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Article on Drug War Forfeitures
by James Cullen
Dec 5, 1991
from the Texas Observer
The following story appeared in the _Texas_Observer_, a monthly 
primarily political publication, (c)1991 by the _Texas_Observer_ 
reprinted here on the USENET by permission. Any other reprinting or 
reproduction of this article without the written permission of the 
_Texas_Observer_ is prohibited. 

Texas Observer
307 W. 7th St.
Austin, TX 78701
(512)477-0746

This article is a regional follow-up to the Philadelphia series of stories
about  civil property forfeiture in the War on Drugs, and adds some
interesting information.

===========================================

You arrive at Houston's Intercontinental Airport on a flight from New 
York City. You head for a bank of telephones to make a call, then you 
walk briskly to catch public transportation into town. A plainclothes 
officer stops you and asks to examine your baggage. A drug-sniffing dog 
reacts to your suitcase . You're hauled aside and strip-searched. Police 
find no drugs, but you are carrying $20,000 in cash. Why? That's your 
business, you say? Not any more. The cash is presumed guilty and is 
seized by the U.S. government.

Far-fetched? Tell that to Kevin Belcher, a Detroit businessman who was 
carrying $18,256 to buy classic cars at an auction in El Paso when he 
was stopped on March 2 in Dallas/Fort Worth Airport. Belcher, a former 
New York Giants center, apparently fit the drug-courier profile, and 
Texas officers were notified that a security screener at Detroit's Metro 
Airport had spotted a big, burly black man carrying a large amount of 
money in his jacket pocket. Narcotics agents in Dallas seized the money.

Ethel Hylton, a native of Jamaica who lives in New York City, has yet to
recover the $39,110 that agents took from her nearly three years ago in 
Houston's Hobby Airport. Shortly after she arrived on a flight from New 
York, a Houston officer and a federal drug agent stopped the 46-year-old 
naturalized American citizen in the baggage area and told her a drug 
sniffing dog reacted to her luggage. Although they found no contraband 
in her bags or during a strip search of her person, they found the cash 
in her purse. They seized all but $10, despite her explanation that the 
money came from an insurance settlement and her life's savings and that 
she planned to buy a home in Houston.

Those cases were among those turned up by the Pittsburgh Press in a 10-
month investigation of drug seizure and forfeiture. The newspaper, in an 
August series, reported that in 121 "drug courier" stops where money was 
seized although no drugs were found, black, Hispanic and Asian people 
were the targets in 77 percent of the cases.

Civil liberties lawyers also complained to the Observer that blacks and 
Hispanics are routinely stopped and searched in Texas airports and bus 
stations as well as on the highways. Officials of the U.S. Drug 
Enforcement Administration said agents follow guidelines for identifying 
likely drug couriers.

A black man who was stopped and searched at Austin's Robert Mueller 
Airport on Oct. 18, reportedly because he fit the profile of a drug 
courier, has filed a lawsuit against the City of Austin. J. LeWayne 
Kelly, an apartment manager who also works as a drug and alcohol 
counselor, said he was wearing jeans, cowboy boots, a St. Edwards 
University t-shirt and was carrying a briefcase when he went to the 
airport to pick up a friend arriving on a flight from Midland. Two 
Austin Police Department officers detained him and searched Kelly, 
telling him he fit the "profile," Kelly said.

Casting a Wide Net

Since passage of the federal Comprehensive Crime Control Act in 1984, 
civil libertarians have become increasingly concerned over the 
government's use of the law to stop people coming off domestic flights 
who appear to fit a "drug courier profile." Applying a doctrine from 
relatively obscure admiralty law, which traditionally covered maritime 
issues, the asset forfeiture statute allows the government to seize 
property, even in cases where the owner is not charged with a crime, 
because the government believes there is probable cause the assets were 
tainted by illegal activity. The owner must then prove the assets were 
obtained legher illegal activity. These seizures, which also 
involve vehicles, aircraft, property, jewelry, weapons, electronic 
equipment, works of art and business interests, carry their own civil 
liberties concerns. But in at least 78 cases in the Houston area in 
fiscal 1991, cash was seized because the carrier looked suspicious to 
officers and did not have what police thought was a good excuse for 
carrying large amounts of money.

