Pubdate: Sun, 05 May 2013
Source: Atlanta Journal-Constitution (GA)
Copyright: 2013 The Atlanta Journal-Constitution
Contact:  http://www.ajc.com/
Details: http://www.mapinc.org/media/28
Author: Willoughby Mariano

LAX GA. FORFEITURE LAW RIPE FOR ABUSE

Critics: Reliance on Seized Funds Gives Agencies an Incentive to Take 
As Much As They Can.

Alda Gentile Stowed the Cash She Earned in a Plastic Cleaning Wipes 
Tub, With Dreams of Buying a Condo Off Florida's Atlantic Coast.

Come Sept. 19, 2012, the New York grandmother was cruising Interstate 
95 in southeast Georgia with her son, 1-year-old grandson, and a 
folder full of condo listings when they were stopped for speeding.

Officers asked the driver, Gentile's son, whether they had large sums 
of money. He pointed them to the trunk.

Within minutes, they ordered the family out of the car for a stop 
that lasted more than five hours. Mosquitoes swarmed and bit in the 
heat. Gentile stood with the baby, who messed his diaper and 
screamed. Officers blocked her from changing him or putting him down, she said.

Officers found no drugs, and made no arrests. Still, they confiscated 
the entire down payment of $11,530 and refused to leave $20 for gas 
and food for the baby.

"I told them they were nothing but pirates with badges," said 
Gentile, a taxi and limo driver.

Gentile's down payment was among the millions of dollars' worth of 
property seized by Georgia law enforcement agencies each year under a 
state law loaded with potential for abuse, The Atlanta 
Journal-Constitution has found.

The agencies say the seizures are essential to show crooks that crime 
doesn't pay. If police stop a drug dealer with a pound of marijuana 
in his trunk, they'll seize his car, cash and the jewelry he's wearing.

Police don't need a warrant to do that, according to decades-old 
state civil forfeiture laws. They just need to list reasons why they 
think the property was used or was intended for use to break certain laws.

"It is the best tool-the most effective tool-for me to take profits 
away from drug dealers, because they're not scared of jail," said 
Putnam County Sheriff Howard Sills, president of the Georgia 
Sheriffs' Association.

But critics say there is a danger of policing for profit. As agencies 
have come to rely on civil forfeitures to buy essentials like 
bullet-proof vests, they have an incentive to seize first and ask 
questions later. Forfeiture funds amount to 15 percent or more of the 
annual budgets of some departments, the AJC found, and sheriffs told 
legislators they'd be crippled without the money.

Yet what agencies take and how they use it remains largely hidden from view.

And by law, judges presume agencies have a right to the property, 
while departments can keep it even if the owner was innocent. In 
Gentile's case, a Georgia State Patrol report did not say why 
officers thought a crime took place.

Fighting back can take months and thousands of dollars. Even if an 
owner wins, it may be too late to stop the financial tailspin that 
the seizure caused. For the police agencies, though, there's little 
consequence for a wrongful seizure.

State law is supposed to open the forfeiture process to public scrutiny.

Police and sheriffs departments must compile yearly reports on their 
forfeitures, which lawmakers say should be posted on a state website. 
But there's no penalty for those who fail to follow it, and the site 
contains so little information that oversight can be next to impossible.

Of the state's 159 counties, only 29 have posted reports. About half 
of them are confusing, vague or include the wrong information.

Some reports fail to list the property that was seized. Others don't 
say how agencies used the proceeds.

A few lack crucial information. In 2012, the Pike County Sheriff's 
Office reported it spent $22,856.65 under the category "office," but 
gave no details.

Other agencies report only what they received under a program that 
gives local departments a slice of forfeiture proceeds from federal 
investigations that they assisted.

Sheriffs said they are willing to file reports to the state website, 
but, by law, it's the responsibility of county or municipal government.

Prosecutors do not have to file reports at all, even though they can 
take 10 percent of the seizure proceeds.

To learn more about the past five years of seizures, the AJC filed 
open records requests with 12 agencies in metro Atlanta and across the state.

The records that were released showed many seizures result from 
serious crimes. Defendants were later convicted of felonies.

But agencies have also seized property that courts later ruled they 
had no right to keep, and some forfeitures may have occurred simply 
because no one challenged them.

With so little transparency, agencies may use the money as a slush 
fund, said State Rep. Wendell Willard of Sandy Springs. His House 
Bill 1 would have punished departments that fail to report or misuse 
proceeds by suspending their ability to make civil forfeitures for two years.

"The least we can do is give some transparency to the process," Willard said.

Willard's bill would have also made prosecutors show there is "clear 
and convincing evidence" that they have the right to keep seized 
property- a higher standard used by other states.

The bill never made it to a full House vote. Outraged sheriffs 
crowded Judiciary Committee meetings, accusing Willard of coddling 
drug dealers.

"The stuff that's going into your children's veins is coming from 
these folks that we take this stuff from," Putnam Sheriff Sills said.

