GUILTY UNTIL PROVEN INNOCENT

Asset Forfeiture Laws Were Meant To Combat Drug Crimes.

Instead They Have Become A Means To Trample Your Rights

FIVE DAYS before Christmas 1995, Cheryl Sanders of Long Beach, Calif.,
was driving on Interstate 10 in Sulphur, La., when she was stopped by
three police officers. They told her she had been speeding. But
instead of giving Sanders a ticket, they handcuffed her and took her
to a local jail, where she was made to disrobe and submit to a search.
No drugs were found on her or in her car, nor did she have a criminal
record.

"You're free to go now," a policeman told Sanders. "But we're keeping
your car."

Under Louisiana's civil asset forfeiture law in 1995, police could
seize vehicles on little more than suspicion that the owner was a drug
dealer. Sulphur police said that the trunk of Sanders's Lincoln Town
Car contained a 2 1/2-inch-deep compartment under a false bottom
capable of concealing narcotics.

Sanders, who had purchased the car used only six months earlier,
didn't know what they were talking about. She hired an attorney, and
after seven months a judge ruled that the city had to return her
property since the police seizure lacked probable cause. By then she
had had to sell the car to pay her legal bills.

"They stole my car," Sanders complains. "It was highway
robbery."

Sanders is one of countless citizens who feel the same way about a
series of controversial laws enacted as part of the war on drugs. In
1984 Congress authorized federal law enforcement agencies to seize any
property purchased with drug money or used to facilitate the drug trade.

Many states then enacted their own versions of the statute to allow
local prosecutors and police agencies to grab a person's money or
property based on the belief that a drug connection is more probable
than not. Critics charge that these laws allow the seizure of assets
on virtually anything more than mere suspicion of a link.

In criminal law you're presumed innocent until proven guilty. But
under most civil asset-forfeiture statutes the burden of proof falls
on individuals to prove in court that their property is free of any
involvement with illegal drug activity. Even to challenge a seizure
under federal law, the owner must post a bond of ten percent of the
property's value or $5000, whichever is less.

Driving Away Business

WITH THIS SORT OF POWER at the government's disposal, excesses and
abuses are inevitable. An episode involving the Red Carpet Inn in
southwest Houston is a case in point.

On February 17, 1998, Acting U.S. Attorney James DeAtley announced
that the government was going to seize the property in response to
drug activity that the owners were "facilitating by not taking steps
to prevent." Jason Brice was stunned. To prevent criminal activity by
guests and visitors, the co-owner and manager of the Red Carpet Inn
had signed a trespass affidavit with the Houston Police Department,
giving officers the right to patrol the grounds and question patrons.
He also hired night security guards, required guests to show driver's
licenses to obtain a room, and installed video cameras in the parking
lot.

Then the Houston police and city attorney's office wanted the Red
Carpet Inn to raise its room rates from $29 a night, a move they
believed would keep out drug users. Brice resisted, arguing that he
had to keep rates down in this low-income area to compete with the six
other hotels and motels located nearby.

According to Brice, the police presence on his property intimidated
innocent customers. "It scared them and began to drive away our
business.'' He withdrew the trespass agreement, which had given police
free rein on his property. Three weeks later U.S. Attorney DeAtley
filed a lawsuit seeking forfeiture of the motel. The complaint alleged
that the operators "had knowledge that the Defendant Property was
being used to facilitate drug transactions and consented to the use of
the property to facilitate the illegal activity."

Brice was particularly enraged that the government cited "32 calls for
police service (that) resulted in narcotics or currency being seized"
during 1996 and 1997. By his count he and his security guards
themselves had initiated many of these calls.

After months of wrangling, the government dropped its suit, in return
for Brice's agreeing to make some minor security improvements to the
motel. Meanwhile, his business had incurred $60,000 in legal fees.

In a blistering editorial, the Houston Chronicle accused the U.S.
Attorney of overstepping his bounds. "Good people should not have to
fear property seizure because they operate businesses in high-crime
areas."

"No Credible Evidence'

ACTUALLY, NO PROPERTY is safe from highhanded asset forfeitures. In
1990 the U.S. Attorney's Office grabbed a house in Ft. Lauderdale,
Fla., because, they claimed, cocaine had been offloaded from a boat
onto the property by three men who were subsequently arrested for drug
trafficking. The house's owner, George Gerhardt (who had already died
of cancer), allegedly knew one of the three defendants.

