POLICE KEEP CASH INTENDED FOR EDUCATION

Police and federal agencies have diverted millions of dollars from Missouri
schoolchildren.

Under state law, money seized in drug cases is supposed to go to public
school districts, but some police departments have found a simple way to
keep the money for their own use.

It works like this:

When police discover a cache of drug money, they turn it over to a federal
agency, which is not subject to state laws. The agency keeps a cut and
returns the rest of the money to police.

Police say some of that windfall is used to fight the war on drugs. But
such transfers to federal agencies hurt taxpayers, who must pay more for
schools. And they clearly violate state law.

"The full intent (of the law) was to give that money to the schools, or
most of it. They are not getting it," said state Rep. Jim Kreider, a Nixa
Democrat and an early backer of the state law.

"If the public knew this in a large scale, they would not like it."

Federal officials and some local police say that the seizures of money are
proper and that they've done nothing wrong.

Other law enforcement officials say they believe the law is not clear about
every situation that police confront.

"We are trying to determine who is right and who is wrong," said Capt.
James Keathley of the Missouri Highway Patrol, which often turns over money
to federal agents.

Still other departments won't talk at all about the way they handle federal
forfeitures, which is the legal term for the process of taking money.

For example, Kansas City police said state law did not require them to
answer questions from the media.

But a federal appellate judge, in a written opinion filed in 1998, said it
was clear that the federal Drug Enforcement Administration and the Missouri
Highway Patrol had "successfully conspired" in one case to keep forfeited
money.

That case led Judge James B. Loken of the 8th U.S. Circuit Court of Appeals
in his opinion to question whether federal agencies were "using their
extensive forfeiture powers to frustrate the fiscal policy of States such
as Missouri."

The Law's Intent

The state's fiscal policy was designed to keep forfeiture money out of the
hands of police to prevent a conflict of interest: When police benefit
directly from the money they seize, they might be tempted to conduct
illegal searches to seize assets.

In fact, that's exactly what has happened across the country, where most
states, including Kansas, generally allow police to keep drug money they
seize. Illegal searches and other abuses by police departments have been
well-documented in recent years in such places as California, Louisiana and
Pennsylvania.

"I am not so concerned where the money goes as I am concerned where the
money doesn't go," said Sen. Francis Flotron, a Chesterfield Republican who
helped write Missouri's forfeiture law.

"I don't want to create a situation where police have an incentive to stop
people for the benefit of getting stuff for their own departmental use."

If the money goes to schools, it not only removes a temptation from police
but also is put to good use, relieving a burden from school taxpayers,
lawmakers say.

So they set up a process. Police who seize money must report it to the
county prosecutor, who along with a judge must decide whether the money
should be forfeited. The forfeited money is sent to schools or, in special
cases, transferred to a federal agency.

But police have found a way to defeat lawmakers' wishes.

Their efforts to keep drug money have been no secret -- legislators tried
to fight them off with tougher laws in 1993 -- yet the police arrangement
with federal agencies has been almost invisible to the public.

That's no accident.

Police and federal agencies go to great lengths not to advertise their
arrangement. In fact, all those contacted by The Kansas City Star refused
to provide public records.

As a result, it's impossible to track how much money law enforcement has
diverted from schools.

But The Star was able to glimpse the windfall for law enforcement by
finding several police reports and court cases that show how police and
federal agencies work together.

In 14 cases in the Kansas City area in recent years, police and the Highway
Patrol seized more than $1.4 million and sent it to federal agencies. In
return, the federal agencies sent most of the money back to police and the
Highway Patrol, usually keeping about 20 percent of it for processing costs.

In each case, legal experts say, a state judge should have decided where
the money would go -- and that's usually to schools.

In one typical instance, Kansas City police stopped two men in 1996 because
their car did not have a front license plate. Officers searched the car
with a drug-sniffing dog and found a shoe box with $22,765 in the front
seat, according to police reports. Neither man was charged with a crime,
and although they protested the seizure, they gave up a challenge to it
because of legal costs.

