DA: Pa. revised forfeiture law before ruling, and York County has made more changes

Liz Evans Scolforo
York Dispatch
Auctioneer David Adcock of Hellam calls for bids at the York County Drug Task Force's annual fall auction on Friday, Nov. 27, 2015, at Schaad Detective Agency. More than 50 vehicles were up for bid.

Last week's U.S. Supreme Court decision regarding property forfeiture in an Indiana drug-dealing case isn't expected to change the way police and district attorneys in Pennsylvania handle property forfeitures of criminal defendants, according to York County District Attorney Dave Sunday.

The U.S. high court unanimously ruled the Constitution's Eighth and 14th Amendments protect citizens from "excessive fines" levied by states, which includes property seized from drug dealers and later ordered forfeited by judges. That has always been true federally, but the justices have now agreed it applies to states as well.

"Basically, the Supreme Court of Pennsylvania already assumes that is the law," Sunday told The York Dispatch. "(Last week's) opinion was sort of the last straw in forcing Indiana to do what other states in the nation are already doing."

The case, Timbs v. Indiana, ruled Indiana must return a $42,000 Land Rover it seized from Tyson Timbs, who was arrested in 2013 and served time for selling $400 of heroin. He bought the Land Rover with life-insurance money after a family member died, but the state took the vehicle under forfeiture laws.

More:‘Excessive fines’ ban applies to states, Supreme Court says

"The Pennsylvania Supreme Court has already ruled that the excessive-fines clause (in the Eighth Amendment) applies to (our) commonwealth," Sunday said, adding the Pennsylvania ruling came down in 2017 and also was unanimous. "We've been operating under this law ... for the past two years."

Pa.'s forfeiture law: Also, Pennsylvania lawmakers passed a revised civil asset forfeiture statute that became effective July 1, 2017, and means police "can't just seize things they hope will be forfeitable," the DA said.

York County District Attorney Dave Sunday

Sunday stressed that police in York County seize only what the law allows and that the vast majority are doing their best in what can be a difficult and dangerous job. He also noted that while police can seize property, it is up to a York County common pleas judge to decide whether that property should be forfeited to the county.

Forfeited property is auctioned off twice a year in York County. Proceeds go to the county's drug forfeiture fund.

Sunday confirmed the forfeiture and sale of numerous homes by the Philadelphia District Attorney's Office "were the catalyst, in my opinion, to changing the state statute." One Philadelphia media outlet, WHYY, called it the "DA's side hustle," in which buildings were seized, forfeited and sold for profit, sometimes more than once.

Inside the Philadelphia DA's side hustle - selling seized homes to speculators and cops

In York County, buildings and land are almost never seized from suspected drug dealers. Sunday said he found just one example of that here.

He was referring to a former barbershop on East Princess Street that was owned by Marvin Fulton, known as "Marty the Barber." The property was taken by the county, ruled forfeited by a judge and auctioned off following a three-month investigation into drug trafficking there that led to Fulton's arrest.

Sunday said that when he took office Jan. 3, 2018, updating the county's drug-forfeiture policy was one of his top three concerns.

Forfeiture expert: He said he brought in a seasoned attorney — senior deputy prosecutor John Hamme — to review items seized by police during drug arrests to determine not only whether a forfeiture would be legal but also whether it would be the right thing to do.

"I asked him to analyze our entire forfeiture process and identify areas that needed to be fixed and also to identify areas where we were doing it right," Sunday said.

That review determined the DA's office could "expedite the return of property to people ... in a manner that's least harmful for them," he said.

Cars that will be auctioned off by the York County Drug Task Force on Friday, are on display at Schaad Detective Agency in York City, Wednesday, Nov. 21, 2018. The auction will be held at the agency on Roosevelt Avenue, Nov. 23 at 10 a.m. Dawn J. Sagert photo

Sunday is referring to people who don't sell drugs but who unwittingly loaned their vehicles to family members who were caught dealing drugs from the vehicles without the owners' knowledge.

Authorities can legally seize vehicles in those situations, but Sunday noted it doesn't make it the right thing to do.

