NWV News -- Oregon Legislature Continues to Erode the Fourth Amendment

OREGON LEGISLATURE CONTINUES TO ERODE THE FOURTH AMENDMENT

By Jim Kouri
Posted 1:00 AM Eastern
June 2, 2008
NewsWithViews.com

In 2000, Oregon voters amended the State Constitution by approving the Oregon Property Protection Act of 2000. That amendment increased the number of restrictions placed on state and local law-enforcement agencies to forfeit private property.

According to law enforcement and government officials, this modification of Measure 53 would remove some of the restrictions placed on civil forfeiture of property that is confiscated by cops during major drug raids and terrorism cases. While the original search, seizure and forfeiture statutes were written by the federal government exclusively for controlled substances such as cocaine, heroin, marijuana, and other illicit drugs.

After the events of September 11, 2001, many of the provisions contained in the Racketeering Influenced and Criminal Organizations Act (RICO) were included in the USA Patriot Act. And many of the government regulations regarding forfeiture of private-property are contained in state laws and city ordinances.

The constitution currently requires that a person's property may be forfeited only if the person is convicted of a crime, according to legal scholars such as Lieutenant Steven Rogers, Nutley, NJ Police Department, and president and founder of AmeriCopUsa.com

In addition, the forfeiting agency must show by clear and convincing evidence that the property was "an instrumentality of that crime, or proceeds of that crime."

"This is nothing new, " said Lt. Rogers. "The feds [federal police] have been forfeiting private property for years, especially in narcotics cases. What is new is the number of states that have decided they've found a new "cash-cow."

Lt. Rogers' organization is a vital part of police informing citizens of their rights and what actions are being taken that harm civil liberties rather than criminal behavior.

"Americans will always support law enforcement if they understand why cops are using the tactics they use to fight crime, violence, and terrorism," says the 25-year police veteran, who also served as a Captain in the US Air Force during the Vietnam War and again during the gulf war in 1990.

According to the Oregon Criminal Procedure Law, Measure 53 allows "civil forfeiture of instrumentalities and proceeds of other crimes that are similar to the crime that a person is convicted of committing, even though the person is not convicted of committing those other crimes."

One of the most frequent complaints regarding assets forfeiture -- at the state or federal level -- is the fact that a citizen’s property may be confiscated before any legal actions are taken.

"It turns the concept of 'innocent until proven guilty' on its head," said NYPD homicide detective Sid Francis.

The Oregon version of the search and seizure criminal code requires that law enforcement or government officials notify a person of the impending search and provide the target with an opportunity to challenge the seizure and forfeiture.

This measure would also specify circumstances in which property may be forfeited without a criminal conviction. The measure would allow forfeiture if the person took the property with intent to defeat forfeiture, the person knew or should have known that the property constituted proceeds or instrumentality of criminal conduct, or the person acquiesced in the criminal conduct.

"While the issue of assets forfeiture is considered to be justice-related, the problems faced by Americans have more to do with private-property rights," said Los Angeles attorney Joseph Kouri, a senior partner with Sedgwick, Detert, Moran & Arnold LLP.

Kouri's civil cases within the last few years have had much to do with the assets forfeiture programs of the Department of Justice and the state of California.

"One of the big problems is that of oversight. Are federal agents using RICO and other anti-crime statutes to bully legitimate businessmen and their families? Americans should be told," said Kouri.

Another problem is that most Oregon residents believe the proceeds garnered by the Marijuana forfeiture program are for the police and criminal justice system. Not in Oregon. Under the local forfeiture program, two-thirds of the proceeds of seized assets went to the city’s general fund, not the police. But one-third went directly to the district attorney’s office.

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In fact, police officials stressed that for the officers who served on the anti-narcotics units in Oregon, the forfeitures were not the issue -- the enforcement officers were there to fight crime, not collect "taxes."