Many lack resources to fight property seizures in drug cases

[bobandtorey]

Only a few people were in a courtroom north of Detroit last week to hear the judge tongue-lash a prosecutor for delaying the return of a bank account with $11,000 that she ruled was improperly seized by drug investigators.

“I’m outraged by the way this was handled,” Oakland County Circuit Judge Rae Lee Chabot exclaimed, wilting the prosecutor.

“This hints at more than just a mistake. This continuous action hints at obstruction,” Chabot said, citing the 22 months it took to obey a court order and unfreeze the account. Chabot even slapped a fine on the prosecutor, awarding $2,500 “in sanctions” to defense attorneys, though they’d asked for three times that much.

The judicial dressing-down at this testy hearing in Pontiac offered rare insight into how difficult it can be — how time-consuming, frustrating and costly — for those on the wrong end of a drug bust to get back their property. 

In this case, it was to get back the joint bank account of a mother and son — an account containing $10,938, of which $10,000 belonged not to medical-marijuana user Donny Barnes, 42, of Orion Township, but to Barnes’ mother.

It was in November 2014 that a platoon of heavily armed police seized their joint bank account, along with Donny Barnes’ two SUVs and his children’s Christmas presents, according to legal pleadings. At the same time, they shut down Barnes’ three small businesses — a furniture resale firm, a spyware shop and a medical-marijuana magazine.

But, as Barnes is quick to point out, he was not convicted of anything. A different judge, in a criminal trial in February, dismissed the only charge against him — marijuana possession with intent to distribute — after ruling that police failed to establish probable cause for raiding Barnes' house, office and warehouse.

 

For those who claim that Michigan — and the nation — are overdue to reform forfeiture laws, Donny Barnes could be the poster child. That’s the spin his lawyers give his case, labeling Barnes the unusual defendant with the resources to fight back against laws letting police invoke “civil forfeiture,” the seizure of property up to and including cars and houses, often without anyone being convicted.

Yet, prosecutors beg to differ in Michigan’s affluent Oakland County north of Detroit. It's a place where county drug agents are widely feared for their aggressive tactics against those involved with distributing medical marijuana, and where county officials advertise auctions every few months to sell the proceeds of drug raids — from stereos and snowmobiles to speedboats and sports cars.

Expecting to win

The Oakland County Prosecutor’s Office is awaiting a ruling on Barnes’ criminal case from the Michigan Court of Appeals, “and we fully expect to win,” Chief Assistant Prosecutor Paul Walton said. That would mean that law enforcement would regain the leverage of having had probable cause to raid Barnes’ properties — and thus get a second bite at the apple, as legal tacticians say.

The prosecutors' goal? To show that Barnes, at the time of the raid, was a big-time marijuana dealer, one who’d tried to hide his illegal activity under the cloak of medical marijuana while, at a distance, overseeing the sale of the drug to total strangers — a violation of the state law that allows “transfers” of medicinal pot from a state-registered “caregiver” like Barnes only to that caregiver's five registered “patients.”

The caregiver-transfer system dramatically evolved just last week when, on Dec. 15, the first applications were accepted in Lansing from Michiganders seeking to set up dispensaries — the term for legal shops that sell medical marijuana, referred to in a new state law as “provisioning centers.” 

But Barnes’ activities in Oakland County lacked any official approval, and so the older law applied to him as it stood on the day of the raid, Walton said.

“He was operating a dispensary, clearly,” Walton said. 

No matter that dispensaries have operated for years and largely without police interference in numerous other Michigan counties, including Wayne, Washtenaw and Genesee. Oakland is long identified with narrow interpretation of the state's medical marijuana act.

And with stiff penalties for marijuana cases, Barnes’ battle seems far from over. Also far from over is the debate over just how much power police and prosecutors should have in permanently confiscating the property of people who weren't convicted of any crime — and, in some cases, were never even arrested.

Wrong place, wrong time

Although civil forfeiture has been around a long time, the practice took off in the mid-1980s when Congress passed a law that allows federal and local police agencies to keep seized assets and cash believed to be tied to criminal activity, even if the owner isn’t charged with violating a law.

It’s as if someone’s car or cash was in the proverbial wrong place at the wrong time. Hundreds of state and federal laws authorize the forfeiture of property somehow linked to everything from cockfighting and drag racing to securities fraud and, most widely known, drug offenses.

Law enforcers have a powerful financial incentive to seize property because the property becomes a significant revenue source for police budgets, above and beyond their limited public support from tax revenues.

