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Conviction or Not, Seized Cash Is ‘Cost of Doing Business’ in Louisville

Theron Carson sits on the floor with his daughter watching cartoons. Carson was charged with trafficking marijuana and had $1,200 seized from his home after the police smelled weed coming from his Newburg apartment and conducted a search. Image by J. Tyler Franklin. United States, 2019.

Theron Carson sits on the floor with his daughter watching cartoons. Carson was charged with trafficking marijuana and had $1,200 seized from his home after the police smelled weed coming from his Newburg apartment and conducted a search. Image by J. Tyler Franklin. United States, 2019. 

Theron Carson and his friends were smoking weed and playing video games when the police showed up at his door.

It was 1 a.m., and the officers told Carson someone complained about the smell. The quickest resolution of the problem, they told Carson, was to allow them to search his Newburg apartment.

After police found his weed and his digital scale, they emptied his wallet. Then they charged him with drug trafficking.

Carson, now 24, says he is not a drug dealer. The $1,200 police took was earned legally, he said, and a mix of rent money, bill money and cash he and his girlfriend socked away in preparation for their daughter’s birth. He wanted to fight the case and get his money back.

But when he showed up for his March 2018 court date, prosecutors were willing to give him a deal: plead guilty to a lesser charge of possessing marijuana and avoid prison time. But his $1,200? Gone.

His public defender told him the risk of fighting was too high, and advised him to voluntarily give up the cash. It did not feel voluntary to Carson.

“I was devastated,” he said. “But there was no other option.”

Money seized through asset forfeiture provides leverage in resolving drug trafficking cases and has become an ingrained aspect of the justice system in Louisville, records and interviews with attorneys, defendants and judges show. Defendants lose their money and property even when cases are dropped — or reduced to possession, a charge that doesn’t fall under the intent of the law and one for which police don’t generally seize assets, a Kentucky Center for Investigative Reporting investigation found.

Carson’s case was among 351 now-closed cases examined by KyCIR that involved asset forfeiture between 2017 and this June. Just one case proceeded to trial; the rest were resolved in deals that required the defendant to surrender any claim to money or property seized by LMPD.

In 1 in 4 of the closed cases, the defendant was not convicted of trafficking — but gave up seized property anyway.

Of the nearly $2.1 million seized by LMPD in the cases reviewed by KyCIR, about $328,000 came from cases where the defendant was not ultimately convicted of drug trafficking. Kentucky’s law says law enforcement officers can seize assets if they have probable cause to believe the assets are proceeds of drug sales.

Keeping property without proving the crime that sparked the seizure is problematic, said Steven L. Kessler, a private attorney based in New York City and asset forfeiture expert who often handles cases involving seized property across the country. If a forfeiture was tied to a particular crime, Kessler said, prosecutors should be willing and able to prove it.

LMPD Assets Seized, by Neighborhood

KyCIR reviewed 351 court cases between January 2017 and June 2019 where LMPD used asset forfeiture. Here's where the assets were taken, and how much. Note: the seizures reported here were conducted by LMPD only. This data does not include seizures by suburban metro police departments, and if seizures are reported in those areas, they were involved in LMPD cases.

“If there is no crime, then there’s no crime,” Kessler said. “The cash should be returned, the car should be returned, the property should be returned, and the case should end right there.”

LMPD officials declined to be interviewed for this report. Mike O’Connell, the Jefferson County Attorney, did not agree to be interviewed. His spokesperson, Josh Abner, said in an email that defendants have legal counsel and are informed of their rights in order to make an informed decision before agreeing to plea deals involving asset forfeiture.

Jefferson County Commonwealth’s Attorney Thomas B. Wine said in an interview with KyCIR that losing cash is the “cost of doing business” if you’re caught with drugs and money, regardless of how the case is resolved.

“To somehow suggest that money is going to make a difference for any of us, at least here on the prosecution side, is ridiculous,” Wine said. “It’s not worth it for the prosecutors that I work with.”

Though surrendering seized cash was part of the deal in every case KyCIR reviewed, Wine said that doesn’t mean the money is used as a bargaining chip by his prosecutors.

But Leland Hulbert, a former spokesperson for the Jefferson Commonwealth’s Attorney now in private practice, said surrendering cash is often a simple, almost expected, concession defendants can make to appease prosecutors and help resolve a case.