"The goal here is for civil asset forfeiture to be a punishment and deterrent to drug dealers," he said. "The goal should not be to raise money (for enforcement)."

Money stream: In last week's Timbs v. Indiana ruling, Justice Ruth Bader Ginsberg noted that excessive fines, such as property forfeitures, could be used by government officials "as a source of revenue," which is illegal.

"What has happened over time (nationally) is that civil asset forfeiture money has become a money stream that (officials) got used to," Sunday said, while at the same time police funding was decreasing.

"So as a result, civil asset forfeitures became somewhat part of the law-enforcement process," he said. "And I'm of the opinion that (they) should be used strictly as punishment and deterrent to drug dealers."

Sunday said police departments and the York County Drug Task Force have Hamme's phone number so he can make decisions immediately about whether a seizure should be made, if the circumstances are unclear.

The procedural change is meant to ensure that innocent people don't have to hire attorneys to fight for the return of their property simply because they unwittingly loaned their vehicles to family or friends who sold drugs, according to Sunday.

"That was literally one of the very first things I did when I took office," he said.

Sunday confirmed that since he took office, York County also has scaled back the kinds of items being seized during drug arrests.

Local defense attorney George Margetas said he's noticed the change.

"It used to be, (police) would walk inside someone's house ... and pretty much take everything there — even down to PlayStations," he said.

Focus shifted: Margetas said it appears to him that drug cops are now focusing on seizing cash and guns and not seizing smaller items such as clothing, tools and video games. Also, he said, he's seen a shift in when vehicles are seized.

"Now I see cars being forfeited when there's valid in-your-face proof (that the car was used to further drug trafficking)," he said. "That, in my opinion, is what the forfeiture law is meant for."

Margetas also said he's noticed that fewer vehicles are being seized from drug dealers who borrowed those vehicles from friends and family.

"It feels like they're actually punishing the drug dealers now instead of punishing everyone around the dealers," the defense attorney said. "I think it's an evolution in the law in general, and I think the (York County) Drug Task Force has responded appropriately in this area. ... The forfeiture side of things was out of hand for a while."

York-area defense attorney George Margetas

Client's car taken: Many York County attorneys who handle drug cases have unsettling stories about civil asset forfeiture.

Attorney Suzanne Smith has been practicing locally since 1992. She recalled a case in which her client's car was seized because the client's boyfriend was hiding drugs in it at night — so the client wouldn't realize he was a drug dealer.

"We did fight that (forfeiture)," Smith said. "But we lost. ... The law allowed them to do that."

Smith said she's also seen negotiated plea agreements in York County drug cases in which defendants were given lighter sentences after agreeing not to fight forfeiture of their property.

Attorney Dawn Cutaia said the civil asset forfeiture issue was one she brought up repeatedly to law-enforcement leaders over the years. She has now left York County and practices in Oregon.

"The flaw in the system was the unintended consequence of allowing (officials) to keep the money they took, so it created an incentive for them to take the money," she said. "Because that money was then used to fund their operations."

"It turned solving crime into a business," she said. "And any time you do that, you have a problem."

Cutaia said the Timbs v. Indiana decision is not an anti-law-enforcement decision.

"This is a pro-liberty decision," she said. "And it's refreshing."

Drug forfeiture fund: At the end of the the 2016-17 fiscal year, York County's drug forfeiture fund had an ending balance of about $1.18 million, according to Sunday's office.

The ending balance of the fund for the 2017-18 fiscal year is not yet public information, according to his office.

However, Sunday said that going forward, the amount of money in the fund will be less than the 2016 figure. The money can be used to fund police efforts to fight drugs, he said, and also can be used improve or help fund treatment efforts locally.

"We try very hard to do what's right," the DA said, adding he fully supports seizing whatever's appropriate from drug dealers.

"It's absolutely critical that we seize assets illegally obtained by drug dealers," Sunday said. "They are pouring heroin and other drugs into this county. ... We have to eliminate their ability to run their business."

— Reach Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.