RULING: POLICE NEED COURT ORDER TO GIVE DRUG MONEY TO FEDERAL AGENCY

In a Kansas City case expected to have a broad impact, a Missouri appeals
court ruled Tuesday that local police can't turn over drug money they seize
to a federal agency without a court order.

The ruling is significant because police in Missouri regularly give drug
money to federal agencies, which give back a portion of the money to
police. State law would send the money to public education in most cases.

Missouri law "does not allow a unilateral transfer by a Missouri police
department to a federal agency once the police have seized the property,"
the Missouri Court of Appeals Western District ruled.

As a result, the Kansas City Police Department violated state law when it
transferred $34,000 to a federal agency without a court order, the
appellate court ruled.

"Amen to that," said Rep. Jim Kreider, who has been designated the next
speaker of the Missouri House.

"This court case goes a long way toward vindicating what we in the
legislature have been saying and what the people, the taxpayers, the
constituents have been saying," said Kreider, a Nixa Democrat who has
co-sponsored a bill to stop the flow of money from police to federal agencies.

Forfeiture has become a contentious issue. In stories this year, The Kansas
City Star reported that police in Missouri and nationwide have evaded their
state laws and used federal agencies to keep millions of dollars.

The ruling also could mean that an imprisoned felon, Vincent Karpierz, who
filed the case, could get back the money the Kansas City police took from
him in 1998 and gave to the Drug Enforcement Administration.

"It's probably galling to everybody that a convicted druggie can get his
money back, but the police have to follow the law," said James McMullin,
attorney for Karpierz.

The three-judge panel overturned a lower court decision that said Kansas
City police had not violated state law, which says police must take any
drug money they seize to state court. Police had not really seized the
money, Clay County Circuit Court Judge David Russell ruled, but had merely
"recovered" and "inventoried" the cash.

But the appellate court overruled Russell on several points.

"Changing the legal classification from `seizure' to `recovered and
inventoried' seems to defy the normal progression of when law enforcement
first search a person's place, seize the property, and then inventory the
property," Judge Hal Lowenstein wrote for the appellate court.

"Therefore, by seizing the property and subsequently transferring it to the
DEA, the police violated both the letter and the spirit of (Missouri
forfeiture law)."

The judges also ruled that under Missouri law it didn't matter whether
local police had been deputized by a federal agency. A local or state
police officer who seizes money still must follow state law, they ruled.

Police in Missouri and elsewhere have often argued that they aren't legally
seizing property when they find it -- they are simply holding it until a
federal agent can seize it.

"That argument seems to be patently absurd," said Richard J. Troberman,
co-chairman of the National Association of Criminal Defense Lawyers'
forfeiture committee.

"The problem is Missouri forfeiture law requires the money if forfeited to
go to education," said Troberman, who agreed with Tuesday's ruling. "The
way around the (law) is to hand it off to the feds."

James R. Devine, a law professor at the University of Missouri-Columbia,
said Tuesday's decision is binding on trial courts in the Missouri Western
District.

In the other two districts and in federal courts,"the decision will
certainly be influential," Devine said.

Joe Mulvihill, a Kansas City police board commissioner, said the board
would discuss the decision at its next meeting Tuesday. He pointed out that
the department recently decided to follow Missouri forfeiture statutes,
unlike many other agencies around the state.

Mulvihill said the department in the past had been acting upon the advice
from many attorneys, including the U.S. attorney general, U.S. attorneys
around the country and the state attorney general and department attorneys.

Stephen L. Hill Jr., U.S. attorney for the Western District of Missouri,
said his office believes that when police seize money in Missouri they
should obtain a transfer order. But he said his office handles only a small
number of forfeitures compared to federal agencies.

"We have, at every opportunity that has availed us, said to federal and
local officials that you ought to comply with state law, specifically the
transfer order requirements, when property has been seized by local
officers," he said.

But he added that determining exactly when police have seized property must
be done on a case-by-case basis. He said the decision Tuesday used a narrow
set of circumstances.

The Missouri Highway Patrol's legal counsel, Anthony Horvath, said the
patrol also instructs its officers to tell local prosecutors when they have
seized property.

Missouri Attorney General Jay Nixon and Drug Enforcement Administration
officials were not available for comment.

The Karpierz case involved two seizures by the Kansas City police.

In March 1998, police received a tip that Karpierz was dealing drugs out of
his home. After surveillance, police obtained a warrant to search his home.

When a team of officers arrived, Karpierz was leaving in a van. An officer
pulled him over for a traffic violation, searched his van and found $1,029.
In the home police found marijuana and $33,000.

They called the Drug Enforcement Administration and invited them to join
the investigation. Two Drug Enforcement Administration deputized officers
from Kansas arrived and took the money.

Kansas City police later received more than $21,000. Karpierz was convicted
in state court and sent to prison.

The case will go back to the circuit court to determine whether Karpierz
can get the money back.