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N.H. Senate Scales Back Bill to Reform Police Asset Forfeitures



Valley News Staff Writer
Friday, April 29, 2016

Concord — Faced with strong opposition from police chiefs and a bipartisan group of legislators, the state Senate on Thursday stripped a provision from an asset-forfeiture bill meant to stop police agencies from profiting from seizures they make in drug cases.

The version of the bill that passed the House in March would have directed cash and other property seized in criminal cases to the state’s general fund rather than to the agency that seizes it, as is now the case.

Proponents of the measure had argued the current arrangement encourages law enforcement to make unwarranted seizures to boost revenue.

On the Senate floor Thursday, Sen. Jeanie Forrester, R-Meredith, whose district includes several Grafton County towns in the Upper Valley, argued the bill would hinder law enforcement in its fight against the ongoing opioid epidemic.

“My heart’s pounding right now, because this just makes me so angry,” Forrester, who is running for governor, said in a video of the Senate proceedings.

“We’re in the middle of a crisis, and this is a tool that law enforcement needs,” she said.

Prior to the Senate’s removing the provision from the bill on Thursday, Lebanon Police Chief Richard Mello warned that diverting the money would “handcuff” his department.

“I don’t agree with the premise that we are doing policing for profit,” he said. Later he added, “By taking the money, it’s not going to stop the things that law enforcement do; it’s just going to handcuff us and handicap us as far as how we’re going to pay for it.”

Police chiefs and legislators acknowledged, however, that comparatively little money was at stake.

The amount forfeited statewide under state law is about $50,000 to $60,000 annually, far less than the proceeds from seizures under federal law, which average $1 million each year.

The state law allocates 45 percent of the proceeds to agencies participating in a given seizure, another 45 to the state Department of Justice and 10 percent to the state Department of Health and Human Services.

Police receive a greater portion of the proceeds from federal seizures, which also tend to be larger in value than those made through state law, according to area chiefs.

During Thursday’s debate, Sen. David Pierce, D-Lebanon, a co-sponsor of the legislation, sided with Forrester against his own bill.

Pierce said that police departments were unlikely to use forfeiture to “fill their coffers,” and urged his colleagues to remove the section of the bill that would divert seized assets to the general fund.

With only one objection — Sen. Jerry Little, R-Weare, whose district includes several Newport-area towns — the chamber voted to remove the money-shifting provision.

Area police departments have made sparing use of civil forfeiture, compared to law enforcement agencies in larger communities.

Among the regular recipients of forfeiture money is the Lebanon Police Department, which collected about $19,000 via the federal route since 2013. City police netted far less from the state law — less than $2,000 in the same period.

Still, Mello said, the forfeitures are important. Police use the funds for specialized equipment, and also for “buy money” — the cash that officers use for drug stings.

However the funds are spent, Mello said, “they all have this link back to fighting this war on addiction and opioids and heroin.”

A 2011 traffic stop on Interstate 89 offers an example of how forfeitures can work. When, one October evening, a Lebanon police officer pulled over a Barnard driver with a broken headlight, the officer saw loose marijuana in the car, according to a police report.

After the driver refused a search, officers informed him the vehicle would be towed while they applied for a warrant.

“He told me he had approximately $950-$1,000 in his wallet in the vehicle and that money better still be there when he gets the wallet back,” the officer, Richard Norris, wrote in his report.

The man did not get his money back. Inside the car, along with about an ounce of marijuana, Norris reported finding a black ledger that contained what appeared “to be records of narcotic sales.”

“There are initials or abbreviations, which I assume are people,” Norris wrote, “with numbers written next to them, which are most likely amounts owed for narcotic purchases.”

Police also found pictures of marijuana on the car owner’s cellphone, along with a text message asking him if he was able to obtain “blow.” Norris concluded that the suspect had been involved in the illegal sale of narcotics.

Police confiscated the $1,260 in the wallet, and the forfeiture was approved a few months later, state Department of Justice records show. Lebanon received $567.