As civil forfeiture became more widely understood, and, some say, abused, critics have stepped forward from across the political spectrum. They range from champions of civil liberties on the left to Libertarian protectors of private property on the right. Perhaps, as a result, forfeitures nationwide and in Michigan have been ebbing.

According to an overview by the U.S. Department of Justice website, through the five years ending in 2016 — the most recent data available — the number of seizures of civil property by federal authorities and their “local law-enforcement partners”  dropped by 27%. The overview goes on to complain that the drop in seizures means that less cash and "salable goods" flowed into federal law-enforcement coffers, reducing the amount that the federal Assets Forfeiture Fund "can afford to spend on law enforcement operations,” and also meaning that “payments to state and local law enforcement partners have been markedly lower.”

Still, the police at the local, county and state levels can make their own seizures, then use them to bolster their budgets. Michigan police agencies reported having seized $15.2 million in cash and property in the last 11 months of 2016 — skipping January because a new reporting system kicked in on Feb. 1, according to the State Police. Although that amount is considerable, it's a big drop from the $26.5 million in cash and other assets seized statewide in 2012, according to a State Police report from June 2013.

Citing the most recent report, State Police said that in about 10% of the 5,290 cases reported — that is, in 523 cases — the person whose property was seized "was not charged with a violation for which forfeitures were authorized.” Translation?

"Many persons accused of crimes cooperated with authorities, resulting in criminal charges not being pursued," the report explained.

Yet, there’s another way to view that statistic.

“That’s the deal that law enforcement strikes with the many people who lack means to defend themselves, and so they choose giving up their property when they’re threatened with a criminal trial and possibly going to prison if they lose,” said attorney David Moffitt, one of several lawyers who has represented Donny Barnes.

It was Moffitt who last week pushed for sanctions against the Oakland County assistant prosecutor in Barnes' civil forfeiture case.

“My client is different — he has the means to hire me and other attorneys to fight the totally unjustified seizure of his property," Moffitt said. He added: "This case is showing that when people are able to do that, the unbridled power of the police and prosecutors to use drug forfeiture laws can be brought to heel.”

To get back the joint bank account of about $11,000 he had with his mother, Barnes said he "probably spent almost $100,000 in attorney fees.”

Barnes has been in court dozens of times over his two tandem cases, one, the criminal charge that was dismissed, the other, his ongoing civil-forfeiture fight. He still seeks the return of the rest of his property, but that must await the state Appeals Court's ruling on his criminal case, he said.

"This is my family's fourth holiday season dealing with this," Barnes said.

He called himself a crime victim who'd had "guns held to my head" and said "my family's been robbed" of property and money.

In recent years, lawmakers in Lansing and Washington have proposed changes to reel in forfeiture laws, although U.S. Attorney General Jeff Sessions — who famously called marijuana "only slightly less awful than heroin" — reversed an Obama administration rule meant to discourage civil forfeitures.

Changing Michigan's laws

In Michigan, the pushback against civil forfeiture has been led by state Rep. Peter Lucido, a Macomb County Republican. 

Forfeiture was added to state and federal law because "this was going to reduce drug trafficking, and we can clearly see that it failed," said Lucido, a former probation officer and veteran criminal defense attorney.

To reform forfeiture in Michigan, the Legislature passed two of Lucido's bills, one requiring more than a minimum of evidence to make a forfeiture case stick, another eliminating the 10% bond that property owners had been forced to post "even to make a claim to that property — they still had to fight for it in court," Lucido said.

His latest effort is a bill that says authorities must convict a defendant before that person’s property can be permanently confiscated.

"I completely agree that a criminal should not profit from crime. But by the same token, do we want police taking somebody's stuff who turns out not to be a criminal?" Lucido said Sunday.

"Most states are going back to what's called conviction before a taking," he said.

Lucido's proposal, House Bill 4158, was stuck this year in the House Judiciary Committee — so now he hopes for a vote on it in 2018, he said.

https://www.freep.com/story/news/local/michigan/oakland/2017/12/19/property-seizure-drug-cases-oakland-county/957866001/

[AmishRnot4ganja]

Seems like common sense would prevail in these disputes. That is, that in order for a person's assets to be taken, they would have to be determined to be guilty of the crime they are charged with.

Turning our constitution on its head. No longer are we innocent until proven guilty. We are now guilty until proven innocent and even then they get to legally steal our property. Fascist phuck heads. I just can't wrap my head around the fact that people vote to ok this stuff. WTF are they thinking?

[braunstein]

hard to defend yourself in criminal court when they steal all of your money; assets.  

[Wild Bill]

It would have cost me $2000 to get back one handgun, two knives, $100 cash and a box of sandwich bags. (The sandwich bags were described as packaging material.)