A couple of years ago -- as the ugliness of asset forfeiture abuse was becoming a mainstream media topic -- the Canadian Broadcasting Corporation's senior Washington correspondent published a cautionary article featuring a very blunt headline:
American shakedown: Police won't charge you, but they'll grab your money
In it, the CBC's Neil MacDonald pointed out that being "not from around here," coupled with rental vehicles and cash -- made visiting Canadians little more than rolling ATMs for "drug interdiction task forces" sporting nifty acronyms and friendly asset-sharing partnerships with federal agencies.
MacDonald listed a few tactics that might lower Canadians' chances of being robbed at badgepoint:
Avoid long chats if you're pulled over. Answer questions politely and concisely, then persistently ask if you are free to go.
Don't leave litter on the vehicle floor, especially energy drink cans.
Don't use air or breath fresheners; they could be interpreted as an attempt to mask the smell of drugs.
Don't be too talkative. Don't be too quiet. Try not to wear expensive designer clothes. Don't have tinted windows.
And for heaven's sake, don't consent to a search if you are carrying a big roll of legitimate cash.
Cash = guilt to many law enforcement agencies, even if they're only interested in pursuing cash, rather than criminal charges.
WHERE'S YOUR MOSES NOW?
[T]he Oklahoma Highway Patrol has a device that also allows them to seize money in your bank account or on prepaid cards.
It's called an ERAD, or Electronic Recovery and Access to Data machine, and state police began using 16 of them last month.
Here's how it works. If a trooper suspects you may have money tied to some type of crime, the highway patrol can scan any cards you have and seize the money.
So much for keeping the thieving, non-prosecuting cops off your back by carrying prepaid cards rather than cash. Highway-patrolling drug warriors are now going to be pressing the narrative that drug dealers and other criminals now use cards, because asset forfeiture has severely disrupted the cash-based drug economy or something.
There's literally no way to win. Any amount of money is considered inherently suspicious when it's in cash form. Now any amount of money -- no matter where it's stored -- can be declared the fruits of criminal activity by a cop with an ERAD device. Law enforcement can now drain any prepaid cards in your possession all without you having to leave the driver's seat.
And they have every incentive to do so. ERAD sells these devices to cops for $5,000 and takes 7.7% of the haul. (Here's Oklahoma's contract [PDF] with ERAD for the devices.) These devices aren't going to pay for themselves. Nope, citizens will pay for them -- twice. First, during the initial outlay and a second time when their cards are drained by law enforcement officers.
But it's totally cool because there's an almost non-existent chance you'll be able to recover improperly-seized funds at some undetermined point in the future.
"If you can prove can prove that you have a legitimate reason to have that money it will be given back to you. And we've done that in the past," [Oklahoma Highway Patrol Lt. John] Vincent said about any money seized.
Sure, that sounds like due process, but it really isn't. Law enforcement agencies have at least 30 days before they have to officially notify those whose money they've seized. From that point, seized assets head into a labyrinthine adjudication process in which the government does everything it can to keep the owners of forfeited cash from participating, starting with in rem proceedings that pit the state versus seized money, rather than against the person from which the funds were seized.
To navigate this, you need a lawyer, preferably one with experience in recovering forfeited property. That isn't cheap. During the long, expensive process, agencies will often try to push people into accepting low-dollar settlements that allow the government to keep money it hasn't proven is tied to criminal activity.
In many cases, the dollar amount is low enough that the expense of recovering it makes it a losing proposition. But those lower dollar amounts can also be the difference between solvency and bankruptcy for someone who's had their money seized. With this technology, officers will literally be stealing people's paychecks, as those who aren't able to secure a checking account are now almost exclusively receiving their paychecks on reloadable prepaid cards.
And, in almost every state, including Oklahoma, there's no conviction stipulation tied to asset forfeiture, meaning the government only has to stake a claim based on dubious "evidence" -- like the driver was traveling on a major interstate, had one too many air fresheners in the car, an officer thought he smelled marijuana, etc. -- to hold onto money it can't prove is tied to criminal activity.