“It sounds bad,” Hulbert said. “But at the end of the day, most people caught with their foot in the trap are going to pay whatever it takes.”

On All Sides Of Forfeiture Cases, Plea Deals Favored

Though asset forfeiture usually accompanies a criminal case, Kentucky law doesn’t require it — or require a conviction for law enforcement to keep the money.

About 16 percent of the defendants saw their trafficking charges amended to lesser crimes, such as possession — a crime that would not likely result in police seizing assets, records show. But by and large, police and prosecutors still kept the money.

The seizures in Louisville disproportionately affected African Americans: The city’s population is just 23 percent African American, but at least 56 percent of the defendants in asset forfeiture cases were black; racial information was not disclosed or available for about 8 percent of cases.

LMPD assets seized by race. Graphic courtesy of Alexandra Kanik. United States, 2019.

LMPD assets seized by race. Graphic courtesy of Alexandra Kanik. United States, 2019. 

About 8 percent of the defendants in the cases reviewed by KyCIR saw trafficking charges dismissed outright — but they still agreed to give up the money when the case was settled.

Drug cases can be complex, according to Ebert Haegele, the division chief of the Jefferson Commonwealth’s Attorney’s narcotics unit. Plea deals with softer penalties are offered to defendants with light criminal records, or those who are willing to provide information to law enforcement, among other reasons, Haegele said.

“There’s lots of reasons why [narcotics] cases get amended,” Haegele said. “Police officers or detectives are involved in that process and understand everything that’s going on.”

Wine, the commonwealth’s attorney, said he has little sympathy for people caught with drugs and money.

“These people have cost us a tremendous amount of money,” Wine said, pointing to the effect of the drug trade on families and neighborhoods.

In fact, Wine said, people are often eager to part with the money to avoid the perception they were dealing drugs.

“The more somebody screams they want that money, the more likely it is that we’re going to say, ‘Well, that’s evidence that you’re using it for trafficking,’” Wine said. “Either you possess the drugs with the intent to sell, and the money is evidence of that crime, or you didn’t, and you go to trial.”

But trials are rare: Wine estimates nearly 98 percent of cases his office prosecutes are settled with a plea deal.

Defense attorneys say this can sometimes be in the best interest of their clients, who are weighing a prison sentence against hundreds or thousands of dollars.

Many defendants, including Carson, were represented by public defenders. The Louisville-Jefferson County chief public defender, Leo Smith, didn’t respond to calls seeking interviews.

Hulbert, the former prosecutor, said the seized cash does help him as a defense attorney to broker deals for his clients.

“That’s one of the first things that pops in my head,” Hulbert said. “We can use that as a negotiating tool.”

Helping the prosecution get the case over with quickly means less work and less time for everyone, Hulbert said.

“It’s a conversation I have to have with my clients all the time,” he said. “‘Look, we can fight to get this back. But your resolution may be more difficult, you may get more years, you may get more time.’”

Keith Kamenish, an attorney who formerly served as the head narcotics prosecutor in the Jefferson Commonwealth’s Attorney office, said plea negotiations are processes of give-and-take between defendants and prosecutors. The process turns cash from supposed evidence into leverage, he said.

“No one’s going to ever be able to tell you how much money was a factor,” Kamenish said. “But the one thing they won’t tell you is that it’s not. It’s a matter of degree.”

LMPD assists seized base on police interaction. Graphic courtesy of Alexandra Kanik. United States, 2019.

LMPD assists seized base on police interaction. Graphic courtesy of Alexandra Kanik. United States, 2019. 

Drugs Plus Cash Equals Trafficking

Police and prosecutors say asset forfeiture is a key to combating the drug trade because it hits dealers where it hurts most: the wallet. And to be sure, some defendants are traffickers, busted after police develop substantial investigations.

But the seizures don’t always appear to be netting kingpins: LMPD officers seized less than $1,000 in nearly 40 percent of the cases.

In many of the cases reviewed by KyCIR, the trafficking charge was not based on first-hand observations or information that a person was selling drugs. Some began with chance encounters or traffic stops for minor violations, like excessive window tinting or signal violations. Officer explanations for charges often focused on the defendant having both drugs and some money — the cash itself considered to be proof of the crime.

