Lax forfeiture law loaded with potential for abuse

• Picture of Scarface with a gun - Columbus Police Department, 2012

• Sony PlayStation 3 — Albany-Dougherty Drug Unit, 2012

• Top Fin aquarium air pump – Cobb County MCS, 2011

Source: University of Georgia, Carl Vinson Institute for Government website, www.cviog.uga.edu

What is civil forfeiture?

When a law enforcement agency thinks that a property was involved in a crime, it can file a suit asking the court to let them keep it. Sometimes, this is done as part of a criminal case, and property is taken away when the defendant is sentenced.

In Georgia, they can take it through civil forfeiture, a state court proceeding that is completely separate from any criminal case.

The owner, not the prosecutor, would have to show that he or she did not agree to the property’s use in a crime, had nothing to gain from it, and had no reason to think that one was likely.

Crimes that can lead to forfeiture include certain drug, racketeering, gang, and drug offenses, plus shrimping and oil drilling violations.

What’s the difference between federal and state forfeiture?

When local law enforcement helps federal investigators work a case, all agencies get a slice of the proceeds. Sometimes, the feds can win a share even if they did none of the leg work.

Federal agencies seize property involved in crimes that break federal law. Local agencies receive a slice depending on the amount of work they did and existing agreements on sharing the money. The federal cut is generally no less than 20 percent.

In cases where a local agency investigates a crime that breaks both state and federal law, it can let the federal government manage the forfeiture process. The feds get to keep 20 percent for their effort.

The feds won’t take every case. Georgia law lets officers seize anything of value. Federal agencies often won’t take cash or jewelry worth less than $2,000 or cars worth less than $5,000.

How We Got the Story

To find out what agencies seize and how they use the proceeds, the AJC analyzed more than a thousand pages of documents obtained through freedom of information act requests and a website at the University of Georgia’s Carl Vinson Institute for Government. We selected a portion of these seizures for further review of related police, criminal and civil court filings. Interviews of opponents and advocates for changes to forfeiture law, property owners and attorneys also helped guide our reporting.

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.”