'Loophole' allows law enforcement to keep confiscated cash even after charges are dismissed

A Colorado lawmaker is calling for change to the state's civil forfeiture laws after Denver7 Investigates uncovered cases where people lost money seized from them during arrests even though they were not convicted.
 
"Civil forfeiture is set up to ensure that if the bad guy is using stuff for the wrong reasons, they shouldn't be able to keep that, if it's within the commission of a crime," said Republican state senator Kevin Lundberg. "[But] there are a couple of loopholes that are in there where the authorities can take the property and the person who is not convicted, but is simply accused, may lose that."
 
Edwin Couse is one of those who lost property during an arrest for which he was never convicted. In 2013, Couse and his wife started a membership organization to distribute medical marijuana. He told Denver7 Investigates he set it up with the guidance of his lawyer, and believed it was all legal, but it still became the target of police. 
 
"We're sitting there, it's first thing in the morning, we're just drinking our coffee," Couse remembered. "They knock on the door, they say it's the police. I open the door and then they kick it open really, and they barge their way in. If you've never experienced an arrest of that nature where there's guns in your face and things like that, it is very scary."
 
The district attorney charged Couse with possessing and distributing marijuana. During the arrest, Couse said police took cell phones, cameras and about $1,800 in cash. The following year, the district attorney dismissed all of the charges "in the interest of justice." But Couse said he never saw any of the cash or items seized from him that day again.
 
"What did they return to you?" Denver7 Investigates asked Couse.
 
"Nothing, absolutely nothing," he responded.
 
The law allows police to take cash and property like cars during arrests if they believe the property is the product of a crime. The district attorney then begins two separate processes: prosecuting the suspect in criminal court, and seizing the money in civil court. 
 
While one section of the law says property should not be forfeited unless and until the suspect is convicted, it does allow for exceptions.
 
"The civil process is totally separate from the criminal action," said Lamar Sims, chief deputy district attorney in Denver. "The law requires that the civil action be filed within a certain time after law enforcement takes custody or starts the civil process."
 
Sims said the law typically does not allow his office to wait for a criminal case to be resolved because it is required to file civil forfeiture lawsuits within 63 days of seizing the property. The lawsuits give suspects 21 days to respond. If they do not, the prosecutor can move for summary judgment -- closing the civil case and distributing the money, typically before the criminal case has ever gone before a jury.
 
Couse said he did not respond to the civil case and he believes he was in jail at the time. He said he believed it would be too costly to hire an attorney to fight the case.
 
"It would cost me more than the $1,800, I can guarantee you that," Couse said.
 
"I don't like that. I don't think Colorado law should be set up working that way," Sen. Lundberg said. "Justice from the civil government side should be punishing the wrongdoer but holding the citizen innocent until proven guilty." 
 
When Marcus Cosby was arrested on drug charges in 2010, police seized $1,500 in cash he said belonged to his mother. Cosby said he filed a handwritten response to the city's forfeiture lawsuit, but he filed too late. 
 
"I fought the criminal charges for about a year or so and eventually all the charges were dropped," Cosby said. "All the original charges were dropped from when the money was confiscated, so where's my money?"
 
Cosby's civil case was closed on summary judgment when he did not respond on time to the filing. He had a history of drug convictions and he believes authorities used his past against him to keep his cash.
 
"A lot of people are scared to go after the police," Cosby said. "They feel like that it's big force and they can't compete against it. ... But it's kind of like when you're in a situation where you don't have anything to risk, and you have everything to lose, and you try to get what belongs to you ... it really doesn't matter." 
 
Sims encouraged anyone who feels they have had money or property confiscated unjustly in Denver to call the district attorney's office and ask for a review of their case.
 
Sims emphasized that people can and do avoid losing their property before the conclusion of their criminal case by simply filing a response to the civil action within the required 21-day period.
 
In Denver, much of the money confiscated from suspects goes into a fund for prosecutor and police training and equipment. Lundberg said a 2015 bill to reform civil asset forfeiture laws met with resistance from law enforcement. 
 
"They need to come and tell us why the legislation is not going to work right, but I was less than pleased with the attitude I heard. Because they said: 'well, we give them due process.' Which simply means we stick to the procedures that are in place. But if the end result is the citizen who was not convicted of a crime loses their property, that's not right. That needs to be cured. They push back because they say 'Look at all the neat stuff we got from these takings,'" Lundberg said.
 
City records show the Denver Police Department has used confiscation funds for everything from personal protective equipment to gun lockers to hostage negotiation training. But Denver7 Investigates also uncovered more than $120,000 in confiscation spending by the DPD's media relations team, including buying high-end video editing equipment, advertising for the department's Facebook page, and paying close to $2,500 to submit entries to the local Emmy competition for department-produced videos.
 
Nick Rogers, the president of the Denver Police Protective Association, called the Emmy entries a misuse of funds which were earmarked for police training. DPD deputy chief Matt Murray justified the spending in an interview with Denver7 Investigates.
 
"I think the community would agree ... using the proceeds of crime to become the gold standard in communication by law enforcement is truly, I think, a great thing," Murray said.
 
"Just on the face of it, I don't think it makes sense," Lundberg said when asked about DPD's Emmy expenditures. "I'll let the people decide whether they think that's appropriate or not."
 
The day after Denver7's initial investigation aired, the department revealed it was spending another $3,230 on entries and memberships for the 2016 Emmys. This time, though, the department said it would not be using public funds and the nonprofit Denver Police Foundation would be paying the bill. Taxpayers did however pay $650 in January of 2016 for DPD to enter its videos into the Edward R. Murrow Awards, a journalism competition. 

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