Bad Cases Make Bad Laws

by | December 14, 2022

Editor’s note: This article is part of a series. Click here for the previous article.

Gordon Graham here! The “timely takeaway” in my last article on financial risks suggested you take a look online at “asset seizure and forfeiture.” When I commenced the study of this topic decades ago, my “pro-cop bias” crept in and I liked the concept. In a nutshell, when bad people commit crimes and benefit financially, law enforcement officers can seize the money and property involved in these “ill-gotten gains” and use these proceeds to benefit society. It made sense to me then and it makes sense to me now, but as you have heard over the years and in these articles, “bad cases make bad laws”—and this topic is no exception.

In the late 1980s, I was a California Highway Patrol (CHP) field sergeant in Los Angeles and I also was doing quite a bit of training for my department. One afternoon I got a phone call from the assistant chief in charge of training. He was an HQ guy I had met in the past and after all the introductory comments on the call, he posed this question: “How many major drug seizures have you been involved in so far in your career?”

That was an interesting query—I wondered where this conversation was going. I had been very active as a cop prior to promoting and as a sergeant I had a great squad of cops who seized a lot of drugs. So as I was calculating a number to impress the chief with my work, a thought popped into my head—what is his definition of major drug seizures?

His response floored me: “More than two kilos of heroin, or more than 10 kilos of cocaine, more than a pound of ‘rock’ or more than 20 kilos of marijuana.” (I always wondered why “rock cocaine” weights were referred to using the Imperial System of measuring weight and regular cocaine and heroin received a Metric Weight designation. My guess is this goes back to the days of the Revolutionary War but that is another story along the lines of why we drive on the right side of the road in the United States and the Brits drive on the left side of the road and why they add in O’s and U’s to some words. I guess since the U.S. invented “rock cocaine” we can measure the weight the way we want. But I am again digressing.)

I was embarrassed to tell the chief the truth—which was “none.”

While I dealt with a lot of drugs over the years, I was working in Los Angeles and most of my arrests for dope involved personal use or occasionally some low-level street dealer who had relatively small amounts of dope for sale. I had seen some major loads seized by the Los Angeles Police Department and the Los Angeles County Sheriff’s Department, but I had no personal involvement in these big arrests.

When seizing the cash rather than getting drugs off the street becomes the goal, I have some heartburn.

When I told him “none,” he explained the CHP was going to kick off a program called “Operation Pipeline” that involved the processes and laws involved in seizing drugs from vehicles traveling on major roadways (the pipeline) and he wanted me to teach a portion of the program dealing with the legal aspects of these arrests and seizures. But to do that, I needed to have some personal knowledge of major drug arrests.

Long story short, I got involved with some officers (from my department and others) who had made lots of these major seizures. At that time, I knew I was doing good stuff—helping train cops to get drugs off the street—and that was a good goal to have.

During my ride-alongs and discussions with experienced dope cops, I learned a lot. Almost all the cops I dealt with were solid and doing things right. But over the time I was teaching “Legal Aspects of Operation Pipeline,” I saw some behaviors that (while not illegal) were stretching the limits of the law.

One cop was very clever: He would stop a driver for a vehicle code violation (and this cop knew the code better than anyone I had ever met; he could always come up with some section of the Vehicle Code to justify the stop). If he suspected the car was carrying some serious dope, he would ask the driver, “Have you used cocaine today?” When the driver said, “No,” the officer would ask, “Have you ever used cocaine?”

Some drivers would say “Yes.” And then the officer’s next question would be, “And when was that?” Let’s say the response was “last year” or something along those lines. The cop’s next question was, “Did you get arrested for using cocaine then?” The suspect would say “No,” at which point the cop would say, “Well, you are under arrest for that now.”

His logic was (and this is indeed a stretch) that use of cocaine was a felony and there was a three-year statute of limitations in California, and this guy just admitted he had committed a felony a year ago and had not been arrested, so “you are under arrest now” was a legal arrest. And thus, the cop had probable cause to search the vehicle for evidence. When I later read the involved report, that is exactly what he wrote, and the D.A. would file the case. In my head, that was a “stretttttttch” of the law—but the prosecutors did not have a problem with it.

Every time law enforcement seizes property or cash from someone who is not involved in criminal activity, it bolsters the arguments of those who are against seizing assets from criminal activity.

Over the next couple of years, I noted another trend. Cops indeed seized the dope, but they were also seizing the car (even if not owned by the suspect carrying the dope) and copious quantities of cash. It hit me one night: Some cops (and departments) are more concerned with the cash than they are the illegal drugs.

At this point you may be thinking, “Gordon, is there a point here?” I assure you there is.

Richard Thornberg was the Attorney General during the Reagan Administration (same 1980s timeframe) and he would regularly say:

“It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”

I had no problem with seizing the assets associated with criminal activity then—nor do I have a problem with it now. Nor do I have a problem with Mr. Thornberg’s thoughts on how to use this seized money. But when seizing the cash rather than getting drugs off the street becomes the goal, I have some heartburn. This “heartburn” intensified about 20 years ago when I was visiting a police department and during this visit a cop made a stop and seized a huge amount of cocaine. When the chief learned there was no cash seizure, he was visibly angry and viewed this seizure of dope a “failure.”

I am closing in on my word count, but go back to the beginning of this article: If you did search online for “asset seizure and forfeiture,” you read about “bad seizures” of cash—gifts from relatives, proceeds from restaurant sales, money intended to buy a car, inheritance money—and after the seizure of cash (and other property), the legitimate owner had the burden of proof to show there was no criminal activity. That is expensive and time-consuming for them—and in my head it is not right.

I am not alone in this thinking. Every time law enforcement seizes property or cash from someone who is not involved in criminal activity, it bolsters the arguments of those who are against seizing assets from criminal activity. And if that happens often enough, sooner or later we will lose the ability to strip the “ill-gotten gains” from criminal suspects.

Again, back to paragraph one of this piece: Bad cases make bad law. Please make sure the seizures your cops are making meet not just the letter of the involved laws, but also the spirit of the law. It is the right thing to do.

Timely TakeawayTimely Takeaway—Using your favorite search engine, do a search for “misuse of public safety grant money.” I will fill in some blanks on this issue in our next visit together.

GORDON GRAHAM is a 33-year veteran of law enforcement and the co-founder of Lexipol, where he serves on the current board of directors. Graham is a risk management expert and a practicing attorney who has presented a commonsense risk management approach to hundreds of thousands of public safety professionals around the world. Graham holds a master’s degree in Safety and Systems Management from University of Southern California and a Juris Doctorate from Western State University.

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