To Protect and Collect

Taking Cash Into Custody

A Special Report On Police And Drug Money Seizures

COURT RULINGS HAVE LITTLE IMPACT IN TWO STATES

In two states, courts have ruled that money can't be forfeited -- at all --
when the owner is convicted of a crime.

State supreme courts in New Mexico and Nebraska say it's double jeopardy to
both convict a person and take his property.

But police are getting around those decisions by using federal agencies.

Capt. Ruben Davalos, head of the Albuquerque police special investigations
unit, said police officials are working with prosecutors to find a way to
overturn the New Mexico ruling.

Davalos said the court is forgetting the whole point of forfeitures, which
is to financially hurt drug traffickers.

In the meantime, he said, a gentlemen's agreement has been worked out with
the U.S. attorney's office and federal agencies to handle the seizures that
meet federal guidelines.

"It's a case-by-case basis," Davalos said. "If we find a friendly federal
agency that is willing to do it for us, we more than press them into
service, be it the DEA, ATF, IRS.

"We don't really care."

The U.S. Supreme Court ruled in 1996 that double jeopardy did not apply in
federal forfeiture cases.

But the New Mexico ruling said the state constitution provides more
protection for New Mexico citizens than federal law, said Ann Harvey,
assistant state attorney general.

Last year the Nebraska Supreme Court also ruled that some forfeitures are
double jeopardy.

Maj. Gale T. Griess of the Highway Patrol said troopers are continuing to
hand off seizures to the federal government to try to keep crime under control.

"If the seizures go by the wayside, basically what is going to happen is
the criminal element out there in society is going to have the upper hand,"
he said.

The legislature failed this spring to fix the double jeopardy problem or
force police to follow state law, which gives half of state forfeitures to
education.

"There has been a tug of war on where the money should go," said Laurie
Smith Camp, an assistant state attorney general who predicted the bills
won't go anywhere this session.

Laws in many states such as Kansas make it very difficult to confiscate a
person's home.

But law enforcement has found a way around those state laws, with the help
of the federal government.

A recent Kansas case shows how.

The Kansas Bureau of Investigation got a tip that a rural Marysville man,
Mark Allerheiligen, was growing marijuana on his farm. After a search found
a number of plants, the KBI turned his criminal case over to the federal
government.

The KBI wanted to take the property, which it had appraised at $90,000. But
according to the state constitution: "A homestead...shall be exempted from
forced sale under any process of law ... except from sale for taxes."

That didn't stop the KBI from raising the specter of a home forfeiture,
though. The KBI wrote a letter with an implicit warning that the house
would go to the federal government if it reached no settlement with
Allerheiligen.

"Due to the possible state homestead issue the KBI would usually file this
action in federal civil court," according to the letter, written Feb. 10,
1999, by Colin Wood, KBI senior special agent.

"With that in mind, please discuss the issue with your clients. KBI will
settle the matter for $63,000."

In an interview, Wood said the proposed agreement and use of the federal
option are common.

"That is a pretty standard offer," Wood said.

If the federal government forfeits a home and sells it, the local law
enforcement agency usually gets a portion of the proceeds.

Kansas law allows law enforcement and prosecutors to transfer seized
property to the federal government, Wood said.

But police circumvention of the homestead act alarms Rep. Ralph Tanner, a
Baldwin City Republican.

"I think that is absolutely wrong," said Tanner, who plans to examine the
forfeiture process.

"It is a miscarriage of the intention of the Legislature. Somebody has
obviously discovered a loophole or potential loophole, and they are using
that to skate around the intention of the law."

The settlement offer is on hold while Allerheiligen is appealing. But Wood
said that even if the appeals court agrees with Allerheiligen, the federal
government can still forfeit the farm under its broad powers.

In states such as Florida the law is similar to Kansas's. In others,
including Missouri and Maryland, a homestead generally can be forfeited
only if there is a conviction.

In all those states, police offer possible home forfeitures to federal
agencies.

Many states also restrict forfeiting a person's primary car.

Part 2a, http://www.mapinc.org/drugnews/v00/n681/a04.html