Innocence until proven guilty should also mean an individual isn’t punished until guilt is established in court. But in Michigan and other states, a suspect can lose property and cash without ever even being charged with a crime.
A package of bills voted unanimously out of committee would establish a higher threshold for civil forfeitures. But it should be toughened to require a conviction before property is taken.
A new report released jointly by the conservative Mackinac Center for Public Policy in Midland and the liberal Michigan ACLU clearly illustrates the problem with forfeitures. That the two often ideologically opposed organizations can find unity on this issue makes the case that reform is needed much stronger.
As the joint report notes, under criminal forfeiture property can’t be kept by government until the owner’s guilt is established beyond a reasonable doubt.
But the standard is much lower for civil forfeitures. State law allows law enforcement to take property merely suspected of attached to an illegal activity, and without the defendant ever having his or her day in court. The requirement is only that there be a “preponderance of evidence” that a crime has been committed.
Consequently, many people have been forced to pay huge fines and fees to retrieve their possessions, even though they were never convicted or even charged with a crime.
“When the government can transfer property from citizens to the state without proving wrongdoing, there is clearly something wrong,” said Jarrett Skorup, a policy analyst with the Mackinac Center and co-author of the report. “The foundation of good government is private property rights and the rule of law — civil forfeiture violates both of these.”
A recent study from a national group, Fix Forfeiture, concluded Michigan’s forfeiture laws are among the most abusive in the country.
Local law enforcement agencies are using civil forfeiture to supplement their budgets and pay for specific programs. That provides a perverse incentive to seize property.
From 2009 to 2013, Michigan law enforcement agencies reported $123.5 million in drug-related forfeiture proceeds.
At least another $149 million was taken by Michigan law enforcement agencies from 2001 to 2008, an average of about $18 million per year.
That means more than $270 million has been seized from Michigan residents since 2001. Since these figures only include forfeitures related to drug crimes, the total value of property seized is likely far greater.
The pending Michigan bills raise the burden of proof standard for determining when property is seized to “clear and convincing evidence,” and requires police agencies to track and report seizures. That should result in fewer takings.
But they do not require a conviction before a seizure, and that is a major flaw that must be corrected. And they also allow agencies to continue the practice of using seizures to fund their operations.
Still, this package is a good start. Efforts should be made to improve the bills to better protect civil liberties.
Michigan police agencies seized some $23.9 million last year from suspected drug traffickers, according to a forfeiture report released by the Michigan State Police.
Subtracting costs and shares of assets paid out to partnering organizations, state law enforcement agencies netted $20.4 million, according to data disclosed last month in the Michigan State Police 2015 Asset Forfeiture Report. Those numbers are about even with what MSP declared in its report covering 2013, when $24.3 million in assets were seized, netting $20.2 million. In 2012, $26.5 million in assets were forfeited, with $22 million netted.
However, figures from Michigan’s drug asset forfeiture program, which focuses on the seizure of cash and property assets of drug traffickers obtained through illegal activity, may be undercounted.
Of the 686 law enforcement agencies in Michigan that were sent a Government Asset Forfeiture Report form, 56 agencies failed to respond (there is no penalty for not responding), said Shanon Banner, a spokeswoman with the Michigan State Police.
Of the responding agencies, 332 reported asset forfeitures and 298 reported none.
Not a single county prosecutor’s office of the 69 that filed reports with the state reported asset forfeitures; prosecutors in 14 of Michigan’s 83 counties did not file reports.
Prosecutors in Wayne, Oakland and Macomb counties did write reports, Banner said.
The vast majority of forfeitures proceeded via “administrative forfeiture” rather than the circuit court system.
Among local police agencies, 81 percent of cases were handled by administrative forfeiture. Among multijurisdictional task forces, the proportion of cases handled that way was 72 percent.
Some 70 percent of Michigan State Police forfeiture proceedings were handled this way, as were 85 percent of those initiated by the state’s 83 sheriff’s offices.
Victor Fitz, Cass County prosecutor and immediate past president of the Prosecuting Attorneys Association of Michigan, explained the administrative asset forfeiture procedure: When property is seized, its owner is sent notice and can contest the seizure within 20 days. If that happens, the case proceeds through the circuit court system. If the owner fails to do so, he or she forfeits ownership to the seizing agency.
