OHP, Loveless comment on ERAD card reader usage

Civil asset forfeiture has been a brewing controversy over the past few years, both in Oklahoma and across the nation.

What is civil asset forfeiture? Here's an explanation from the Cato Institute:

Under state and federal law, police departments can seize and keep property that is suspected of involvement in criminal activity. Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home, or other property.

Oklahoma is widely recognized as a state with many abuses in the civil asset forfeiture practice. Mike McCarville of The McCarville Report has posted extensively about this topic. One recent case took place right here in Muskogee County, when Burmese Christian band manager Eh Wah had over $53,000 in sales proceeds and donations seized by the Muskogee County Sheriff's Department after being pulled over for a broken tail light. Wah was never charged with a crime, and after the story hit national media Muskogee County District Attorney Orvil Loge dropped all charges and returned the money.

Recently, news broke that the Oklahoma Highway Patrol had acquired new technology that can be used in asset forfeiture. Enter the Electronic Recovery and Access to Data (ERAD) Prepaid Card Reader. Here's this from the Department of Homeland Security:

During arrests of criminal couriers, law enforcement officers rarely find bundles of cash wrapped in rubber bands anymore. Instead, they find stacks of plastic cards — bank credit and debit cards, retail gift cards, library cards, hotel card keys, even magnetic-striped Metrorail cards — that have been turned into prepaid cards.

The Department of Homeland Security Science and Technology Directorate’s Electronic Recovery and Access to Data (ERAD) Prepaid Card Reader is becoming a vital tool for law enforcement seizing these cards and funds associated with criminal activity.Several credit cards, hotel key cards and other cards with magnetic strips

The ERAD Prepaid Card Reader is a small, handheld device that uses wireless connectivity to allow law enforcement officers in the field to check the balance of cards. This allows for identification of suspicious prepaid cards and the ability to put a temporary hold on the linked funds until a full investigation can be completed. The project, developed by S&T’s First Responder Group (FRG), began in March 2012.
[...]
FRG transitioned the card reader to the commercial market, and it is now available for law enforcement use.

The Oklahoma Highway Patrol acquired between 15 and 20 ERAD devices from ERAD Group, Inc., in April. According to the contract (PDF link), OHP is paying a one-time implementation charge of $5,000, in addition to 7.7% of all funds seized through the readers and up to $1,500 for training.

I spoke with OHP public information officer Capt. Paul Timmons yesterday about the program. According to Timmons, "The [ERAD] readers have been used in other states across the country for quite some time; Oklahoma has had them for approximately 3 weeks." He didn't have any information about surrounding states using the readers. Due to the amount of readers purchased, only a small number of patrol cars have the devices.

I asked how many incidents have resulted in seizing of funds, and he said that "there have been no seizures of funds to date." 

He further said that two arrests have taken place as a result of OHP implementing the ERAD readers. "There have been charges filed for taking a credit card without consent, false making of credit/debit cards, possession of unsigned credit/debit cards, and possession of incomplete credit/debit cards as a result of having the [ERAD] machines. Other charges filed include possession of falsely/embossed bank cards and possession of drug paraphernalia. Total arrested so far 2 subjects with charges totaling over 260 felony charges.  Arrest warrants have been issued for two other suspects." The two individuals arrested had 129 cards with them.

When asked under what circumstances the readers are used, Capt. Timmons likened it to a DUI stop. The individual has to meet certain benchmarks before being pulled over, and if the officer determines there is enough probable cause or reasonable suspicion, they obtain consent to search vehicle and to run cards through reader. If the information listed on the card doesn't match what shows up when the card is scanned, the ERAD reader gives an error message, at which point they can pursue to an arrest and/or seizing of the card(s).

Capt. Timmons said that the biggest misconception about the readers is that they can scan bank debit or credit cards and pull banking information off. He said that is not the case; the readers only work on preloaded gift cards and similar cards. "We absolutely will not ask for your banking information" or credit card information.

According to Capt. Timmons, OHP is using the devices primarily to investigate credit card fraud and identity theft.

State Sen. Kyle Loveless, the primary legislative author of civil asset forfeiture reform, has strong concerns about the program.

Overreach by the government without any or little due process is what we fought the British over 200 years ago.

Rewind your clock a year, we were told NO innocent people's property was ever taken, and we only could use the property on drug interdiction efforts and law enforcement purposes.   That sounds great- but it is patently FALSE.

