Is Our Property Guilty until Proven Innocent? : NMA E-Newsletter #388

Law Enforcement now using ERADs, seizing cash without an arrest, a warrant and due process.

Life as a motorist in America is never easy. Not only do motorists have to contend with red-light cameras with sometimes shortened yellow lights, we have to deal with automated speed cameras, speed traps, road blocks, wolf pack ticket blitzing, racial profiling, driver responsibility programs, automated license plate readers, drone surveillance, implied consent laws and of course, the granddaddy of them all, civil asset forfeiture (CAF). If law enforcement thinks your vehicle has been involved in a criminal act, law enforcement can seize your wheels and whatever else may be in your car. No warrant or arrest is necessary. Even though law enforcement could always take your cash under CAF, police now have a new tool in their arsenal called an ERAD or Electronic Recovery and Access to Data device.

Firstly, an ERAD can be used by a law enforcement officer during a traffic stop to find out how much cash a suspected driver has on any magnetic-striped card. This includes a prepaid debit card, a store gift card, a bank debit or credit card. Secondly, police can only use the cruiser-mounted scanners to freeze and seize money loaded onto any prepaid debit cards. Thirdly, police cannot freeze or seize money from bank debit and credit cards but have the capability to retrieve and store your bank and credit card information and view it at a later time. The scanners can also indicate personal information about who owns the account and where they live.

The news broke last week that the Oklahoma Highway Patrol bought 16 of these ERAD devices. They’ve been using them since May to seize assets of supposed drug dealers, to uncover cases of identity theft, and to search out credit card fraud. Apparently, there are a number of departments around the country that are using ERADs but for some reason, the news from Oklahoma caused quite a stir.

T. Jack Williams, ERAD Group president and one of the leading magnetic stripe card consultants for law enforcement, says, “Prepaid cards are cash. They are not bank accounts.” Because of this difference, Williams adds that freezing or seizing funds from prepaids is not the same as freezing or seizing funds from bank or debit cards. Prepaid cards come from pooled accounts held by financial companies and apparently are not protected by the Bank Secrecy Act. Williams adds, “Individuals do not have privacy rights with magnetic stripe cards because the information on the strip literally has no purpose other than to be provided to others to read.”

The use of ERADs provides incentive for law enforcement to continue some of their more contentious practices of racial profiling. Low income workers are sometimes paid with prepaid debit cards making them possible targets. Prepaids are also the way some people do their banking now. Not everyone who uses a prepaid card is a drug dealer, an identity thief, or commits credit card fraud. ERAD readers only compound law enforcement abuses of civil forfeiture.

Civil asset forfeiture is big business. During and after the 2008 recession, CAF ballooned at the Justice Department and the US Treasury from under $1 billion dollars in 2006 to about $4.5 billion in 2014. The states do their share too. New Jersey law enforcement agencies, for example, seized more than $72 million in private citizens’ assets between 2009 and 2013. These asset seizures came with no reporting requirements and often placed enormous burdens on family members who had nothing to do with the alleged offenders’ activities.

Only two states, Nebraska and Wisconsin, require law enforcement to prove potential criminal activity. Oklahoma State Senator Kyle Loveless would like the same for his state. He has tried unsuccessfully to pass legislation that shifts the burden of proof to the state, so that property owners no longer have to prove their property is innocent in civil court. Loveless’ current legislation also includes transparency measures to track seizures and determine how the forfeited money is spent.

Civil asset forfeiture never bodes well for motorists or any American not charged with a crime since it tramples our Fourth Amendment protection against unlawful search and seizure and our Fifth Amendment right to due process.

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