Oklahoma ERAD Program Suspended Amid Legal Concerns

When it comes to civil asset forfeiture, Oklahoma law enforcement seems to act first and think later. The Oklahoma Highway Patrol and Oklahoma City Police recently adopted--and then quickly suspended--an asset forfeiture program that would allow them to electronically seize funds from prepaid gift cards and even bank accounts without due process or proof of a crime.

You read that right. If you were pulled over by the OHP, troopers could use newly purchased Electronic Recovery and Access to Data (ERAD) devices installed in their cruisers to seize funds from your accounts. The Oklahoma Department of Public Safety, which purchased the devices for OHP and Oklahoma City police cars, lauded the purchase as a way to take the profit out of crime. But when people protested loudly against the violation of their constitutional right to be free from unreasonable search and seizure, the DPS backpedaled--for now.

So what is "civil asset forfeiture" and what can ERAD do?

Civil asset forfeiture refers to the ability of law enforcement to seize, or confiscate, property (and cash) when an officer has probable cause to believe that the property is related to criminal activity. Let's say a highway patrol trooper pulls over a vehicle along the interstate and determines that the driver is behaving in a "suspicious" manner. The trooper then decides to search the vehicle--whether through consent or "probable cause" such as a drug dog hit. In searching the vehicle, the trooper discovers several pounds of packaged marijuana and a couple thousand dollars in cash. Because of civil asset forfeiture, the trooper could not only confiscate the drugs, but also seize the cash.

With ERAD, a device mounted in the trooper's vehicle could read the account information of any card with a magnetic strip: prepaid debit card, gift card, checking account linked debit card, and credit card.

Oklahoma Highway Patrol Lt. John Vincent said that people do not need to worry about law enforcement randomly seizing their money during a traffic stop, offering the following "reassurance" to people concerned about their constitutional rights:

"We're gonna look for different factors in the way that you're acting. We're gonna look for if there's a difference in your story. If there's someway that we can prove that you're falsifying information to us about your business . . . If you can prove can prove that you have a legitimate reason to have that money it will be given back to you."

Unfortunately, there are a couple of big problems with this rationale:

  1. No one is under any obligation to tell the police anything about where their money comes from (or anything else), so looking for a "difference in your story" should certainly not be a qualifying factor in whether or not police have the right to take your money.
  2. In the United States, everyone is to be considered innocent unless proven guilty, and the burden of the proof is not on the defendant to prove innocence, but on the prosecution to prove guilt. Law enforcement should not usurp the courts. You should not have to prove to police that you own your money; prosecutors should have to prove to a judge that you do not.

It is embarrassing when Oklahoma makes headlines for something like a flagrant violation of constitutional rights, but fortunately this story did make news in a big way. It is only the public scrutiny that caused the Oklahoma DPS to suspend the ERAD program and look into things further before implementing it.

Rep. Mark Lepak, R-Claremore, requested a study of the program and its legal implications prior to implementation:

"News of ERAD usage has prompted renewed calls in my district to examine the civil asset forfeiture process, with due process and safeguards against unreasonable searches and seizures as the main concern. The idea here is to get both sides in the room."

On June 14, Oklahoma Watch reported that DPS suspended the use of the ERAD devices until Commissioner Michael Thompson "can attend training on the card reader to get a better understanding of the device." It seems that this type of training should have occurred long before the items were purchased and installed in law enforcement vehicles. And still, training in use of the device does not seem to address constitutional concerns about unreasonable search and seizure.

One other element of this seems reminiscent of the state's early problem with roadside asset forfeiture. You may remember when the state was criticized for "Desert Snow," the highway interdiction program where civilian trainers were stopping vehicles and seizing cash. During six months of the program, Oklahoma law enforcement in Caddo County seized $1 million in cash; Desert Snow, the highway interdiction training company, received $40,000 of that and stood to gain another $212,000 from an $850,000 seizure before the program was stopped as illegal.

Similarly, the ERAD Group would have earned 7.7 percent of all funds seized from its card readers.

In 2010, a study by the Institute for Justice said that Oklahoma's civil asset forfeiture laws were the worst in the nation:  

"Oklahoma has terrible civil forfeiture laws, and its statutes give law enforcement significant financial incentives to seize property. . . In all civil forfeitures in Oklahoma, owners are presumed guilty and must contest forfeiture by proving they did not know property was being used illegally. Worse, law enforcement receives 100 percent of the proceeds from civil forfeiture."

Hopefully, this latest round of outrage over unreasonable seizure will prompt the state to change its civil asset forfeiture laws.

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