SEIZURE OF DRUG PROPERTY DEPENDS ON APPROPRIATENESS

Question: In the Sept. 16 Star-Bulletin, it was reported that HPD raided a
house on Pahu Street for the second time, arresting several individuals on drug
possession and other charges. Since property and material goods are the "bread
and butter" of people who traffic in drugs, will the house and possessions of
the arrested individuals be confiscated? I thought the federal government has
the ability to perform this action. What about HPD? It seems sad that people in
many communities know about these so-called "drug houses" and have made an
effort to report them, but the same houses continue to be used. It's depressing
for the whole neighborhood. When it comes to dealing and possessing any heavy
narcotics, there needs to be a no-tolerance attitude and efficient confiscation
process.

Answer: The Honolulu Police Department has the authority to seize any property
"derived from any proceeds" from drug dealing that "were obtained, directly or
indirectly, from the commission of a covered offense," said Capt. Kevin Lima,
of HPD's Narcotics/Vice Division.

That's spelled out under Chapter 712A of the Hawaii Revised Statutes. But the
law also sets limits as to when property can be seized for forfeiture.

Lima noted that the law goes on to say that "the court shall limit the scope of
a forfeiture judgment to the extent the court finds the effects of the
forfeiture is grossly disproportionate to the nature and severity of the
owner's conduct."

In other words, he said, "the seizure of a multi-kilo-level dealer's
high-priced residence could be construed as appropriate but the seizure of a
drug user's residence could be construed as disproportionate."

In the case you cite, seizure of the Pahu Street residence in Waipahu -- at
least at this point -- probably won't happen because the penalty could be
considered disproportionate to the offense in light of the charges brought
against the defendants, he said.

The nine people arrested were charged with various offenses, including drug
promotion, possession of drug paraphernalia, being a felon in possession of a
firearm, possession of an unregistered firearm, altering the identification
number of a firearm and possession of silencers.

Lima said it is true that police searched the Pahu Street residence last month
and in April. But the three main defendants arrested last month were not
present during the first search, he said.

"HPD will, however, look into other possible actions that may be taken," he
said, as well as "continue to arrest the same defendants if necessary."

It also is possible to consider "nuisance abatement" actions if drug dealing
continues at the house, Lima said.

Jurisdiction -- federal or state -- on forfeiture actions depends on where the
crime will be prosecuted, according to Lima.

"If it is a federal drug investigation (involving federal violations), then
federal forfeiture is sought," he said. "If it is a state drug investigation
(involving violations of state statutes) then the state will seek forfeiture."

Asked how many forfeiture actions against drug houses HPD has been involved in
so far, Lima said he can only think of one, ironically leading to the building
of the police substation on Hotel Street.

That property was seized and forfeited because of drug dealing involving crack
cocaine.

There was also a prostitution/money laundering case in the late 1990s involving
HPD that led to the forfeiture of property in Waikiki, Lima said.

Whatever law enforcement agency seizes property is responsible for its upkeep
until it is forfeited or returned to the owner, he said.

"In the event the forfeiture proceedings are not successful, the property
should be returned to the owners in the same condition that it was seized," he
said.

So, if HPD seizes property, "then the city is liable for the property and must
protect it from damage (such as arson), graffiti, injuries occurring on the
property, being taken over by the homeless, and other things that could
happen," Lima said.

Charlotte Duarte, deputy city prosecutor, added that federal forfeiture of real
property is sought in federal criminal court, while state forfeiture is sought
in state civil court.

In addition to concerns regarding maintenance of the property, "state civil
litigation is costly and time consuming, taking as much as two years to
complete," she said. "For this reason, federal forfeiture is usually preferred
if at all possible. For these reasons also, since this is one of the most
severe sanctions government can impose on the property rights of citizens, we
proceed very cautiously."

Lima added that seizing someone's home or business "is a very serious
enforcement action that we do not take lightly. We live in a very litigious
world and are held responsible for our actions."