JUDGES DERIDE SEIZURE OF BAIL MONEY BY POLICE

SALEM - State police working for the district attorney's office are
confiscating cash from some people seeking to bail individuals out of
Middleton Jail, an act two local judges say is unconstitutional.

Prosecutors defend the practice, saying that they have the right to
investigate when they suspect the bail money comes from drug dealing. But
lawyers for two men whose bail was seized earlier this month say police had
no legal right to take the money - a view the judges shared in separate
rulings last week.

"It was unconstitutional and unlawful for the state police to seize that
money," Salem Superior Court Judge Peter Agnes said Friday during a hearing
in the case of Carlos Sanchez, a Methuen man charged with cocaine and
heroin trafficking.

A friend of Sanchez had tried to post $50,000 cash bail at the jail on May
10, but the money was seized by a state trooper, who had been sent to the
jail when the friend showed up with a bag of cash.

Agnes gave prosecutors until Friday to prove the money is from illegal
activity. If they do not, he will release Sanchez. He also ordered police
to turn the cash over to the court clerk's office immediately. Across the
street in Salem District Court, Judge Robert Cornetta had come to a similar
conclusion a day earlier in the case of Jorge Lopez, a Salem man charged
with cocaine distribution. In this case, too, a state police trooper seized
the $25,000 cash before friends could use it to post bail. Police cannot
rely on a "hunch or suspicion in seeking to seize bail funds," Cornetta
said in a decision Thursday. "Nor can a mere hunch serve as probable cause
to detain persons seeking to post bail."

Cornetta ordered that Lopez be released immediately. No probable cause
Prosecutors disagree with both judges. They say the people posting bail
could not offer proof of the source of the money. And in the Lopez case, a
drug-sniffing dog detected the presence of drugs on the money after it had
been seized. "It's incumbent on the district attorney to investigate if
criminal conduct is afoot," Murat Erkan, an assistant district attorney,
told Judge Agnes. But the judge said that does not override the Fourth
Amendment to the Constitution, which requires the government to have
probable cause and permission from a court to take someone's property.

He said the money could have been set aside by a clerk, and police could
then have investigated and asked for a hearing regarding the source of the
money, even after it had been posted as bail.

State bail administrator Michael McEneaney offered similar advice in a
letter to a court clerk about the Lopez case, saying, "It is generally not
appropriate for police or district attorney's staff to confiscate funds."
Middleton Jail officials were asked by the district attorney's office
several years ago to begin notifying them when someone brings in a large
amount of cash, said spokesman Paul Fleming. The jail accepts only cash or
a cashier's check from a bank.

"Obviously if there's any kind of definitive ruling from a court that this
practice should not be engaged in, we would stop," Fleming said. "But we
have not seen that."

The district attorney has apparently targeted the seized money for
forfeiture under the state law that allows police and prosecutors to share
the seized proceeds of illegal activity.

But Judge Cornetta said they would have to prove first that the money came
from illegal activity.