During a one-day nonjury trial before a federal judge on October 26,
1992, the government's flimsy case evaporated. The cocaine defendant
who had been acquainted with Gerhardt testified that Gerhardt had no
knowledge that drugs were unloaded at his house; he was not even in
the country at the time. Other witnesses testified that Gerhardt
detested drugs and drug users.

The government brought two informants from prison to testify. One
claimed to have once met someone he knew as George, whom he described
as five feet, six inches tall, overweight, gray-haired and in his 60s.
Gerhardt was five feet, ten inches tall, slender, blond-haired and 47
years old at the time of the alleged meeting.

In a strongly worded judgment, U.S. District Judge James Paine ordered
the government to relinquish the house for distribution to Gerhardt's
heirs. "Gerhardt was an innocent owner," wrote the judge. "No credible
evidence" to suggest otherwise had been produced.

Lack of credible evidence figured in another egregious
asset-forfeiture case involving Billy Munnerlyn and his wife, Karon,
who operated an air charter service. One day Billy flew a businessman
from Little Rock, Ark., to Ontario, Calif. The passenger was a
convicted drug trafficker Munnerlyn had never met. Nevertheless,
Munnerlyn was arrested, as was his passenger. A search of the
passenger's possessions turned up $2.8 million in cash.

Munnerlyn was released a few days later, and criminal charges against
him were dropped. But the government kept his $500,000 jet and his
$8500 charter fee, based on suspicion that they were linked to a drug
transaction.

Munnerlyn's home and office were searched, the DEA's application for a
warrant stating that such a search could reveal evidence of his
involvement in drug trafficking "in the form of personal and business
records." Nevertheless, Munnerlyn was subject thereafter to no further
criminal proceedings. But the government didn't return his plane.

Munnerlyn fought the seizure in court for two years, until a federal
jury ruled in his favor. The judge set aside the verdict and ordered a
new trial, so the government refused to release his plane. Broke and
bitter, he eventually reached a settlement in which he paid $7000 for
the jet's return and agreed to allow the government to keep the
original $8500 charter fee.

Burden of Proof

AS EXPERIENCE with this powerful tool has grown, even some law
enforcement officials have become uneasy. Says Steven Kessler, former
head of the asset-forfeiture unit at the Bronx, N.Y., district
attorney's office, "The focus is no longer on combating crime. It's on
fund-raising."

Joseph McNamara would certainly agree. During his 15 years as police
chief of San Jose, Calif., he felt the pressure firsthand. One day he
saw a proposed budget that included no funds for police equipment.
When McNamara questioned this, his boss, the city manager, replied
half in jest, "You guys seized $4 million last year. I expect you to
do better this year."

With such perverse incentives in place, McNamara believes many of the
nation's police agencies have become addicted to asset forfeiture,
with serious consequences for our system of law. "When cops are put
under pressure to produce revenue, bad things happen," he says.

And bad things do happen. The Arkansas Democrat-Gazette reported this
past summer that the sheriff in St. Francis County privately sold
seized cars to himself and others at prices at or below appraised
values. (Such sales were legal at the time.)

House Judiciary Committee chairman Henry Hyde (R., Ill.) has led a
bipartisan effort to reform the federal civil asset-forfeiture law.
His bill would shift the burden of proof to government agencies before
assets can be seized. It would also eliminate the requirement that
property owners file a bond to challenge any seizure, allow judges to
order property released pending the disposition of forfeiture cases
and give individuals more time to contest seizures in court.

"It is obvious that something needs to be done about civil forfeiture
run amok," Hyde says, and Rep. John Conyers, Jr. (D., Mich.), ranking
Democrat on the House Judiciary Committee, agrees. "The civil
asset-forfeiture law," he says, "contradicts fundamental principles of
traditional American jurisprudence." With both Democrats and
Republicans, liberals and conservatives, lining up in support, the
bill passed by an overwhelming 375 to 48.

Nevertheless, the Clinton Administration claims the Hyde bill would
undermine law enforcement and favors a narrower reform. Meanwhile, no
action was expected in the Senate until early this year.

Roger Pilon, a constitutional scholar with Washington's Cato
Institute, believes strongly that overhaul of the asset-forfeiture law
is needed to safeguard the nation's constitutional protections against
unreasonable search and seizure. "Forfeiture has a place in law
enforcement," he says. "But like every tool it must spring from
principles of justice if it is to service justice."