Pubdate: Wed, 15 Nov 2000
Source: Kansas City Star (MO)
Copyright: 2000 The Kansas City Star
Contact:  1729 Grand Blvd., Kansas City, Mo. 64108
Feedback: http://www.kansascity.com/Discussion/
Website: http://www.kcstar.com/
Author: Karen Dillon

RULING: POLICE NEED COURT ORDER TO GIVE DRUG MONEY TO FEDERAL AGENCY

In a Kansas City case expected to have a broad impact, a Missouri appeals 
court ruled Tuesday that local police can't turn over drug money they seize 
to a federal agency without a court order.

The ruling is significant because police in Missouri regularly give drug 
money to federal agencies, which give back a portion of the money to 
police. State law would send the money to public education in most cases.

Missouri law "does not allow a unilateral transfer by a Missouri police 
department to a federal agency once the police have seized the property," 
the Missouri Court of Appeals Western District ruled.

As a result, the Kansas City Police Department violated state law when it 
transferred $34,000 to a federal agency without a court order, the 
appellate court ruled.

"Amen to that," said Rep. Jim Kreider, who has been designated the next 
speaker of the Missouri House.

"This court case goes a long way toward vindicating what we in the 
legislature have been saying and what the people, the taxpayers, the 
constituents have been saying," said Kreider, a Nixa Democrat who has 
co-sponsored a bill to stop the flow of money from police to federal agencies.

Forfeiture has become a contentious issue. In stories this year, The Kansas 
City Star reported that police in Missouri and nationwide have evaded their 
state laws and used federal agencies to keep millions of dollars.

The ruling also could mean that an imprisoned felon, Vincent Karpierz, who 
filed the case, could get back the money the Kansas City police took from 
him in 1998 and gave to the Drug Enforcement Administration.

"It's probably galling to everybody that a convicted druggie can get his 
money back, but the police have to follow the law," said James McMullin, 
attorney for Karpierz.

The three-judge panel overturned a lower court decision that said Kansas 
City police had not violated state law, which says police must take any 
drug money they seize to state court. Police had not really seized the 
money, Clay County Circuit Court Judge David Russell ruled, but had merely 
"recovered" and "inventoried" the cash.

But the appellate court overruled Russell on several points.

"Changing the legal classification from `seizure' to `recovered and 
inventoried' seems to defy the normal progression of when law enforcement 
first search a person's place, seize the property, and then inventory the 
property," Judge Hal Lowenstein wrote for the appellate court.

"Therefore, by seizing the property and subsequently transferring it to the 
DEA, the police violated both the letter and the spirit of (Missouri 
forfeiture law)."

The judges also ruled that under Missouri law it didn't matter whether 
local police had been deputized by a federal agency. A local or state 
police officer who seizes money still must follow state law, they ruled.

Police in Missouri and elsewhere have often argued that they aren't legally 
seizing property when they find it -- they are simply holding it until a 
federal agent can seize it.

"That argument seems to be patently absurd," said Richard J. Troberman, 
co-chairman of the National Association of Criminal Defense Lawyers' 
forfeiture committee.

"The problem is Missouri forfeiture law requires the money if forfeited to 
go to education," said Troberman, who agreed with Tuesday's ruling. "The 
way around the (law) is to hand it off to the feds."

James R. Devine, a law professor at the University of Missouri-Columbia, 
said Tuesday's decision is binding on trial courts in the Missouri Western 
District.

In the other two districts and in federal courts,"the decision will 
certainly be influential," Devine said.

Joe Mulvihill, a Kansas City police board commissioner, said the board 
would discuss the decision at its next meeting Tuesday. He pointed out that 
the department recently decided to follow Missouri forfeiture statutes, 
unlike many other agencies around the state.

Mulvihill said the department in the past had been acting upon the advice 
from many attorneys, including the U.S. attorney general, U.S. attorneys 
around the country and the state attorney general and department attorneys.

Stephen L. Hill Jr., U.S. attorney for the Western District of Missouri, 
said his office believes that when police seize money in Missouri they 
should obtain a transfer order. But he said his office handles only a small 
number of forfeitures compared to federal agencies.

"We have, at every opportunity that has availed us, said to federal and 
local officials that you ought to comply with state law, specifically the 
transfer order requirements, when property has been seized by local 
officers," he said.

But he added that determining exactly when police have seized property must 
be done on a case-by-case basis. He said the decision Tuesday used a narrow 
set of circumstances.

The Missouri Highway Patrol's legal counsel, Anthony Horvath, said the 
patrol also instructs its officers to tell local prosecutors when they have 
seized property.

Missouri Attorney General Jay Nixon and Drug Enforcement Administration 
officials were not available for comment.

The Karpierz case involved two seizures by the Kansas City police.

In March 1998, police received a tip that Karpierz was dealing drugs out of 
his home. After surveillance, police obtained a warrant to search his home.

When a team of officers arrived, Karpierz was leaving in a van. An officer 
pulled him over for a traffic violation, searched his van and found $1,029. 
In the home police found marijuana and $33,000.

They called the Drug Enforcement Administration and invited them to join 
the investigation. Two Drug Enforcement Administration deputized officers 
from Kansas arrived and took the money.

Kansas City police later received more than $21,000. Karpierz was convicted 
in state court and sent to prison.

The case will go back to the circuit court to determine whether Karpierz 
can get the money back.
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