Mark Friese: Judges, Not Cops, Should Control Disputed Property

A misconceived notion of procedural efficiency for police is an insufficient reason to abolish laws which protect North Dakotan citizens.  Directing police officers to abandon their investigative role by assuming the role of judge defies logic, and unfairly requires police to make legal determinations historically and logically reserved for law-trained judges.

House Bill 1297 is scheduled for hearing before the House Political Subdivisions Committee tomorrow.  Citizens and police equally should urge the Committee to reject the bill, which seeks to abolish N.D.C.C. §§ 29-01-20 and 29-01-21, two long-standing provisions of North Dakota law.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]The statutes provide that if police take custody of stolen property, the police must obtain approval of a judge before the property is released.  The statutes further provide that once the judge obtains satisfactory proof of ownership, the judge may release the property.  Apparently, one local police agency is asking the legislature to abolish these laws so that the police, rather than a judge, will determine to whom and when the property will be released. [/mks_pullquote]

The statutes provide that if police take custody of stolen property, the police must obtain approval of a judge before the property is released.  The statutes further provide that once the judge obtains satisfactory proof of ownership, the judge may release the property.  Apparently, one local police agency is asking the legislature to abolish these laws so that the police, rather than a judge, will determine to whom and when the property will be released.

If the legislature agrees, the impact is much larger than simply having police serve as judges.

In 1991, the legislature adopted a series of statutes in Chapter 29-31.1, governing property forfeiture and disposition.  Subject to limited procedural requirements, those statutes allow police to seize and dispose of property taken or held by a law enforcement officer, whether the property was obtained with or without consent of the owner.  Since 1991, Sections 29-01-20 and 29-01-21 have co-existed.

If House Bill 1297 is adopted, stolen property—which now requires judicial approval for disposition—will become “forfeitable property” under N.D.C.C. § 29-31.1-01(1).  As forfeitable property, under N.D.C.C. § 29-31.1-05, “[t]itle to, and responsibility for, forfeitable property vests with the seizing agency at the time of the seizure.”  Further, the law allows for the seizing agency to retain the property “for official use.”  In simple terms, if adopted, HB 1297 would transfer title of stolen property to the police, and the police can convert the property to their own use.

Police are neither trained nor equipped to determine the complexities of property ownership.  Property reported as “stolen” often is not stolen at all.  Instead, ownership and right to possession are disputed. Under existing law, a repair shop may retain possession of property until paid for the repairs.  These possessory liens are common.  If the owner reports the item as stolen, and police seize the property from the repair shop and return it to the owner, the possessory lien is extinguished.

Co-owners of property may claim superior ownership, a bank may have a lien, title transfers may be incomplete, or sometimes wholly innocent purchasers buy property for fair value, later learning the seller did not have authority to sell.

A recent case underscores the necessity of existing law.

Last May, agents of the Bureau of Criminal Investigation raided the shop of a Dickey County resident.  Agents broke open the door and disabled the building’s security cameras.  They threatened onlookers with prosecution, pointed loaded guns at them, and deleted their cell phone photographs.  The shop owner had purchased a loader in Iowa.  Before the purchase, over the course of several days, he made inquiry of implement dealers, banks, insurance companies, and others to verify the seller had authority to transfer the loader.

Finding no evidence of theft, he purchased the loader and transported it to North Dakota.  He invested several thousand dollars and substantial time making repairs and improvements.  Several weeks later, a Minnesota trucking company reported the loader as stolen.  The Dickey County resident was contacted by insurance investigators and police.  He acknowledged having the loader, and allowed authorities to inspect and photograph the loader at his shop.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]Dispensing with court involvement for the convenience of police will result in more hurt citizens.[/mks_pullquote]

He offered to release the loader, but simply wanted to be reimbursed for the purchase and repair costs.  The trucking company refused.  The company pressed the local state’s attorney and local sheriff to seize the loader.  Both rightfully declined, noting the resident was a “good faith purchaser,” who had both an ownership and possessory interest in the loader.

Thereafter, the trucking company convinced the BCI to obtain a warrant and seize the loader, alleging it was stolen property.  The warrant and the statutes at issue in HB1297 required the police to safeguard the property until the issuing judge authorized release.  The supervising agent ignored the warrant and the law, and after seizing the loader, gave it to the trucking company.  When the judge ordered the BCI to return the loader, the trucking company became uncooperative, and refused to comply with the court order.  Instead, they took the loader to Texas or Mexico.

Despite their claims to the BCI, it turns out the trucking company did not own the loader at all.  The agent and the BCI have been held in contempt, and an appeal is pending.  A Dickey County resident has lost more than $50,000 as a result of the BCI agent’s mistaken transfer of property.  With the loader out of state, and beyond the reach of the North Dakota courts, he has no meaningful remedy.  No judge would have authorized release of the loader until the competing ownership and possessory interests were resolved.  The law—if followed—would have protected the resident.  Ironically, had the agent followed the law, he would not have been held in contempt.

Dispensing with court involvement for the convenience of police will result in more hurt citizens.  Certainly it would be more convenient for police to issue their own search warrants, but the law requires a judge’s involvement.  The police would probably prefer to determine whether their accused is guilty rather than having a jury decide, but the wishes of the police must yield to the protections of citizens.  House Bill 1297 is bad for the police and for the citizens of North Dakota.