A bill moving through the state Legislature would get police out of the petty theft racket, but would leave the door open for them to continue engaging in grand larceny. Still, it’s an important step, and the measure should be adopted.
Civil asset forfeiture is an affront to constitutionally protected property rights and the fundamental legal concept of innocent until proven guilty. And yet it is practiced by nearly all of Michigan’s law enforcement agencies and protected by state law.
The House bill pushed by Speaker Tom Leonard, R-DeWitt, would drastically restrict this legalized theft.
The bill, HB 4158, would require a conviction before most private property could be seized from individuals and transferred to the government.
That may seem like a common sense condition, and certainly a fair one, but that is not the current practice in Michigan.
Here, police are able to grab property on the mere suspicion that it was gained from or helped facilitate criminal activity. In fact, 10 percent of those who have their assets seized are never criminally charged.
Getting the property back is a cumbersome and expensive process, and many of those whose possessions were taken find the effort to recover them not worth the time and money.
Property that is seized is most often sold and the proceeds used to fund police operations. That provides a perverse incentive for cops to find a connection between the assets and a suspected crime.
In a number of cases, cash and other items have been taken from houses and automobiles even when no trace of drugs or other illegal contraband is found inside.
In 2016, $15.3 million in private property was seized under the civil asset forfeiture law. Some years, the value has reached $25 million.
Three years ago the Legislature reformed the law to raise the standard of evidence required before property can be taken, and also demanded better accounting from police agencies about why assets were confiscated.
That has cut into the total amount taken, but the practice of grabbing private property without a conviction has continued. It would end under the House bill, at least for smaller seizures.
The proposed bill would still permit seizures of assets valued above $50,000, on the theory that such big-ticket items are a likely indication of drug activity. That reasoning is obviously flawed. There are a lot of non-criminal reasons someone may possess that much cash or other property.
Police should not be operating on assumptions. No property should be taken and held without enough evidence for a criminal conviction.
Law enforcement agencies are lobbying the Legislature hard to scrap the bill, arguing forfeiture is an important tool in combatting the drug trade. In reality, it has become a vital piece of their operating budgets.
If police need more money, raise taxes, but don’t steal the property of citizens.
Lawmakers should get police out of this sordid business by ending civil asset forfeiture in cases where no one has been convicted of a crime.
I don’t know…But here is a story about it. Your on your own to find the truth. After the article there will be some links to other sites that will present the device in a different light.
Police Use Device to Strip Money from Drivers’ Debit Cards
Police officers are using a new technology, called ERAD machines, to siphon funds directly from drivers’ pre-paid cards in the course of ordinary traffic stops.
The tactic, which cops have deployed for months in states like Oklahoma, is a new twist in “civil forfeiture,” a controversial legal process that lets police seize funds from motorists if they suspect money is tied to a drug crime. Critics, however, liken the practice to banditry—noting the police use forfeiture to pay themselves, and that citizens must take extraordinary legal measures to get their money back.
The arrival of the handheld ERAD machines, which stands for Electronic Recovery and Access to Data, comes at a time when fewer people are carrying cash. They work by imitating the payment terminals found at ordinary retailers, and allowing cops to slurp up the values found on pre-paid cards for Visa (V, +1.40%) , Starbucks (SBUX, +0.80%) and so on.
For now, it appears the ERAD devices are only able to siphon funds from pre-paid cards, and not from a driver’s personal bank account or credit card.
According to Matt Miller, a senior attorney at the Institute for Justice, the advocacy group first became aware of the ERAD machines several months ago. Miller says law enforcement groups have been touting them as a way to seize funds from drug dealers, many of whom use pre-paid debit cards to move funds around.
Indeed, a recent press release from the Department of Homeland Security talks up the benefits of ERAD technology.
“[L]aw enforcement seized approximately 1,000 cards from a suspected drug trafficker. With this technology they were able to identify more than $48,000 in funds that were loaded onto the cards,” said the release. “Since it was put into field testing, the Prepaid Card Reader has resulted in approximately $1 million dollars being seized by state and local law enforcement agencies from suspected criminal activity. ”
The trouble, says Miller, is that drug dealers are far from the only ones who use pre-paid debit cards. He points out that a growing number of employers are using services such as Visa Payroll, which encourages them to pay workers through the cards.
Miller says that law enforcement typically offers an example of using ERAD in order to seize funds in the event a driver is found with a suspicious stack of 50 pre-paid Starbucks cards in the truck of a car. But in reality, the police may also be using it to suck up funds from a single card in a driver’s wallet.
“The tech seems to have come out of nowhere and there’s no oversight of this,” he said. “A whole lot of these cases are for forfeitures of $500 or $800.”
