Robert Spence`s phone rang even before his morning visitor sat down and took a sip of coffee.
Spence, Du Page County assistant state`s attorney in charge of prosecuting drug law offenders, listened for a minute and then responded to his caller`s inquiries.
”Yeah, I`d say go ahead; case law certainly supports it,” he advised, and hung up shortly after.
”That was the Burr Ridge police,” Spence said, turning to his visitor.
”They just arrested a guy on a DUI and found a vial of cocaine on him. They wanted to know if they could confiscate his `86 BMW.”
Under a federal program called Zero Tolerance, which has found its way into state statute and local law enforcement policy, the answer is yes.
”To discourage demand you have to have user accountability,” said Spence, the assistant state`s attorney who supervises the office`s Major Crimes Unit. ”One way to do that is to make it more expensive for the person who`s using the drug.”
Zero Tolerance essentially allows that property used to faciliate the possession or transportation of an illegal drug, no matter how small the amount, can be seized by law enforcement officials. It has been an active tool in Du Page for about a year, since U.S. Attorney Anton Valukas last summer encouraged local agencies to implement the policy.
Designed to discourage drug use, Zero Tolerance is an offshoot of a law that permits authorities to seek the forfeiture of assets owned by those charged with and convicted of trafficking in drugs.
”Zero Tolerance . . . is more aimed at the casual user,” said Tom Pope, a full-time financial investigator employed by the state`s attorney`s office to trace the ownership of assets.
The property that can be seized includes houses, vehicles of all kinds and cash. But more often than not, the asset seized under Zero Tolerance is an automobile.
”With us, we`re dealing mostly with vehicles,” said Carol Stream Police Chief Wilbur Reichert, president of the Du Page Police Chiefs Association.
”Personal property in the vehicle is not seized.”
Reichert said Zero Tolerance may sound unreasonable, but patrol officers still must recognize proper search procedures.
”You still have to have probable cause,” Reichert said. ”You can`t just go in there and tear the car apart. It (the drug) has to be in plain view.”
Spence said homes where drugs are suspected of being used can be seized, but the state`s attorney`s office is not likely to pursue those cases.
”We could . . . but realistically you don`t want to work an economic hardship on a person and his dependents,” Spence said. ”The intent is not to punish the guy`s family.”
In February, though, federal authorities seized the Elmhurst home of Michael and Karen Neuhaus, two suburban teachers charged with and later convicted for possession of LSD and marijuana.
Spence said authorities suspected the Neuhauses of supplying the drugs to teenage students but did not have enough evidence to prosecute the couple on trafficking charges.
”They were providing, more than anything, a safe party house for teenagers,” Spence said. ”To us, that was enough. That`s ridiculous.”
Critics of Zero Tolerance, like the American Civil Liberties Union, call the policy a Draconian approach to law enforcement, one that targets the wrong segment of the population while not really addressing the problem of drugs in society.
”The concept is an overkill,” said Jack Donahue, a Lisle defense attorney and former chairman of the Criminal Law Committee of Du Page County. ”It`s indiscriminate and it violates the due process of small people.
”No one is going to dispute the government`s right to seize the assets of people dealing in (illegal) substances,” Donahue said. ”This just alienates the wrong people.”
Even those in the law enforcement community who support Zero Tolerance acknowledge its use invites bureaucratic complications with numerous levels of the federal government.
Once a vehicle is seized by the arresting officer, the case is turned over to the U.S. Drug Enforcement Administration or the Federal Bureau of Investigation, which decide whether to pursue the forfeiture. The actual forfeiture process is a civil matter handled in U.S. District Court. The forfeiture becomes automatic if the owners fail to petition for a hearing within 30 days.
”The federal bureaucracy, as far as paperwork goes, is very slow,”
noted Westmont police detective Vince Musial, the department`s Zero Tolerance program coordinator.
”If the feds are going to decide not to confiscate the vehicle, why hold everybody up?” Musial said. ”We incur costs by storing the vehicle and the person is deprived of the use of his vehicle.”
In a civil case in federal court, the burden of proof lies with the person whose vehicle was seized. In legal terms, a preponderance of evidence rather than beyond a reasonable doubt is all that`s needed.
”If drugs are found in a car, that`s all we need to show,” Pope said. The vehicle is returned in cases where the car is owned by someone other than the person caught with the drugs, such as parents of suspects or those who lend their vehicle to friends, and that person can prove he or she had no knowledge of the drug use, he said.
But Donahue, who said he represents two clients whose vehicles were wrongfully seized, contended that system injures non-users.
”The bureaucratic entanglement you have to go through to obtain your property can be overwhelming,” he said. ”The red tape is just incredible.” ”Because the paperwork goes from Chicago to Washington (D.C.) and back to Chicago, things may get lost in the shuffle,” Clarendon Hills attorney Paul DeLuca said.
DeLuca, a former Du Page assistant state`s attorney who left the office three years ago to become a criminal defense lawyer, said a client of his nearly lost a vehicle that was wrongfully seized because notice of a hearing in the case was never sent to his home.
”A person charged under a local ordinance can have his criminal case taken care of in Downers Grove Field Court but has to go downtown to get his car back,” DeLuca said.
Once the asset is forfeited, it is awarded to the seizing agency, as in the case of vehicles, for use in law enforcement, or sold with 90 percent of the profits returned to the local agency and 10 percent kept by the federal government to cover administrative expenses. Lien holders are paid off as well.
Considering the effort involved, local police departments are being advised not to seize cars that are low in value, Spence said.
”There is a point at which you have wonder whether it`s cost-effective,” Spence said. ”If it`s not worth $5,000 equity, the feds won`t touch it.”
Spence said 80 percent of the cases Du Page sent to federal authorities are now being returned for adjudication under the state statute, which has a whole different set of rules.
Under the state law, the person being stopped by an officer must be in possession of cocaine or any similar hard drug before his vehicle can be seized, Spence said. Possession of marijuana, unless it is ”an amount in such a quantity the intention is clearly to deliver,” does not qualify, he said.
Also under state law, the prosecution has the burdern of proof, rather than the other way around. A court hearing is automatic in state-sponsored forfeitures.
Spence said he could not predict how successful forfeitures will be in state court as federal authorities only recently have been remanding cases back.
Musial said federal agencies have refused cases because the U.S. court system has become clogged with forfeiture petitions.
”We`re defeating our purpose,” Musial said. ”We`re going back to the situation where agencies don`t have enough manpower.”
Both Pope and Spence predicted that despite a backlog of cases, the number of vehicles being seized by local police departments is likely to increase over time.
And it is only over time that the law enforcement community will be able to tell whether Zero Tolerance will have a chilling effect on drug use in society, Spence said.
”This is still too new a policy to say whether it has had any effect,”
Spence said.
