Carrying a lot of cash is dangerous. Criminals may take it and so may the cops, who increasingly view having a lot of cash as evidence of wrongdoing. But now, police have added a new twist -- they've started using a scanner that lets them swipe the money right off prepaid cards.
The device is called an ERAD -- Electronic Recovery and Access to Data machine, and Oklahoma's state police began using 16 of them last month. Hundreds of other police departments around the country are also using the device but haven't fessed up to it.
It's all pretty simple. If a state trooper or other police officer suspects you are tied to some type of crime, he can scan your prepaid cards and seize the money on them. No formal charges, no trial, no due process.
It's an extension of a long-standing practice of shaking down anyone police think is suspicious. All too often, as the Washington Post demonstrated in a Pulitzer Prize-winning investigation a few years ago, all you need to do to look suspicious is have a lot of money.
The police, of course, say the process is completely straightforward.
"We're gonna look for different factors in the way that you're acting,” Oklahoma Highway Patrol Lt. John Vincent said, according to a Washington Post report. “We're gonna look for if there's a difference in your story. If there's some way that we can prove that you're falsifying information to us about your business."
Of course, when Lt. Vincent says police will "prove" you're falsifying information it doesn't mean they'll prove it in court, where you can confront the witnesses and challenge the evidence. And that's what has critics upset.
State Sen. Kyle Loveless (R-Oklahoma City) said he will introduce legislation in the next session of the state legislature that will require a conviction in a court of law before anyone's assets are seized.
"If I had to err on the side of one side versus the other, I would err on the side of the Constitution,” Loveless said. “And I think that's what we need to do."
Loveless said there have been too many documented cases of abuse in Oklahoma to allow police to continue treating citizens as criminals without benefit of trial.
"We've seen single mom's stuff be taken, a cancer survivor his drugs taken, we saw a Christian band being taken. We've seen innocent people's stuff being taken. We've seen where the money goes and how it's been misspent," Loveless told a local television station.
Where it goes
As for what happens to the money seized with ERAD, 7.7% of it goes to the ERAD Group, a Texas-based company. The rest? Oklahoma Watch, an investigative journalism organization, says records show that in one recent year, 70% of all forfeiture amounts were used to fund salaries for law enforcement.
Oklahoma law currently allows police and prosecutors to keep the money they take from citizens, even those who are never convicted or indicted, so those victimized by modern-day highway robbers basically have no recourse.
The Post's series caused a stir when it was published, but progress in cleaning up the practice has been slow. New Mexico, Montana and New Hampshire recently passed laws requiring a conviction before property can be forfeited, although the Post says New Mexico police routinely ignore the law.
The ERAD devices, by the way, can strip money off prepaid cards, but they can also decipher quite a bit of information from the magnetic strips on credit and debit cards, information police could conceivably use to track down and swipe additional assets.
ERAD claims its devices are an invaluable tool in fighting money laundering.
"Each year, there are about $120 billion dollars moved to Mexico, Iran, Colombia, China as well as others as a result of illicit activity in the US," ERAD says on its website. "Prepaid debit cards are becoming the preferred process to move funds for pick up in these countries."
No right to privacy
ERAD CEO T. Jack Williams claimed recently at a conference that American citizens have no right to privacy when it comes to magnetic encoding on their cards, Oklahoma Watch reported.
“Prepaid cards are cash, they are not bank accounts,” Williams said. He claimed that prepaid cards are not protected by the Bank Secrecy Act and are not protected by the Constitution's Fourth Amendment protections against unreasonable search and seizure.
Brady Henderson, legal director for ACLU Oklahoma, says that's debatable and predicted Oklahoma's Department of Public Safety will find itself facing legal challenges to warrantless search and seizures using ERAD.
The situation is not unique to Oklahoma. The ERAD devices are in use around the country by "hundreds" of police agencies, Williams said, although he refused to give an exact number or name any of the police departments using the devices.