Anyone curious about the down side of the federal government's recent enthusiasm to seize assets of suspected criminals should pack a few thousand dollars into a suitcase and try to leave from Greater Buffalo International Airport.
More often than not, drug agents are near the X-ray machine checking passengers' baggage, looking for money that could be a payment for illegal drugs. Flights on known drug routes are watched especially carefully.
Maybe the money is for vacation expenses. Maybe it's for a sick relative. Whatever the reason, federal agents spotting the money may examine the luggage, detain and interrogate the passenger and, if they are not satisfied with the answers, seize the money.
"A person has the justifiable right to be left alone, and I see this as an erosion of this right," said Herbert L. Greenman, an attorney who defended several people with no drug records who have had money seized at the airport. "Are we now becoming a society where innocent people are harassed and everyone has to explain why they are carrying money?"
Law enforcement agents in Western New York alone have confiscated more than $8.5 million in property since 1986, when federal agents started a new strategy of seizing assets of suspects, most of them alleged drug dealers. More than $3.6 million of this has been cash.
Many of these cases involve known drug kingpins whose flamboyant lifestyles spawned luxury cars, boats and large sums of money. The criminals have been arrested and their property considered spoils of the drug trade.
But the airport luggage searches are a prime example of how innocent people are paying for the federal government's aggressive war on drugs, according to critics of the federal program.
Once the money is seized, the ordeal of getting it back has just begun. The owner of the money faces a legal labyrinth that begins by posting a court bond worth 10 percent of the value of the property. It often ends in a civil proceeding in U.S. District Court. Legal fees frequently rival the value of what is taken.
"Assets forfeiture," as the process is called, also introduces people to a new quirk in the legal system. The owner of seized assets must prove he did not commit any crime, the opposite of the legal standard that says a person is innocent until proven guilty.
"It turns the legal system on its head," said Buffalo's Joseph J. Terranova, another attorney who has many clients trying to get back seized assets.
There are other examples critics cite to show the program is out of control. Cars have been seized because the drivers were caught with small amounts of marijuana, an offense that is considered non-criminal -- similar to a traffic infraction -- for first-time offenders.
"The punishment does not fit the crime," Terranova said.
An accountant from New York City was stopped at the airport when federal agents found $3,000 in his luggage, according to Greenman. The man probably was stopped because he was from Jamaica, a country where many of the illegal drugs in the United States originate. The accountant eventually got his money back, but lawyers question whether the seizure laws were intended to harass people without sufficient proof.
Western New York residents have lost cars when their children or spouses were caught with small amounts of drugs. Getting them back often depends on whether they are willing to start legal proceedings and can convince agents or judges they did not know about the crime.
"It gives the government the option of taking the property and saying, 'Prove to me that wasn't used for drugs,' " Terranova said.
Buffalo attorney Paul J. Cambria Jr. is defending Virginia businessman Dennis Pryba, who was convicted of selling obscene videotapes at rental stores. Federal agents seized the man's business and personal assets, valued at $2 million. The tapes he sold were worth $105.
"That doesn't make sense," Cambria said. "The federal government is looking for any excuse possible to seize money. What was a simple obscenity case is now a multimillion-dollar forfeiture case."
Those who run the program make no apologies. The forfeiture of assets, agents said, has become much more common in the last 18 months for a simple reason: The federal government is getting tough against drugs.
And the drug war can be won only by stopping the demand, not just the supply, they said. If casual users of drugs know they can lose cars, houses and other property, the argument goes, they will stop using them.
"Yes, it is a very harsh program," said Special Agent Paul Moskal of the Buffalo FBI office. In addition to being the chief media spokesman for the FBI in Buffalo, Moskal is an attorney who administers his agency's seizure and forfeiture actions in Western New York.
"It's a harsh program aimed at a harsh crime problem," he said. "We are very aware that there is a great potential for abuse in the program. We are extremely careful not to use it as a weapon against innocent people."
U.S. Attorney Dennis C. Vacco said it is wrong to call the forfeiture laws unconstitutional because they were made possible by amendments to the U.S. Constitution.
The fairness of the program depends on its administration by police agencies and prosecutors like himself, Vacco said.
"We do have to be very careful how we use it," Vacco said. "If we appear to be unjustly seizing assets from innocent people, if we appear to be abusing our authority, if law enforcement agencies become more interested in raising cash than solving crimes, then we have a problem."
Lawyers objecting to the program agree the idea behind the law is commendable. A person should not benefit from selling drugs. But the law gives federal agents wide latitude to search and seize property, and it's up to the courts to limit its use.
So far, the nation's federal courts have gone in the opposite direction, according to Greenman. Federal courts have allowed the government to keep property even when it was seized illegally. Normally, products of illegal searches are returned to owners, a legal principle called the exclusionary rule.
"This is a big reason why local and state agencies will try to get federal agents to do it," Greenman said. "The exclusionary rule does not apply."
One of Greenman's clients was arrested for possession of a gram of cocaine. Police also confiscated $7,000 in cash. A judge eventually dismissed the charge because the search was illegal. But the money remains in federal hands.
"How far are we going to go before the courts say we're not going to let you do this kind of thing?" Greenman asked.
Critics also question the motives of agents who admit they look at suspects' financial situations before deciding which investigations to pursue.
"It's a revenue-generating device," Terranova said.
"It's big business for government," Greenman said.
Even federal agents admit the forfeiture of assets gives them authority they normally wouldn't have.
"What many people don't understand about the forfeiture laws is that we don't have to arrest anybody," Moskal said. "We don't have to charge them with a crime."
Many police agencies are just beginning to understand the powers they have under the forfeiture program, Moskal said.
"Those powers even scare me at times," he said.