Special Agent Thomas Lentini, spokesman for the DEA's Houston office, 
said the agency made 83 seizures off domestic flights in Houston and El 
Paso in the fiscal year that ended Sept. 30, confiscating a total of 
$1,977,229. The agency later returned the money in only one case, 
Lentini said.

While the mere presence of cash is not illegal, Lentini defended the 
presumption that a large amount indicates suspicious activity. "I just 
don't feel there's a lot of [legitimate] businesses where people carry a 
large amount of cash," he said.

Gerald Goldstein, a San Antonio lawyer who handles asset forfeiture and 
civil liberties cases, said law enforcement officers have come to rely 
on a "drug courier" profile, as described in federal court cases and 
approved by the U.S. Supreme Court in 1989. These guidelines include: 
arrival from or departure to an identified drug-source city; carrying 
little or no baggage or several empty suitcases; an unusual itinerary, 
such as a rapid turnaround time for a lengthy airplane trip; use of an 
alias; carrying unusually large amounts of money; purchasing airline 
tickets with a large amount of small-denomination bills; and unusual 
nervousness. "Secondary characteristics" include use of public 
transportation, such as taxis, in departing from the airport, 
immediately making a telephone call after deplaning, leaving a false 
call-back telephone number with the airline or frequent travel to drug-
source or destination cities. But Goldstein said agents can use those 
characteristics to legitimize their hunches to stop virtually any 
traveller, allowing what he called a strong potential for abuse.

Probable Cause Hairdos?

Greg Gladden, a Houston lawyer, said he has represented more than 50 
people stopped by Houston police and drug task force members at Houston 
airports and bus stations for what in some cases amounted to little more 
than "probable cause hairdos," such as dreadlocks. "It's pretty hard to 
walk through the airport and not get stopped if you're of Jamaican 
heritage," Gladden said. For minorities, he said, "If you have a lot of 
money on you and no drugs, you're not going to get past the police with 
it. They're going to take it."

Lentini of the DEA denied that minorities are routinely stopped. The 
decision to stop is based on "an individual's actions, not by the color 
of his skin," the agent said. "We also stop white businessmen in three-
piece suits," he said, although the agency does not record the races of 
individuals stopped.

Based on his experience, Gladden said it appears to be standard 
operating procedure for Houston police to stop people based on racial 
characteristics. "They'll say he was nervous, he was going from Houston, 
a known drug-source city, to New York, a known distribution city, or 
vice versa," Gladden said of the reasons used to justify a search. "I 
don't ever hear about white folks getting stopped and relieved of their 
money at airports, but a whole lot of Jamaicans do, and it's not because 
white folks are not wandering around with a whole lot of cash. 
Occasionally it will happen, but it's usually the result of a tip."

Gladden said many of the people he represents are Jamaicans who have 
confidence in neither police nor banks. "There really are a lot of 
people Q a lot of immigrants especially Q who keep money at home, in 
shoe boxes and coffee cans," he said. He also said he suspects many 
people - particularly undocumented aliens who are prone to carry cash Q 
never even try to get the money back.

Gary Trichter, a Houston lawyer, said he has represented approximately a 
dozen clients whose money was seized. "They are disproportionately 
younger - 40 and below - and they are male and either a minority -
Hispanic or black - or a Caucasian with long hair or facial hair," he 
said. He also said Houston police seem to target people on flights to or 
from Miami or Fort Lauderdale. "In effect, they are saying that 
everybody in Miami is more likely to deal in controlled substances than 
anybody from Wichita," he said. "If you have an accent - Jamaican or 
Hispanic - or if you have an Hispanic surname, there is a greater 
probability you will be targeted."

