Ill-Gotten Gains

Meanwhile, the government keeps the property. Even if it ultimately loses the case, it doesn't have to pay the owner for legal expenses, lost benefits, or damage to the property. On the other hand, home owners must still pay mortgages and taxes. Because the government has so much leverage, it can often convince people to settle for a partial return of their property, sometimes in exchange for a payment.

The upshot is that police and prosecutors often have little reason not to seize someone's property. Wealthy individuals like Donald Scott have valuable property that can be a tempting lure. People of modest means probably cannot afford to challenge a seizure.

The latter category includes many car owners. In cities such as Washington, D.C., police seize the cars of suspected johns in areas of prostitution. Elsewhere police seize cars idling neara suspected pot grower's mansion "known centers of drug activity" such as New York's Morningside Park. New York City seizes an average of 10,000 cars per year. In Oakland, California, the city has posted signs bearing the words "DRUG BUYERS" in a red circle with a slash through it and the warning: "VEHICLES SUBlECT TO SEIZURE!" Such forfeitures are not likely to be challenged. Say the police seize a 1990 Honda Civic, with a blue-book price of $9,050. The owner probably won't spend $10,000 in legal fees to get it back.

Whether their targets are big or merely easy, forfeiture encourages police to seek profits rather than fight crime. Needless to say, this can lead to twisted priorities, even from a drug warrior's perspective. Who wants to seize a dilapidated crack house when a suspected pot grower’s mansion is there for the taking?

At a recent conference on white-collar crime, Michael F. Zeldin, former director of the Justice Department's Asset Forfeiture Of fice, conceded that forfeiture has encouraced the narrowminded pursuit of seizable property: "We had a situation in which the desire to deposit money into the asset forfeiture fund became the reason for being of forfeiture, eclipsing in certain measure the desire to effect fair enforcement of the laws...."

And former New York City police commissioner Patrick V. Murphy told Congress last fall, "The large monetary value of forfeitures...has created a great temptation for state and local police departments to target assets rather than criminal activity." Murphy cited the example of a local police department that "has a financial incentive to impose roadblocks on the southbound lanes of I-95, which carry the cash to make drug buys, rather than the northbound lanes, which carry the drugs. After all, seized cash will end up forfeited to the police department, while seized drugs can only be destroyed."

Cathy Green, president of the New Hampshire Association of Criminal Defense Lawyers, says, "There's a tremendous incentive for small local police departments to target" the wealthy. She cites a Bedford, New Hampshire, case in which the police asked an informant, "Who do you know who sells drugs and has a house?" The informant replied: "Bernard)." Although they had no evidence that he was selling drugs, undercover police visited Nicholas Bernardi and asked him to obtain and sell marijuana to them. After what Green calls "persistent badgering," Bernardi gave in. He later sold them marijuana, whereupon they arrested him and seized his house for its "use in the commission of a crime."

After learning of the cops' persistence in convincing Bernardi to commh a crime, a jury found him not guilty. But the police refused to return his house. In New Hampshire, local law-enforcement agencies get to keep 45 percent of the proceeds from the sale of forfeited property. "One of the real concerns in these civilforfeiture cases is the motives of the police," says Green.

In some cases the motive is obvious. In 1987, police in Maui, Hawaii, found marijuana growing in the backyard of Joseph and Frances Lopes. It belonged to their mentally disturbed 28-year-old son. He pleaded guilty andwas sentenced to probation and weekly psychotherapy. The Lopeses thought the incident was behind them. But four years later a detective scouring old records for forfeitable property found their names. Federal agents seized the house, citing the 1987 drug case. The Lopeses have been allowed to stay in their home until the forfeiture trial is complete.