Asset forfeitures are a civil, not criminal, process, Fitz said, because the target is property, not an individual. That’s why property can be seized even when criminal charges are not filed.
“A lot of times, people don’t want to throw good money after bad” by pursuing a court hearing they will likely lose, Fitz said.
The current standard for asset forfeitures is “a preponderance of the evidence.”
But if the forfeiture reform passed unanimously by the Michigan Senate last week becomes law, that standard will shift to “clear and convincing evidence.” That is above a preponderance but below the “beyond a reasonable doubt” standard required in criminal cases.
Gov. Rick Snyder’s signature is the last remaining hurdle to the measure becoming law, and he is “starting a thorough review before making a decision how to proceed,” spokesman Dave Murray said Friday.
The Prosecuting Attorneys Association of Michigan supports the Senate reform, Fitz said, along with its reporting requirements. A higher standard and additional transparency should ensure that seizures “remain viable” as a law enforcement tool, he said.
A move to a clear and convincing standard would be a “step in the right direction,” said defense attorney William Maze, who has worked dozens of asset forfeiture cases in Wayne County. But Maze said a better reform would be barring forfeiture proceedings until after a conviction has been obtained.
One of Maze’s clients was visiting a friend in Detroit when police came to serve a drug search warrant. Because the woman was present when the warrant was served, police swept her into the action and filed notice to seize her car. Maze was able to get the car back, but pointed to that example as an abuse of the forfeiture system.
Oakland County Sheriff Michael Bouchard said his office works “hand in glove” with Oakland County Prosecutor Jessica Cooper in forfeiture matters.
The prosecutor’s office handles all sheriff’s office forfeiture cases in circuit court, and Bouchard said the offices take a conservative approach. He cited the case of an Oakland County business that was selling drugs, but also had legitimate business income. The sheriff’s office did not push for seizure of the business due to that legitimate income.
Bouchard was an advocate for the reform the Legislature passed. He believes the “clear and convincing evidence” standard demands a “tangible connection to criminality” that will lessen abuses.
“Being in the room doesn’t mean there’s a nexus” to illegal activity, Bouchard said.
In addition to the farm, police seized “cars, medical records, cameras, video recorders, computers, guns” and more. Though Ashley Duval was never charged with a crime, her father and brother were charged and convicted, and the authorities lumped their property together. Duval wrote of feeling hopeless in the face of a seizure that would be costly to fight.
“Asset forfeiture laws need to be completely redone,” Duval wrote. “That day (of the raid) was one of the most heartbreaking, brutal days ever, watching (police) take what they wanted and not being able to do a darn thing about it.”
In Macomb County, local police seized more than $2 million in 2014, down almost $700,000 from 2013. The county sheriff’s office seized $181,619 in assets, up almost $23,000 from the previous year.
In Oakland County, local police seized just less than $1.8 million in assets in 2014, up more than $345,000 from 2013. The sheriff’s office seized $393,845 in 2014, up $32,682 from 2013.
In Wayne County, local police seized $5 million in assets in 2014, down almost $1 million from 2013. The sheriff’s office seized $525,754 in assets, down $108,000 from the year before.
Paul Walton, chief assistant to Cooper in Oakland County, said a change in the burden of proof “would make no difference in the way we proceed” in forfeiture cases. Only specialists staff the office’s asset forfeiture unit. If it’s a business in danger of being seized, the office asks for records to see if there is legitimate income.
“We’re not in it for the money,” he said. “There’s always a proportionality argument” in forfeiture cases, Walton said, meaning that what’s seized is the proceeds of criminal behavior, not property taken on a hunch or because someone was in the wrong place at the wrong time.
“That power is a pretty big sword to wield,” Walton said.
Westland — Marijuana and pizza may be a popular combination, but the state Court of Appeals ruled last week it isn’t enough to warrant police seizure of property.
The state appellate court overturned the forfeiture of a car after ruling the driver didn’t use the vehicle to buy marijuana found by police, but instead received the weed as a tip for delivering a pizza.
The 2-1 decision came down Thursday, a day after House Bill 4499, part of a seven-bill package seeking to reform the state’s forfeiture laws, was passed by the Michigan Senate, 38-0. The Michigan House of Representatives in June approved the measure 104-5.
