants, forfeiture claimants almost never get to plead
their cases before an unbiased judge or a jury. The vast majority of cases are
decided by the local district attorney, who keeps 13.5 cents of every dollar
taken in a forfeiture case.

The district attorney's ``court'' works like this: If the district attorney
believes your story, you'll probably get some of your property back. If not,
you lose. Your only alternative is to go to court.

That's where the story usually ends. State Justice Department statistics
reveal that in many counties last year, three of four forfeiture cases never
got to court. In some, such as Shasta and Solano counties, the figure was more
than 90 percent.

TOO EXPENSIVE TO FIGHT

Why? Lawyers say it's because most cases are so small that it's pointless to
take them to court. The average forfeiture case in California is worth less
than $2,000, records and interviews reveal, and the expense of a trial would
far exceed that.

``If it's less than a couple thousand dollars, I tell people not to bother
unless they've got some kind of ironclad proof. And usually when it's cash,
you don't have it,'' Scott said. ``They're looking at paying $182 just to file
a claim to ask for the money back. Then they've got to pay me, and then
there's a chance they can spend all this money and lose anyway. Economically,
it's just not worth it.''

Trying to fight forfeiture without a lawyer is suicidal, because the law -- a
strange hybrid of civil and criminal law -- is a nightmare.

``I can't even explain it to some lawyers,'' said Michael Yraceburn, a Kern
County prosecutor who heads the California District Attorneys Association
asset forfeiture division. ``I'm still learning it five years later.''

LIMITED OPTIONS

But most people who have property seized are forced either to defend
themselves or to give up. Here are the options:

-- If you want a lawyer, jury or court reporter, you have to pay for them,
which can be a problem when all your assets have been seized. Because
forfeiture cases are handled in civil, not criminal court, you have no right
to a court-appointed attorney.

When the Santa Barbara County Public Defender's Office volunteered a few years
ago to defend some forfeiture cases, the district attorney went all the way to
the California Supreme Court in an unsuccessful effort to get the volunteers
kicked out of the courtroom.

``The cops felt that, `Why should we have to fight extra hard against these
guys with a court-appointed lawyer?' '' said Santa Barbara Deputy District
Attorney Tom Muscio. `` `Let him hire his own lawyer, or let him represent
himself, so our job will be a little bit easier.' ''

-- You have only 10 days from the time of the seizure to file a claim for the
property, or it's gone forever. Filing a claim, which costs $182, can be tough
when you're in jail and the police have all your money.

Robin Walters, who ran the Kern County district attorney's forfeiture unit for
two years, said she ``loved'' the 10-day deadline when she was a prosecutor.

``That almost guaranteed they weren't going to have a lawyer,'' she said.

-- You have no Fifth Amendment rights. If you don't answer the prosecutor's
questions, you lose. If you don't answer them fast enough, you can be fined.
If you don't fill out the claim form exactly right, the game's over.

Karri Welch was arrested in 1992 for drug trafficking after Sacramento County
deputies found 0.08 grams of methamphetamine -- about the size of a grain of
salt -- in her purse. They seized $1,013 and tossed her in jail. When Welch
got out, she had five days to file a claim and no money to hire a lawyer.

``By the time I got down to the D.A., all my time had run out. I just barely
made it. But they didn't notify me until after the time expired that I hadn't
signed the form correctly,'' said Welch, 35. ``I lost $1,000 because I didn't
sign the form in two places. I only signed it in one place.''

No evidence was produced that Welch was a drug dealer. She pleaded guilty to a
possession charge.

WEAPON IN THE WRONG HANDS

William Cummings, who until recently prosecuted Butte County's asset
forfeiture cases, said that in the wrong hands, forfeiture laws can become a
bludgeon.

``If you are aggressive about it and you do everything the law allows you to
do, you can easily give yourself an unfair advantage,'' Cummings said. ``It
used to make me sick to see some of the cases D.A.s in other counties would
write up and send around, where they had taken some poor pro per (a person
with no lawyer) to court and beaten the hell out of them. They were real proud
of it.''

S. Jon Gudmunds, a former Santa Barbara County judge, says police there have
figured out a way to keep people from even knowing they can file claims.

Although the law requires police to give you a written notice explaining how
to claim your property, Gudmunds said officers wait to do that until their
prisoner is ready to be booked into the county jail.

10 SECONDS WITH PAPERS

``They get him in front of the jailer who's going to do the booking, they hand
him the notice at that moment, and the jailer says, `Empty your pockets, give
me everything you've got,' and he takes the paper out of the guy's hand,''
Gudmunds said. ``The guy has the notice in his hand for 10 seconds maybe, if
he's lucky.''

Another Santa Maria attorney confirmed that.

``That's pretty standard here,'' Dario Bejarano Jr. said, adding that he's
handled a dozen such cases in the past two years. ``By the time we find out
about it, the 10 days have run, effectively keeping the client from ever
making a claim. We've complained about it, but it hasn't done any good.''

Deputy Santa Barbara County District Attorney Thomas Muscio first confirmed
that he'd heard such complaints and called them ``crap,'' then acknowledged it
was entirely possible.

``You're allowed to keep legal papers in your cell, but if they don't
understand what it is, it may be taken away from them,'' he said.

Filing a claim is just the start, however. Then come the interrogatories and
the depositions.

BARRAGE OF QUESTIONS

Dozens of cases were found in which claimants without lawyers were barraged
with 14-page questionnaires containing nearly 200 questions, demanding
documentation for every purchase they'd made of more than $500, all of their
bank statements and canceled checks and a list of their medical and dental
expenses -- for the past five years.

The Justice Department's forfeiture manual advises district attorneys to give
``most serious consideration'' to conducting depositions of claimants --
formal sessions at which prosecutors can cross-examine claimants for hours on
end.

``The very spectre of facing the prosecutor under oath may be sufficient to
provoke settlement discussions,'' the manual says.

But prosecutors said the reason most forfeiture cases go uncontested isn't the
high cost or lopsided odds of challenging them: It's because most people who
have their assets seized are guilty of something.

``If they don't have the gumption to go down and file a claim, then they're
out of luck,'' Muscio said, ``but I think that happens to any consumer in this
day and age. If you don't speak up, you're going to be in trouble.''


End.




"Government is not reason, it is not eloquence - it is force! Like fire it is
a dangerous servant and a fearful master; never for a moment should it be left
to irresponsible action"  - George Washington