Police turned the money over to the DEA, which later returned more than
$18,000 to the department.

Those 14 cases indicate a pattern of conduct, one expert said.

"Reasonable inferences could be drawn that this is an attempt to circumvent
the state forfeiture laws to benefit the state agency," said Jimmy Gurule,
a law professor at Notre Dame University and co-author of a legal text on
forfeitures.

A few figures suggest how broad the forfeiture diversion by law enforcement
may be.

For example, the Missouri Highway Patrol seized $5.4 million from just four
vehicles in the last two years in southwest Missouri, said a patrol
official in the Springfield office. In each of those cases the patrol
called the DEA and turned over the money, he said.

Of all its forfeiture cases in the last three years, the Missouri Highway
Patrol sent more than half to federal agencies, according to patrol reports.

Since the 1993 laws were passed, federal agencies have sent more than $32
million back to Missouri law enforcement agencies, according to the U.S.
Department of Justice. Some of that money may have come from legitimate
joint investigations, but it's impossible to know how much, because neither
federal nor local agencies will release seizure reports.

At least one sheriff's official from the other side of the state spoke
frankly about the way his department treats drug money.

"We don't deal in state forfeitures at all, because law enforcement doesn't
derive any revenues from that," said Capt. Tom Neer of the St. Charles
County Sheriff's Department, which sends almost no money to the county
school fund.

"You won't find too many local law enforcement agencies participating in
state seizures at all."

It's no wonder then that schools aren't receiving much forfeiture money.

In the last three school years, districts in five area counties received
only $277,000 -- and that was all in Jackson and Lafayette counties.
Schools got nothing in Platte, Clay and Cass counties, officials said.

"It's pretty shocking,"' said Lance Loewenstein, a Kansas City school board
member. "The folks who are supposed to protect us are willing to steal from
children in order to build their budgets."

The Police Rationale

Police offer three basic defenses for not complying with Missouri law,
which flatly prohibits them from just giving seized money to a federal agency:

It's a joint operation.

If local and federal agencies are investigating the case together, they
say, the federal agency can take the money.

The crucial question is when federal agents become involved.

In the 14 Kansas City-area cases found by The Star, police didn't call in
federal agents until they had already found the money.

Take the case of Fontaine Jones, who was murdered in March 1997. With the
help of a drug-sniffing dog, Kansas City police at the crime scene found
$14,425 hidden in a storage compartment in his truck's engine.

Police seized the cash and later gave it to the DEA, according to court
records. In a settlement with Jones' widow in federal court, the law
enforcement agencies kept the money and the truck, which was valued at
$16,000.

"The bottom line is, if the federal government is not involved before the
seizure, the seizure must come through state court," said Claire McCaskill,
Jackson County prosecutor. "If that is not occurring, the law is not being
followed."

Even when police officers are working with a federal agency, they must send
any money they find through state courts, the law says.

State law is insufficient, police say.

Officers can seize drug money only if they believe a crime has been
committed or if the money is unclaimed. But some cases don't meet either
requirement, said David Hansen, attorney for the Highway Patrol.

Troopers sometimes stop a car for a traffic violation, search it and find a
bundle of cash that a patrol dog identifies as drug money. The driver says
he doesn't know where the money came from and doesn't want it, but that
doesn't give troopers authority to seize it if no crime was committed,
Hansen said.

"I don't think anybody really would say that that situation under (Missouri
law) was really contemplated," Hansen said.

In such cases, the trooper has no options but to give the money to a
federal agent or let the driver leave with it, he said.

But state law absolutely prohibits police from just turning money over to a
federal agency, said Sen. Wayne Goode, a St. Louis Democrat who helped
craft the 1993 laws.

"They're supposed to go to the (state) court in all of these cases," Goode
said.

Highway Patrol officials said they were now seeking an opinion from
Missouri Attorney General Jay Nixon.

Taking money isn't the same as seizing it, police say.

And because Missouri law covers only money that is seized, police say, they
can give money to federal agencies if they hadn't really "seized" it.

