For Phelps County: Seizing Suspects’ Assets Is Like ‘Pennies From Heaven’
A newly renovated red-brick jail is nearing completion. Low-milage squad cars patrol the roads. A new high-tech courtroom makes it easier to guard prisoners. Outside the courtroom are exercise equipment and a shoot, no-shoot training facility for officers.
All were funded by the cash and other property the Phelps County Sheriff’s Department has seized in the past decade from motorists traveling along Interstate 44, a major drug corridor passing through the county.
Phelps County deputies seized more than $1 million a year from cars on I-44, according to reports filed with the Missouri State Auditor and obtained by the Sunshine Law. Under the nation’s controversial civil asset-forfeiture laws, police can seize property they think is connected to a crime and later spend the cash on law-enforcement purposes.
Records show Phelps County, like other jurisdictions, almost never files state criminal charges against those whose cash they seize, nor does it make big drug seizures during these stops targeting cash.
Deputies seized more than $2 million in 24 stops along I-44 near Rolla in mid-Missouri between 2016 and 2017. This extends roughly from Dixon, Missouri, and Sugar Tree Road on the west, past Doolittle and Rolla to St. James, Missouri.
No state criminal charges were filed in any of the 24 stops, records show.
Phelps County deputies seized property worth millions along Interstate 44 in 2016-2017, but charges were never filed against those drivers
Between 2016 and 2017, police in Phelps County seized more than $2.6 million in cash and other property along a 20-mile stretch of Interstate 44. In Missouri, a state seizure of property requires a criminal conviction. But for the 24 seizures documented on the interstate in that two-year span, seizure reports indiciate zero state charges were filed.
Phelps County’s prosecutor’s office reported estimated value of seizures and valued some items at $0. Image courtesy of St. Louis Public Radio.
Phelps County’s prosecutor’s office reported estimated value of seizures and valued some items at $0. Image courtesy of St. Louis Public Radio.
Law vs. reality
The reality of civil asset forfeiture on Missouri’s highways bears little resemblance to the goals of Missouri law.
Missouri’s law around asset forfeiture says police can’t seize property without a criminal conviction. And when there is a state asset forfeiture, the money goes to public schools.
But that’s not what happens.
Of the $19 million collected in asset forfeitures over the past three years, $340,000 has gone to schools. That’s less than 2 cents on the dollar. Most of the rest of the money went to law-enforcement agencies for new equipment, squad cars, weapons, ammunition and jail cells.
The Phelps County Sheriff’s Department purchased an active shooter simulator, shown in this photograph. The training tool was purchased using money seized through civil asset forfeiture. Image by Brian Munoz. United States, 2019.
The Phelps County Sheriff’s Department purchased an active shooter simulator, shown in this photograph. The training tool was purchased using money seized through civil asset forfeiture. Image by Brian Munoz. United States, 2019.
Instead of a criminal conviction to seize the property, police need only a preponderance of the evidence connecting the cash to drugs. “Preponderance of the evidence” means a claim is more likely true than not true. This is the standard used in civil as opposed to criminal cases.
Preponderance of the evidence requires 50.1 percent of proof. By contrast, a criminal conviction would require proof beyond a reasonable doubt, which some lawyers quantify as about 90 percent.
Often in the Missouri cases, like those in Phelps County, the cash seized is from a motorist who is neither charged with a crime nor caught with drugs.
Hooked on drugs
Missouri law’s high standard of proof is the result of a tough law passed after a six-part series in the St. Louis Post-Dispatch in 1991 titled “Hooked on the Drug Laws.” It documented police abuses in seizing property and then using it for departmental expenses.
Former State Sen. Wayne Goode, D-Normandy, a good-government advocate, shepherded the reform law through the Legislature in 1993. The law directed seized property toward public schools and required a criminal conviction for a state forfeiture.
Michael A. Wolff, counsel to then Gov. Mel Carnahan, remembers a top federal drug official coming to see the governor to urge him to veto Goode’s bill. Afterward, Wolff and Carnahan agreed that vetoing the bill didn’t make sense because the federal drug war wasn’t working anyway. Carnahan signed Goode’s bill.
On paper, the law seems crystal clear. The state constitution states “the clear proceeds of all penalties, forfeiture and fines collected … for any breach of the penal laws of the state … shall be distributed annually to the schools.”