In another forfeiture, a $1,580 cash seizure from 2015, Lebanon police netted $711 after arresting a man on shoplifting charges.

Officers had found heroin, pot and prescription pills in his nearby car. Back at the station, they conducted a test. They put four envelopes on the floor in an empty room: one empty, one filled with blank paper, one with the suspected drug money, and another with a $20 from an officer’s wallet. Then they brought in a drug-sniffing dog, which correctly identified the envelope with the seized money.

The surviving portion of New Hampshire’s asset-forfeiture bill would increase the standard of proof in forfeiture cases, requiring authorities to show “clear and convincing” evidence linking seized assets to a crime.

As it stands, the prosecution must demonstrate only a “preponderance of evidence,” indicating that its claim is more likely to be true than not.

After Thursday’s vote, Pierce said he still supported the strengthened evidentiary standards that the legislation would impose. The heightened requirements would prevent unnecessary seizures, he said, and help allay concerns from civil-rights advocates that forfeiture encourages policing for profit.

“Even if a police department was prone to do something like that,” Pierce said, “a higher evidentiary standard really acts as a backstop to frivolous seizures. That was really the basic premise of my support of the bill.”

Pierce said he had spoken against the redistribution of assets proposed in his bill because there was no assurance, once forfeiture money went to the general fund, that lawmakers would choose to reallocate it toward law enforcement.

“To all of a sudden take that money away, with no guarantee that it would be given back, would really hamper law enforcement at a local level,” he said.

The American Civil Liberties Union, a proponent of the legislation, disagrees.

“We’re dealing with a relatively small amount,” ACLU-NH Legal Director Gilles Bissonnette, said by phone this week, “and it’s, at least to me, difficult to envision the loss of that small amount to have a tremendously detrimental effect on the ability of law enforcement to prosecute drug cases.”

As it stands, state law allows a civil forfeiture case to proceed whether or not the criminal case it is attached to results in a conviction. After Thursday’s vote, the bill also retained a measure that would require authorities to obtain a criminal conviction before confiscating property.

Bissonnette supports this as well.

“It’s a matter of due process,” he said. “What forfeiture is about, at the end of the day, is a claim by the state that property in the possession of an individual is the product of criminal activity. So in order for that property to be forfeited, I think it makes perfect sense for the state to actually have to prove that a crime was committed in the first place.”

Last month, New Hampshire Gov. Maggie Hassan, threatened to veto the legislation.

“The heroin and opioid crisis is the most pressing public health and safety challenge facing New Hampshire, and as we continue working to combat this horrible epidemic, it is critical that those on the front lines have the resources they need to protect our communities,” Hassan, a Democrat now running for the U.S. Senate, said in a statement after the House passed the bill.

On Friday, a Hassan spokesman said the governor was “encouraged by the changes made to House Bill 636,” as the proposed legislation is known for now. 

“These changes address her major concern with the legislation,” the spokesman, William Hinkle, said in an emailed statement, “and she will continue to work with legislators and the law enforcement community to ensure that those on the front lines of this crisis have the resources they need to protect our communities.”

Earlier this year, Hassan, along with U.S. Sens. Kelly Ayotte and Jeanne Shaheen, successfully fought to preserve the state’s access to federal forfeiture funds. Washington officials in December had frozen the money, which has been used in recent years to balance the national budget.

On Thursday, area police said they were pleased the state-level spigot would stay open.

“We’re happy that the funds would continue to go the department, rather than the general fund,” Mello, the Lebanon police chief, said after the Senate vote. “We do turn those funds into something that’s a positive, so to speak, and it does help us to continue to combat the issues that are driving that money coming to the police department” — namely, he said, “high-level drug sales and drug use.”

Rob Wolfe can be reached at rwolfe@vnews.com or at 603-727-3242.

Updated

This story was updated at 2:50 p.m. on Friday, April 29, to include comment from the governor’s office.