Law-enforcement agencies in St. Charles County got a budget windfall of more than $1 million in 2017.
The unplanned money wasn’t the result of higher taxes or donations, but instead came from a court process known as civil asset forfeiture.
Supporters say the practice gives police and prosecutors an important tool to shut down drug-trafficking operations and other illegal activity while being compensated for their efforts. Opponents call it an unconstitutional money grab.
The practice isn’t unique to St. Charles County or Missouri. A multi-state reporting project by St. Louis Public Radio and three other outlets, backed by the Pulitzer Center on Crisis Reporting, found hundreds of departments together taking in millions of dollars a year.
Rachel Lippmann reports on asset forfeiture in St. Charles County:
The police department in O’Fallon, Missouri, is one of them. The city of more than 87,000 straddles Interstate 70, a major cross-country route not only for millions of dollars in legitimate cargo, but also millions connected to the illegal drug trade. In 2017, O’Fallon received about $50,000 worth of assets seized during traffic stops — law-enforcement agencies in the county received a total of $1.13 million.
Justin Hill, who spent 13 years as a police officer in O’Fallon — including stints as a member of the St. Charles County Regional Drug Task Force and with the Drug Enforcement Administration — says he got pretty good at telling who was likely involved in drug trafficking or other illegal activity.
“We’d ask easy questions like, 'Where are you going? Why are you going? Who are you meeting there? Where did you leave?' and they trip all over themselves,” said Hill, now a Republican state representative from neighboring Lake St. Louis.
Sometimes, Hill and other task-force officers would search the car and find drugs or paraphernalia like scales or baggies. But other times, officers would only find cash, and often large amounts of it.
Carrying cash, regardless of the amount, is not illegal. Civil asset forfeiture, however, allowed Hill and other officers in St. Charles County, the state and the rest of the country, to seize the cash, even if the person is never charged with — much less convicted of — a crime.
The asset forfeiture process sounds fairly straightforward. Officers stop a car, usually on a traffic violation like following too closely or failing to signal for a lane change. If they “trip all over themselves” on the simple questions, as Hill put it, officers will search the car, or use a drug-detection dog. If officers decide the cash is connected to illegal activity, they can confiscate it as evidence.
That was roughly the sequence of events in the case of Johnny Khamphengphet, a Tennessee man who was pulled over by two St. Charles County police officers in February 2017. They noticed him “maintaining less than one car-length's distance” to a passenger car on westbound Interstate 70 near the border with Warren County. The officers also noted that the tinting on the windows of Khamphengphet’s pickup truck was too dark.
The officers pulled Khamphengphet over and asked for his license and registration. As Officer Casey Boaz wrote in the report, “During my contact with Johnny, I noted that he avoided eye contact with me and his hand trembled uncontrollably as he provided the documents.” While Boaz questioned Khamphengphet in the patrol car his partner, Mark Thompson, had their canine sniff around the Ford F-450.
Khamphengphet, Boaz wrote, provided contradictory answers about where he was heading and why he was going there. In addition, the dog indicated drugs could be present. When officers searched the pickup, they found more than $139,000 in cash as well as golf-club bags with dryer softener sheets (sometimes used to mask the smell of drugs) and minuscule amounts of marijuana. Officers also found a gun and steroids.
“We believe there is an interstate-connection drug nexus with this case,” Boaz wrote in his report.
Khamphengphet was never charged criminally. And unlike most of the individuals who have cash confiscated, he fought back against the seizure, retaining St. Louis defense attorney Justin Gelfand.
Gelfand would not speak directly about Khamphengphet’s case, or how he reached the settlement in which the government returned $34,895 to his client. But in general, he said, the asset-forfeiture process is ripe for abuse.
For starters, Gelfand said, the evidence that led to the stop and search in the first place is often flimsy. The connection of the money to criminal activity can be even more tenuous.
“Many of these individuals have very legitimate, innocent explanations for why they’re traveling with large amounts of cash,” Gelfand said. “Sometimes they might own a cash business. Sometimes they might be traveling and they used to have a bank account, but because of credit the banks closed their accounts, and they have no choice but to keep the cash on them.”
And because most asset forfeiture cases take place in civil court, people are not entitled to a lawyer.
“These are complicated cases,” Gelfand said. “If you miss a deadline, you can blow your rights forever, even if the entire seizure was completely unconstitutional, even if the government would never win a civil forfeiture case on the merits.”
