The federal program that returns a portion of seized drug money to local police who work with federal agencies has proven lucrative but legally troublesome for State Police.
The program raises a number of legal questions, according to Albuquerque defense attorney Joseph Kennedy.
“It’s fraught with all sorts of corrupt possibilities,” Kennedy said. “The danger is over-reaching, going after people’s money who aren’t drug dealers. Another concern is when you’re going after money more than prosecutions.”
Federal and state law both allow law enforcement agencies to seize cash and other assets connected with criminal activity, particularly in drug-related busts. When federal agents seize the assets, forfeiture cases are filed in federal court. When state officers conduct the seizure, however, the forfeiture case must go through state District Court.
Kennedy is particularly concerned about state and local agencies’ practice of instead turning all cash-seizure cases over to the federal government.
Under state law, seized currency must be deposited with state District Court, and if it is eventually forfeited to the state there are limitations on how it can be used. Specifically, it should be earmarked for restitution to victims of the underlying crime and for drug treatment and prevention.
Funneling the money through federal agencies offers two benefits — one, there are fewer restrictions on how the proceeds can be used, and two, the bar is set lower for proving that the cash should be forfeited by its owner, Kennedy said.
Also, the state process only allows forfeiture as part of a successful criminal prosecution. The federal process, on the other hand, allows agencies to seize suspected criminals’ money separately from a criminal conviction, Kennedy said.
State Police took in $2.19 million from seized assets, most of it cash, through the program in 2008, according to Justice Department data. None of that went through the First Judicial District Court, which hears cases in Rio Arriba, Santa Fe and Los Alamos counties.
In fact, the First Judicial Court has no account set up to accept deposits of seized cash, because it doesn‘t receive any, Chief Judge Stephen Pfeffer said.
Kennedy said police agencies have been using a loophole to circumvent the state law for years. A federal law lets local police officers swear in as federal agents so they can participate in joint task forces.
“What they’ve sort of done is just used it to swear in all these officers,” Kennedy said.
Once sworn in, local agents can funnel seized money through the federal system.
Kennedy successfully litigated one lawsuit that in 2007 set the legal precedent for asset seizures in New Mexico.
That lawsuit sparked from the 2002 arrest of John Albin, whom State Police pulled over near Tucumcari and arrested for drug possession. Police had found a backpack in the car containing marijuana, hallucinogens, 13 Xanax pills and $23,100 divided into five bundles, according to court records.
State Police registered the cash as evidence, then called a federal Drug Enforcement agent specifically to seize the cash through the federal courts, court records state. Although State Police failed to follow the state forfeiture process, a federal judge eventually forfeited the $23,100 to the federal government, leading Albin’s father to sue State Police, court records state.
Judge James Hall, of the First Judicial District, initially sided with State Police, which argued it could continue seizing assets through federal law enforcement agencies, attorney Steve French, who represented State Police in that case, said.
The Appeals Court overturned Hall’s ruling, stating “State Police officers seizing currency under state law” must go through state District Court, not federal court, records state.
But implementing the state law has been problematic, French said. Just getting state courts to follow the law has been difficult, he said.
French recalled one instance in which State Police tried to deposit with the First Judicial Court about $50,000 it had seized.
“We showed them (the 2007 Appeals Court decision) and told them to put it in an interest-bearing account,” French said. “Except we told them, ‘Don’t mess it up, there’s blood spatter all over it and we might need to use it as evidence.’”
Judge Hall instructed State Police to instead store the money in its own vault. It was eventually returned to its owner, French said.
French continues to argue that, while sworn in as federal officers, local agents can still seize assets through the federal process. But State Police has started training its officers to use the state process in other situations.
“What I can’t do is seize this money and call over a federal agent and say, ‘Psst, come over and take this money’ so it goes through the federal court,” French said. “Does it still happen? Yeah. There are still some rough spots.”
Interference from federal agents in state seizures has been hard to prevent, French said. He cited one case currently pending in state District Court, involving money State Police seized from one driver.
“The officer looked at (the money), didn’t count it,” French said. “I don’t know if (the Federal Drug Enforcement Agency) was listening, or if someone called them, but they came over and said, ‘We’re seizing this for forfeiture.’ That’s the kind of thing we need to keep from happening.”