Highway Robbers In Oklahoma Go High Tech

[IndyDave1776]

This is a hot topic right now in this state. I just wrote an article about asset forfeiture and addressing some of the shortcoming's of Indiana's statute as I see it from the perspective of an interdiction officer (or highwayman as you put it) for 10 years. If I could figure out how to post it I would it has some good info in it. The two biggest problems I see are the low burden of proof for forfeiture, preponderance of the evidence, and a lack of due process, no right to counsel despite an underlying alleged criminal nexus, and a process that is not navigable in a short time by a layperson. As far as it goes though, Indiana is not nearly the worst.

Damn. I just wrote one of my infamous half-page posts and the computer ate it. Since I don't feel like doing it again, the fast version:

1. I take comfort in someone of your profession seeing these flaws and taking that understanding to work.

2. Would you rectify or eliminate the asset forfeiture law if you could wave the magic wand? I could see an argument for keeping it if it required beyond a reasonable doubt proof in court like any other criminal action, and the accusation had to be filed against the owner and NOT against inanimate objects which do not have standing or the inherent ability to defend themselves in court, again, with the burden of proof on the accusing agents of the state.

3. From my perspective, I see little value in the law, especially given its great potential for abuse which is realized most every day. That said, your experience offers a lot of perspective on the matter that mine does not. What are your thoughts? My thoughts are primarily driven by the threat of having the law used against me at some point.

4. How do we prevent mission creep from going further? Originally, this was sold to us as a tool for rare use against drug lords using nearly unlimited money to tie up the courts and escape prosecution by default at ruinous cost to local government. It has spread greatly since then. As amorphous as the connection between the assets and a serious crime can be now, how do we prevent this from becoming a license to steal (without any sleight of hand or false accusation as is often the case) for most any offense, no matter how insignificant (i.e., you get caught speeding, you USED to own a car, or worse yet, you lived in your house when you committed some petty offense, so now you are homeless)?

 

[Cameramonkey]

Damn. I just wrote one of my infamous half-page posts and the computer ate it. Since I don't feel like doing it again, the fast version:

1. I take comfort in someone of your profession seeing these flaws and taking that understanding to work.

2. Would you rectify or eliminate the asset forfeiture law if you could wave the magic wand? I could see an argument for keeping it if it required beyond a reasonable doubt proof in court like any other criminal action, and the accusation had to be filed against the owner and NOT against inanimate objects which do not have standing or the inherent ability to defend themselves in court, again, with the burden of proof on the accusing agents of the state.

3. From my perspective, I see little value in the law, especially given its great potential for abuse which is realized most every day. That said, your experience offers a lot of perspective on the matter that mine does not. What are your thoughts? My thoughts are primarily driven by the threat of having the law used against me at some point.

4. How do we prevent mission creep from going further? Originally, this was sold to us as a tool for rare use against drug lords using nearly unlimited money to tie up the courts and escape prosecution by default at ruinous cost to local government. It has spread greatly since then. As amorphous as the connection between the assets and a serious crime can be now, how do we prevent this from becoming a license to steal (without any sleight of hand or false accusation as is often the case) for most any offense, no matter how insignificant (i.e., you get caught speeding, you USED to own a car, or worse yet, you lived in your house when you committed some petty offense, so now you are homeless)?

Or even worse, your kid commits a crime in your house and they foreclose on it using this law. I recall that happening not too long ago. The adult "basement dweller" kid was selling drugs out of his bedroom, and the parents had their home seized even though the kid wasnt on the deed and/or mortgage.

 

[rw496]

There are really a lot of issues with these statutes, too many to address here. If I can post my article maybe I'll start a new thread about this topic; it could go on forever. It's a 30 page law review article with heavy footnotes. I have it saved as a .pdf...so..
Anyway, there is a high potential for abuse of asset forfeiture statutes, obviously since it is happening now, but at the same time I think society has a legitimate interest in asset forfeiture when it's used to dismantle criminal organizations. The intent was to remove the potential for pecuniary gain and the incentive to engage in criminal activity in the first place, which is usually to make money, and to confiscate the equipment used so that they can't just start up somewhere else. The seized proceeds of criminal activity could be used to alleviate some burden on legitimate tax payers, like us, and equipment could be auctioned and hopefully put to use by legitimate business owners at discounted prices.
I agree with the beyond a reasonable doubt standard because the justification for initiating the seizure is criminal in nature, initiated by the State. Some propose a clear and convincing evidence standard, but I don't think that is really anymore effective with the average juror. The problem with requiring an underlying conviction of the owner is that in the world of actual criminal organizations, who the statutes were intended to target, they try to maintain anonymity and often move cash and contraband with third party vehicles, registered to a person who may not even exist. For example, when I stop a vehicle that has an aftermarket hidden compartment constructed maybe beneath the vehicle that contains $100,000 cash wrapped in vacuum sealed bags, the driver says he doesn't know anything about it because its not his car, he can't reasonably be expected to see a hidden compartment that most trained police officers wouldn't find, and the car is registered to a person that doesn't exist and lives at a vacant lot in Chicago (where he voted for Rahm every year). So, there is I think a strong argument that Indiana taxpayers have a legitimate interest in seizing this money that has circumvented the State's economy. But, the problem comes with the incentive to aim this statute at citizens who are not part of an organization, but only possess 1 gram of meth for example, but has a pretty nice car which he is technically using to transport the drug, and maybe $2000 in his pocket. It's a lot easier for PD's to find 10 guys like that than to find a trap car on the highway from the Sinaloa cartel.

 

[rw496]

Figured it out...I think. Here it is in a new thread:
https://www.indianagunowners.com/forums/general-political-discussion/415435-asset-forfeiture.html

 

[jon5212]

With how prevalent alerts are now with banks I don't think you'd have to worry about them trying to use this device if someone stole your identity, made a fake card with your info and started to use it. I think most banks are pretty good at alerting you about suspicious purchases with your card. I had it happen to me about 3 years ago someone stole my card number somehow and used it up in Wisconsin, got alerted the same day and they immediately locked down the card and account, so even if the police used this device to try to pull funds it'd get blocked.

 

[rw496]

With how prevalent alerts are now with banks I don't think you'd have to worry about them trying to use this device if someone stole your identity, made a fake card with your info and started to use it. I think most banks are pretty good at alerting you about suspicious purchases with your card. I had it happen to me about 3 years ago someone stole my card number somehow and used it up in Wisconsin, got alerted the same day and they immediately locked down the card and account, so even if the police used this device to try to pull funds it'd get blocked.

Criminals use the cards in two different ways, so the cops use the readers in two different ways. First, criminals use the equipment pictured above to change the account numbers on the magnetic strip and replace it with a stolen identity and account number. They hen use this cards until the bank triggers the alert and they are burned. Then they move on to the next card. The reader the cops have can tell you what's on the magnetic strip and if it matches the front of the card and the account number there, or if it has been re-encoded
The other way Green Dot type cards are used is by criminals, particularly drug dealers who have to move cash, is they deposit cash into these anonymous accounts which circumvent reporting by banks, and transport the cards, or trade the cards. It's a lot easier than smuggling $100,000 bulk cash because you can stick a few cards in your wallet and police won't find it. Even if they do see the cards, there's no way of knowing the value....until now, that's what the ERAD does. It tells the cops that this guy has $100,000 in his pocket deposited in a series of anonymous green dot accounts since it's not as obvious as bulk cash laying there. Then, if the totality of the circumstances warrants it seizure can be appropriate, or at least freezing the account before someone else remotely wipes the accounts and you can do a more thorough investigation.