Article on Drug War Forfeitures
Dec 5, 1991
from the Texas Observer
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 (512)477-0746 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. =========================================== 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."