We have looked at the practice of Oklahoma police and prosecutors using traffic stops as an opening to seize money from the occupants of vehicles, the rationale being that if the officer making the stop suspects that the money is actually the proceeds of illegal drug transactions then he has the ability to take it from you on the spot without bothering to obtain a search warrant or to even charge you with a crime.
This practice has led to multiple instances of perceived if not actual abuse on the part of law enforcement. Possibly the most well-known example was the recent seizure of more than $50,000 in cash from a driver who was carrying concert admission proceeds intended for charity; it took almost two months before the money was returned, and then perhaps only because the case was generating enough unwelcome publicity that the prosecution dropped the case against the driver.
But other examples suggest that the temptation to use the state’s warrantless asset seizure law improperly — either as a form of “policing for profit” or for less savory motives — may be too hard for some to resist.
Another temptation can be for people who do not carry large amounts of cash in their cars to think that “This can never happen to me.” But new technology is making that sense of immunity a dubious one.
Thanks to the assistance of the Department of Homeland Security, Oklahoma police now have at their disposal a tool that can read magnetic strip cards, like debit cards and pre-paid credit cards, and withdraw funds from them. It’s referred to as “ERAD,” which is short for “Electronic Recovery and Access to Data,” and it is already being used on the state’s roads.
Police justify the use of ERAD devices as a response to the efforts of their quarry — illegal drug dealers — to hide drug proceeds by transporting them in “plastic” form instead of cash. Incidents of suspected drug-related couriers being found with many debit or pre-paid cards in their possession, which until the introduction of ERAD could not be checked for how much money they carried, led DHS to lend a helping hand. And if you ask law enforcement officials about how they use their ERAD units, that is generally the response you will get.
The trouble is, this assurance is not ironclad. Whether you have one plastic card on you or a thousand when you are pulled over, the technology works the same; and as one Oklahoma state legislator concerned with possible abuse of the card-reader technology points out, under current law police are not required to even report the use of ERAD to seize funds electronically, not to mention how much was taken. Indeed, critics of the new technology claim that most ERAD-based fund seizures amount to less than $1,000.
The use of ERAD does not change the fundamental problem with traffic stop-based asset seizures: specifically, the way that police can claim that the presence of cash — or now debit or pre-paid cards — in your possession amounts in itself to a form of “probable cause” that bootstraps itself into claimed justification to believe that the money is drug-connected. It also does not change how the asset seizure law works to turn the presumption of “innocent until proven guilty” upside down, effectively forcing you to prove that the source of the funds was innocent in order to get your money back. Especially if the dollar amount in dispute is not great, this can lead many victims of asset seizure to conclude that the cost to “fight city hall” is more than it is worth, so they do not contest the matter.
Police and prosecutors are not perfect, and when it comes to taking your money in the guise of claiming that you got it by selling illegal drugs they can make mistakes. Or, in a worst-case scenario, the seizure itself or the way that the funds are used once they are stripped from you can itself be illegal. Although efforts continue in the Oklahoma State Legislature to rein in this practice of what can amount to state-sponsored highway robbery, your best defense against it may remain securing the assistance of an attorney.