He adds that the overwhelming majority of the seizures result in default court judgments, often because people don’t have the means or will to fight the police in court.
Americans Stripped of Cash, Cars—and now Cards
The controversy over civil forfeiture soared to national attention in 2013, in part thanks to a scorching New Yorker article called “Taken” that described how certain police departments are effectively using traffic stops to rob citizens of cash. Comedian John Oliver also took up the subject in a widely-watched 2014 episode of Last Week Tonight.
Most of the incidents arise in so-called “forfeiture corridors” in states like Texas and Pennsylvania, where police officers confiscate cash from motorists, even though many of them were using the cash for legitimate small businesses or personal matters.
Typically, the police do not even bother filing a criminal drug charge, but instead just bring a forfeiture case to keep the cash. In the event the motorist who once held the cash wants to recover it, he or she is required to intervene in the case, the time and cost of retaining an attorney and attending court is often not a viable option. The cops win almost every time.
Civil liberties groups like the Institute for Justice have notched a few victories. In February, for instance, the group forced an Oklahoma Sheriff’s Department to return $53,000 it lifted from a Christian rock band during a stop over a broken tail-light.
While civil forfeiture raises numerous due process questions, a broad-based Constitutional victory has proved elusive, in part because governments have been quick to walk away from cases that come under close legal scrutiny.
Meanwhile, the Obama administration, which took steps last year to rein in a federal law encouraging the seizures, decided to backtrack in March and allow the forfeiture program to continue.
It will be interesting to see how many law enforcement agencies decide to make ERAD machines part of their day-to-day operations. While Oklahoma has acknowledged to using 16 of the devices, it’s unclear for now who else is using them.
Miller, the lawyer, says for now the privacy concerns are real, remarking, “You have a police officer with a scanner that might go into someone’s bank account. It raises red flags with due process and the fourth Amendment.”
Komorn Law PLLC is proud to report a ruling today from the Genesee County Circuit Court.
This case involved my client’s property and all kinds of salacious allegations of really bad behavior by this property, and I mean bad stuff, like stuff you could never imagine property could actually do.
To add to the drama of all this unimaginable behavior by my clients property, the accuser was an ” entity” called FANG. The story for the last 3 years, told by the State ( the ATTORNEY’S for FANG) was that that the bad behaving property needed to be held by FANG, because it was bad behaving ( if this makes no sense, it is not supposed to).
Additionally FANG was of the opinion that because of these allegations they should be able to keep all of my client’s bad behaving property (there has been no conviction).
Today in the civil forfeiture against my client and his “allegedly evil” property the Court granted our motion for summary disposition ( no genuine issue of fact existed to which reasonable minds could differ) ultimately dismissing the forfeiture case and ordering the return of all that bad behaving property.
OAKLAND COUNTY, Mich.– The owner of an Oakland County medical marijuana dispensary said he’s been unfairly targeted by police in the form of raids and civil forfeitures.
Meanwhile, police said they’re just enforcing the law.
The case sits at the forefront of the fight to legalize marijuana in Michigan.
Investigators close to the case said Donald Barnes is a marijuana dealer hiding behind medical marijuana laws, but Barnes said the dispensary raided by police is a nonprofit that he has no ownership in. The legal battle has gone on for almost three years, and Barnes’ money and property is still tied up in a forfeiture battle.
Barnes insists he is the victim of overzealous police.
“It was two days before Christmas, and we started Christmas shopping already,” Barnes said. “They seized the Christmas gifts.”
He claims officials wrongfully raided his business and seized pot, property and bank accounts.
“They seized personal assets, not just my business bank accounts, but they also seized stuff from my home and my personal properties,” Barnes said.
Barnes was eventually given criminal charges.
“They arrested me and told me I was being charged with selling marijuana because I owned a dispensary,” Barnes said.
But police told a different story. They stand behind the raids, forfeiture and criminal charges, saying it wasn’t a medical marijuana operation for the sick but a large-scale pot-for-profit operation.
The two sides ended up in the courtroom, where Barnes scored a victory.
“In this case, the Oakland County Circuit Court, I think, called the Sheriff’s Department on their tactics and pointed out that they clearly had no justification to do what they did to Mr. Barnes or his business,” attorney David Moffitt said.
Moffitt said when the judge invalidated the search by police and dismissed the criminal charges against Barnes, it sent a strong message and should convince police to give Barnes his money and property back.
“You know, if you go around and you frighten people in this fashion and take their assets and tell them (that) if they just let that go then they won’t be prosecuted,” Moffitt said. “If it weren’t being done by people with badges, it would be called extortion.”
Prosecutors and police said the judge’s ruling was wrong. They’re appealing, so the controversy is far from over.