The state’s asset forfeiture law says that “all moneys, coin and currency found in close proximity to controlled substances… are presumed to be forfeitable.”

Kentucky law dictates that the police department keeps 85 percent of what it seizes, and the rest goes to the state’s prosecutors.

Kamenish said the potential to profit can blur the officers’ discretion and influences how they charge crimes. If officers feel pressure to seek out and seize cash, that can come at the expense of justice, he said.

“Sometimes the charge fits the money seized, instead of money seized fitting the charge,” Kamenish said. “Any honest defense attorney or prosecutor or officer will tell you that.”

Alex Payne, the commissioner of the Kentucky Department of Criminal Justice Training, said officers statewide are taught to consider the evidence and charge accordingly. The amount of drugs present, how they’re packaged, and also how much money an individual is carrying and if they have any other items like scales or bags are all considerations in whether to charge a person with trafficking, Payne said.

But officer discretion varies based on experience, their training and the demographics of people they police, Payne said.

“You can only train them to do the right thing,” Payne said. “Do they all remember that? No.”

Wine trusts his prosecutors to distinguish between dealers and users, who he said need treatment instead of punishment. But sorting out who’s who is tough because both dealers and users often carry cash and drugs, items police and prosecutors consider to be clear indicators of trafficking.

In an emailed statement, LMPD spokesperson Jessie Halladay said the law is clear on what may be considered possession or trafficking, and officers are responsible for understanding state law.

Among the cases reviewed by KyCIR:

  • Police stopped a man in January 2017 for failing to use a turn signal while leaving “a high narcotics area,” according to an arrest citation. The officer reported smelling marijuana but didn’t find any; instead, a search netted a needle loaded with suspected meth, two pills and a “large amount of money”: $231.
  • An LMPD officer arrested a man suspected of selling synthetic marijuana at a west Louisville gas station in March 2017. In the arrest citation, the officer noted the man possessed a “large amount of lower denomination bills” in his wallet. The “large” amount of cash officers seized: $33.
  • In February 2018, a woman was charged with trafficking at Fourth Street Live after she threw a wad of about $400 cash and some marijuana at a security guard during an argument, according to an arrest citation. She had a half-ounce of marijuana, which officers determined to be “an amount that would normally exceed personal use.” That’s the same amount the Metro City Council deemed to be considered personal use this June when it passed an ordinance naming marijuana possession the city’s lowest law enforcement priority.

When these cases went to court, each one ended with a deal: Two were given lesser charges of possession. One, the man with $33, was convicted of trafficking. All lost the cash.

Few Even Ask For Money Back

On a recent weekday, after working his shift at a warehouse in Riverport, Theron Carson sat in his living room floor with his daughter, Layla. His girlfriend was pregnant when he was charged in 2017.

Cartoons played on the television as Carson reflected back on the night police burst in his door, prompting the charge of drug dealing and losing his $1,200.

“It was just trauma,” he said.

When he showed up for court in 2018, Carson had felt certain he’d get his money back.

The police didn’t actually have any evidence of him trafficking, he said: just a scale he says he uses to portion his weed and sandwich bags he uses for snacks. The amount of weed in his house did not seem like a lot to Carson, either. But in the end, he never got to make his case to a judge.

The raid left him uneasy in his home. The forfeiture left him and his girlfriend on shaky financial ground as they were trying to save all they could to prepare for the birth of their child. Thoughts of eviction swirled in his mind.

Looking back, he said he lost his money on a mere assumption he was dealing drugs, not on proof. For that, he doesn’t think the state deserved his money.

“They didn’t work for it. They just took it,” Carson said. “But you can’t win against them.”

Defendants have a right to file a motion in court to ask for their property back, but few do.

Judges told KyCIR they rarely see it happen, and defendants more often opt for the plea deals that include relinquishing their money. If surrendering seized cash can ensure a defendant leniency, they’ll often agree to give it up, said Jefferson Circuit Court Chief Judge Brian C. Edwards.

“If they can use that [money] as a tool to get probation, as opposed to going to prison, or to knock off a few years on a sentence, they’re not gonna pick that fight,” he said. “That’s not the hill they want to die on.”

Records show that LMPD returned property to defendants in about 100 cases between 2017 and this June. Those cases were not part of KyCIR’s examination because they weren’t included in LMPD’s seizure data.

