The civil-forfeiture fighting lawyers of the Institute for Justice are publicizing yet another example of systemic police abuse of civil asset forfeiture. That's the process by which police and prosecutors seize cash and property from citizens and attempt to keep it for themselves without ever having to convict—or sometimes even charge—somebody with a crime.
This time we head down to Oklahoma, where an attempt to reform the state's lax asset forfeiture laws doesn't appear to be going anywhere. This catering to law enforcement budgets instead of constitutional citizen protections comes even as a sheriff in Oklahoma has been indicted for extortion and bribery for a traffic stop that led to a cash seizure.
The victim in this case is Eh Wah, the volunteer tour manager of a Burmese Christian band named Klo & Kweh Music Team. They've been traveling across the United States performing primarily at Karen Christian churches (Karen here is the name of an ethnic minority people from Burma and Thailand). Eh Wah was traveling through Muskogee County, Oklahoma, on the way home to Dallas, when he was pulled over for having a broken brake light. You can probably guess what happened next. It's practically a textbook example of how these stops play out. From the Institute for Justice:
He was stopped by a Muskogee County Sheriff's deputy for a broken brake light. During the stop, the deputy eventually searched his car and found the cash. The deputy alleges that a drug dog alerted at the scene. However, no drugs or drug paraphernalia were found. After interrogating Eh Wah for about six hours, the Muskogee County Sheriff's Office released him after midnight, but kept all of the money as supposed "drug proceeds."
It was a lot of cash, too: More than $53,000. The Institute for Justice has carefully accounted for the origins and purposes of the cash. It's not drug money. The money came from donations from the band's concerts, souvenir sales, or gifted from friends and family to cover touring costs.
The money was raised for a purpose, and again, it wasn't for drugs. According to the Institute for Justice, the donations were intended for the Dr. T. Thanbyar Christian Institute in Burma, a nonprofit liberal arts college. About $1,000 in donations was intended for Has Thoo Lei Orphanage in Thailand.
After deputies seized the cash Eh Wah was traveling with in February, Muscogee County's district attorney filed suit in March to try to let the sheriff's department keep it for good. Because this is a "civil" asset forfeiture process, the lawsuit is filed against the cash itself, not against Eh Wah. Because this is not a criminal charge, there is no constitutional guarantee of a public defender, the process is very bureaucratic, and the threshold to prove the property's connection to crime is much lower than what would require a criminal conviction. Worst of all, in Oklahoma, police may be able to keep 100 percent of what they seize, and that provides a massive financial incentive to do exactly what deputies did here and claim a criminal connection with absolutely no evidence.
But the county sheriff's department and district attorney's office did go ahead an attempt to push for felony charges against Eh Wah on the thinnest of explanations. The affidavit submitted to a judge justifying Eh Wah's arrest contains the following explanation for charging him with acquiring "proceeds from drug activity":
I conducted a traffic stop on a black 4 door Suzuki displaying TX tag DXP0817 for the left brake light being defective. When the vehicle stopped I made contact with the driver Eh Wah. Deputy Sandersfield's K-9 partner had a positive alert on the vehicle. During the search $53,234 cash was found in the vehicle. Due to the inconsistent stories and Wah unable to confirm the money was his the money was seized for evidence, awaiting for charges to be filed for Possession of Drug Proceeds.
That is the entirety of the affidavit right there. That is apparently all the evidence Oklahoma needs to charge you with a drug felony: a drug-sniffing dog that didn't actually find any drugs and a story law enforcement officials deem to be "inconsistent."
I'm skeptical that the county has any actual intent to try to convict Eh Wah, though he did have to turn himself in. He is trying to get the arrest warrant quashed today. Rather, that arrest warrant serves as a paper trail for the civil asset forfeiture proceedings. Because the threshold of evidence for civil forfeiture is so much lower than criminal conviction, they don't have to make the kind of connection necessary to actually put somebody in jail. The criminal charges also can be used to attempt to intimidate the suspect into handing over the assets in exchange for having the charges dropped. That's allegedly what happened in Wagoner County, Oklahoma, where Sheriff Bob Colbert and a deputy have been indicted for extortion and bribery over a case that seems very similar.
UPDATE: The Muskogee County D.A.'s office is dropping BOTH the criminal case against Eh Wah and the civil forfeiture effort to keep his money, according to The Washington Post. They will be sending Eh Wah a check equal to the amount of cash they kept.