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The Ohio Patrolmen's Benevolent Association (O.P.B.A)

When is Property Subject to Criminal Forfeiture?

Imagine you pull over a driver for a routine traffic stop. The driver, a known drug dealer, is driving under a suspended license. After arresting the driver, you search his car and find $7,000 in the glove compartment. The driver cannot account for the source of the money.

That's quite a large sum of cash, and especially suspicious for a known criminal. The money is unaccounted for and discovered during the commission of a crime. Is the $7,000 subject to criminal forfeiture?

If you said yes, you guessed incorrectly.

In order to be eligible for criminal forfeiture, the property must meet two elements. First, it must belong to the defendant. Second, the property must be tied to the charged crime.

Referring back to our example, the money meets the first element of forfeiture. There is no reason to suspect the money would belong to anyone other than the driver, especially if the car he is driving is his.

However, the money does not meet the second element of forfeiture. Although the driver was committing a crime by driving under suspension, the money has no bearing on that particular crime. A criminal plus unaccounted money does not equal a forfeiture.

According to section 2981.02 of the Ohio Revised Code, property subject to forfeiture must either be contraband or property that was obtained through or used during the commission of the particular crime for which the suspect is charged.

It is important to note the difference between property seized as evidence and property seized as a criminal forfeiture. Evidence will be returned to its owner after the defendant's case is resolved – even if law enforcement has reason to suspect that the property was illegally obtained.

We once had a case in which men broke into a known drug dealer's home in a failed robbery attempt. When police arrived on the scene, they discovered thousands of dollars in cash in the man's home. Although the officers had good reason to believe that the money was profit from dealing drugs, the cash belonged to the victim and thus was not tied to the charges brought against the defendants. Therefore, it was not subject to forfeiture and was returned to the victim.

Criminal forfeiture is presented to the grand jury as a specification tied to a particular charge. The grand jury (or judge or jury in a trial) must first consider the actual charge. Then the jury must determine whether the property was used during the commission of the crime.

Officers testifying about forfeiture must be prepared to establish a connection between the property sought for forfeiture and the crime charged. Simply encountering a suspect in the possession of property for which they cannot account does not automatically mean the property is subject to forfeiture. The proper connection must be made between the property and the actual crime charged. The stronger the evidence, the more likely the judge or jury will find in favor of the forfeiture specification.

When considering seizing property as forfeiture, it may be helpful to consider the following questions:
•    Could the offense have been committed without the presence of the property in question?
•    Did the suspect have the property in his possession primarily to commit or attempt to commit the offense for which he has been charged?
•    How instrumental was the property in the commission of the crime?

In a criminal case, forfeiture can be considered a sanction or punishment. Therefore, it is the State's burden to prove beyond a reasonable doubt that the property in question meets all the requirements of forfeiture. The judge or jury must consider the above questions when determining whether property is subject to forfeiture. Considering those questions before you seize property may help to strengthen the case when presented to a judge or jury.

If the burden of proof seems too high for criminal forfeiture, civil forfeiture statutes exist and are successfully used by this office. The civil forfeiture burden is preponderance of the evidence. We can subpoena tax returns and other documents to shore up the proof for civil forfeiture. Civil forfeiture requires the proceeds to be derived from:
•    an offense or to be the instrumentality that is used in or intended to be used in the commission or facilitation of a felony offense or a misdemeanor authorized by statute, or
•    an attempt to commit, complicity in committing, or conspiracy to commit either of those offenses.

Interrogations and depositions can be used in a civil case as an additional tool for forfeiture. When in doubt about what to do, contact this office to discuss the information you have.

We have recently seen an increase in forfeiture specifications, and have had greater success with both criminal and civil forfeitures. By continuing to work together, we hope to continue that success.


This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh
Summit County Prosecuting Attorney

 

NAPO Victory: Treasury Issues Changes To IRS Normal Retirement Age

NAPO has been working with the Treasury Department, Members of Congress and members of the pension community on Treasury regulations and the enactment of Normal Retirement Age rules. Earlier this year NAPO met with key policy makers within the Treasury Department; Mark Iwry - the Senior Advisor to the Secretary and the Deputy Assistant Secretary for Retirement and Health Policy, George Bostick - the Benefits Tax Counsel, Harlan Weller - the Actuary in the Office of Tax Policy, Bill Bortz - the Associate Benefits Tax Counsel in the Office of Tax Policy and Bill Evans the Attorney-Advisor in the Office of Benefits Tax Counsel.  NAPO addressed the concerns of rank-and-file law enforcement on the pending implications of the proposed January 1, 2013 enactment of Normal Retirement Age guidelines

On April 18th, Treasury released updated guidance making modifications to the 2007 regulations. These changes are an important step in the right direction for NAPO’s membership for several reasons.