In the Austin airport case, Kelly, who has a degree in criminal justice 
from St. Edwards University, said he was so upset by the stop that he 
conducted his own investigation and was told by airport employees that 
police seemed to target blacks and Hispanics. A white friend hung around 
the airport wearing the same outfit a few days later but was not 
stopped, Kelly said. Police got no windfall from Kelly, since he only 
had $6 on him, but with the Austin-based Texas Civil Rights Project he 
filed suit in Travis County Court-at-law under the Equal Rights 
Amendment of the state constitution, seeking $20,000 damages for 
himself, $5,000 in punitive damages from the police and an injunction to 
end searches based upon drug courier profiles.

Austin city officials defended the actions of the officers. "As far as 
we've been able to tell, this was done properly," said Deputy City 
Attorney Charles Griffith. Police use the DEA profile, he said, and 
racial characteristics "are not" a part of that profile. Airport task 
force members seized and turned over to the DEA $327,670 in 11 cases 
during calendar year 1990, including at least one case where police 
seized $133,000 from a white couple, and $121,457 in 14 cases through 
Sept. 13, 1991, Assistant City Attorney Pat Rehmet said.

In the case of Belcher, the Pittsburgh Press reported the owner of four 
oil-change outlets in Detroit explained that he was carrying the cash to 
buy classic cars at auction. The money was seized in part because drug-
sniffing dogs reacted to the money. But the newspaper also reported that 
tests of currency in 11 cities, including Austin and Dallas, showed 96 
percent of the bills tested positive for traces of cocaine. The 
newspaper also noted that trainers have testified that drug-scenting 
dogs can react to clothing, containers or cars months after marijuana 
has been removed.

In the case of Hylton, the newspaper reported that police seized all but 
$10 of the $39,110 they found in her purse, despite her explanation that 
the money came from an insurance settlement and her life's savings and 
that she planned to buy a house in Houston. The Press reported that it 
verified her jobs, substantiated her claim that she received $18,000 
from an insurance settlement and found no criminal record for her in New 
York City. Nevertheless, she has yet to recover the money, according to 
the Press.

The newspaper, after reviewing 25,000 seizures made by the DEA across 
the nation, said it found 510 cases where innocent people, or those 
possessing a small amount of drugs, lost their possessions to police, 
including  some where property was used by others for drug cultivation 
and trafficking. Eighty percent of the people who lost property to the 
federal government were never charged with a crime, the Press said. And 
most of the seized items were not "luxurious playthings of drug barons," 
but modest homes, cars and savings of ordinary people.

But the seizures add up to big money, and the prospect of sharing the 
proceeds from forfeitures gives local and state law enforcement agencies 
an incentive to step up their operations (See "Have Badge, Will Travel," 
TO, 10/18/91). During the 1990 fiscal year, $23,389,683 in drug-related 
assets was seized by 50 regional drug task forces in Texas. That amount 
does not include money seized by local law enforcement agencies 
operating on their own. The Texas Department of Public Safety seized 
$9,783,563 in currency during 1990.

Ken Magidson of the asset forfeiture division of the U.S. Attorney's 
Office in Houston, said the forfeited money cannot be used for operating 
expenses, but it helps participating law enforcement agencies update 
their equipment and vehicles without using tax money. He believes there 
are safeguards against abuse. "There's always a potential for abuse in 
any program that involves money I but I think, based upon the guidelines 
that are in place, that there is a tremendous amount of oversight," he 
said.

Take the Fifth, Lose the Property

While those whose cash or property may seek its return, the forfeiture 
attorneys said it is a difficult process that is stacked in the federal 
government's favor. In the discovery phase, federal prosecutors may 
inquire into any financial dealings the claimant may have had, including 
their tax returns for the previous five years. If they can force the 
claimant to plead the Fifth Amendment constitutional right against self-
incrimination, that may be grounds to throw out the claim, Gladden said, 
because the prosecutor can argue that the claimant is withholding 
evidence. "They can zero in on things that are calculated to scare you 
away," he said.

