March 17, 2002
Law stirs clash over confiscated cash
March 17, 2002
Greene County prosecutor wants suspected drug money classified as “abandoned property,” but foes say his efforts make carrying big sums of money illegal.
By Laura Bauer Menner
In vehicles stopped along Interstate 44 — one of the nation’s busiest drug pipelines — southwest Missouri law enforcement officers have found piles of cash stuffed inside spare tires or neatly arranged in cardboard boxes made to look like newly purchased Kleenex or snack crackers.
Often, motorists carrying the cash — more than $100,000 in many cases — claim to have never seen the green. They’re shocked it’s in their vehicle.
Some insist the money is theirs; others say they’re carrying the money for someone they refuse to name. Still others explain that they found the money, even speculating that, yeah, it could be drug money.
It used to be in Missouri that street cops could seize these extraordinary piles of bills — $20s, $50s and $100s — and transfer the money, and the case, to federal jurisdiction. From there, federal agents and prosecutors would build a case that, absent a plausible explanation from the driver, the funds must be drug money.
Ultimately, local law enforcement received up to 80 percent of the proceeds, which were swiftly plowed back into the war on drugs.
Officers here say they’re being handcuffed by Greene County Prosecutor Darrell Moore’s literal interpretation of the state’s new forfeiture procedures. Moore says that when legislators clarified the state’s forfeiture law two years ago, they ordered that disputes over seized property, including money, be settled in state court.
So when Highway Patrol officers seize cash in Greene County that they believe is destined for drug use — and the driver says the money isn’t his — Moore simply deems the greenbacks “abandoned property” under existing state statutes, and if no one comes forward with a legitimate claim, the county coffers get a bump.
Yet because of Moore’s approach, and his refusal to turn over most cases to the feds, officers said, on two occasions they’ve been forced to hand back to suspects wads of bills totaling more than $340,000. So in the minds of some officers, seizures involving cash are becoming a waste of time if they can’t take cases through federal court — where people driving vehicles with crates of cash must prove that it was obtained legally.
“If you deprive a drug dealer of his livelihood, he’ll quit dealing,” said Sgt. Dan Banasik. “When you have to give the money back, you’re not depriving that. You’re making crime pay.”
Yet House Speaker Jim Kreider of Nixa, who sponsored the new forfeiture law that went into effect in August, pointed out that it is not illegal in Missouri to drive down the road with large amounts of cash — however it may be concealed. Missouri needs a higher standard, he said.
“In federal court, they can seize a person’s property without anything but a hunch,” said Kreider. “They can take it without a conviction. They are saying, ‘We believe it’s drug money; we’ll get it.’ I can’t go that far. Is that what we want in America?”
Kreider said Moore is the only prosecutor in Missouri — as far as the speaker knows — who’s chasing the money as abandoned property. The goal is to keep forfeiture cases on the state level — but that’s when there’s a felony charge to go with it.
In other words, Missouri’s forfeiture law says there must be dope and money to keep the cash.
When it’s just money, Kreider said, there has to be proof a crime was committed before the money goes back to the government.
“Read the bill; it doesn’t say anything about abandoned property,” Kreider said. “If you get it back into the county treasury, the county commission can give it back to law enforcement. They are trying to find a way around the law.”
Under the state system, illicit funds seized go to education rather than into law enforcement, as in federal rules.
Moore said he’s taking a different approach than some prosecutors statewide because he wants to keep the money at home — and obey legislators’ wishes of keeping seizures in state courts.
“Law enforcement is living a pipe dream if they think they would automatically win in federal court,” said Moore.
Moore has proceeded with the abandoned property law four times in the past two years but has not seized any large sums of money since a clarification to the statute went into effect in August.
“As I see it from the legislators’ viewpoint, we have two choices — go for abandoned property or let it go,” said Moore.
