Ladd Erickson: Law Enforcement Shouldn’t Need a Conviction to Exercise Civil Asset Forfeiture

This guest post was submitted by McLean County State’s Attorney Ladd Erickson.

To Rob, the broader media, and to Bismarck Representative Rick Becker, a criminal conviction as a precondition to asset forfeitures is a commonsense requirement.

For prosecutors and police officers, that same precondition in HB1286 is unworkable.

To my team, we have to charge criminal cases in the county where the offense occurs.  Profits from crimes, on the other hand, are fluid and may get seized many counties or even states away from where the crimes must be charged.  Drug money, for example, works its way down drug dealing networks to southern states or Mexico.  In North Dakota, it may get seized by the police on the way out of the oil patch or coming down I-94, and be wholly outside a county where the crimes were committed.

Our legislators are well aware of the extent drug dealing networks are operational in North Dakota because every session they approve appropriations into the tens of millions of dollars for the Department of Corrections; Department of Human Service’s treatment programs; BCI agents; and other needs to address the damages these secretive networks cause.  Yet, HB1286 offers those same legislators forty pages of intertwining policy provisions designed to wall off judges from prosecutors and police officers so they can’t prove to them that seized assets are ill-gotten profits.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]Rob asked why it was controversial to require a conviction before property is forfeited in his post on HB1286 last week.  My answer to him is the real world isn’t that simplistic.[/mks_pullquote]

With routine asset forfeiture examples, I and others attempted to show the House Judiciary Committee how HB1286 walls off our judges from hearing asset forfeiture evidence:  On July 21, 2016, a McLean County deputy stopped a pickup for a traffic violation on Highway 83 after the Ward County Narcotics Task Force tipped him off that the driver may be on his way to Bismarck with money from heroin sales in Minot.  The deputy’s drug dog hit on the pickup, $24,832.00 was seized from the air cleaner housing, and some of that money was serialized BCI buy money from undercover heroin purchases in Minot.

The pickup driver may later have been charged and convicted in Ward County when their undercover operation was completed, but there couldn’t be any charges or convictions in McLean County because there were no crimes committed in McLean County.  HB1286 says forfeitures can’t be “initiated until the owner of the property has been convicted” of a criminal offense.  First, I have no idea who the “owner” of that $24,832.00 was.  I know who had it in his air cleaner on his way to pay a larger heroin supplier up the chain in his drug network someplace, but that doesn’t mean the driver “owned” that money any more than the Domino Pizza delivery kid “owns” the money you paid him for your pizza.  Second, even if the driver “owned” that money, I can’t convict the driver of any crimes because his crimes occurred in Ward County, not McLean County.  In this forfeiture case, all I could prove beyond a doubt to a judge was that it was all heroin money.

In July 24, 2018, a McLean County drug interdiction deputy stopped a California car for speeding with two white supremacist Aryan Brotherhood gang members in it.  As the search of the car and investigation later unfolded there were some drugs in the car, and one of the guys had a bagged chunk of meth in his rectum, which was noticed by a jailer booking him in.  The car they were driving was a 2016 Hyundai Elantra which had been modified with hidden compartments and a spring loaded button released gun tray under the dash that contained a 9 mm pistol.  A search warrant download of their cell phones showed a video taken six hours before the stop with them flashing $15,000.00 in cash and saying they made that in “two nights and still had product to sell.”

The car’s registered owner was a woman from Carmichael, California and she immediately began calling and demanding her car back.  Under current North Dakota forfeiture law we have an innocent third-party owner exception which precludes forfeiture of property unless the prosecutor proves to a judge the registered owner consented to their property being used to commit felonies in our state.  These text exchanges between the women and one of the guys were on a phone:

Woman: “I funded the trip to North Dakota.”

Woman: “Are things going as planned at projected prices.”

Woman: “I was told 30k take home and I get 4K.”

Guy: “Stop texting and I’ll check on what’s left.”

Guy: “LB (pound) of clear (meth) is ounce heavy so I’m taking some of it.”

Guy: “People are selling their mothers for us to come and flood their towns.”

What could I have charged this woman with?  Possession with Intent to Deliver Methamphetamine? No. She didn’t possess any drugs in McLean County.  Conspiracy (which means “agreement” in criminal law) to Deliver Methamphetamine in McLean County?  I have no evidence she “agreed” to deliver meth to anyone in McLean County, and I don’t know which county or counties in our state the guys in the car were getting people to “sell their mothers” for their drugs.  All I could prove beyond a doubt to a judge was that the woman was not an innocent car owner.

Rob asked why it was controversial to require a conviction before property is forfeited in his post on HB1286 last week.  My answer to him is the real world isn’t that simplistic.  The North Dakota law enforcement community believes in the Founding Fathers constitutional principle that no one shall be deprived of property without due process of law.  In defining due process, as that principle applies to asset forfeitures, we believe in high burdens of proof on the prosecutor in forfeiture cases.  We believe ensuring constitutionally valid seizures of property occur before that property can be forfeited.  We believe our judges should be able to deny a forfeiture petition if they think it’s excessive or not proportional to the circumstances.  And, we believe in a centralized reporting system where all forfeitures in the state are annually compiled for public review and understanding.

What we object to is HB1286’s attempt to lead our state into the wilderness of walled off judges barred by the bill from even hearing our evidence, and the profit protection HB1286 offers the drug networks.