No oversight of Delaware police’s secret stash

Jessica Masulli Reyes | The News Journal

Delaware law enforcement agencies have seized $5 million from its citizens since 2012 under a state law that allows police to take property or money from those suspected of wrongdoing – even if criminal charges are never filed.

Other states have come under fire when similar funds were used to purchase armored Humvees and helicopters, coffeepots and margarita machines, and a clown named Sparkles to improve community-police relations.

But taxpayers have no way of knowing how money seized under civil forfeiture laws in the First State is spent because the Attorney General's Office and law enforcement are statutorily shielded from having to disclose any details.

Civil forfeiture is the controversial legal maneuver in which police can seize assets – such as vehicles, electronics and cash – if officers believe the items were used or intended for use in a criminal act. That can include all property seized in close proximity to illegal drugs. The usual criminal justice principle –innocent until proven guilty – does not apply in these civil cases.

The seized money goes into one pot known as the Special Law Enforcement Assistance Fund, or SLEAF. A committee of eight prosecutors and law enforcement representatives holds the purse strings, making million-dollar decisions in private about how to distribute the money.

Advocates of the practice say the funds are an essential tool to fight drug trafficking because it financially cripples dealers and funds police departments. But critics argue the laws have created an incentive for police to pad their budgets outside the public eye – often at the expense of low-income, and even innocent, people.

"Who knows what they are spending it on? Who knows how many people they are busting?" asked Christopher Jones, a 22-year-old Maryland man who had $1,276 seized during a January traffic stop in Newark.

This lack of transparency led a Washington, D.C., libertarian public interest law firm to call Delaware’s civil forfeiture laws some of the worst in the nation and to score the state with a "D-" earlier this month.

Police can seize money during any situation, from a minor traffic stop to a major drug bust.

To get back money or property, an individual must prove in civil court that it was legally acquired, usually by showing bank statements, gambling winnings or tax returns. Most people, however, do not challenge the forfeiture because the process can be long and difficult to navigate without a lawyer.

A News Journal review of court records showed that in the last six months over 50 people have filed petitions for return of property. In total, they are seeking the return of $140,000 in cash, as well as other property, including a PS3 game console, a silver Cadillac DeVille, a handgun, a Vizio 70-inch television and a Samsung Galaxy cellphone.

In one petition, a New Castle man is claiming that over $1,000 seized from his home was not drug money (a claim police made based on the way the money was stacked), but instead, was money from his federal and state tax refunds.

In another, a Dover man is claiming that $2,600 seized from him were proceeds from a recent sale of Doberman and pit bull puppies. "It's legal to sell puppies," the man wrote in his petition.

But few people get all of their property back. The majority settle with the state to get a portion, while agreeing to forfeit the rest in order to avoid a lengthy court battle and attorney fees, court records show.

A Christmas gift

That is exactly how Jones' experience with Delaware's civil forfeiture system played out. Delaware State Police would not provide documents related to Jones' traffic stop, but Jones gave the following account from his North East, Maryland, home:

He was driving his 2001 Chevy Cavalier in Newark on Jan. 6 and parked in the Denny's restaurant parking lot. His girlfriend was riding in the front, and his dad and dog were in the back.

When he pulled out of the lot, he made an illegal turn from Main Street into a Wawa to get gas. Several police vehicles swarmed his car, he said.

Jones agreed to a warrant-less search and watched as police combed through his belongings. The officers found cash in Jones' pocket, money he claims was a Christmas gift from his grandparents and the last of his savings when he closed out a PNC Bank account.

The Maryland resident has no criminal history in Delaware and was not charged during the stop. He expected police to return the money to him that night after a canine sniffed it for drug residue.

But Jones soon realized that is not how civil forfeiture works.

After weeks of calling the Delaware State Police barracks and getting no answer about his money, he filed a petition for its return in Superior Court in Wilmington and paid a $75 filing fee, kicking off the legal process.

Months later – and with the help of an attorney – he settled with the state and got back $1,000. The remaining $276 went to the SLEAF coffers.

Outlawing civil forfeiture

Civil forfeiture has come under scrutiny around the nation. Last year, comedian John Oliver from HBO's "Last Week Tonight" said in an episode devoted to the subject that civil forfeiture undermines trust in the police.

He and others point to cases such as an entrepreneur who had $75,000 for the purchase of a Chinese restaurant seized on a highway in Alabama, the Philadelphia couple who had their house seized when their son made $40 worth of drug sales on the porch and the business owner whose motel in Massachusetts was seized by police.

In response, Montana signed a law that requires the government to first obtain a criminal conviction before taking someone's property and shifted the burden of proof onto the government.

The governor of New Mexico also signed a bill this year making the state the first to outlaw civil forfeiture. One of its cities, Albuquerque, was recently sued for continuing to use civil forfeiture, despite the ban.

While these laws will curb state-level seizures, federal forfeiture laws are different.