First, the “safe harbor” provision that allows public safety to qualify for “Early Unreduced Retirement” will now encompass pension plans that are combined with other plans. Therefore, officers will no longer be forced to wait longer to retire and receive benefits. NAPO has worked closely with the offices of Senator Herb Kohl (D-WI), Representative Bill Pascrell (D-NJ), Representative Ron Kind (D-WI) and Representative Sean Duffy (R-WI) to address this specific issue. We would like to thank them for their hard work and leadership.

Secondly, this notification clarifies in-service distributions for public safety. As long as an individual is participating in a plan and is older than 62, they are entitled to collect in-service distribution. We are aware that this does not solve all the problems with this issue and will continue to seek a legislative fix.

Finally, and most importantly, for the immediate future, the enactment date for the IRS Normal Retirement Age has once again been postponed. The new date of enactment has been moved to January 1, 2015.

NAPO will continue to seek a full exemption for public safety from the Normal Retirement Age and will work to raise awareness of the issues of HELPS Benefits. (If an officer retired under “Early Unreduced Retirement” then they do not qualify for HELPS Benefits. Under the HELPS provision, a public safety officer must have retired at “Normal Retirement Age” in order to obtain the privilege to use up to $3,000 from their retirement savings on a pre-tax basis for use toward health care insurance and long-term care insurance premiums.)

Please contact NAPO’s Director of Government Affairs, Rachel Hedge via email ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or phone (703-549-0775) if you have any questions regarding this or any other legislative issues.

 

Recent Legislative Victories: Amendments To Violence Against Women Act

Sometimes it is as important to fight for the prevention of legislation as it is to support it.

When the Senate considered the Violence Against Women Act (VAWA), S. 1925 NAPO was once again the premier law enforcement organization to take a position and oppose two harmful amendments to the bill.

The first was Senator Tom Coburn’s (R-OK) Amendment #2085 (S.A.2085), which identifies unnecessary duplication within the Department of Justice. The amendment would have a negative impact. Superficially it seems like a good piece of legislation. However, it is constructed in a one-size-fits-all manner and would have a negative impact on all Justice Programs. S.A.2085 is particularly harmful to rank-and-file because it requires the Department of Justice to cut its grant programs by at least $780 million. This cut would harm key programs that benefit law enforcement. Additionally, it provides for these cuts to be made without Congressional input.

The second was John Cornyn’s (R-TX) Amendment #2086 (S.A.2086), better known as the Safer Act, The Sexual Assault Forensic Evidence Registry Act of 2012. S.A. 2086 takes funding away from state and local law enforcement crime laboratories and requires certain grantees to send all rape kits to regional crime labs. In so doing, jurisdictions must divert time and resources away from their basic responsibilities. The language from the amendment was incorrect as written. It unintentionally decreases the amount of funding going to state and local crime laboratories that have already been appropriated in FY12 and proposed in FY13 funding bills. This would divert 7 percent of funding ($8.19 million for FY13).

Due to NAPO’s advanced opposition to S.A. 2085 and our work to educate members on its negative repercussion for law enforcement, the Coburn Amendment was not considered in the series of floor votes. This is one of the rare instances where what we prevent from happening was more important that what we can make happen.

The Cornyn Amendment failed to reach the necessary 60 votes needed for passage by 50 – 48 with 2 members not voting. To see how your Senator voted please click here.

The 112th Congress is nearly three-quarters complete and a vast majority of the votes that NAPO has deemed important have resulted in NAPO successes. This would not be possible without our membership continuing to contact members of Congress. Thank you for your hard work. It is important and appreciated.

 

NAPO Salutes the 2012 Top Cops Awards Recipients

California
Los Angeles Police Department
Motor Officer Kevin C. Cotter, Sr.
Detective Craig Marquez

Florida
Miami-Dade Police Department
Detective Oscar Plasencia

Illinois
Chicago Police Department
Sergeant Don Jerome

Massachusetts
Woburn Police Department
Officer Mark S. Gibbons

Michigan
Detroit Police Department
Police Officer Melissa Adams
Police Officer David Anderson
Sergeant Marcellus A. Ball
Police Officer Bradley N. Clark
Police Officer Rodney Cushingberry
Commander Brian L. Davis
Sergeant Tyrone Guinn
Sergeant Michael Ingels
Police Officer Theodore Jackson, Jr.
Sergeant James Kirklin
Police Officer Lacell D. Rue
Sergeant Ray Toufic Saati
Sergeant Carrie Schulz
Investigator Amir G. Smith
Sergeant Joseph Turner, Jr.

Nevada
Las Vegas Metropolitan Police Department
Police Officer John E. Abel
Police Officer Beaumont Hopson
Police Officer II Michael A. Ramirez
Police Officer II Corey A. Staheli
Police Officer David Williams

New Jersey
Paramus Police Department
Police Officer Ryan Hayo
Detective Rachel Morgan

New York
New York City Police Department
Detective 2nd Grade Fernando Almeida
Detective Steven J. Browning
Detective Christopher T. Condon
Detective Michael Sileo
Detective William L. Stevens

Ohio
Copley Police Department
Officer Ben A. Campbell

Tennessee
Chattanooga Police Department
Master Police Officer Lorin Johnston