Ask the Goss family of Creek County or Chief Steven Mills of Apache, Oklahoma or the famous case out of Muskogee – of international fame because of Mr. Wah who was the manager for the Christian band that traveled around the US raising money for missions, and for orphans in Burma.

If their money isn't safe neither is yours or mine. These ERAD readers are forfeiture on steroids.

Their own promotional materials boast of taking months of wasted time and process where we can drain the funds from these cards in seconds—from months to seconds. They leave two words out – DUE PROCESS.

The legislature was never told about these purchases and when 25 states had legislation to reform their terrible forfeiture laws- Oklahoma double downed and went the opposite direction.  The timing of hearing about this after session is lost on no one.

We are hearing of how business and tourism will be effected by this unacceptable, unconscionable, un-American and the opposite of what Oklahomans want.  This is a slap in the face of every Oklahoman.  Guess who the biggest card issuer is of prepaid debit cards?  The state of Oklahoma uses pre paid cards for all kinds of reasons.

I will continue to fight, there is no left or right up or down – there is wrong and right and this is plain wrong.

According to OklahomaWatch, the ERAD readers are also in use by "a joint law enforcement drug interdiction team under the Oklahoma County District Attorney’s Office".

What do you think about the program? Comment with your thoughts.

Muskogee DA Drops Forfeiture Case Against Christian Orphanage, Church, and Band

Victory: Muskogee DA Drops Forfeiture Case Against 

Christian Orphanage, Church, and Band

Muskogee, Okla.—This afternoon, Muskogee, Oklahoma, District Attorney Orvil Loge indicated that his office was officially dropping all charges against Eh Wah, a Burmese refugee he had charged with possession of drug proceeds [background stories from the Institute for Justice and the Washington Post]. He also indicated that he would drop the civil forfeiture and immediately return the money Muskogee law enforcement officials took from a group of Karen Christian refugees from Burma and Thailand. The announcement comes less than a day after the Institute for Justice announced that it was representing the innocent owners in the case.

Following the announcement, Institute for Justice (IJ) Attorney Dan Alban issued the following statement:

“We are thrilled that District Attorney Loge has dropped the criminal case against Eh Wah and offered to return the money to the band, the church and the orphanage. The intense public scrutiny generated by this outrageous case led to justice being served. Unfortunately, civil forfeiture laws allows property to be seized from innocent people every day in this country. The law allows this to occur and most people do not have the media or pro bono counsel to fight it. Absent the extraordinary circumstances of this case, that property is almost always forfeited and lost for good, even if no one is charged with or convicted of a crime.”

“Muskogee has no excuse for this gross miscarriage of justice. Based on next to no evidence, what started as an ordinary traffic stop turned into a nightmare. They turned a man’s entire life upside down. It should have never come to this. This is a clear-cut case of abuse of power.”

“Not every civil forfeiture victim is a Christian orphanage or a world-renowned Burmese Christian band, but when even their money isn’t safe, no one’s money is safe from forfeiture abuse. This case illustrates that civil forfeiture laws are fundamentally unjust.”

IJ Senior Attorney Matt Miller added:

“Earlier this year, Oklahoma rejected a bill that would have reformed the state’s civil forfeiture laws to better protect property owners after law enforcement claimed that there was no evidence the law was being abused. This case shows that no one’s property is safe from a forfeiture system that incentivizes police to take as much cash and property as possible while making it difficult for owners of that property to fight back. Civil forfeiture needs to end, or be radically reformed. It cannot come soon enough.”

Finally, Eh Wah added:

“This was an experience that no one should ever have to live through. It felt like something that would happen in a third-world country, but not in the United States. I’m just so happy that this is over and I hope that no one else will have to go through something like this.”

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It's amazing how quickly justice can move when enough attention is brought to bear. It certainly makes you wonder about similar situations where money is wrongly seized, but this type of ending doesn't occur. Kudos to the Washington Post and others for shining light on this, and bringing this outcome to pass.

Mike McCarville (the "elder statesman" of Oklahoma's conservative blogosphere) has been beating the drum for quite some time now on changing Oklahoma's civil asset forfeiture laws. It's a shame that powers-that-be in the state legislature stopped State Sen. Kyle Loveless' attempts to bring much-needed reform to this issue.