The Westland case began with an April 2013 traffic stop, during which Westland police officer Robert Fruit found a gram of marijuana on the driver, Linda Ross.
“Linda worked as a delivery driver and had received the marijuana as a tip earlier in the day after delivering a pizza to a customer,” the State Court of Appeals decision said.
The 2007 Ford Focus was seized under civil forfeiture laws that allow authorities to confiscate property that’s used to commit crimes. Ross’ father, Steven Ross, hired attorney William Maze, who specializes in forfeiture cases, to fight the case.
“At a forfeiture trial, Fruit testified that Linda told him, upon her arrest, that she purchased the marijuana from a customer to whom she had delivered a pizza,” the appellate court decision said.
“However, Linda testified, and the trial court found credible, that she received the marijuana as a tip for delivering pizza and that she did not intend to go to the customer’s house in order to purchase the marijuana.”
Maze said: “The question in this case was, did she use the car to purchase marijuana? If not, then they can’t seize the car. Possession of a drug isn’t enough.”
While Wayne Circuit Judge Robert Colombo agreed with Maze’s contention that mere possession of marijuana isn’t enough to warrant a seizure, the judge ruled Ross’ vehicle was used for the purpose of receiving the drug, and, thus, subject to forfeiture.
Appellate judges Michael F. Gadola and Jane M. Beckering overturned the lower court’s decision, with Judge Kathleen Jenson dissenting.
“Despite Linda’s testimony that she sometimes received marijuana as a tip from various customers, there was no evidence that she expected to receive it on this particular occasion, that this particular customer had given her marijuana before, or that she was motivated to go to the customer’s house by anything other than a delivery call,” the appeals court said.
“According to plaintiff and the trial court’s perspective, the fact that ‘the car was used to receive marijuana’ because marijuana was placed into it established — on its own — that Linda used the vehicle for the purpose of receiving marijuana. By that logic, a vehicle would be subject to forfeiture in all cases of mere possession.”
Assistant Wayne County Prosecutor Maria Miller said: “We are in the process of determining whether we will appeal this or not.”
However, that figure is likely low, since 56 agencies failed to respond to a Government Asset Forfeiture Report Form. Of the agencies that did respond, 332 reported asset forfeitures and 298 reported none.
Police are not required to file an annual report with the state detailing their forfeitures, although the proposed laws, which are awaiting Gov. Rick Snyder’s signature, would make it mandatory.
Bill 4499 would increase the burden of proof required to forfeit property in drug and public nuisance cases. Instead of the current threshold of “preponderance of the evidence,” the law would require “clear and convincing” evidence that the forfeited property was used to commit a crime.”
US police are using a flawed scientific test in drugs busts that gives ‘false positives’ to strongarm citizens into plea bargaining.
As if America’s highly-publicised “war on drugs” were not already facing a credibility gap, two US superior court judges – one in Washington, DC, another in Colorado – are raising questions about whether the federal Drug Enforcement Agency (DEA) and police departments are using “pseudo-scientific” drug identification methods to bust hundreds of thousands of suspected drug users, many of them inner-city minority kids. A flawed drug test means that innocent people are being locked up as suspects, deprived of their due process rights, and then pressured to accept plea bargains, whether they’re guilty or not.
At issue in the growing controversy is whether current drug identification methods, including the widely-used “Duquenois-Levine test“, can verify – and how accurately – that the substance police seize during an arrest is the one they say it is. The test, a variation on simple techniques first employed in the 1930s, exposes the suspect substance to a liquid chemical, and if it turns a certain colour – purple, in the case of marijuana – it’s deemed likely to be the real thing.
But according to leading defence experts, including Heather Harris, a highly-trained chemist who’s gone head-to-head with DEA lab “experts” and won, there are hundreds of legal substances, many of them readily available commercially, or in nature, that would normally turn purple under the exact same test conditions. Which means the Duquenois test, while ruling marijuana “in” as one theoretical possibility, perhaps, can’t confirm its presence, either – at least, not “beyond a reasonable doubt”, the legal threshold required for a conviction.
