DRUG FIGHTERS COULD RUN INTO HIGHER STANDARDS FOR SEIZED
PROPERTY

Andrew Field entered Memphis on Interstate 40 with a motor home and
$99,000. He left a few hours later on a Greyhound bus with neither.

Field was not charged with a crime, but the Memphis Police Department,
using the blunderbuss of a controversial drug forfeiture law, returned
him to the road without his vehicle or a backpack stuffed with cash.

His motor home remains parked behind the headquarters of the
department's Organized Crime Unit awaiting auction or to be called
into police service. The cash was folded into the drug fighting unit's
budget.

The 46-year-old Californian stoked the department's budget by adopting
a common defense. He denied the money was his.

But boosted by horror stories from around the United States -
incidents of legally earned money being wrongly seized - anti-drug
units may be facing tougher legal standards before they can count the
money as their own.

At issue is how much evidence of illegal activity is needed to justify
such seizures.

Tennessee lawmakers established new standards two years ago. Officers
now are required to show probable cause and obtain a warrant signed by
a judge within five days of the seizure.

"You shouldn't be taking somebody's property away from them unless you
have some probable cause to believe they've committed a crime,'' said
Rep. Frank Buck (D- Dowelltown), chairman of the House Judiciary
Committee. "Hell, this is still America.''

Proposed federal legislation would raise the bar still higher.
Legislation approved recently by the U.S. House requires, in contested
cases, that the government bear the burden of proving with clear and
convincing evidence that the seized property is linked to an illegal
act.

In seizing Field's RV and the cash found inside last year, MPD did not
need to find illegal drugs or make an arrest. It obtained the warrant
based on discovery of a hidden compartment containing plastic bags
bearing marijuana residue, records show.

But because Field did not contest the seizure, MPD was not forced to
prove, with a preponderance of the evidence, that the cash was the
product of an illegal act, as Tennessee law requires.

Local police agencies that seize money can pursue its forfeiture using
the state or federal law. Often their decision is based on which
statute would fit the particular circumstances.

The proposed change in federal law faces substantially more opposition
in the Senate, leaving the shape of any reform uncertain. Any change,
however, is potentially dramatic for departments such as the MPD,
which relies heavily on seized cash and other assets to finance its
drug-fighting operations.

The city Police Department spends an estimated $2 million a year in
forfeited drug funds to operate OCU. This money not only finances
undercover drug operations, but allows the department to scour the
city's roadways and public transportation ports for couriers of
illegal drugs.

Seizures finance similar units in the Shelby County Sheriff's
Department as well as in smaller police agencies throughout the
region, particularly those located along major corridors such as I-40.

Records show MPD has seized more than $8 million in cash since 1997.
Not all $8 million wound up in the city's coffers because many of the
seizures were contested, but annual awards, granted in state and
federal proceedings, have been sufficient to finance OCU each year.
Another $3.8 million will be shifted from the forfeiture account to
help pay department-wide overtime costs.

The department's use of drug funds for travel, expensive cars and
credit card purchases has been a source of controversy as well. A
joint TBI-FBI investigation focuses on some of those purchases and
auditors have pored over department records for weeks.

But at issue in Washington is how the money is obtained, not how it is
spent.

The House bill, passed in June, shifts the burden to police to prove
that seized items were used in or acquired through a criminal act,
something Tennessee law already requires.

As of now, individuals challenging seizures through the federal system
bear the burden of proving their property is not the fruit of a crime.

"It would change the dynamics of what is seizable,'' said Asst. U.S.
Atty. Tim DiScenza, who handles numerous drug cases in Memphis every
year. "Officers are going to have to have much more information before
seizing . . . .''

In recent testimony before a Senate committee, police officials
conceded reforms were needed to protect against unjust seizures, but
feared the House version would impair their ability to weaken drug
dealers by taking their profits.

Since 1997, records show, MPD has made more than 1,300 cash seizures,
many of them small sums, but at least 30 in excess of $50,000.

In a majority of these cases, illegal drugs were seized. But there are
many cases similar to Field's in which no drugs were found and no
charges filed.

OCU Maj. Mike Minor said circumstances of each seizure are reviewed to
ensure proper action is being taken.

If the property owner contends, for example, that a large amount of
cash resulted from the sale of real estate, officers work to confirm
those details.

In one instance, records show, a young man carrying a large sum of
money thought to be proceeds of drug sales had actually stolen the
money from his parents' savings. At the parents' request, he was
released from custody with enough cash to get him to his destination.
The balance was returned to its owners.

"We do our best to legitimize it,'' Minor said.

Records show evidence used by the department to justify its seizures
has been as varied as the amounts of cash taken - from pocket change
to more than $600,000. Illustrative of this are two of the
department's largest seizures during the period examined by the newspaper.

Officers responding to a telephone complaint of drug sales arrived at
a home in September for a so-called "knock and talk,'' a doorstep
conversation with the property owner.

In this instance, however, the homeowner gave her consent to a police
search of the premises. Found along with three kilos (6.61 pounds) of
cocaine was more than $479,000 in cash, some of it sitting in view on
top of a television, more in a shoebox in a closet, still more in bags
in the attic, police records show.

One occupant of the home was arrested on a cocaine charge and the
money seized. The case is active, however, so who will ultimately be
awarded the cash remains at issue.

Months before, OCU officers seized a similar sum, $468,000, from a man
passing through the city who was not found to be in the possession of
illegal drugs or charged with a crime. The money was seized after dogs
detected a scent of drugs on his luggage. According to a police
report, the man initially gave a false name, then provided his correct
name and said he was transporting the cash to an unknown person in
Mexico.

He declined to claim the cash as his own, boarded a Greyhound bus, and
did not contest the seizure in a civil proceeding as the law allows.
MPD was granted an 80 percent share, or $374,312 of the proceeds. The
federal government received its customary 20 percent cut.

MPD is only one player in the financial battle of the area's drug war.
The Shelby County Sheriff's Department seized well over $1 million in
cash in each the past two fiscal years.

But some of the largest seizures of late have been made by Arkansas
law enforcement agencies operating along I- 40. During a one month
period alone this year more than $1 million was seized.

In Tennessee, the state police agencies - TBI and the Tennessee
Highway Patrol - are active. It was a battle with THP a decade ago
that persuaded Memphis lawyer Leslie Ballin that reforms were needed.

Ballin, a prominent criminal defense lawyer, won back much of a
Florida man's seized cash, but not without a costly and time consuming
fight.

Ronald Giacose's newly purchased motor home was stopped by THP near
Memphis, searched, and a joint of marijuana found. He was not charged,
but officers seized $134,900 from the vehicle and months later the
U.S. Attorney sued to take possession of the money.

Ballin said it took depositions and other legal action to prove the
cash taken from his client came from liquidation of investments with a
brokerage firm. Because he regularly bought and sold cars, Giacose
traveled with large sums of cash, he said.

He and another lawyer flew to Florida to depose bankers and financial
people involved with Giacose. After those depositions, the government
offered to return $90,000.

The Memphis lawyer said he counseled his client to reject the offer
and go to trial, but Giacose did not want to go through the trouble,
expense and uncertainty of a trial. As a result, he agreed to a deal
in which the government kept nearly $45,000 of his money.

"There needs to be a change . . . to prohibit the government from
taking someone's money and then waiting to see if the person can prove
where it came from," Ballin said. "They ought to be required to prove
it . . . and have a stronger case before they take the money."