“I mean, this is Oakland County, one of the richest counties in the country,” Barnes said. “There’s not too many people that are going to be able to push them around. They push people around.”
A judge has ruled that $10,000 seized from Barnes be returned to him. A hearing to resolve the rest of the forfeited property was adjourned Wednesday and moved to August.
In some states, property cannot be forfeited until a person is convicted, but in Michigan, the property is taken and returned if a person is found not guilty.
Copyright 2017 by WDIV ClickOnDetroit – All rights reserved.
Donald Barnes says police unfairly seized assets
By Kevin Dietz – Reporter , Derick Hutchinson Posted: 6:01 PM, April 05, 2017Updated: 6:01 PM, April 05, 2017
His lawyers say he’s the innocent victim of illegal search and seizure aimed at medical-marijuana users. Police and prosecutors beg to differ
Donny Barnes said he just wants to be a regular guy.
He just wants to run his small businesses scattered around Oakland County. Just wants to hang out with his family at their split-level home on a woodsy street. And just wants to keep using medical marijuana for calming the neck and shoulder pain that Barnes said has plagued him ever since he was in a snowboarding accident at age 19.
But a drug bust in 2014 “turned my life upside down,” said Barnes, 41, of Orion Township. Police seized his property, shutting down his antique resale and spyware businesses, and charged him with possessing more than 100 pounds of marijuana, which Barnes and his lawyers argued didn’t belong to him.
This month, after two years of legal battles, Barnes’ lawyers claimed what they called a rare victory against the Oakland County Prosecutor’s Office, widely known for its aggressive prosecutions of medical-marijuana cases; and against the confiscatory tactics of OAKNET, the county’s much-feared Narcotics Enforcement Team.
Oakland Circuit Judge Denise Langford Morris dismissed a criminal charge against Barnes — marijuana possession with intent to distribute — and she ruled that police had failed to establish probable cause for raiding Barnes’ house, his office and warehouse.
Ecstatic at the ruling early this month, Barnes’ lawyers said it was a sign that times are changing — that a Michigan judge, even in such a conservative bastion as Oakland County, refused to continue waging the discredited war on drugs against one of Michigan’s medical marijuana users.
Yet, Oakland County law-enforcement officials said Barnes merely got lucky with a lenient judge and that, on appeal, the tables would be turned.
A county sheriff’s spokesman said that detectives had indisputable evidence of Barnes having been a big-time marijuana dealer, one who’d tried to hide his illegal activity under the cloak of medical marijuana while overseeing the sale of plastic baggies of marijuana to total strangers — a violation of the state law that allows “transfers” of the medicinal drug but only from a state-registered “caregiver” to that person’s five registered “patients.”
The spokesman said that nothing about the ruling would change the tactics of Oakland County’s drug investigators. And the prosecutor’s office said it decided last week to appeal.
The outcome of the appeal could decide not only Barnes’ fate but also whether his case becomes a landmark ruling that aids others in similar circumstances.
It will be argued in a year when Michigan could pivot toward more tolerance of the drug, or the state could adopt even tighter restraints under a Trump administration whose top law enforcer is the notoriously anti-marijuana Attorney General Jeff Sessions.
And the appeal will occur in a year that began with Gov. Rick Snyder signing a bill that gives limited protections to citizens facing civil forfeiture; they no longer must pay a bond of 10% of the value of their seized property to challenge the forfeiture in court. When Snyder signed the bill in early January, both sides of the political spectrum in Michigan — both the conservative/Libertarian Mackinac Center for Public Policy and the liberal American Civil Liberties Union of Michigan — called for more protections.
Outside Michigan, in 12 other states, law enforcement must get a criminal conviction before a suspect forfeits property, and in two states — New Mexico and Nebraska — civil forfeiture is altogether banned, Jarrett Skorup, spokesman for the Mackinac Center, said in the news release.
It was late November 2014 when police shook up what Barnes said was his tranquil lifestyle.
“They even took the Christmas presents I had wrapped for my kids,” Barnes said.
Heavily armed police in masks seized his family’s cars as well as the business computers, tools and considerable inventory of his several trades, and took the contents of several bank accounts including one belonging to his mother. That scenario is a familiar one around Michigan, and especially in Oakland County, where authorities are notorious among marijuana users for being merciless to those accused of skirting Michigan’s medical marijuana act.
Countless defendants in such cases, lacking the money to mount aggressive legal defenses, have been forced to plea bargain, to give up their possessions and accept jail or prison sentences as well as pay fines said David Moffitt a Bingham Farms lawyer.
One of two attorneys defending Barnes. Because his family “has significant resources,” Barnes was able to fight back and win the dismissal, Moffitt said.