But that hasn’t stopped police from using the test widely. In one recent case in Florida, police descended on a middle-aged woman bird-watcher in a public park and busted her after noticing a leafy substance in a package in her purse, which later turned out to be sage she’d purchased as incense for her home. The woman tried to inform the police about sage’s medicinal and spiritual uses, and even Googled the manufacturer’s website on her laptop, which matched the branding on the package. But the police busted her anyway, after the substance turned purple in a lab test. She’s now planning to sue for damages.
In fact, the problem of “false positives” in drug tests isn’t just limited to substances that appear to resemble marijuana. In Canada, the owners of a family-based chocolatier business were fingered as dangerous drug dealers by a Duquenois field test, and found themselves in jail.
The chocolate case may seem extreme but it’s happening all across America, experts say. That’s, in part, because of the pay incentives involved. Police can earn large amounts of overtime pay by conducting routine drug busts, especially after hours; they even have a name for the practice: “collars for dollars”. In New York, where possession of less than an ounce of marijuana was decriminalised some years ago, marijuana drug busts have not declined; they’ve skyrocketed – from 5,000 to roughly 30,000 annually – in part, because police find the practice so lucrative.
Of course, Duquenois-Levine is not the only DEA-approved drug test available. A far more conclusive test, known as GC/MS, using far more advanced techniques, can also be performed, but defendants and even many lawyers are rarely aware that they can insist on such a test, or have much incentive to do so.
And, in fact, even the GC/MS test is increasingly under fire, because the DEA doesn’t have standard lab protocols to govern its use, and has angered judges, including those in Washington and Colorado, by overstating the test’s reliability in court. In one recent case, a Colorado superior court judge threw out all of the DEA’s testimony in a drug case after its witness, under cross-examination, failed to demonstrate that the GC/MS testing conducted at one of its 18 national labs was reliable. It’s a legal precedent that has the DEA reeling, experts say.
Of course, many people arrested for drug use and possession are undoubtedly guilty as charged – how many is unclear, though, because plea bargaining is so commonplace. But using manifestly flawed drug identification tests to charge defendants, or pressure them to plead guilty, is hard to square with a defendant’s right to due process. And the DEA and local police, by relying on such methods, are in danger of damaging even their “good” cases, making a further mockery of the “war on drugs”, while leaving ordinary citizens more at risk than ever.
The Michigan legislature has passed into law a one-year pilot program set up in five counties that allows for Michigan State Police to perform roadside drug tests. The way this will work is if a driver gets pulled over for a traffic offense, in one of the five counties that are yet to be determined and shows signs of being under the influence of drugs the specially trained “drug recognition expert” will be able to conduct a field sobriety test. After which, the officer will be able to use the new saliva-based testing to check and see whether the driver has consumed marijuana, heroin, or cocaine.
– Can you say DNA collection?-
What the purpose is?
The officials in charge of pushing through this policy cite the reasoning being that there has been a large increase recently of drugged driving accidents and drugged driving fatalities. The addition of this test to the already used field sobriety testing is intended as means to provide further probable cause to establish the grounds for a lawful arrest.
Additional arrests leads to additional fines and penalties that the police are able to collect from its citizens.
In a study performed by AAA’s safety foundation, it was determined that it is impossible to set a blood-test threshold for THC. The test states:
There is no evidence from the data collected, particularly from the subjects assessed through the DRE exam, that any objective threshold exists that established impairment, based on THC concentrations measured in specimens collected from cannabis-positive subjects placed under arrest for impaired driving. An association between the presence and degree of indicators of impairment or effect from cannabis use were evident when comparing data from cannabis-positive and cannabis-negative subjects. However, when examining differences in performance in these parameters between subjects with high (>5 2 ng/mL) and low (<5 ng/mL) THC concentrations, minimal differences were found.
Setting any sort of legal limit or per se limit for cannabis and driving are arbitrary and unsupported by science.
Furthermore, in a study done by Forensic Fluids Laboratory the window of time during which a swab test can pick up a THC positive test is up to as long as 3 days. Even though someone may still have THC in their system 3 days after consuming Cannabis, the likelihood that they are still intoxicated is extremely unlikely.
As a result of the probable cause that can be gained from this swab test an officer has the ability to issue an arrest warrant based on evidence that is not providing any scientific proof of the driver current intoxication, but based on its result creates an extremely misleading affidavit.