The question of when a seizure is a seizure came up after Dennis Cole was
stopped in 1994 by the Highway Patrol for speeding on Interstate 70 near
Odessa.

In a search of the car, a trooper found a concealed compartment. The
trooper arrested Cole and called a Highway Patrol drug officer, who arrived
at the scene before calling a DEA agent.

The compartment was opened, and officers found more than $844,000. The DEA
agent took possession of the money.

The DEA returned $591,164 to the Highway Patrol and sent $126,678 to a
regional task force, keeping the rest.

Cole, who was never charged, appealed the forfeiture.

In a ruling last year, Loken, the judge, called it "pure fallacy" that the
DEA was part of the case.

"By summoning a DEA agent and then pretending DEA made the seizure, the DEA
and Missouri Highway Patrol officers successfully conspired to violate the
Missouri Constitution,... the Missouri Revised Codes, and a Missouri
Supreme Court decision," Loken wrote in his concurring opinion.

Although DEA officials provided The Star with their forfeiture policies,
they refused to answer questions.

Stephen L. Hill, U.S. attorney for the Western District of Missouri,
protests Loken's opinion.

"We disagree with (Judge Loken's) observations both on when the seizure
took place and that there was some kind of effort to circumvent state law,"
Hill said.

A seizure doesn't occur just because police find the money, said Frances
Reddis, an assistant U.S. attorney.

"My analogy is, when does an arrest occur?" Reddis said. "Police officers
often stop people, question them and it is not considered an arrest until
they can't leave."

Gurule, the Notre Dame legal expert on forfeitures, strongly disagreed. A
seizure occurs when someone is stopped by police, he said.

"To suggest that the seizure of the vehicle and its contents, the money,
occurred sometime later when the DEA arrived at the scene is ludicrous,"
Gurule said.

Black's Law Dictionary defines a seizure as occurring "not only when an
officer arrests an individual, but whenever he restrains the individual's
freedom to walk away."

Despite Loken's opinion, Cole never got his money back -- he filed his
appeal of the forfeiture too late.

Reform In The Works

Public officials say they will press for reform on almost every front:

State Law -- Kreider and other legislators say they will push for new
measures when the General Assembly's 1999 session begins this week.

Some lawmakers would prohibit any drug money at all going to federal
agencies. Others suggest giving police an incentive to work with the state
by letting them keep 50 percent of forfeitures.

Penalties -- Sen. Ronnie DePasco, a Kansas City Democrat who was just
elected floor majority leader, said it might be necessary to enact
penalties for law enforcement agencies that do not follow the law.

"Since there is no penalty clause, they can do whatever they want to do,"
said DePasco, who also is a member of the Civil and Criminal Jurisprudence
Committee. "We'll probably have to put a penalty clause in there to put
some teeth in the law."

State Probe -- Some want the attorney general to investigate.

Nixon, however, has declined to comment on the issue. His office confirmed
that it had talked to the patrol, which asked for an opinion, but would not
elaborate because it regarded the patrol as a client.

State Audit -- Loewenstein, the Kansas City school board member, called for
an accounting by the state auditor's office.

"Those entities are going to have to give back... whatever they took if
they indeed did take it," he said. "This is going to be, I'm sure, not a
short affair."

McCaskill, who takes office as Missouri's new state auditor this month,
said she would review forfeitures. She said she was disappointed by the
pattern of forfeitures The Star had found.

Police guidelines -- Kansas City Police Board Commissioner Joe Mulvihill
said police needed to set up guidelines if they were not following state law.

Mulvihill said police hadn't told him about the forfeiture issue, even
after The Star had submitted written questions to the department.

"Since the Kansas City Police Department is the largest law enforcement
agency in the area, we have to be perceived by the public as complying with
the law," he said.

Federal Investigation -- Loken, in his opinion last year, called on
Congress and the Department of Justice to investigate whether federal
agencies were abusing state forfeiture laws.

Continue to Part 2: http://www.mapinc.org/drugnews/v99/n013/a03.html