IN DEPTH: SEIZURE

Andrea Harris arrived in Las Vegas Nov. 30, 1999, on an America West flight
from Philadelphia. She was supposed to meet a man at the airport, didn't
know what he looked like, and was looking nervously about.

Her nervousness attracted the attention of two nearby men. As the strangers
approached, she tried to walk away. They caught up to her, and asked to
speak to her, at some point identifying themselves as Las Vegas police.
They asked to see her airline ticket and identification, which she showed them.

According to police, Harris gave permission to search her luggage, where
officers found $23,500 in cash. She wasn't frank about where she got the
money, changing her story at least once and finally saying the cash
belonged to her brother, Andre, back home in Delaware, and that she had
taken it without permission.

Police didn't arrest Harris but they did take the cash. Yet they made no
effort to return it to brother Andre even after he confirmed her story and
explained he himself got the money in an injury settlement.

Instead, the police tried to keep it, instituting a property forfeiture
action, asserting the circumstances "would indicate that the said potential
claimant had engaged in conduct in violation of the Uniform Controlled
Substances Act, NRS Chapter 453, and the said U.S. Currency represents
value furnished or intended to be furnished" for narcotics sales.

It was a routine property seizure, differing only in that the Harrises
hired a Las Vegas attorney, Cal Potter, and fought the seizure. The police
asserted they had evidence supporting their position, including Andrea
Harris' previous arrest on a drug charge, the fact a drug-sniffing dog
showed an interest in the money, and that she possessed two one-way
tickets, not a round-trip ticket.

But the department withdrew its forfeiture suit in August. The Harrises got
all their money back. Most don't.

In the 1999-2000 fiscal year the Metropolitan Police Department made at
least $1.7 million by seizing private property, most of it in cash but also
in autos, motorcycles, Jet Skis, and other property police converted to
cash. The figures don't include the value of more than 5,000 confiscated
firearms because they are never resold, though some are retained for police
use.

State Sen. Mark James, R-Las Vegas, has introduced a bill in the
Legislature intended to reform a system he calls fundamentally unfair and
unconstitutional.

"The government may take this property even in the eventuality that crime
is not proven and the person who is accused is not convicted," pointed out
James in a February Senate Judiciary Committee hearing on his bill.

But Bernard Zadrowski, a Clark County deputy district attorney, said, "A
lot of hay has been made about the so-called innocent people coming through
the airport and police shaking them down. But the reality is Las Vegas
police stop somebody coming through the airport with $200,000 fastened to
their body with duct tape. We ask them if they want a receipt. And usually
in those cases we never hear from the potential claimant. And the reason is
that they are mules. They are transporting cash, usually for dope, and we
never hear from them again."

On the other side of the debate is Franny Forsman, federal public defender.
"In this country you're allowed to run around with money duct-taped to your
body," she said.

Property seizure has become so common that Zadrowski's section of the Clark
County district attorney's office does nothing else. Because Nevada law
requires costs of seizure to be taken out of the profits before anything
else, the department reimburses the district attorney's office for the
entire salaries of two lawyers, three secretaries, an investigator and a
process server.

Zadrowski estimates about 300 such forfeiture actions are filed each year
in Clark County. Henderson and Boulder City have only a couple of
forfeiture suits pending, North Las Vegas a few more, but the overwhelming
majority are filed by the Metropolitan Police Department.

The largest such pending case stems from the well-publicized seizure of
$2.8 million from Bill Walters, a Las Vegas golf course operator and sports
bettor, on the suspicion that it was connected to illegal bookmaking. But
four years after the raid, Walters still hasn't been prosecuted.

Several other cases involve hundreds of thousands of dollars each, but most
appear to involve amounts of cash in the three- and four-digit range or
very ordinary motor vehicles.

As an experiment precipitated by the Senate hearings, Zadrowski said, the
office selected 224 random cases and analyzed how they originated.

"Very few cases originate at the airport," said Zadrowski. "That's a
misperception on the public's part. Of the 224, 190 were drug related, and
nine of them were from the airport or bus station. Twelve were about pimps
and panderers. Nine were other felonies."

