GOV'T AGENCIES FIGHT FOR FORFEITURES

When Arkansas state troopers found $3 million in cash in trucker Roberto
Zamarripa's cargo, they declared the ``tainted'' money property of the county.

By the time county prosecutors got to court, they found another claimant:
the federal government.

As Congress weighs whether to make it harder to seize citizens' property,
federal and local agencies fight in courtrooms throughout the country over
the spoils of asset forfeiture. The disputes reveal this incentive:
Cash-strapped law enforcement agencies seek not mere punishment, but money
as well, from citizens with property that police think might be linked to
crime .

``Forfeiture laws have run amok,'' says Steven Kessler, a trial lawyer who
once headed the asset forfeiture unit of the Bronx district attorney's
office. ``The focus is no longer on combatting crime. ... It's on
fund-raising.''

In the Arkansas case, Zamarripa made no claim to the money. A local
prosecutor sued to recover it from a federal agency that ``adopted'' the
forfeiture from cooperative state police.

Critics say the Arkansas Highway Police wanted the $2.8 million they'd get
under a federal forfeiture. Under a state seizure, they'd recoup only $250,
000. The yearlong feud ended in March with Crittenden County keeping the cash.

The disputes between governments occur because many states - like Arkansas,
Missouri and Kansas - give law enforcement agencies a smaller slice of
forfeited money than the 50 percent to 85 percent they'd get from
Washington . In many states they get only expenses - an officer's gas or
overtime, for example - for their efforts.

Officers who seized Zamarripa's cash had a good reason for going to the
feds , Arkansas Highway Police spokesman Randy Ort says.

``We turned it over to the federal government because it was an interstate
case,'' he says, noting that the driver was just passing through. ``We
don't do that to raise money.''

Arkansas is not the only place where government rivals face off in court.

In Missouri, state law requires that money seized in the state go for
education. But local police often turn over forfeited money to the federal
government in exchange for a larger slice of the cash, saying the money
isn't actually ``seized'' until they pass it on to federal agents.

To stop that, the Kansas City Board of Education filed a class-action
lawsuit earlier this year that asks Missouri law enforcement agencies to
pay back all the money they've received from federal forfeitures since
1986. Since 1993, with the enactment of new forfeiture laws, police in
Missouri took in more than $32 million.

``What they do is engage in an end-run around the legislature's intentions,
'' says Roger Pilon, legal affairs director of the Center for
Constitutional Studies at the libertarian Cato Institute in Washington.
``It signifies the greed that is just below the surface in the entire
forfeiture arena.''

In one case last year, a judge fumed that federal agencies were usurping
states' rights. Judge James B. Loken of the 8th U.S. Circuit Court of
Appeals questioned whether federal agencies were ``using their extensive
forfeiture powers to frustrate the fiscal policy of states such as
Missouri. ''

Once the federal government gets the money, getting it back can be
extraordinarily difficult, even for someone never accused of a crime.

Ask Fernando Marquez.

Pursuing Marquez's son on gambling charges in 1995, police found two safety
deposit keys in his house in New Rochelle, N.Y. The keys led police to
$490, 920, which they seized. The elder Marquez went to court, arguing it
was his money and his bank box, not his son's.

When a New York judge ordered the money returned, the district attorney's
office said it had been turned over to the FBI - without the required court
order. After 3 1/2 years of court wrangling and mounting legal fees,
Marquez agreed to accept half of the sum. After legal fees, he got $177,053
back - about one-third. He was never accused of wrongdoing.

``For an innocent person, it's like a stickup,'' says Marquez, 60, who
attributes a bout of alcoholism, a failed reconciliation with his wife and
health problems to his fight with the government. ``I really appreciate
that Congress is taking the steps to correct the situation.''

Last month, the House passed a bill requiring the federal government to
prove with ``clear and convincing'' evidence that property was eligible for
forfeiture if an owner files a legal challenge. To take Marquez' money,
police needed only show ``probable cause,'' the lowest level of proof under
the law, that the property was used in a crime.

The legislation, now pending in the Senate, would also:

- - Require officers to prove criminality, not simply allege it. Currently,
property owners are required to prove they are not connected with the
alleged crime;

- - Require the government to give owners notice before seizing property;

- - Enable a judge to release property to the owner if continued government
possession would pose a substantial hardship;

- - Allow judges to appoint counsel for poor defendants;

- - Let owners sue the government for negligence if their property is lost or
damaged;

- - Allow some owners of seized cash to receive interest on the amount returned;

The bill would not affect state laws and would apply only to civil, not
criminal, forfeitures although civil forfeitures sometimes follow criminal
prosecutions. It would not affect state forfeiture laws.

In a criminal forfeiture case, the accused must be convicted and then the
jury must reach a second verdict to forfeit the property.

In a civil forfeiture, it is the property, not the property owner, that is
accused of wrongdoing. That's borne out in the names of lawsuits:
$3,166,199 v. Arkansas Highway Police; United States v. One 1987 Mercedes
Benz; Commonwealth v. One 1987 Ford Econoline Van.

Police have strong incentive to seize property. Joseph MacNamara, former
police chief in San Jose, Calif., recalls asking the city manager why the
city budget had no allocation for police equipment.

``He dismissively said, `You guys seized $4 million last year. I expect you
to do better this year,''' MacNamara wrote in a newspaper opinion piece.

It's no different at the federal level. In 1990, the Justice Department was
falling short of the $470 million in forfeitures the agency expected.

``Every effort must be made to increase forfeiture income,'' Attorney
General Richard Thornburgh warned federal prosecutors.