Pubdate: 4 Apr 1999
Source: Omaha World-Herald (NE)
Copyright: 1999 Omaha World-Herald Company.
Contact:  http://www.omaha.com/
Forum: http://chat.omaha.com/
Author: Patrick Strawbridge

DRUG SEIZURE MONEY BYPASSING SCHOOLS

This is one in a series of World-Herald articles looking back on the 20th
century.

When Nebraska law officers confiscate large bundles of cash linked to drug
dealing, the state's constitution

directs that half the money go to schools.

But that rarely happens.

Instead, police funnel the drug money through the federal government, which
takes a 20 percent cut and returns the rest to the local law-enforcement
agency that confiscated the money.

Schools get nothing.

It's an end run around the state constitution, but it's allowed under
federal rules for handling assets seized from drug dealers.

Law enforcement officials in Nebraska say the maneuver is proper and
useful. It gives them extra cash to help finance their fight against drug
traffickers.

State Patrol Maj. Gale P. Griess said his agency has used the $618,000 it
has received in the past five years to purchase body armor, computers,
cameras and other gear it needs and cannot normally afford.

"These days, it seems we're asked to do more and more with less," he said.

But some Nebraska lawmakers don't like the sidestepping of the
constitution, and several legal experts question whether police ought to
profit from seizing suspects' money.

Clarence Mock, an Omaha area attorney who has worked on several forfeiture
cases, said it's bad public policy to let police keep the money they find.

"It encourages them to be hyper-aggressive when they shouldn't be," Mock said.

The funneling of locally seized drug money through the federal government
is common in states such as Nebraska where legislatures have sought to
restrict the unfettered flow of drug money into the pockets of local police.

In states such as Iowa, where laws allow police to keep most of the drug
money they confiscate, police more often go through state court.

When money is forfeited through Nebraska courts, the 50 percent not set
aside for schools is earmarked for

anti-drug efforts. But police departments don't have direct access. The
cash is placed in a county drug fund and disbursed through an independent
board. The money can be used by police, but it also helps fund educational
programs.

Additionally, state law requires more proof of a crime before a government
can keep suspected drug money than what is needed for such a seizure under
federal rules. So local police frequently turn to the U.S. Attorney's
Office when they find a cache of cash.

Tom Monaghan, U.S. attorney for Nebraska, said the federal government takes
an active interest in all cash seizures of more than $5,000 and sees itself
as the coordinator of all major forfeitures. In some cases, the assets are
seized as part of a joint investigation between local and federal officials.

In other cases, though, police simply take money they

find through federal court even if there was no apparent federal connection
to the investigation. The U.S. government won't release records that would
distinguish which cases were handled by which agencies, but several court
cases give a glimpse of the money Nebraska schools aren't getting:

A May 1997 traffic stop for speeding on Interstate 80 led an Omaha police
officer to discover more than $404,000 hidden in a U-Haul trailer. Although
Omaha police investigated the case, the money was given to federal
prosecutors. Omaha police stand to receive as

much as $320,000. Douglas County schools won't see the $202,000 they would
have been entitled to under state law.

A search of two south Omaha homes by Omaha police in 1996 turned up more
than $30,000 and small quantities of drugs. Although the suspected drug
dealer who owned the money was prosecuted on state charges, the cash was
given to the federal government. Loss to schools: $15,000.

A Valley, Neb., police officer pulled over a Mercedes sedan in September
1995 after the driver allegedly swerved off the road and onto the shoulder.

A search of the car turned up a small amount of marijuana and more than
$54,000 cash. After the seizure, the Valley department notified the U.S. Drug

Enforcement Agency, which initiated forfeiture proceedings.

Eventually, the Valley department split the bulk of the money with the
Douglas County Sheriff's Office, which

had provided the dog that helped search the car. Valley Police Chief K.C.
Bangs said the money was used to buy safety equipment gear for his officers.

"It was a big help," Bangs said.

Lt. Eric Buske, a narcotics lieutenant with the Omaha

Police Department, said forfeited money has been a big boost to his unit's
ability to combat drugs.