LMPD provided additional data on returned property through an open records request, but refused to provide the names of defendants. In an email, LMPD spokesperson Alicia Smiley said “it is reasonable to presume that they were found not guilty in which case we would not release that person’s name.” Kentucky’s Open Records Act does not include any blanket exemptions for withholding names of people who are arrested but not convicted.

KyCIR could determine the outcome using other data in 33 cases. Nearly half were found guilty of trafficking. Police returned a car officers seized as part of a plea deal but still kept the defendant’s cash in 23 of the identifiable cases.

Kate Miller, advocacy director for the American Civil Liberties Union of Kentucky, said the costs of legal defense can certainly outweigh the value of the assets at stake, but that doesn’t void a person’s right to due process.

Miller said poor people too often suffer undue consequences within the criminal justice system because they lack the resources to defend themselves.

“We see that all the time where people have their liberty restricted, where people are detained, where people are incarcerated, simply because they’re poor,” Miller said. “And we see that when it comes to asset forfeiture, because the majority of people that are having assets seized are not kingpin drug dealers.”

It’s not always clear why defendants agree to part with their property. But the median amount seized in cases KyCIR reviewed was about $1,500, which means giving up the cash is often cheaper than the costs — and risks — of mounting a fight in court.

Theron Carson and his daughter, Layla. Image by J. Tyler Franklin. United States, 2019.

Theron Carson and his daughter, Layla. Image by J. Tyler Franklin. United States, 2019. 

‘It was way easier’

Ronald Traynor said giving up his seized money made the difference between prison and diversion after he was arrested for trafficking in October 2017.

Police obtained a search warrant for Traynor’s apartment after he allegedly sold crack cocaine to a confidential informant in a controlled buy, according to police records obtained through an open records request.

When police showed up, they found an assortment of drugs, as well as plastic bags and scales.

He said he does not sell drugs, and days earlier, he’d received a check for about $2,000 from a personal injury suit after a car accident. Police seized $3,100 from his apartment.

The money, he said, was a double-edged sword. It gave prosecutors evidence to pin the trafficking charge on him. But giving it up secured the deal that enabled him to avoid prison time.

Traynor ultimately pleaded guilty to complicity to sell cocaine. A charge of trafficking heroin was reduced to possession, and he also pleaded guilty to possession of codeine and possession of drug paraphernalia.

He received a penalty of diversion — essentially supervised probation for two years, with a five-year prison sentence looming if he violates the terms — and he gave up his $3,100.

“They used the money as leverage with the drugs to use that against me,” Traynor said. “But in the same sense, I feel like if I didn’t have no money or representation, we wouldn’t be having this conversation. Instead I would be starting a bid in the penitentiary.

“That’s how I feel. My money got me a probation deal.”

Gerald Heston admits he was going to sell the individually packaged bags of weed he had in a jar when police caught him in March 2018 and seized his $500.

Heston is a dishwasher at a local restaurant and stopped for a coffee on his way to work. When he returned to his truck, police were waiting. An officer said they’d gotten a general call about a suspicious vehicle, and asked if they could pat him down and conduct a search of his vehicle.

Heston hadn’t sold the drugs yet, and he said the money police took wasn’t from his small-time dealing: It was from his paycheck. He was planning to pay bills when his shift ended.

Heston had pay stubs, but he wasn’t sure he could prove that specific money the police seized was from his job and not from drug dealing — what a judge would have required if he asked for his money back.

Without proof, the seized cash is kept, regardless if it’s legally or illegally earned.

The amount of cash a person is willing to surrender should have no sway over how they’re charged, convicted, or penalized, said David A. Harris, a law professor at the University of Pittsburgh.

But it can, he said, and it puts “everything out of whack.”

“When you’re using a government process, such as criminal prosecution, that has the potential to impose severe penalties on people to even take their freedom, we should do everything we can to minimize the influence of money,” Harris said.

Heston knew that a prolonged court battle would be difficult, risky and expensive. When a public defender told him he could give up the cash and resolve his case with a softer penalty, he jumped on it. He agreed to forfeit his cash in exchange for the lesser crime of possession of marijuana.

The cost to move on was about $500 cash.

“It was way easier on me,” Heston said. “Less stressful, all that.”

Alexandra Kanik contributed to this report. Contact Jacob Ryan at (502) 814.6559 or jryan@kycir.org.