Search and Seizure
November 22, 2011
Keegan Hamilton, Seattle Weekly
Courts call it asset forfeiture. Critics call it robbery. Either way, local and federal law-enforcement agencies will likely get to keep any cash, computers, cars, or real estate seized during last week's highly publicized raids on medical-marijuana dispensaries.
According to the Department of Justice website, asset forfeiture "enhances public safety and security . . . [by] removing the proceeds of crime and other assets relied upon by criminals and their associates to perpetuate their criminal activity against our society." Translation: If you sell drugs (or do anything else illegal), prosecutors can take your money, anything bought using that money, and anything used to make that money. For example, if you drive your car to a drug deal and get busted, odds are that car will eventually become the property of the law-enforcement agency that caught you. And in some cases, they don't even have to arrest you to get away with it.
Last year, federal law-enforcement agencies netted nearly $4 billion through asset forfeiture, including $19.6 million in western Washington. Legal experts and pot activists say that in recent months, the asset-forfeiture process has been used by federal prosecutors and law-enforcement agents as a means of muscling dispensary owners in California, Montana, and eastern Washington out of business. Kris Hermes, spokesman for Americans for Safe Access, a national medical-marijuana advocacy group, has accused federal agents essentially of looting.
"Literally, federal agents will come to a place and break down the door," Hermes says. "They'll trash various pieces of property, take computers, take growing equipment if that's going on, take plants and money, take patient records that are supposed to be private. They may not arrest anybody or indict anybody, but that's sending a message of intimidation."
Adds Alison Holcomb, drug-policy director for the local ACLU chapter and campaign director for New Approach Washington, the anticipated ballot initiative that would legalize marijuana: "The term that has been coined is 'smash and grab.' It's basically the bank robber, the jewelry thief, whatever—they use the same lingo . . . From a law-enforcement perspective, presumably what they think they're doing is discouraging people from doing this by hitting their bottom line and taking assets."
Ten dispensaries in the Puget Sound area were raided on Tuesday, Nov. 15, part of a federal crackdown on operations which failed to "comply with the letter and the spirit of existing state law" and violated federal law simply by selling weed. DEA agents had warrants to search at least 16 properties and 11 cars, including a 1977 Corvette and a 2007 Mercedes. It is possible that these items could be seized through forfeiture. Whether that will actually happen remains to be seen.
Unlike in criminal cases, where prosecutors have to prove guilt "beyond a reasonable doubt," federal forfeiture proceedings require only "a preponderance of evidence" that connects personal property to a criminal enterprise. Hearsay evidence—for example, testimony from a federal agent who says a paid informant told him that a car or home had figured in a drug transaction—can be used to justify forfeiture, even though it would likely be inadmissible in a criminal case, says Eapen Thampy, co-founder of the nonprofit Americans for Forfeiture Reform.
Local cops get a cut of the proceeds when they help their federal counterparts execute a drug bust. In some cases, local police take up to 80 percent of the cash and property seized. The result, Thampy says, is that even in areas where law enforcement is scaling back because of budget cuts, marijuana remains a priority because of its potential to boost the budget.
"They see the revenue potential in these raids," Thampy says. "In areas like Seattle, local law enforcement might not have any appetite for this because of the political climate. But these guys in Tacoma, they might see it as a one-time cash grab. As long as it doesn't happen too often, they can say, 'We thought this raid was something necessary, that these guys were trafficking something else or that some actual laws were being broken.' "
Several local narcotics task forces participated in the Nov. 15 raids. Deputy Scott Wilson, spokesman for the West Sound Narcotics Enforcement Team, wasn't sure whether his agency would receive federal forfeiture funds in exchange for its assistance serving a search warrant at a dispensary in Kitsap County. "It's not something they divvy up straight away," Wilson says. "It goes through a whole asset-forfeiture hearing and all that. We only supplied a handful of operatives, and if it's based on a prorated share, I'd say our amount would be very little."
Thus far, no dispensary owners or employees have been indicted or charged with a crime in connection with the Nov. 15 raids. Steven Kessler, a New York–based attorney and expert on asset forfeiture, says that is not unusual. "It's now almost become something where you can't arrest people because you know when they go to trial, no one is going to convict them," Kessler says. "So you say 'OK, let's make things miserable for them and take their property and cash and the like.' "
But Emily Langlie, spokesperson for the Western Washington U.S. Attorney's Office, strongly denies that's the case in Seattle.
"If that were the strategy, we could have gone after all the dispensaries, because they're all illegal under federal law—but we didn't," she says. "I think we've been really clear that these operations were targeted because they were flagrantly violating not only federal law, but state law."