A Utah lawmaker set a goal to remove any incentive any Utah police officer could have to unnecessarily take money from someone.
State law allows officers to seize property — even from people who are never charged, let alone convicted of a crime — under a process called civil asset forfeiture.
Concerned about the potential for abuse, Sen. Todd Weiler, R-Woods Cross, had hoped SB109 would put more safeguards in place.
But even the insinuation that an officer would improperly seize cash or items from a suspect brought a big backlash from Utah’s police agencies, where leaders argue the tool, used largely against drug dealers, is not abused.
At the end of the day, Utah’s laws aren’t going to change — at least not this year.
Yet, the public policy debate isn’t going away.
‘It’s highway robbery’
Police in Utah have taken millions of dollars in recent years under a law that allows officers to seize property and cash if they believe it is connected to criminal activity. In 2016, police seized $1.6 million in cash and property. In 2017, the last full year of data, police seized $2.5 million.
And officers don’t need to get a conviction to keep it — though the most recent state data shows 87 percent of the time, prosecutors do at least file criminal charges.
So far this year, police departments have filed court documents detailing 30 asset forfeiture cases, all in connection to suspected drug activity.
The smallest sum of money was $201, taken from a man stopped by a police officer for riding his bicycle at night without proper lighting. He had warrants for his arrest, so an officer searched him and found a few dozen prescription pills and six grams of methamphetamine. Officers took the man’s money, claiming in court papers that it was “believed to have facilitated the illegal possession or distribution of a controlled substance.”
The man has filed a handwritten response in court, saying the money had been withdrawn from his bank account a day earlier and was “legal and legitimate” income.
The biggest recent seizure was more than $90,000 that a Tooele officer took after pulling over a driver for a traffic infraction. A police dog “indicated” an odor of drugs in the vehicle. Police found no drugs — but did find bundles of cash.
The traffic stop happened more than four months ago, but prosecutors have never filed criminal charges against him. That motorist hired an attorney, Jim Bradshaw, to fight to get his money back. Bradshaw has argued in court papers that his client is an “innocent owner” whose rights were violated.
The Salt Lake City attorney said this man’s case was similar to many of his other clients: Out-of-state drivers who are pulled over for traffic infractions and are found to have large amounts of money — but no drugs — in their cars.
Bradshaw said there’s lots of reasons for people to be carrying large amounts of money, such as having cash to invest in a business or a restaurant. And sure, he said, there may be times when someone is driving to go buy marijuana.
But police aren’t supposed to just take the money, Bradshaw said. They’re supposed to be able to show how it is tied to some sort of crime. He argues that doesn’t always happen.
“It’s highway robbery,” he said. “It is. There are certain places on the road where you’re likely to get pulled over if you’re driving an out-of-state car, particularly a rental car.”
Critics, like Bradshaw, are concerned that Utah’s asset forfeiture law may allow police to seize items from innocent people who don’t have the resources to fight the government to get their property back. And some say Weiler’s bill would only have been a small step toward their goal of requiring a criminal conviction before police can keep the cash or property.
‘We as a state are being laughed at by cartels’
Police agencies that seize property are required to deposit cash or profits into a state account that doles out grants to law enforcement agencies.
But the rules are different in federal court. So if a Utah police agency brings a civil asset case there, the federal government gets a portion of the funds and the rest is given directly to the police agency that seized it.
Weiler’s bill would have done two things, both actions he said would help ensure police in Utah aren’t given extra incentives to take people’s property.
The first clarified in the state law that an agency can apply for those grants, even if the agency did not seize property from anyone that year. Currently, only agencies that seized assets can apply for the funds.
“That has a pay-to-play feel to it,” Weiler said.
The bill also would have required police to ask a state court judge for permission to move an asset forfeiture case to the federal system. This potential change was prompted by a Utah Supreme Court ruling where there was a question about whether the federal court can have jurisdiction over $500,000 seized by the Utah Highway Patrol during a 2016 traffic stop. The motorist in that case, Kyle Savely, had his money returned to him after the high court ruled in his favor.
But at a legislative committee hearing Friday, law enforcement officials came out in force to testify against Weiler’s bill. They called the accusation that there was a “pay-to-play” system in Utah offensive to their profession and a myth.
“It does not exist,” Ogden Police Chief Randy Watt said.
Most of the officers’ testimony was not specific to the changes that Weiler was proposing, but broadly defended the validity of asset forfeiture laws.
They said stripping criminals of money earned from drug-dealing or other crimes is important to stymie illegal activity. And the funding they receive from seizing that money, they say, is critical for task forces that target drug crimes.
Without that money, they say, officers won’t be able to work their cases as effectively.
Several police officers said Utah’s asset forfeiture laws are already lax — and coupled with criminal justice reforms in recent years, it’s made the state a more enticing place for big drug dealers to set up shop.
“We as a state are being laughed at by cartels,” said Orem Lt. BJ Robinson. “We hear them talking about it on our wires. We hear them talking about it in interviews. We hear it from confidential informants.”
And many of the officers said it’s only criminals who are being targeted by these practices, not innocent people.
“I’m concerned about the trajectory of where we are going,” said Brian Besser, assistant special agent in charge of Utah’s Drug Enforcement Administration office. “If we are seeking to incentivize criminals, then pass this bill.”
The House Law Enforcement and Criminal Justice Committee on Friday decided not to do that. But it didn’t reject the bill either. Instead, it opted to send the bill for further study over the next year — a move that was disappointing to Weiler and those advocating for change.
Connor Boyack, president of Libertas Institute, a libertarian think tank, said he felt the police’s opposition was based on “hysteria and drama.”
He said Weiler’s bill tried to update the laws to match the Utah Supreme Court ruling, and pointed to another recent U.S. Supreme Court decision that was critical of asset forfeiture practices.
Boyack promised that Friday’s vote wasn’t the end of this debate. More reform efforts, he said, will be coming.
“Law enforcement is on the losing side,” he said. “It is very clear where the momentum is headed.”