Illegal Arrests Now Okay?

Illegal arrest

The U.S. Supreme Court is gradually eroding your 4th Amendment rights. Recent opinions give police broader powers to arrest citizens even if they are not breaking the law. Washington State has stronger protections against illegal search and seizure but, Prosecutors will be excited by recent SCOTUS cases.

Want more info? Read the this excellent article by law professor Erwin Chermerinsky as published in this month’s ABA Journal. 

Charged with Possession?

The attorneys at Durflinger Oliver & Associates help those who have been charged with possession of a controlled substance or other contraband. Call (253)683-4180 today to schedule your free consultation.

Warrantless Record Searches

Warrantless Search

Prosecutors can snoop even if you’ve done nothing wrong.

Your private records aren’t so private. A Washington law adopted in 1971 allows investigator’s to get a suspect’s bank, phone, email and other records without a search warrant. Prosecutors have been able to get those records without even showing probable cause that a crime has occurred, the standard that applies to search warrants.  Instead, law enforcement can get the information with a subpoena issued under a lesser standard in a secret hearing called a special inquiry. But some judges and justices are having problems with these warrantless searches.

Justices on Washington’s Supreme Court heard arguments over whether that’s a violation of privacy protections in the state constitution. A King County senior deputy prosecutor argued that while a warrant is required to search someone’s home or their actual phone, probable cause should not be required to obtain records a person voluntarily turns over to third parties, such as phone records. Some justices questioned that analysis noting that in many cases phone companies or cloud computing firms maintain virtually everything that’s stored on a phone, making a records search very similar to a physical search. Justice Mary Yu stated,”The distinction you’re drawing between something that exists in the phone and what’s stored offsite is a reality that doesn’t exist anymore.” Defense counsel told the justices that such a vast intrusion into someone’s private affairs must require a more stringent showing by prosecutors than that required under the special inquiry law.

The Legislature created the special inquiry proceedings following a wide-ranging public corruption investigation in Seattle. They were designed to be a more efficient alternative to the grand jury system, which prosecutors found to be expensive and cumbersome. The procedure allows the judge to issue subpoenas for evidence, such as bank or phone records, at the request of a prosecutor who has ‘reason to suspect’ crime. Reasonable suspicion is a lesser standard than probable cause and that’s the problem. Under Washington’s Constitution, people can’t be disturbed in their private affairs without ‘authority of law’. The high court has never ruled on whether a special inquiry judge subpoena meets that standard. Under the federal constitution, such third-party records are not generally protected but Washington’s Constitution is considered more protective of people’s privacy.

Prosecutors have used the special inquiry judge subpoenas as substitutes for warrants. The justices noted that subpoenas are used to obtain records in a variety of legal proceedings, including civil business disputes and divorces, however, the key difference is that the records aren’t obtained by police. Furthermore, the party whose records are being sought has an opportunity to contest the subpoena or narrow the scope. No such opportunity is afforded under the special inquiry law; the person whose records are being searched may not ever learn about it. If the court rules that probable cause is needed to obtain records in criminal investigations, it should also clarify that subpoenas based on less than probable cause are still valid in other settings. The Seattle attorney who challenged the use of special inquiry proceedings stated, “Sometimes you want things to be more difficult and more expensive for the government, to discourage them from sifting through all our records.”



Criminal Attorney

Civil Forfeiture Update – Sort Of

Police Abuse

You owe us that money, say cops.

Attorney General Eric Holder’s January 16th order modifying the DOJ’s civil asset forfeiture policy is a step in the right direction, but does not go far enough. Civil asset forfeiture laws empower law enforcement agencies to seize property that is “associated” with criminal activity without having to charge the owner with a crime. Although there are many problems with this law, Holder’s order only deals with the issue of adoption. It does not eliminate the Justice Department’s Equitable Sharing Program, which lets police dodge state limits on forfeiture. Any civil forfeiture attorney will tell you that this is a problem.

