SEIZURES TOUGH TO CHALLENGE

Inside Q-C Drug Fight

A Davenport man says he found it cheaper to let police keep the $700
they seized from him in a 1998 raid rather than hiring an attorney to
try to get the money back.

Police suspected the man of dealing drugs, but he was never criminally charged.

"I might have challenged it, but my attorney told me it would cost
more that it was worth," said the man, who spoke to the Quad-City
Times under condition of anonymity.

Critics of laws that allow police to seize and keep property and
proceeds gleaned from, or used in, alleged illegal acts say the
Davenport man's case illustrates the high costs and unfair burden
people have to try to reclaim their cash and property.

"You have to hire a lawyer and spend a lot of money," said Ben Stone,
director of the Iowa Civil Liberties Union, or ICLU. "You have the
burden of proof that the government shouldn't get to keep your
property."

But Scott County and state law enforcement officials say Iowa asset
forfeiture laws provide ample protection for people from whom cash
and property is seized.

The Cost

Davenport defense attorney David Treimer specializes in representing
those charged with drug crimes and, in some cases, trying to help
them get their seized property and money back from authorities.

He said he charges a minimum of between $300 and $500 just to prepare
legal applications for clients who want to get their money or
property back.

A Times review of five years worth of Scott County asset forfeiture
cases between Jan. 1, 1996, and November 2000 shows that 127 of the
412 cases, or about 30 percent, involve seized cash of $500 or less.

"You might spend $3,000 for an attorney on legal applications trying
to get back something of a value less than $500," said Randall
Wilson, legal director of the ICLU. "We get calls from people who
say, 'The cops took our money, but we can't afford to get it back.' "

Treimer added that some defense attorneys won't even accept
forfeiture cases involving smaller amounts of money. "A lot of
defense attorneys will take these cases on a contingency basis,
charging a fee of about 1/3 of what they recover," he said. "So in a
case involving $300, they would end up losing money and probably
wouldn't take the case.

"When you're talking about amounts of $9,000, $10,000 or $15,000, the
attorney is going to be more willing to take the case on a
contingency basis."

Burden Of Proof

Scott County Attorney Bill Davis acknowledged that legal costs may be
a factor in discouraging suspects from trying to regain their seized
property.

"It can be likened to being issued a traffic ticket," he said. "You
may feel that you're not guilty but don't want to take time away from
work or other things to come in and challenge it. So you decide that
it's cheaper just to pay the fine."

But Davis argued that for every asset forfeiture case his office
pursues, prosecutors must prove by a "preponderance of the evidence"
that the property was used in, or obtained from, criminal activity.

"We can't just take it and keep it," Davis said. "We have to show a
judge there is good reason for a forfeiture."

Critics of such laws counter, however, that prosecutors have a low
hurdle to clear in order to keep seized cash and property.

Under Iowa's civil forfeiture laws, prosecutors file lawsuits against
the seized items - not the owners. Prosecutors also can seek and win
forfeiture cases without filing criminal charges against the owners.

"People have to prove their property is innocent, and that can be a
difficult thing to do." Wilson said. "Property is presumed forfeited
until you go into court with an attorney and prove otherwise. Police
can seize what they want from you, and the burden is on you to show
that they shouldn't have done so."

Iowa Reforms

There may be some shortcomings in asset forfeiture laws, but Iowa law
does offer protections that historically have not existed in similar
laws at the federal level and in other states, Deputy Iowa Attorney
General Doug Marek said.

Marek led Iowa forfeiture reform efforts in 1996, helping to craft
laws making it easier for "innocent owners" to keep their seized
property from being forfeited to the government.

"An example would be a kid driving around in his parents car with
drugs on the passenger seat and the parents have no knowledge of what
the kid is doing," Marek said. "If he is pulled over, and the car is
seized, it is now much easier for the parents to apply for an
exemption and get their property back."

The same law also can protect lien holders, such as banks, from
losing property that a borrower has used in illegal activity.

And the burden of proof in Iowa forfeiture cases - "preponderance of
the evidence" - is a higher hurdle than what federal forfeiture laws
had required until recent congressional reforms.

Under past federal law and forfeiture laws in some other states,
police and prosecutors only had to show they had "probable cause" to
believe the property had been used in, or obtained from, illegal
activity.

Marek also acknowledged that people may be reluctant to challenge
forfeiture cases, believing the cost of hiring a lawyer is too high.

"Some may not realize, however, that there are provisions in the law
that can protect people in those cases as well," Marek said. "If they
have to go to court to prove their property wasn't used for illegal
purposes, and they are successful in proving that, the court can
order payment of attorney's fees."

But advocates of forfeiture reform argue that police and prosecutors
should have a greater burden of proof, such as obtaining criminal
convictions, before they are allowed to keep the cash and property of
suspects.

A Times review of the 412 forfeiture cases that were processed
through Scott County civil court over a five-year period showed that
103 - or about 25 percent - never found there way into criminal court.

"It's one of the great tragedies of the war on drugs," said Stone,
who has lobbied for forfeiture reform through the ICLU. "Many people
in society have adopted the philosophy that anything and everything
is OK, as long as you are going after the bad guys."

SIDEBAR: PROCEDURES

Criminal Drug Case

Step 1: Arrest - Police serve a search warrant on a residence or
business where illegal activity is suspected. Suspects are arrested
and evidence gathered; or police observe what they have "probable
cause" to believe is illegal activity and arrest the suspect, seizing
any property believed to have been used in the criminal act.

Step 2: Booking - Suspects are booked into the Scott County Jail and
appear in court the next day where future hearing and trial dates are
set and defense attorneys appointed.

Step 3: Disposition - Suspects enter into plea agreements with
prosecutors, or suspects go to trial where prosecutors must prove
"beyond a reasonable doubt" that the individuals committed crimes.

Civil Asset Seizure

Step 1: Seizure - Police seize property or cash they believe may be
linked to criminal activity.

Step 2: Inventory - Police agencies send an inventory of all seized
property and cash to the Scott County attorney, requesting a court
order to forfeit the property.

Step 3: Notification - The county attorney sends notice by certified
mail to the last known address of the property owners notifying them
that they have 20 days to contest the forfeiture. If the prosecutor
receives no reply, a similar notice is posted in a local newspaper.

If owners don't reply in that time period, the county attorney seeks
a forfeiture order from a judge to obtain the cash and/or property.
Or, if the owners request in writing to contest the seizure, a
hearing is set and the matter is decided by a judge.

Step 4: Forfeiture - Prosecutors must prove that a "preponderance of
the evidence" shows the cash or property was used in illegal acts or
was obtained from illegal activity.

If the judge rules that seized cash should be forfeited to law
enforcement, the money is typically divided up with 10 percent going
to the Iowa Department of Justice, 25 percent going to the Scott
County attorney's office and 65 percent going to the law enforcement
agency that made the seizure.

Vehicles and other property are usually awarded to the seizing
agencies, which can either use the items or sell them and keep the
proceeds. Those agencies must pay a $100 fee per forfeited vehicle to
the Iowa Department of Justice to process the transfers.