In two of three cases in which Moore applied the abandoned property statute, owners of the cash came forward and a Greene County Circuit judge ruled they should get their money back. One man did pick up the cash. Another man’s money is being held while the case is on appeal.
But in yet another case, no one came forward within the prescribed 30 to 45 days to claim the money, and $244,000 went straight to the Greene County treasury.
Many don’t agree with Moore’s strategy.
“Basically they are making it illegal to own cash,” said attorney Tom Carver. “They are bending over and contorting themselves to try and get ahold of that money.”
John Hall and Glen Campbell with state Auditor Claire McCaskill’s office call Moore a “well-intentioned” prosecutor. Hall said it’s good to see a prosecutor aggressively going after forfeiture cases at a time when the law seems to be unclear to so many. “He’s trying to abide by the spirit of the law,” said Hall, an audit manager. But when the money does appear to be drug money, the state system may not be the way to go, Campbell said. Federal laws are more user-friendly for forfeitures, he added.
“If it smells as rotten as it looks, better to go there, go federal,” said Campbell, especially if you’re not winning on the state level. “If it’s happened once, happened twice, better be thinking about it the third time.”
Todd Graves, U.S. attorney of the Western District, said his office is reviewing forfeiture laws and will come up with a policy on what to do in the future. The goals are to take the money from people committing crimes, and to be respectful and accommodating to state prosecutors.
“Our position is bad guys should not profit,” Graves said. “If the state can take it, by any means we’ll stand by and cheer. If they can’t take it, we’re prepared to step in and help — only if asked.”
Moore becomes adamant when he talks about the route he’s taking, pulling out books of state statutes and thrusting down his finger as he reads the new forfeiture law. He is doing what he feels legislators want prosecutors to do.
“I intend to comply with the spirit of the state law and my interpretation of it,” said Moore. “I’m trying to do something I think is right until someone says it’s clearly wrong. I will let the court of appeals tell me if what I’m doing is wrong. I’ll look to them.”
$152,000 litmus test
Patrick Merow was in a rented Lincoln Towncar headed back to Arizona in February 2001 when he was pulled over for speeding on Interstate 44.
With seemingly nothing to hide, Merow allowed officers to search the car. His trunk was packed full of what looked like the result of a trip to the supermarket — sealed boxes of crackers, Kleenex and laundry detergent.
The trouble is, a drug dog locked on to a certain smell. Authorities opened those harmless-looking consumer products and found $152,000.
The money was his, Merow said. He claimed he found it — in a shopping cart at a Wal-Mart parking lot in Chicago.
No, wait a minute — he said later during a court hearing — the Wal-Mart was in Boston. And it’s possible, he told officers, the cash was drug money.
Moore seized it as abandoned property. Knowing that Merow claimed it was his and it was not “abandoned,” Highway Patrol detectives were ready to take the case to the federal level.
“Finders is not keepers,” Moore said.
Merow disagreed. He wanted the money back. The case went to court, in front of Circuit Judge Miles Sweeney.
Moore’s office first tried to show that the money was not actually Merow’s, because he said he found it. And because Merow acknowledged it could be drug money, Moore argued that the cash was a “tool or device” for committing felonies and that the law allowed for it to be seized.
Investigators with the Missouri Highway Patrol discovered that Merow’s passenger was being investigated by San Diego-based Drug Enforcement Administration agents for attempting to smuggle anabolic steroids into the United States.
“It’s our burden to prove it’s drug money,” said Don Crank, assistant prosector who handles forfeiture cases in Greene County. “We have a real hard burden of proof. So far we’ve not been able to meet that yet. ... It’s hard to overcome the basic notion and case law that if a person has property in their possession, they are the presumed owner.”
Sweeney ruled the money belonged to Merow. Though the judge can’t speak specifically about a case, he voiced his opinion in a letter that’s been put in Merow’s file.