The case of Billy Munnerlyn illustrates how difficult it is to challenge a forfeiture. Munnerlyn once owned a small but flourishing air-charter business and had dreams of expanding. Those hopes came crashing to the ground after he agreed to fly an old man named "Sullivan" and four locked blue plastic boxes from Little Rock, Arkansas, to Ontario, California, on October 2,1989. About three hours after the plane landed, DEA agents arrested Munnerlyn and hauled him off to Cucamonga County jail. They told him he was under arrest for conspiracy to distribute cocaine. No drugs were found on the plane.

Munnerlyn had no criminal record, but he did have bad luck. His 74-year-old passenger turned out to be Albert Wright, a convicted cocaine dealer, and the blue boxes contained about $3 million in cash. After 71 hours in jail, Munnerlyn was released. No charges were filed against him. But when he went to pick up his plane, Munnerlyn recalled in congressional testimony last year, "I found it guarded by a DEA agent. The agent told me that my jet was the property of the U.S. government and that I could not fly it or...I would be arrested for stealing government property." The government also kept Munnerlyn's $8,300 flight fee.

Munnerlyn had to rent a car to get back home to Las Vegas. He immediately began fighting for the return of his 1969 Learjet. He suffered three years of frustration and incurred more than $120,000 in legal bills. He had to sell his other three planes and his office equipment to pay his debts. Eventually, he declared bankruptcy, and for a while the one-time pilot drove an 18-wheeler, making 22 cents a mile.

Rejecting several settlement offers involving large cash payments to the federal government, Munnerlyn insisted on a jury trial. He won. "The jury ordered the government to return my jet and charter fees," he says. The judge threw out the verdict on technical grounds and ordered a new trial. In the midst of the second trial, three years into the ordeal, Munnerlyn settled, "paying more than $15,500 to buy back my own property," he says. "This isn't the legal system for which I fought in Korea."

Even getting his plane back proved to be a pyrrhic victory. As Munnerlyn learned, the government has no obligation to maintain or safeguard the property in its custody—despite charging him storage fees. His plane had been ripped apart in a futile search for drugs, and he couldn't determine how many hours it had been flown. The Learjet Co. told him it would cost more than $100,000 for repairs and maintenance to pass a federal airline inspection.

Because fighting a forfeiture is so hard, officials don't have to be careful about picking their targets. "It is kind of like the old saying, 'Kill them all and let God sort them out,' " says Scott Bullock, an attorney with the Institute for Justice in Washington, D.C. "Only now the government is saying, 'Seize it all and let the innocent sue to get it back.' "

One favored way of raking in money is searching suspected drug couriers and seizing any cash they're carrying, on the assumption that it's either proceeds from a sale or the bankroll for a buy. Allen Coulter Kidd was riding his motorcycle through Chesterfield County, Virginia, in 1991 when he was stopped by local police. The police found no drugs on Kidd, but they took him down to headquarters anyway. They seized the $2,780 in cash he was carrying and his Harley Davidson motorcycle.

The 35-year-old pleaded not guilty to the drug charges, and the case was dismissed three months later, when the government could not supply any evidence. Yet Kidd had to wait more than a year before he got his motorcycle and half of his money back. The police kept the remaining $1,390. "They come here on suspicion and take anything I own," Kidd told The Richmond Times Dispatch. "It's a big joke—a joke that ain't funny."

In Volusia County, Florida, police have seized more than $8 million in cash and property in the last three years from motorists stopped for minor traffic violations. In many cases, drivers were stopped because police thought they were drug couriers, but no drugs were found. Sometimes police will cite traces of cocaine on seized money as evidence that it's connected to drug crime. But random tests find that more than 80 percent of U.S. currency is contaminated by cocaine, which adheres readily to paper and can be detected in trace amounts for months. Federal and state courts have begun to question the validity of such evidence. In April, U.S. District Judge Thomas A. Wiseman Jr. ordered federal drug agents to return $9,000 they had seized from a Nashville landscaper at an airport in 1991. "The presence of trace narcotics on currency," he wrote, "does not yield any relevant information whatsoever about the currency's history."