The Goode law also requires a criminal conviction—proof beyond a reasonable doubt—before property can be forfeited to the state.
The off ramp that allows local police and sheriffs to detour around these legal requirements is the federal Equitable Sharing Program. It permits local law-enforcement agencies to turn over their civil asset seizures to the federal government, which then “adopts” them. The feds keep 20 percent for their trouble and return up to 80 percent to the local law-enforcement agencies.
It’s a legal way to wash away the strict state law requirements. The requirements of a criminal conviction and school funding do not apply. Instead, most funds are returned to local police who spend them.
Phelps County stretches roughly from Dixon, Missouri, and Sugar Tree Road in the west, past Doolittle and Rolla to St. James, Missouri. Image by Brian Munoz. United States, 2019.
Phelps County stretches roughly from Dixon, Missouri, and Sugar Tree Road in the west, past Doolittle and Rolla to St. James, Missouri. Image by Brian Munoz. United States, 2019.
Looking for suspicious cars
Court records and interviews with police and lawyers paint a picture of how the process works.
Officers led by Sgt. Carmelo Crivello patrol I-44, watching for suspicious vehicles and then looking for a traffic violations to stop the vehicles—such as changing lanes without a blinker, or touching tires to the rough fog strip on the right of the road.
After the stop, officers separate occupants in the car and question them, looking for discrepancies in their stories. Based on discrepancies, the police ask if there is money or drugs in the vehicle and then ask for consent to search. Most drivers consent. If not, the officers detain the vehicle until a drug-sniffing dog arrives. If the dog indicates the presence of drugs—as it almost always does—police search the vehicle. Critics, such as David B. Smith, a Virginia lawyer, say this amounts to a “charade” because of the unreliability of the dog alerts.
If police believe there is a connection to drug trafficking, they seize the cash even though they don’t have enough proof of a crime to file criminal charges. That’s a far cry from the “beyond-a-reasonable-doubt” standard Missouri law would appear to require.
In the vast majority of the seizures, no state criminal charges are filed, no drugs are seized, and no money goes to public schools. The police keep the cash, and the suspects continue on their way.
Many of the suspects have Spanish names, although the department says it does not use racial profiling. Sixteen of 24 stops during 2016 and 2017 involved drivers with Hispanic names.
The $2 million-plus in cash seized from those stops was sent to the federal government’s Equitable Sharing Program, which then returned most of it for law-enforcement purchases instead of school construction.
Dan Alban, a lawyer for the libertarian Institute for Justice that presses for forfeiture reform, has studied how local law enforcement in Missouri circumvents the state law and how highway interdiction is used to seize people’s property around the country.
“They need reasonable, articulable suspicion to conduct a traffic stop,” he said in an interview. “Once they’ve searched the vehicle—either because they obtained consent or have an alert from a drug dog—they are supposed to identify evidence that any property they seize is connected to a crime. That alleged crime will almost always involve drugs, even if there are no drugs in the car.
“Often, the alleged evidence of criminal activity is based on someone supposedly matching the profile of a drug courier, which can include traveling in a known drug-trafficking corridor, traveling with whatever the police consider to be a large amount of cash, driving a rental vehicle, supposedly inconsistent stories about their trip, bloodshot eyes, nervousness or even air fresheners hanging from the rearview mirror. Unfortunately, (this) is a very low standard for seizures in these traffic stops and can be pretty subjective or even manufactured.”
Phelps County Sheriff Richard L. Lisenbe, himself an expert on highway interdiction, said the asset-forfeiture program hurts organized drug traffickers and is a lifeline for law enforcement.
Forfeiture is “the only thing that keeps our head above water,” he said in an interview. “Most departments don’t have much income … What we use it for is typically training and equipment,” radios, cameras, guns, ammunition. “Before we got in this asset-forfeiture thing, we were driving cars that had 300-400,000 miles on them.”
The sheriff says forfeiture is a “big part” of why the county has a renovated jail. “We saved that money hoping we could do this … This is at no cost to Phelps County whatsoever.”
No drugs, no charges, no money for schools
About $1 million has been returned to Phelps County each year, providing $2.3 million for the new county jail, in addition to more than $100,000 for computers a…
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