Oklahoma Continues Use Of Controversial ERAD Tool for "Highway Robbery" In Civil Asset Forfeiture Cases

As Americans, we are particularly proud of our United States Constitution and the rights it affords. After all, these rights are what sets our country apart and forms the backbone of "the land of the free"...

Take the Fourth Amendment, for example:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But are we, as Americans, really "free" from unreasonable searches and seizures when every new technological advance available to individuals investigating crime brings the potential for abuse?

Law enforcement agencies throughout the nation regularly circumvent the Fourth Amendment through a process called "civil asset forfeiture." The process allows for cops to confiscate the proceeds of criminal activity.

However, forfeiture laws are often used in bad faith. They give law enforcement the ability to seize property, cash, and vehicles without any proof they are actually criminal proceeds. In fact, police in some states can seize and even sell property without ever charging the owner with a crime.

A report by the Institute of Justice calls civil asset forfeiture laws "Policing for Profit," and says these laws "pose some of the greatest threats to property rights in the nation today, too often making it easy and lucrative for law enforcement to take and keep property--regardless of the owner's guilt or innocence."

Just take a quick look at Oklahoma, a state rated D- by the Institute of Justice for its asset forfeiture laws, and one that is widely considered among the worst in the nation when it comes to asset forfeiture abuse.

According to ThinkProgress, Oklahoma allows law enforcement agencies to use 100 percent of the property and cash it seizes to pad the department's budget. From 2000 to 2014, the organization reports, Oklahoma law enforcement got nearly $99 million from seized cash or by selling seized property.

A Forbes report says that one Oklahoma prosecutor paid his student loans using seized funds, and another lived rent-free in a home seized in a drug raid.

According to Oklahoma Senator Kyle Loveless, a proponent of civil asset forfeiture reform, too often money is seized from the wrong people and used for the wrong purposes.

Example: the $53,000 in cash seized from Eh Wah, a Burmese refugee living in Texas whose Christina band toured to raise money for a Christian college in Burma and an orphanage in Thailand. The cash came from ticket sales, donations, CD and t-shirt sales, and gifts.

Still, police called a drug dog to search his vehicle, and the dog "hit" giving law enforcement probable cause to seize the cash. No drugs were ever found. Sadly, we criminal defense attorneys see this all time: you wouldn't believe how often "trained" drug dogs alert on vehicles that contain NO drugs at all...

The money was seized, and the cash remained in the police coffers. Ultimately, the Muskogee County District Attorney's Office said that the case would be dismissed and that Wah would be issued a check for the full amount of seized funds "as soon as possible."

Understandably, more and more people advocate against travelling with cash, undoubtedly due in part to the prevalence of seizure by law enforcement.

But Oklahoma is trying to stay one step ahead of the game, and recently, the state came under fire for a new tool in civil asset forfeiture--a device called ERAD (Electronic Recovery and Access to Data). This device gave the Oklahoma Highway Patrol (OHP) access to seize funds from gift cards, debit cards, and credit cards.

With Oklahoma's less than stellar reputation regarding the ethical use of asset forfeiture, handing law enforcement a device that allows cops to seize your money, even if you aren't carrying any, seems to be ill-advised at best.

In fact, when it was announced that ERAD would be placed in OHP patrol vehicles, there was quite an uproar. In June, Oklahoma Governor Mary Fallin suspended the OHP program to install ERAD in troopers' vehicles until the Department of Public Safety could "formulate a clear policy for using this new technology."

And while the governor's announcement led many to breathe a collective sigh of relief, it may be too soon to suggest our property rights are in any way safe from unreasonable seizure. While headlines were exploding over OHP's potential use of ERAD, the use of these machines was quietly being implemented in other law enforcement agencies.

In Oklahoma City, the Central Oklahoma Metro Interdiction Team (COMIT), led by Oklahoma County District Attorney David Prater, has been using the devices since January and does not have any plans to stop. Prater calls the device a "legitimate law enforcement tool," and says, "I'm not about to advise my team to stop using the devices." He defends this practice by noting that funds have actually been seized from cards in a very small percentage of cases, and that the technology aids in stopping identity theft.

Prater is also concerned with drug trafficking suspects using prepaid cards to move drug profits across the country. Drug trafficking carries some of the harshest criminal penalties in Oklahoma, and many of the drug charges that come across my desk are trafficking cases involving not only a lot of drugs but a lot of cash as well. A forfeiture action usually follows.

The issue is not how many times law enforcement has seized funds with ERAD in the past, but more so how many times they can seize funds in the future. Oklahoma has already shown the potential for abuse; the fact that funds have not been seized extensively with the tool since January does nothing to negate the slippery slope moving forward. Simply put, the ERAD tool gives the government too much access to our personal information and property when it already has plenty incentive to seize it.

Although Oklahoma is the state making headlines in this area, the Institute of Justice graded 31 states at D or lower, with only one state, New Mexico, making above a B+. Everyone concerned with their constitutional rights needs to be concerned with the technology used to destroy them.