“No one has shown the Court any authority, nor could anyone show any authority that would indicate the words tool or device encompass U.S. currency,” Sweeney wrote. “These words have common meanings and to place currency within their definition would make no sense. If the Legislature wanted to provide for the forfeiture of drug money under this Statute, as it did in CAFA (Criminal Activity Forfeiture Act), then it certainly could have said so.”
The ruling by the appeals court is expected in the next couple of months.
Crank said prosecutors will look at that ruling and know which direction they should go.
“A lot of officers believe this is drug money,” Crank said. “To not be able to take it from the defendant or the possessor under current state laws — that sticks in their craw. ... I agree with officers.”
For Moore, the ruling may be a way to figure out how his office should proceed with another pending seizure of $288,000 that had been transferred to the feds — and then transferred back.
“One way to get answers is to have the court of appeals tell us what we’re doing wrong,” Moore said.
Test of interpretations
Attorney Kyle Domann said he could give Moore a quicker answer: Stop seizing money for the sake of seizing money.
Domann represented a man pulled over with $189,000 in his trunk. The man claimed it wasn’t his money. A friend had told him he won it cockfighting, according to police records, and he was being paid $5,000 to deliver it.
Just as in Merow’s case, detectives say they found a drug connection and were ready to have the case transferred to the federal level. But more than two weeks after the traffic stop, Moore said he would seize the money as abandoned property.
“They are trying to make an argument that anyone with that amount of money is a drug dealer, and that’s not true,” Domann said. “My client continued to say, ‘That money is not mine, but I’m responsible for it and I have to make sure it gets to who I was transporting it to.’ It’s no different a position than Federal Express or Wells Fargo.
“The way Darrell is doing it, honest to God, he could snatch an entire Federal Express plane,” Domann said; “the pilot doesn’t own what he’s carrying.”
Others are quick to defend Moore’s tactic during a confusing time. All prosecutors, both state and federal, are struggling to understand the new law, said Assistant U.S. Attorney Robyn McKee. Get 20 attorneys in a room and you’ll get 20 different interpretations, McKee said. Moore reads it to mean all cases should stay on the local level.
“The state system, bless their hearts, have their hands tied,” McKee said. “I don’t think state legislators understand that.”
Moore interprets it one way, Lawrence County Prosecutor Bob George another. In his county, $57,000 was discovered tucked in the spare tire of a Ford Explorer. The people in the vehicle said it wasn’t theirs. Officers launched an investigation, found a drug connection and believed they could take it federally. George agreed.
The state court agreed, too, and allowed federal prosecutors to seize the funds. The case is now in the court system. Some of the money could ultimately go back to local law enforcement because that’s the way the federal system is set up. Agencies that do the initial stop can claim a percentage of the profits. The Highway Patrol didn’t claim any, and likely won’t in the future when it takes cases to the federal level. The patrol doesn’t want the image that they’re just doing it for the money.
“If that’s what we have to do to keep the money out of the hands of criminal, that’s what we’ll do,” said Banasik. “Though we could put it to good use.”
George feels the same way. Get the money out of the hands of the suspected drug dealer, if that’s what authorities can prove he is.
“Darrell is doing what he thinks is right in Greene County, and I have a procedure I think is right,” said George. “If federal agents can grab onto a case and run with it, that’s great.”
So whose opinion is right?
“I don’t know,” Hall said. “Ultimately you want property to go to the school fund or the federal process, not back to the criminal. ... If the state is not benefiting from the process you better look at whether you should change the tactics you are using in the case.”
Moore is open to that, if that’s what he has to do. In the meantime, he said he’s not going to just hand over a case to federal court. Not unless there’s an ongoing federal investigation. Federal prosecutors have the same evidentiary issues state prosecutors do, Moore said.
“We need something more than someone saying, ‘We’ll investigate it,’” Moore said. “Just to tell us it’s possible, that’s not going to happen. ... Just because we’ve lost doesn’t mean we’re wrong in our approach. By fighting this issue right now, hopefully, we can clarify the law.”