Drug Enforcement Agency officials often had to return some or all of the money they seized from people they stopped in transit hubs like airports and train stations in hundreds of contested cases.
In a process known as “cold-consent encounters,” DEA agents can approach a person “based on no particular behavior” and question or even search the individual if he or she agrees on the spot, according to the Department of Justice inspector general in a report ripping the practice for its lack of oversight.
“Such cold consent encounters can raise civil rights concerns,” the inspector general said.
Between 2009 and 2013, the DEA took $163 million from suspects through 4,138 different seizures, including cold-consent encounters. But one-fifth of those seizures were contested in court or through complaints to the DEA itself, forcing the agency to return a portion of the cash in 41 percent of the disputed cases.
In all, DEA officials had to give $8.3 million back to the people they searched. The inspector general couldn’t determine the portion seized funds that came from cold-consent encounters, however, because the Justice Department didn’t track which apprehension methods brought in cash.
“Without this information, there is no way to assess the effectiveness” of the cold-consent encounters, the inspector general said.
Paul Larkin, senior legal research fellow at the Heritage Foundation, said budget concerns push law enforcement agencies like the DEA — or, more often, state and local police forces — to seize ever-increasing amounts of money and property.
“Running government and running life has gotten more expensive,” Larkin said. “If expenses are going up and [law enforcement] needs alternative sources of revenue, one of the ways is through asset forfeiture.”
He said police can confiscate cash as a way to bring in funds for their department, a need that is especially pressing below the federal level because many cities and states have balanced budget requirements.
“To the extent that law enforcement can take in money by seizing assets, that’s money they don’t have to get from taxpayers,” Larkin said.
The inspector general discovered that some DEA agents misrepresented themselves — or worse, the ability of the traveler from whom they took the cash to protest the seizure — when they approached people at travel facilities.
For example, one DEA unit described its habit of allowing agents to approach people as they left airport security and search them by claiming to be performing a “secondary inspection.”
“We believe that using such terminology creates a risk that travelers will interpret the statement to mean they are required to consent to the encounter, similar to their obligations at a TSA checkpoint,” the inspector general said.
Larkin said DEA agents posing as airport security guards in order to conduct searches “goes too far” from what should be legally acceptable.
Other agents asked people who denied owning the seized cash to sign forms at the time of their cold-consent encounters saying “that they have no claim to the currency and are waiving their rights.”
However, the agency had no consistent policy for using such forms and the top attorney in the DEA’s Asset Forfeiture Section told the watchdog such documents are not considered legally binding if contested.
“There are serious problems with asset forfeiture in this nation,” Larkin said. “That’s because police are abusing their authority because asset forfeiture laws are grossly unfair to the average person.”
He said it is a significant legal problem when property can be implicated in a crime even when the person who owns it is not.
Asset forfeiture became a subject of discussion on Capitol Hill this week when Sen. Rand Paul, R-Ky., introduced a bill that stripped law enforcement agencies of some of the authorities they use to confiscate property.
“The [Fifth Amendment Integrity Restoration] Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process, while maintaining the ability of courts to order the surrender of proceeds of crime,” Paul said Monday.
Asset forfeiture surfaced again when members of the Senate Judiciary Committee raised the issue in Loretta Lynch’s attorney general confirmation hearing. Lynch responded to a line of questioning from Sen. Mike Lee, R-Utah, Wednesday by saying she “believes the protections are there.”
Go here to read the full DOJ IG report.
