Ill-Gotten Gains

On the morning of October 2, law-enforcement offficers burst into the home of multimillionaire Donald Scott near Malibu, California. Confronted by the armed men, his wife cried out. Scott, half asleep and partially blinded by a recent eye operation, emerged from a bedroom holding a loaded .38-caliber revolver. When Scott failed to obey commands to drop the weapon, Los Angeles County Sheriff's Deputy Gary R. Spencer shot him twice in the chest. Scott died shortly thereafter.

Relying on a tip from an informant and some aerial surveillance, Spencer had obtained a search warrant for Scott's property and assembled a team of local, state, and federal law-enforcement agents. They expected to discover a large cache of marijuana. But an exhaustive search of the house and grounds found no trace of illegal drugs or drug paraphernalia.

After a five-month investigation, Ventura County District Attorney Michael D. Bradbury, whose jurisdiction includes Scott's property, released a report in March that said the raid was unjustified. He noted that Spencer's informant claimed in September 1992 that thousands of marijuana plants were growing on Scott's property. Yet two sets of aerial photographs taken that month showed no sign of cultivation. A Drug Enforcement Administration agent reported seeing 50 plants during an overflight on September 23, but Bradbury called that evidence inconclusive. Looking down at the property from a height of more than 1,000 feet without the aid of binoculars, Bradbury said, the agent could not have positively identified the plants as marijuana.

Bradbury discovered that Spencer had obtained the search warrant for the raid by withholding evidence and testimony from the judge who signed it. Ventura Municipal Court Judge Herbert Curtis III was not told that a federal reconnaissance team had found no drugs on Scott's land when they searched parts of it on two occasions a week earlier. Furthermore, Bradbury said, several of the affidavits used to support the request for a search warrant were either false or misleading.

Defending his department's actions, Capt. Larry Waldie, head of the sheriff's narcotics bureau, alluded to "historical documentation" showing that Scott's wife, Frances Plante, had been involved with drugs. Plante was convicted of possessing a small amount of marijuana in 1991, the year before she married Scott. Police sources also told the Associated Press that Plante had been seen with $100 bills—hardly remarkable for the wife of a multimillionaire. Nicholas Gutsue, the executor of Scott's estate, finds the drug charge puzzling, since Scott was "known to be fanatically anti-drug."

Gutsue notes that Scott had repeatedly refused to sell his scenic 200-acre ranch to the National Park Service, which wanted to make it part of the Santa Monica Mountains National Recreation Area. Gutsue suspects that a deal was struck: After the raid, the police would seize the $5-million ranch under federal forfeiture law, which allows the government to take property used to commit a drug crime. The Park Service would buy the land, and the other participating agencies would share the proceeds. Gutsue notes that Park Service rangers took part in the raid, along with county, state, and federal drug warriors.

Park Service spokeswoman Jean Bray dismisses Gutsue'theory as "nonsense." She says three armed Park Service officials participated in the raid at the request of the Sheriff's Department but never entered Scott's house, remaining in the "perimeter containment area."

Whatever the Park Service's role, Bradbury's report cited forfeiture as an important motivation for the search. He noted that Spencer, the lead investigator, "knew that if marijuana were found growing, or if narcotics were found in sufficient quantity, it was possible that a very valuable piece of real estate would be forfeited to the government with the proceeds of a sale going to the Los Angeles Sheriff's Department."

Waldie denied Bradbury's allegation, telling the Los Angeles Times that "forfeiture was never the objective in this case." But two agents, including a forest ranger, told the Times that possible seizure of Scott's land was mentioned at a briefing just prior to the raid. And the Sheriff's Department had shared two documents with a federal drug agent: a property-appraisal statement and a parcel map on which the agent noted that a nearby 80-acre plot had sold for $800,000. Bradbury observed: "We find no reason why law enforcement officers who were investigating suspected narcotics violations would have any interest in the value of the ranch or the value of the property sold in the same area other than if they had a motive to forfeit that property."

The Donald Scott case is a chilling reminder that, despite a series of exposes and calls for reform, asset-forfeiture statutes continue to pervert law enforcement and victimize property owners. Beginning with a path-breaking 1991 series in The Pittsburgh Press, the news media have dramatized forfeiture abuses, offering the stories of people who have lost homes, boats, cars, trucks, and cash to the government because police believed the property was connected to a crime.

Some of these people were convicted of minor offenses, but many others were never charged with anything. The Press found that owners are not charged in most federal forfeiture cases, and investigations of state forfeitures in Florida, Missouri, and Illinois confirm that pattern.

Publicity about such cases has aroused widespread indignation and prompted legislative hearings at the state and federal levels. But aside from some modest protection for innocent property owners growing out of a recent Supreme Court case, forfeiture laws remain as much of a menace as ever. Indeed, police and prosecutors are lobbying for state laws that would make it even easier to seize property. The resistance to reform is not surprising: Law-enforcement officials have a vested interest in maintaining and expanding asset forfeiture. It's a way to feed their budgets without tax increases. So, far from slowing down because of all the bad press, forfeiture is catching on. Pioneered by the feds, it has become a tool for smalltown cops. Originally used primarily in drug cases, it is being extended to new areas by creative police and legislators.

Under federal provisions, law-er forcement agencies have seized assets worth more than $2.6 billion since 1985; another $1.5 billion is "in the pipeline," according to the Justice Department's Executive Office for Asset Forfeiture. There have been more than 170,000 seizures since 1985 and more than 35,000 in 1992 alone. More than $1 billion in cash and property forfeited under federal law has been transferred to more than 3,000 state and local agencies since 1986. A record $289 million was disbursed in 1991, and the figure for 1992 is expected to be even higher.

Many law-enforcement agencies have become dependent on the money. A 1990 bulletin from the U.S. Justice Department warned U.S. attorneys that they were falling short of expectations. "We must sign)ficantly increase production to reach our budget target," the bulletin said. "Failure to achieve the $470 million projection would expose the Department's forfeiture program to criticism and undermine confidence in our budget predictions. Every effort must be made to increase forfeiture income during the remaining three months of [fiscal year] 1990."

Many states have their own forfeiture laws, and state and local of ficials also keep an eye on the tallies. Oklahoma County District Attorney Bob Macy recently complained to The Daily Oklahoman that his office's forfeiture income had dwindled from $685,730 in 1991 to $350,000 the following year (out of a $3.4-million budget). He blamed the drop on local cops who prefer to turn forfeiture cases over to the feds and thereby avoidgiving the district attorney a cut.