Adding to the abuse, Gelfand said, is a provision in federal law known as equitable sharing.
Missouri law around asset forfeiture contains some fairly strong protections. Civil asset forfeiture can only take place after a conviction or a guilty plea in a criminal case. In addition, the money is set aside for schools. The Institute for Justice, a libertarian-leaning legal advocacy group, gave Missouri a grade of B+, among the best in the country. In the federal system, however, no criminal conviction is required, and police departments can keep up to 80 percent of the money they seize.
Prosecutors like Tim Lohmar in St. Charles County make the decision whether to handle potential asset-forfeiture cases with state charges, or at the federal level. The vast majority of the time, Lohmar chooses the federal process.
“Someone or some entity is going to have to receive that money that was gained through criminal activity, and why not have the money be poured back into the law-enforcement agencies, to help with keeping the community safe?” he said.
Of the 36 seizures reported by Lohmar’s office in 2017, the last year for which data are available, 29 were transferred to the federal system. Lohmar filed charges in three cases, which means the money went to the schools. Law enforcement returned what they had seized in four cases.
Federal prosecutors filed charges in just 10 percent of the cases Lohmar transferred. But drug cartels are affected just as seriously when the cash is seized without charges, said Jeff Jensen, the U.S. attorney for the Eastern District of Missouri.
“Taking money away from drug dealers and violent gangs is a tool that is very valuable to us, because it takes away their ability to operate,” he said, a sentiment echoed by Hill, the former drug task-force officer.
“When you seize a thousand pounds of marijuana in the St. Louis area, you’re really not hurting the operations of a drug cartel in Mexico, because the cost to produce that thousand pounds is negligible in the grand scheme of things,” Hill said.
Those arguments sound compelling, Gelfand said, but he disputes the premise.
“If the government truly believes that these are serious enough crimes that they warrant federal law-enforcement resources and attention, than the government should be prosecuting those crimes where defendants have constitutional rights,” he said.
The equitable sharing system also encourages bad behavior by police departments, according to Gelfand.
“There have been law-enforcement officers recorded on tape essentially saying, 'We don’t have something in our budget,' and then they get it, because they forfeit it,” he said.
That’s not the case in St. Charles County, said Capt. Chris Hunt, the commander of the county police’s Bureau of Administrative Services. He supervises the specialized patrols that lead to equitable sharing cases, as well as the distribution of the money the department gets from the program.
Police departments are forbidden by federal law from including asset-forfeiture dollars in their budgets before receiving the funds, Hunt said.
“Another reason we don’t do that is because we don’t know what our personnel needs are going to be,” he added. “So if I had ended up having to pull the officers that are involved in this type of law enforcement and assign them to other duties, and we’ve counted on that money, it’s really going to burden us.”
It also takes a long time for departments to receive the money. St. Charles County police reported receiving about $761,000 in 2017, but Hunt said some of those cases date back to 2013. He spends the money on training, targets and bullets for the shooting range, and recently, on new computers in patrol cars. And last August, the department purchased an interactive robot police dog they use at safety fairs.
“I really can’t put a number on it — how many days or months or years it would take for us to acquire those funds through the general fund — but it would have a significant impact on other areas of our department,” Hunt said.
Efforts at reform
The U.S. Supreme Court has upheld the constitutionality of asset forfeiture, although a case out of Indiana may provide a path to legal challenges in the future. That means any reform efforts have to happen at the state level.
In Missouri, Rep. Shamed Dogan, R-Ballwin, has introduced legislation that would require prosecutors to handle any seizure of less than $100,000 at the state level, rather than federally. Dogan, with the backing of the ACLU of Missouri, proposed the same change in 2017 and 2018.
“Missouri law already put forward a plan where we didn’t want this sort of perverse incentive to exist,” said Sara Baker, the ACLU’s legislative and policy director. "We didn't want a system that was open to corruption. And we want our law enforcement to be above reproach.”
Hill views the legislation as a back-door way to eliminate equitable sharing in Missouri. If the $100,000 floor had been in place in 2017, more than 80 percent of the seizures in St. Charles County would not have been eligible for the program.
“Our political views are aligned quite a bit,” Hill said of Dogan. “It’s just I have experience in this subject where maybe I have a better idea on how it works and how it’s used.” He added that he hasn’t heard any equitable-sharing horror stories in Missouri.
Dogan’s bill has yet to be scheduled for a hearing this year. In 2018, a version with a $50,000 floor got approved by a committee, but the full state House never acted.