Nationwide, revenue from federal forfeiture has increased from $500 million in 2001 to more than $5 billion in 2014.

Under a program that allows local and state police to share the proceeds of civil forfeitures with federal authorities in certain circumstances, law enforcement in Delaware has collected about $7.8 million between 2000 and 2013. This money is in addition to the $5 million collected since 2012 under state forfeiture laws.

Former Attorney General Eric H. Holder announced in January more controls on federal forfeitures and said local and state police can no longer use federal laws to seize cash and property without warrants or criminal charges, unless federal authorities were directly involved in the case.

The Institute for Justice, the nonprofit law firm that gave Delaware a "D-," argues that these measures have largely left intact forfeiture programs around the nation.

“The bottom line with civil forfeiture is it takes the usual paradigm of criminal law and turns it on its head," said Robert Everett Johnson, an attorney at the Institute. "In a normal criminal trial a person is innocent until proven guilty and the state has to prove something wrong, but in a civil forfeiture case, the government can take your property based only on the suspicion, and then force you to prove your own innocence."

Delaware State Troopers Association President Tom Brackin said the state is always finding a balance with civil forfeiture laws.

"I do think there are ways to enhance people's personal rights to privacy without completely eliminating law enforcement's ability to seize," Brackin said. "Finding that balance is the hard part."

A tool to take drugs off the streets

Prosecutors and law enforcement officers say civil forfeiture laws are one of the best ways police combat crime and say eliminating the practice would hamper law enforcement's efforts.

"It is a tool that law enforcement uses to take drugs off the streets," Brackin said. "We know that drug proceeds are transported all up and down I-95 on the East Coast."

Even when no charges are filed against an individual, Brackin said, asset forfeiture is occurring only in situations where there is probable cause.

For example, police could stop a driver on I-95 for speeding, and after smelling marijuana, the officer could ask for a search of the vehicle. While the search may not turn up drugs, a large amount of cash packaged in a manner that is consistent with drug dealing and stored in a secret compartment in the vehicle could be a red flag and prompt civil forfeiture.

"The police are out there, trained in this area of the law, and they are on a mission to cripple the drug trafficking trade," said Robert J. O'Neill Jr., a deputy attorney general who handles civil forfeiture cases. "If drug dealers are able to go out there and get rich off it, then lots of people will do it. It is a valid and important program."

Once the money is seized, the state sends a notice to the person and places a notice in the newspaper, O'Neill said. If the person chooses to file a petition for return of property, the case proceeds like a civil lawsuit with settlement negotiations and a period of discovery.

"We try to deal fairly with these cases," he said.

Why the secrecy?

Delaware was the only state unwilling to release how much money it seizes and how it is spent for the Institute for Justice's "Policing for Profit" report.

Freedom of Information Act requests submitted by The News Journal were denied by several police agencies. That is because SLEAF, the agency that collects the funds and then distributes them to police agencies who apply for grants, is not considered a public entity and is not subject to FOIA.

The Department of Justice gave only overall numbers, showing SLEAF has collected $476,651 since July and has disbursed $475,847 to police departments.

Last fiscal year, SLEAF collected $1.01 million and disbursed $867,000.

Statutorily, the money must be spent on enhancing investigations and prosecutions of criminal activity, promoting officer safety, training law enforcement and furthering public safety and victim services.

One list obtained by The News Journal showed a long list of requests, including $5,000 for Delaware Capitol Police to maintain a law enforcement memorial, $46,100 for Wilmington Police to purchase SWAT helmets and radio headsets, and $27,000 for a camera system for The Circle in Georgetown. It is unclear if these applications were approved and funded.

State officials say disclosing the applications could compromise police safety. For example, the funds frequently go toward relocating and protecting witnesses and to police agencies who may not have the safety equipment they need, according to Kathy Jennings, a state prosecutor and chair of the SLEAF committee.

She said that all SLEAF applications go through the committee and are subject to audits from the state Auditor of Accounts.

"The idea I think is that certain applications would be confidential for officer safety reasons or for investigative reasons," she said. "It is part of the law so we are following the law."

Samuel Friedman, communication director at the Caesar Rodney Institute, said the public's access to information should outweigh those concerns.

"While I do understand the sensitive nature of the SLEAF information, it should not be used as an excuse to hide all information related to the fund," he said. "We have seen too many times in the past where government programs, even well-intentioned ones, have money that is wasted or misused or outright stolen, and the public should know how their money is being spent by their government officials."

John Flaherty, who lobbies for the Delaware Coalition for Open Government, said the funds should be distributed through the usual budget process – a move that would require the Legislature to change the law.

“We need to build the confidence of the public that law enforcement is acting in the public interest," he said. "There is an enormous amount of money, and the public has a right to know how much is being taken, and from who and where it is going. I can think of no public policy reason for this to be kept secret.”

For people like Jones, not knowing how the money is spent can be frustrating, and while most of his money was returned, he fears that for others the same may not be true.

"Imagine how many people they do this to," Jones said.

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.