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Summer study committee hears about 'unresolved question' hanging over civil asset forfeiture

Can police take proceeds for themselves? How much?
Posted at 4:38 PM, Aug 16, 2017
and last updated 2017-08-16 16:38:17-04

INDIANAPOLIS -- Indiana legislators took a hard look at the state’s civil asset forfeiture law during a summer study commission hearing Wednesday at the Statehouse.

As it stands now, the law allows police to seize suspected proceeds from criminal acts – for example, cash found during a traffic stop where there are also drugs in the vehicle – even if there is no criminal conviction in the case.

The Indiana State Constitution says proceeds from such forfeitures are supposed to go to the Common School fund.

But in many cases, the fund receives little or none of those proceeds as law enforcement agencies take their cut out first for expenses.

As the legislators on the Courts and Judiciary summer study committee heard Wednesday, whether the state constitution allows that is an “unresolved issue.”

For prosecutors and law enforcement agencies in the state, there’s a lot on the line in this question. As Delaware County Prosecutor Jeff Arnold told the committee, the proceeds his office has gained from civil asset forfeiture have allowed him to purchase equipment tight budgets otherwise wouldn’t have.

“Civil asset forfeiture allowed me to buy laptops for all my deputies so they were able to bring them into court,” Arnold said. “I know that sounds rather primitive, but that’s where we were able to find the money.”

Arnold told the committee about one nine-month investigation whose forfeiture proceeds helped pay for audiovisual equipment for the prosecutor’s office.

“Ever since that day, it’s been very satisfying to me when we go to court to know that that equipment came from money from people who were killing people and selling drugs on the streets,” Arnold said. “No taxpayer dollar used.”

For committee members, though, the sticking point they continually returned to was that civil asset forfeitures can be, and often are, conducted without any criminal conviction.

“We have a federal constitution that talks about not taking property without due process,” State Sen. Lonnie Randolph said. “But here we’re talking about the preponderance of the evidence. It seems to me there’s some inconsistency there.”

In Marion County, according to Prosecutor Terry Curry, law enforcement sees $1.2 - $1.5 million in civil asset forfeitures each year. Curry says his office gets 30 percent of that, with the remainder going to cover individual law enforcement agencies’ costs. Any remainder, if there is a remainder, goes to the Common Education Fund.

Curry said the Marion County Prosecutor’s Office has a separate division, with its own deputy prosecutors and paralegals, to handle civil asset forfeiture cases.

“In terms of what we get, we roughly cover expenses,” Curry said. “It’s not like we’re making money on it.”

Curry, like Arnold, told the committee that civil asset forfeiture was, in at least some cases, the only way law enforcement could deprive criminals of gains from their illicit acts. As evidence, he referenced a traffic stop on the west side of Indianapolis in which police found more than $2 million in a semi headed for Texas.

“The individuals, who were Cuban, in the truck said all they knew was they had been instructed to drive to McAllen, Texas, and await further instruction,” Curry said. “Clearly this money was going to Mexico. But without civil asset forfeiture we would have had no way to take this money.”

A bill presented to the Indiana General Assembly during the 2017 session would have addressed what the authors, among them State Sen. Phil Boots (R-Crawfordsville), saw as constitutional problems with Indiana’s current law. Among other requirements, Senate Bill 8 would have mandated a criminal conviction before assets are seized, and would have reduced the period for police to file a civil asset forfeiture from 180 days to 30 days.

The bill passed through the Senate but stalled in the House following opposition by prosecutors.

Boots, who says he plans on filing the bill again next year, also testified before the committee Wednesday.

“I’m impressed to hear the prosecutors are doing what they should and they’re doing it all right, but I can tell you that’s not always the case,” Boots said.

Boots’ testimony was bolstered by attorney Cassie Rigney, who told the committee she is a former deputy prosecutor now working in private practice.

“I had too many literally 80-year-old women crying in my office because their loaned their car to a son who was a drug addict,” Rigney said.

She told the committee that was the crux of the problem: Police are deciding at the scene of crimes whether the owners of property used in the crime – for example, a relative who loaned their vehicle – should have known it would happen.

“The law enforcement officers are deciding at the point of seizure who knew what, when. I didn’t think those conclusions were accurate,” Rigney said. “The problem is, when the criminal actor and the owner are not the same person, those persons who are, in my opinion, most abused under the civil asset forfeiture law don’t have the means to fight what is happening.”

Rigney did differ on the need for a criminal conviction before civil forfeiture can happen, calling that a “logistical nightmare,” and warning that it could potentially see civil asset forfeiture go away entirely.

She ended her testimony by stressing that, despite rosy pictures painted by prosecutors, police, in her opinion, are not always conducting civil asset forfeiture in good faith.

“That car doesn’t belong to you?” Rigney said. “It was used in a crime, oh well. And that was definitely the attitude of the agencies I saw, and as a deputy prosecutor, it offended me.”

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