He also pointed out that criminal charges were actually filed in 166 of the
224 cases. Of those, more than half pleaded guilty and 47 percent were
still pending.

"I've been with the DA's office four years and never saw anybody's home
taken. I asked a fellow worker who's been here longer, and was told that in
the last 10 years they seized exactly one, and ended up giving it back. It
was being used as a meth lab.

"I can't answer for anything that's happened in the federal system. But
when they give you horror stories about people having their homes and cars
taken by a state court, get them to give you names and dates."

Several Las Vegas defense attorneys were indeed asked for the names of
squeaky-clean clients who lost property to state forfeiture actions, and
nobody provided any. "The background of many of the clients is
problematic," admitted Potter.

But one attorney pointed out that attorneys for the blameless aren't hired
to publicize accusations of crime -- particularly in a system where nearly
all cases are negotiated, and the accused never vindicated.

Sen. James noted, "Our entire criminal justice system is built on the
notion of the standard of proof: beyond a reasonable doubt. Historically,
it comes to play when liberty is at stake. But the loophole in these cases
is that government says we're not taking your liberty, so we can go by
civil rules." That standard, written into the Nevada forfeiture statute, is
"preponderance of evidence," which James defines as 51 percent.

"But the thing that is pernicious is that the civil action is predicated on
the presumption that a crime happened somewhere," he continued. "So it
would be intellectually honest to have forfeiture done only upon a
conviction, and make them make the connection that the property was used in
the crime or fruits of crime."

But James said that after consulting with law enforcement agencies, "I
wanted to take a reasoned approach to reform instead of turning everything
on its head." His Senate Bill 36 would rewrite the law to require "clear
and convincing proof," a standard higher than the present one but lower
than "beyond a reasonable doubt." The bill would also place the burden of
proof clearly upon the prosecution. Nevada's present law is ambiguous on
that point.

Attorney Jonell Thomas said, "That bill is a really good start but it needs
to go a lot further. Provide for attorneys fees." Although forfeitures are
civil cases in the eyes of the law, she said, they differ from other civil
cases in that the defendant's attorney cannot be awarded fees from the
losing party. That means that a law enforcement agency has nothing to lose
by prosecuting a doubtful case. "The attorneys' fees should be paid by the
police department, and not anybody else, as long as they get the benefits."

In a more perfect world, she added, they wouldn't get the benefits. "It
should go to general revenues, not law enforcement as it does now, because
the latter gives police too much of an incentive to start a forfeiture action."

James' bill was reported out of the Senate Finance Committee on March 23
with an amendment which would allow law enforcement agencies to keep up to
$100,000 per quarter from forfeitures, after paying forfeiture costs, but
would give 70 percent of the remaining profits to public schools.

However, James pointed out that in other states which have directed
proceeds away from law enforcement, many agencies routinely hand off their
own cases to federal authorities, in return for a share of the proceeds.
This maneuver circumvents the state laws, so the money goes to the
agencies, not the schools. For that reason, he said, the higher standard of
proof is the more important reform.

Bill Young, recently named deputy chief of the Police Department's special
operations division, supervises vice and narcotics, intelligence and gang
crimes units which make most of the department's seizures.

"Metro has made it a policy to use those laws with a lot of discretion and
a very conservative manner in my view. ... They don't necessarily have to
be tied hand in hand to criminal proceedings," he said. "But since Sheriff
(Jerry) Keller has been in office, we do not forfeit property without a
criminal conviction. And not all agencies do that, probably most agencies
do not conduct their affairs in that manner.

"As far as what they do with proceeds, it really has no effect on us. In my
entire carer I have never seen seizure or forfeiture funds affect anything.
I think Mr. James is under an incorrect impression if he thinks there is
enough money to have a big effect on the economy one way or the other.

"In some of the Southern states they make a big thing out of it, and I
think they make a mistake running their police departments on it. Some
agencies encourage officers to go beyond the intention of the law. It's a
shady way of business.

"But common sense tells you that you don't want criminals reaping the
rewards of their enterprise."