"The schools, in my mind, are not part of the equation," he said. "They are
in the sense that they get some of

the money, but we're the ones making the recovery."

The Nebraska Attorney General's Office does not track

the overall amount forfeited through state court. But

Douglas County - the state's leader in forfeiture cases - sees about
$54,000 each year.

In Iowa, state law allows police to keep 90 percent of what they find. The
Iowa Attorney General's Office keeps the balance, said Iowa Deputy Attorney
General Doug Marek.

"We've seen amounts of $40,000, $50,000, even $60,000 in state court," he
said.

Marek said that between $1 million and $1.2 million is forfeited through
Iowa's state courts each year. "Overall, it's worked quite well," Marek said.

National experts, however, said that when police departments profit
directly from cash seizures, it creates an incentive for them to cross the
line.

Jim Gurule, an associate dean of law at the University of Notre Dame, said
many legislatures - including those in Nebraska, Missouri and Wisconsin -
specifically tried to keep departments from reaping the benefits of their
searches.

"When law enforcement has a financial interest in the

amount that officers uncover, the potential for abuse

exists," said Gurule, who has co-written a legal text on forfeitures.

Griess, the state patrol major, said that motivation has not materialized
in Nebraska.

"Our guys are out there to get the bust and get the drugs," he said. "I'll
argue that until the cows come

home."

He also downplayed the danger of overzealous officers. Even when local
departments go the federal route, he said, they sometimes have to share
proceeds with other states. In all, Griess said, the state patrol keeps
only about 27 percent of what it finds.

Monaghan said that if any law enforcement officers did cross the line, he
would refuse to take the case - and has done so.

"That's not an issue here," he said.

In addition to the extra money, there's another reason local officials use
the federal system when it comes to forfeiture cases.

In federal court, once police prove they have probable cause to suspect the
money was linked to drug trafficking, the burden of proof shifts to the
money's former owner.

If that person can't prove he or she earned the money

legally, the government keeps the cash - even if the person is never
charged with a crime.

In state court, prosecutors have the burden of proof,

said Corey O'Brien, the assistant Douglas County Attorney who oversees
local forfeitures.

"It's a quasi-criminal proceeding in that I have to prove it beyond a
reasonable doubt," O'Brien said.

Mock said the deck is stacked in favor of law enforcement in the federal
system.

"It's another impetus for police to take it to the feds," he said.

Although federal guidelines generally keep cases involving less than $5,000
in the state court system,

O'Brien said he has taken one or two smaller cases to

federal court because he did not think they could be won at the state level.

The Douglas County school fund has received $37,000 for each of the past
two years from smaller forfeiture actions left in state courts. Had some of
the money taken to federal court been deposited in the county's

coffers, the difference may have been only pennies to

each taxpayer.

"Those pennies clearly add up," said Robert Bligh, an

attorney for the Nebraska Association of School Boards. "I think every
dollar makes a difference, especially when the Legislature has put a lid on
how much tax can be levied."

Several Nebraska legislators questioned whether police ought to ignore the
state constitution. It undermines a law that was approved directly by
voters, said State Sen. Ernie Chambers of Omaha.

"The federal government should not help these agencies evade the state
constitution," said Chambers, a frequent critic of police. "I'm really
dismayed. There may need to be some legislation to ensure it gets done they
way the constitution says it should be."

Sen. Ardyce Bohlke of Hastings, chairman of the Legislature's Education
Committee, said the practice would seem to go against the wishes of voters,
who frequently support schools and tax relief.

"Money like that could make a very big difference in some of our schools,"
she said. "I plan to find out what the dollar amount is."

Legislative efforts are no guarantee against police turning to federal
court. Although the Missouri Legislature attempted to curb the practice in
1993, it has endured in that state.

That's a shame, said Gurule, the law professor.

"I support forfeiture laws, I think it's a valuable tool," he said, but
"this is an attempt to circumvent the will of the state legislature and the
will of the people." 
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