Property seizures seen as piracy

San Antonio Express-News | February 7, 2009
By Lisa Sandberg

TENAHA — A two-decade-old state law that grants authorities the power to seize property used in crimes is wielded by some agencies against people who never are charged with — much less convicted of — criminal activity.

Law enforcement authorities in this East Texas town of 1,000 people seized property from at least 140 motorists between 2006 and 2008, and, to date, filed criminal charges against fewer than half, according to a review of court documents by the San Antonio Express-News.

Virtually anything of value was up for grabs: cash, cell phones, personal jewelry, a pair of sneakers, and often, the very car that was being driven through town.

Some affidavits filed by officers relied on the presence of seemingly innocuous property as the only evidence that a crime had occurred.

Linda Dorman, an Akron, Ohio, great-grandmother had $4,000 in cash taken from her by local authorities when she was stopped while driving through town after visiting Houston in April 2007. Court records make no mention that anything illegal was found in her van. She’s still hoping for the return of what she calls “her life savings.”

Dorman’s attorney, David Guillory, calls the roadside stops and seizures in Tenaha “highway piracy,” undertaken by a couple of law enforcement officers whose agencies get to keep most of what was seized.

Guillory is suing officials in Tenaha and Shelby County on behalf of Dorman and nine other clients whose property was confiscated. All were African-Americans driving either rentals or vehicles with out-of-state plates.

Guillory alleges in the lawsuit that while his clients were detained, they were presented with an ultimatum: waive your rights to your property in exchange for a promise to be released and not be criminally charged.

He said most did as Dorman did, signing the waiver to avoid jail.

The state’s asset seizure law doesn’t require that law enforcement agencies file criminal charges in civil forfeiture cases. It requires only a preponderance of evidence that the property was used in the commission of certain crimes, such as drug crimes, or bought with proceeds of those crimes.

That’s a lesser burden than is required in a criminal case. And it allows police departments and prosecutors to divvy up what they get from such seizures — what critics say is a built-in incentive for unscrupulous, underfinanced law enforcement agencies to illegally strip motorists of their property.

Some lawmakers, fed up with calls from irate constituents, say enough is enough. Sen. John Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee, said the state’s asset forfeiture law is being abused by enough jurisdictions across the state that he wants to rewrite major sections of it this year.

“The idea that people lose their property but are never charged and never get it back, that’s theft as far as I’m concerned,” he said.

Sen. Juan “Chuy” Hinojosa, D-McAllen, believes some law enforcement agencies in his cash-strapped district in the Rio Grande Valley have become so dependent on the profitable seizures that they routinely misapply the state’s civil forfeiture law.

“In a lot of cases, they’re more focused on trying to find the money than in trying to find the drugs,” he said.

That means law enforcement agencies in the Valley tend to target vehicles heading south into Mexico rather than northbound cars, Hinojosa said, because the southbound vehicles are more likely to be transporting cash — the profits from the drug trade — as opposed to just the drugs.

In 2008, three years after stripping a man of $10,032 in cash as he drove south along U.S. 281 to buy a headstone for his dying aunt, Jim Wells County officials returned the man’s money — and the county then paid him $110,000 in damages as part of a settlement. Attorney Malcolm Greenstein said criminal charges never were filed against his client, Javier Gonzalez, nor any of the dozens of people whose records he reviewed. People were given the option of going to jail or signing a waiver, Greenstein said. Like Gonzalez, most signed the waiver.

Cash-poor Tenaha

Supporters tout the state’s forfeiture law, when used right, as an essential law enforcement tool, allowing state and local departments the ability to go after criminals — using the crooks’ money. Law enforcement agencies last year captured tens of millions of dollars from such seizures statewide, according to records from Whitmire’s office.

But in Tenaha, a town of chicken farms that hugs the Louisiana border, critics say being a black out-of-towner passing through with anything of value is seen as evidence of a crime.

Tenaha Mayor George Bowers, 80, defended the seizures, saying they allowed a cash-poor city the means to add a second police car in a two-policeman town and help pay for a new police station.

“It’s always helpful to have any kind of income to expand your police force,” Bowers said.

Local police, he said, must take aggressive action to stem the narcotics trade that flows through town via U.S. 59 — drugs heading north, cash going south.

“No doubt about it. (U.S. 59) is a thoroughfare that a lot of no-good people travel on. They take the drugs and sell it and take the money and go right back into Mexico,” said Bowers, who’s been Tenaha’s mayor 54 years.

Bowers said he’d defer questions about whether innocent people were being stripped of their property to Shelby County District Attorney Lynda Russell.

Russell couldn’t be reached for comment, and her attorney declined comment.

Randy Whatley, a local constable who himself deposited more than $115,000 into the county’s seizure account for fiscal year 2007 (state records show $45,000 eventually was returned to its owners), also couldn’t be reached for comment.

Russell, Whatley and Bowers are among a half-dozen officials named in Guillory’s lawsuit.

Waiving rights

Harris County District Attorney Patricia Lykos said the state’s forfeiture law, which last year put millions in the coffers of local law enforcement agencies, including hers, takes some of the profit out of crime.

“These ill-gotten gains are used to further the aims of law enforcement and public safety,” she said. “It’s kind of poetic justice, isn’t it?” Lykos said she believes the law, if followed, provides residents with adequate safeguards. Rarely, she said, do seizures take place locally without the filing of criminal charges.

She added that the most perfect law in the world could be sullied by the individuals carrying it out.

“It goes to the integrity of the people enforcing the law,” Lykos said.

An official with Bexar County District Attorney Susan Reed’s office did not return a call for comment.

Several now-former district attorneys in Texas already have landed in hot water over their use, or misuse, of their forfeiture accounts. Before his primary defeat last year, then-Montgomery County District Attorney Michael McDougal acknowledged spending hundreds from the fund on alcohol for a community event, and thousands more on staff parties and donations to charities.

The law stipulates that seized money be used for law enforcement purposes but doesn’t specify what those are.

Key lawmakers say more oversight is needed everywhere in the process. The apparent practice in Tenaha of presenting waivers just after people’s property is seized raises troubling questions about how the law is applied there.

The Shelby County district attorney made legal agreements with some individuals that her office wouldn’t file criminal charges so long as the property owner waived all rights to the valuables.

“In exchange for (respondent) signing the agreed order of forfeiture, the Shelby County district attorney’s office agrees to reject charges of money laundering pending at this time,” read one waiver, dated April 10, 2007.

The property owners named in the waiver had just signed over $7,342 in cash, their 1994 Chevrolet Suburban, a cell phone, a Blackberry and a stone necklace. The law forbids a peace officer at the time of seizure to “request, require or in any manner induce any person ..... to execute a document purporting to waive the person’s interest in or rights to the property.”

In Monroe, La., Jason Clemons, an unemployed 36-year-old, says he’d desperately like to reclaim the $3,500 in cash authorities in Tenaha seized from him when the car in which he was a passenger was stopped in 2007 and a marijuana roach was found in the ashtray.

A judge threw out a money laundering charge against him a while back, but his attorneys told him it’s too late to reclaim his money. “If you ask me, they’re running a scam from the district attorney’s office to the police,” Clemons said. “I’m in a real good bind. It’d be nice to see that money.”