Part of the confusion lies in the different terms the federal government uses to describe the different ways it works with state and local police agencies to seize assets. “Equitable sharing” is the broad term the government uses any time the feds and local police use federal forfeiture law to split up the assets seized in a joint investigation. “Adoption” cases are a subset of cases within the equitable sharing program. Adoption cases have minimal federal involvement. They are cases in which a local police agency simply calls up a field office of the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives or other federal law enforcement agency to sign some papers so that the case gets kicked up to federal court, where it will be governed by the less restrictive federal forfeiture laws.

Federal agencies will no longer be able to accept or “adopt” assets seized by local and state law enforcement agencies. Adoption from now on will be limited to property that directly relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography; it notably does not include drug cases, which account for a large share of forfeitures. That is good news, since it means cops cannot seize cash or other property based on vague, unsubstantiated suspicions that it is somehow related to drug activity and then use adoption to keep up to 80% of the loot. But cops still can do essentially the same thing if the seizure results from an investigation assisted by or coordinated with “federal authorities.” That’s a big loophole.

Money For Nuthin

seizure and forfeiture

What are you gonna do if I take your stuff?

What if cops could call you a drug dealer and take all the money you have in your pockets? To make things worse, what if you then had to prove that you’re not a drug dealer in order to get your money back? Sounds like theft, doesn’t it?! Unfortunately, cops “steal” money like this from innocent people every day using a process called “Civil Forfeiture”, or seizure and forfeiture.

Civil forfeiture is legal process where police take money and property – cash, cars, houses, etc. – from persons “suspected” of illegal activity even if those people are never charged with a crime. To get their possession back, the owner must prove that the stuff seized was not involved in any criminal activity. Because these cases are civil actions, property owners receive few if any of the protections that criminal defendants enjoy.

Civil forfeiture can be a powerful tool used against drug dealers, and other criminals. Unfortunately, there are serious temptations for cops. Most, if not all the property that is taken by the cops, stays with those police agencies. This gives agencies a direct financial incentive to “police for profit” by seizing and forfeiting as much property as possible.

In August of 2013, the federal government used civil forfeiture to obtain a secret warrant to seize Carole Hinder’s entire bank account—totaling nearly $33,000—even though she did nothing illegal. For 38 years, Ms. Hinder has owned and operated a restaurant that only accepts cash. She regularly made frequent deposits of less than $10,000. Federal law requires banks to report cash deposits larger than $10,000; the government thought she was deliberately making small deposits to evade the reporting requirement.  She’s still guilty until proven innocent, and fighting to get her money back.

Things got worse after 9/11 when the government called on police to become the eyes and ears of homeland security on America’s highways. Local officers, county deputies and state troopers were encouraged to act more aggressively in searching for “suspicious” people, drugs and other contraband.

After stopping drivers for simple traffic infractions, law enforcement officers are asking drivers how much cash they have with them, and whether cops can search their cars, purses, pockets, etc. Too many drivers are afraid to say no.

Matt Lee was driving from Michigan to California to start a new job. He had $2,400 his dad had given him to get started. He was stopped in Nevada for a traffic infraction and asked how much money he had with him. Even though the officer performed a canine search of his car and found no drugs, he confiscated the money stating that it was to be used to purchase drugs. In Washington State, a 2001 Seattle Post Intelligencer article reported that one out of five people whose assets were seized, in one county in the state, were never charged with a crime.

Interestingly, there appears to be no limitations on how this seized money can be spent. The District Attorney’s Office in Worcester County, Massachusetts purchased a Zamboni while the Montgomery County, Texas District Attorney’s Office used the funds to purchase kegs of beer, crown royal and a margarita machine for an office party.

If your money or property has been seized, you can trust the experienced former prosecutors and experienced seizure attorneys at Durflinger Oliver & Associates to do everything possible to get your property back for you. Call today!

~ Martha McLaughlin, Sr. Associate