Judge Slams Oklahoma DA Jason Hicks’ Use of Private Contractors Desert Snow for Roadside Stops

Nolan Clay reports at the Oklahoman:

HINTON — After seizing more than $1 million in cash in drug stops this year, a district attorney has suspended further roadside busts by his task force because of growing criticism over a private company’s participation.

His prosecutors have dropped all criminal cases arising from the drug stops, The Oklahoman was told. Some seized money is being returned. The attorney general’s office is investigating one complaint some seized funds went missing.

“I’m shocked,” a Caddo County special judge said July 2.

The judge spoke at a hearing after learning the private company’s owner pulled over a pregnant driver along Interstate 40 and questioned her even though he is not a state-certified law enforcement officer.

“For people to pull over people on I-40 without that license is shocking to me,” Special Judge David A. Stephens said.

The judge said he hoped Joe David, owner of Desert Snow LLC, wouldn’t do it again.

“If you do, I hope to see you soon, wearing orange,” the judge said, referring to the color of jail clothes in Caddo County.

At issue is District Attorney Jason Hicks’ decision to hire Desert Snow to do on-site training with his task force for a year.

He signed a one-of-its-kind contract in January to pay the Guthrie-based company 25 percent of any funds seized during actual training days. He agreed to pay the company 10 percent of funds seized by his task force on other days when the company trainers weren’t present.

Most stops have been along a 21-mile stretch of I-40 in the rolling hills of Caddo County.

Sometimes, no drugs were found and no one was arrested, but task force officers took money found in the vehicles anyway after a drug-sniffing dog got excited.

Forfeited funds are split among the law enforcement agencies of the task force after Desert Snow is paid.

Hicks has paid the company more than $40,000 so far. The company could get another $212,000 off the largest seizure its officials participated in — the discovery of almost $850,000 in May.

“I think his intentions were good, but I don’t think he thought it out,” said well-known defense attorney Irven Box, who represents a Colorado man charged with marijuana possession after being stopped for a cracked windshield.

Box said in no way should a private company be involved in drug stops when it gets paid from funds found on the stops.

“That … at least gives the appearance that these seizures are done for profit and not to protect the citizens,” he said.

(Nolan Clay, Oklahoma DA halts I-40 drug stops after criticism, The Oklahoman, 21 July 2013. )

As our colleagues at the Institute for Justice reported in their 2010 “Policing for Profit” study, Oklahoma has some of the worst forfeiture laws of any state:

Oklahoma has terrible civil forfeiture laws, and its statutes give law enforcement significant financial incentives to seize property.  To forfeit property in civil proceedings, the government typically must show that property is related to a crime and subject to forfeiture by a preponderance of the evidence.  In all civil forfeitures in Oklahoma, owners are presumed guilty and must contest forfeiture by proving they did not know property was being used illegally.  Worse, law enforcement receives 100 percent of the proceeds from civil forfeiture.

When assets are seized by the Oklahoma Bureau of Narcotics and Dangerous Drugs Control, the Bureau can agree to share the proceeds with other law enforcement agencies.  There are some limits on the amount of forfeited funds the Bureau can spend, but the cap was raised substantially in 2007.  Previously, the Bureau needed to seek permission of the legislature to spend more than $900,000 of forfeited funds.  Since 2007, that cap is $2,000,000.[1]  Oklahoma law enforcement officials have used civil forfeiture laws aggressively, averaging more than $5.5 million per year in forfeiture proceeds between 2000 and 2007. (Institute for Justice, Policing for Profit, 2010.)

It is certainly rare that prosecutors and law enforcement at the state level hire private companies on a contingency basis to assist with the actual seizure and litigation of asset forfeiture, but it is not unheard of. I am particularly reminded of former Indiana prosecutor Mark Mckinney, who “entered into various confidential settlement agreements (or CSAs) that allowed him to personally collect a percentage of the proceeds of civil forfeitures in cases where he was simultaneously prosecuting the suspect on criminal charges.” For this conduct, Mckinney’s law license was eventually suspended for 120 days by the Indiana Supreme Court.