Claimants thus face a legal dilemma, Gladden said. "You have to waive 
your Fifth Amendment rights if you're going to have a snowball's chance 
in hell of getting your money back," he said. But even those who are not 
involved in the drug trade may not welcome a prosecutorial look at their 
finances. "If they catch you in a lie, they can give you 10 years in 
prison for perjury. If you tell the truth, they can file [charges] on 
you for something else you tell them about," he said.

Even if the plaintiff gets the money back, Gladden noted, the attorney 
gets his fee, which usually is at least one-third of the disputed 
amount. Gladden estimated he settled with the U.S. Attorney's office in 
10 to 15 forfeiture cases last year. In those settlements, he said, his 
clients received 10 to 85 percent of the money, depending on the facts 
and how willing his clients were to fight for full reimbursement.
State law offers more protection from seizures than federal law, since 
state prosecutors must still show some connection between the money or 
assets and the criminal activity. In a May 3, 1989, search of the 
Columbus home of Apolonia Reyes in Colorado County, for example, police 
seized $5,559 and other items after an informant allegedly made a $25 
controlled purchase of 0.12 grams of white powder containing cocaine. 
Police found no cocaine or other illegal drugs during the subsequent 
search, nor were the marked bills used in the "buy" recovered, according 
to court records. There were no arrests and charges against Reyes were 
not filed until the following November, after Reyes petitioned the court 
for the return of the cash, which was shown to have nothing to do with 
drug sales, and four scales, which Reyes' wife testified were used to 
weigh food.

The First Court of Appeals in Houston in February ruled that the state 
should return the seized cash and scales. "While the circumstantial 
evidence may make it more likely than not that [Reyes] had been engaged 
in illegal drug activity, it fails to raise even a surmise linking the 
$5,559 and the scales to this activity, and it gives rise to inferences 
equally consistent with the proposition that appellant obtained the 
money, and used the scales, legitimately," the court said.

Because of the different treatment under state law, Gladden said many 
police departments refer cases to the state's district attorney only if 
they find drugs. "If you have dope and money, they're going to bust you 
and they're going to charge you with possession of dope in the state 
courts and seize the money in state courts because it goes to the DA's 
office and the county basically gets all of it," he said. "But if they 
stop you and you don't have dope, but you have a whole bunch of money, 
they're going to have some dog bark at the money and that will be their 
evidence to indicate it must be drug money."

Narcs Everywhere

Narcotics agents also can count on help from a network of informants 
that does not only include convicted drug traffickers who help set up 
drug transactions for police. Among those who received some of the $24 
million paid out of the Asset Forfeiture Fund last year, the Press 
reported, were airline counter clerks  who report passengers who paid for 
their tickets in cash or otherwise acted "suspiciously"; operators of X-
ray machines who report large amounts of money in baggage; and some 
package handlers who, according to police affidavits and court 
documents, open "suspicious" packages and alert police to what they 
find. Typically, the newspaper reported, informants get 10 percent of 
the value of whatever is found.

Lawmakers and prosecutors say the asset forfeiture law is an important 
key to breaking lucrative rings of drug dealers, but Goldstein said 
citizens give up their Fourth Amendment protections against unreasonable 
searches and seizures at their peril. "The government has made the 
presumption that it's a crime in America to possess cash. The 
presumption is if you have cash, it must be ill-gotten," Goldstein said. 
"And I'm not sure our recent bank and savings-and-loan problems haven't 
taught us we're better off to keep it in cash."

Kelly said he opposes drug use and supports law enforcement, but his 
Austin airport experience has caused him to reconsider the means police 
use to stop drug traffic. "I have certain constitutional rights and I 
don't think we should give up our rights to some mythical drug war," he 
said. He also said narcotics agents were looking in the wrong place for 
drug money. "They ought to check the briefcases I at the banks [because] 
that's where the drug money is."