This ruling “sends a strong message that in appropriate procedures on the part of police and prosecutors will result in dismissal. To have an Oakland County judge dismiss search warrants for faulty procedures is a game-changer in the state because everyone looks at Oakland County for their legal leadership on key issues.
“What this judge said was that you can’t just kick down doors and seize people’s property without having good reason to do so,” he said.
The same judge, after reviewing a lengthy brief submitted by Barnes’ attorneys, allowed him in a ruling last fall to use medical marijuana while out on bond “for a very demonstrable medical need,” instead of the opioid painkilling pills that caused him dangerous side effects, Moffitt said.
Getting a judge’s approval to use the drug as a bond condition is rare enough, but Moffitt said he was thrilled that Langford Morris wrote a detailed opinion justifying her circuit court ruling, making it precedent-setting for the state, he said.
One strikingly unfair tactic of Oakland County authorities is to arrest a medical-marijuana user, seize property “and then not even file charges if the defendant doesn’t contest the forfeiture — that’s become a standard approach there,” Moffitt added. Barnes wasn’t arrested until 14 months after the raids, seemingly not until he “aggressively challenged and contested the forfeiture case” in a civil case completely separate from his criminal case, his lawyer said.
“Both Mr. Barnes and I believe that the Oakland County sheriff’s department is protecting us every day, but I think they must agree that not everything they do is done perfectly in every case, and this is one of those cases,” said Moffitt, who is a former Oakland County commissioner from Farmington Hills.
Medical-marijuana cases can be complex, said Oakland County Undersheriff Mike McCabe. And so, there was nothing odd or unfair about how long detectives took to investigate before Barnes was arrested, he said. “With the sensitivity of these cases, the prosecutor goes over them with a fine-tooth comb” before approving arrest warrants, he said.
The sheriff’s and prosecutor’s offices have taken strong and specific issue with the dismissal of charges against Barnes. Among his small-business activities was a monthly free magazine called The Burn, whose masthead listed as publisher “Donald Barnes III.” Each edition was loaded with full-color ads, the most prominent ones being those for Metro Detroit Compassion Club, a facility open six days a week at the same address in Waterford Township as Barnes’ magazine
.
Among the come-ones for the Metro Detroit Compassion Club? “All meds locally grown … Providing our members only the best … We now accept valid out-of-state medical cards.”
That line refers to cards issued by numerous states, including Michigan, showing that someone is approved to use medical marijuana although not approved to buy medical cannabis from just anyone in Michigan except under the state’s tightly controlled system that ties caregivers to five so-called and only five “patients.”
So, when undercover informants of the Oakland County Sheriff’s Office were able to buy medical marijuana last year four times at the Metro Detroit Compassion Club, detectives linked that wrongdoing to Barnes, who was listed as the “resident agent” on the incorporation papers of the nonprofit club.
That’s when they decided to burst into the magazine’s offices, as well as into the compassion club at the same address where they found about two pounds of marijuana, and into a warehouse Barnes owned that was full of marijuana plants and more than 100 pounds of marijuana stored in refrigerators, as well as into Barnes’ rambling modern house that held about four pounds, McCabe said.
Did all of the marijuana belong to Barnes? If the case goes to trial, prosecutors will show that much of it did and the motive was to sell the drug for profit, McCabe said. At the warehouse, “the marijuana was in small baggies in refrigerators,” he said.
As for the nonprofit compassion club, it constituted a dispensary — a retail outlet for selling marijuana, McCabe said. Even though Detroit is said to have more than 100 dispensaries, operating mostly without interference by the Wayne County Prosecutor’s Office, Oakland County authorities abide by the view of Michigan Attorney General Bill Schuette, who has declared dispensaries illegal in Michigan.That will soon change, but it hasn’t yet, McCabe said.
Dispensaries are going to be legal in Michigan, through a new law enacted last year, “but not until at least early 2018 — that’s what we’ve been told by people in Lansing; that’s the soonest anybody can get a license to operate one,” McCabe said.
A top attorney at the Oakland County Prosecutor’s Office was adamant about not dropping Barnes’ case.
“We felt that the evidence rose to the level showing that Mr. Barnes was violating state law,” said Paul Walton, Oakland County’s chief assistant prosecutor.
The judge “made the statement that Mr. Barnes was simply an officer of the corporation, but there’s every reason to believe that he had significant involvement, if not outright ownership,” in the dispensary masquerading as a nonprofit club, Walton said.
So,was the ruling was a victory for medical-marijuana users across Michigan, as Barnes’ attorneys insist? Or just a temporary setback to the law-enforcement establishment in Oakland County, standard bearers for a rigid approach to users and distributors of medical marijuana?
Only time, and Michigan’s higher courts, will tell.
