In Oklahoma, where police once attempted to seize thousands of dollars from a Burmese Christian band for no reason and a sheriff was indicted for extortion and bribery for abusing the state's forfeiture rules, the state is actually making it easier for police to legally steal people's stuff.
Oklahoma's Highway Patrol has gotten their mitts on devices that allow officers to scan pre-paid cards in people's possession and either freeze or seize the funds.
As Oklahoma Watch explains, this technology isn't new, but was developed starting in 2012 to be used by the Department of Homeland Security against international drug cartels using pre-paid debit cards to move money. But, as we've seen repeatedly by now, every technology tool used by federal officials eventually starts trickling down to local law enforcement:
The new devices will now allow law enforcement to not only seize money in physical possession of a person being stopped, but from a financial institution holding the money loaded onto a prepaid debit card as well.
Brady Henderson, legal director for ACLU Oklahoma, said the new tactic could easily run afoul of the Fourth Amendment and land the issue in court.
"I think this is likely to expand pretty radically the scope of civil asset forfeiture procedures," Henderson said. "This is a capability that law enforcement has never had before and one that is very likely to land DPS in litigation."
However, law enforcement officials say the devices are essentially part of the arms race between police and drug traffickers, who in recent years have been loading pre-paid cards with millions of dollars for transport as part of the drug trade, thus decreasing the likelihood of seizure by law enforcement.
"They're basically using pre-paid cards instead of carrying large amounts of cash," said Lt. John Vincent, public information officer for the Oklahoma Highway Patrol.
Vincent said that the police aren't just going to go scanning all cards they come across but will instead use "reasonable suspicion," like if somebody has "300 debit cards taped up and hidden inside the dash of a vehicle." He said that if somebody has proof that the cards belong to them "for legitimate reasons" they won't seize it.
But that argument puts citizens in the position of having to prove their innocence rather than requiring the authorities prove guilt. This dynamic has been a driving factor in abuse of the civil forfeiture program. How does one prove to the police that an unspent debit card was purchased "for legitimate reasons?" In the case of the Burmese Christian band, police were told that the money came from donations for their tour, but police didn't believe them and concluded the money must be drug proceeds. It wasn't until the lawyers from the asset-forfeiture-fighting Institute for Justice got involved and got some national publicity that prosecutors dropped the case and gave the money back.
Because police frequently get to keep what they seize and use it to fund their departments, we have every reason to believe that the opposite of what Vincent says will be true. Police have incentives to be suspicious of any prepaid debit card they come across and to try to link it to drug trafficking or other crimes.