Decatur County Sheriff Wiley Griffin testified that rural departments 
need the money desperately. They're even trying to fend off federal 
agencies from making busts on local cases with big potential payouts, 
Griffin said. If sheriffs make them on their own, they get more money.

"These asset seizure funds, that's where we get our money to buy the 
guns, ammunition, bullet-proof vests," Griffin said.

Forfeiture funds have become essential to other agencies, too, records show.

Each year, a department may keep almost all of its proceeds up to 
one-third of its budget. They may fund any official law enforcement 
purpose, except officer salaries or rewards.

Among Gwinnett Police's purchases are some $185,000 to a wiretap 
translation and transcription service in 2010, and thousands of 
dollars worth of cell phone service, according to documents the 
agency released to the AJC.

The Cobb DA's expenses included specialized DNA testing and office 
supplies. That county's multi-agency organized crime unit is funded 
through forfeitures.

Sheriff Sills' rural department was literally built with forfeiture 
money - most of it seized under state law, he said. An entire 
substation was constructed and furnished with it.

Reserves of federal and state forfeiture proceeds combined have 
reached as high as 13 percent of Sill's budget of some $4 million 
during the past five years, records show. The federal portion was a 
windfall from a crackdown on the Nuwaubian Nation cult on molestation 
and racketeering charges.

About 40 percent of Putnam's fleet are forfeited vehicles or ones 
purchased with forfeiture money. That includes a military-style Jeep 
for ice storms and an RV used as a mobile command center.

"Do you know who wins? The taxpayer wins," Sills said. "Do you know 
who loses? The drug dealer."

But records show that state seizures of luxury cars or suitcases full 
of cash are rare. Agencies routinely confiscated cash amounts less 
than $500, cars worth less than $5,000, cell phones and the 
occasional vacuum cleaner.

In Columbus, police seized a photo of movie drug dealer Scarface and 
placed it in their conference room, according to the agency's 2012 report.

"Police give you the impression these are the Pablo Escobars of the 
drug world, but that's not the case," said Dick Carpenter, an expert 
with the Institute for Justice.

Even supporters of current law acknowledge that this reliance on 
forfeiture might give agencies an incentive to seize as much as they can.

Gwinnett District Attorney Danny Porter said he avoids conflicts by 
refusing the proceeds that state law allows his office to keep.

"My opinion is that it's my job to eradicate the drug trade, not live 
off of it," Porter said.

Property can be simple to seize but hard to get back.

Owners have no right to a lawyer, and hiring one can easily cost 
$5,000. They give up rather than spend more than the property is 
worth, and the court awards the property to the agency that seized it.

"If someone told me, they took away $300, I would say, just walk 
away," said Atlanta attorney Yasha Heidari, who has fought for 
agencies to disclose more information about their forfeitures.

Gentile was lucky. It took calls to the governor's office and help 
from an attorney, but Georgia State Patrol returned Gentile's $11,530 
in about one week.

She now lives in Florida.

It could have been worse, said Colonel Mark McDonough, head of the 
Georgia State Patrol. Troopers had the right to take the car as well 
because it was rented under the name of Gentile's fiance, which means 
the company did not authorize her or her son to drive it.

"It appears to me that all the way around, officers tried to be as 
nice as possible with what they could do and what they didn't do," 
McDonough said. No officer was disciplined in the case.

In other cases, the seizure itself pushed owners off the financial brink.

Consider a 2009 case from Lamar County, where federal and state 
seizures combined have climbed as high as 16 percent of the sheriff's 
annual budget in recent years.

Shukree Simmons was driving north from Macon on Interstate 75 after 
making $3,700 on the sale of his restored 1985 Chevrolet Silverado. 
He hoped to pay rent on the East Point shop where he lived and ran an 
auto broker.

Deputies stopped him saying he drove recklessly. They ran his 
license, searched his car, put him in cuffs and brought in a police 
dog, but they found no drugs and never arrested or ticketed him.

"They just left me, took my money, and said, 'have a nice day,' " Simmons said.

His money gone, Simmons was evicted and lived in his car.

The deputy's report said Simmons met the truck's buyer at a 
restaurant that was being investigated for drug activity.

ACLU attorneys convinced the department to eventually return the 
money, but Simmons received no compensation for his struggles.

Owners rarely do, experts said. A lawsuit typically cannot proceed 
once the property is returned, and suits that accuse police of abuse 
rarely win. Also, it can be constitutional to forfeit property from 
an innocent person.

But returning the money is not enough, said Joseph Segui, the 
attorney in Gentile's case.

"You can't just give it back. It doesn't make them whole," Segui said.

Navy veteran W. Leo Payne 's life savings of $46,000 was frozen after 
he was charged in 2008 with mortgage fraud.

Charges were dropped, but as Payne fought Fulton County prosecutors 
for the money's return, he could not pay his daughter's college 
tuition. For a time, she could not go.

"I certainly have no problem with taking money from drug dealers, and 
providing weapons and vests to the police force," Payne said in 
testimony before state lawmakers. "But I think you ought to convict 
them first, and I think you ought to make sure they get their due 
process, I don't care who they are."
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