Property Seized, Money Taken – But No Crime

Editor's Note: One of the gentleman, Wally Kowalski, was arrested and charged hours after this story ran. The unedited piece is below.

Wladyslaw “Wally” Kowalski is a Ph.D. design engineer who lives in Van Buren County. In September, Kowalski came home to find his residence surrounded by police armed with a warrant. Officers searched the home and then hauled away his power generator and many expensive tools. They also froze his bank accounts, leaving Kowalski unable to pay his bills, student loan installments and taxes.

Last November, state police raided the home of southwest Michigan resident Thomas Williams. The rural resident spent 10 hours in handcuffs while officers searched his property. When they departed they took his car, television, phone and some emergency cash.

In both cases, neither Michigan resident was ever convicted or even charged with a crime. But law enforcement is still holding on to their property. They are able to do so because of a little known part of the criminal system called civil asset forfeiture.

The U.S. Constitution says that no one shall be deprived of their property without due process. But civil asset forfeiture is a legal tool by which law enforcement can seize property they claim to suspect has been involved in criminal activity.

Traditionally in Michigan, criminal fines were allocated to libraries, in part to avoid creating incentives that skew law enforcement more toward generating revenue than public safety. Asset forfeiture, however, is different. As a 2010 report from the Institute for Justice explained, “Law enforcement receives all proceeds of civil forfeiture to enhance law enforcement efforts, creating an incentive to pursue forfeiture more vigorously than combating other criminal activity.”

Those incentives contributed to more than $250 million in total forfeiture revenue being collected in Michigan since 2000. Reports from law enforcement agencies here show they collected over $20 million last year.

This has contributed to asset forfeiture becoming a revenue source for law enforcement agencies and big business in Michigan. Maj. Neill Franklin, a 34-year law enforcement veteran who led a drug enforcement team for the state police in Maryland, called the practice “extortion.”

“Today we’re taking property from people across this country and not charging them with crimes because we have no evidence on them that they are committing crimes,” said Franklin, who now serves as the executive director of LEAP (Law Enforcement Against Prohibition).

Williams, a retired home remodeler and grandfather, had no other means of communication besides what the police seized. He was stranded for three days.

Kowalski is a lighting design engineer who has written a number of manuals and textbooks on the use of ultraviolet light in the control of airborne disease, including work on bio-weapon defense systems for things like anthrax.

Both men are medical marijuana users and believe they were targeted because of aggressive policies by a multi-county drug enforcement unit run by the Michigan State Police. There are 28 such task forces in Michigan and the Southwest Enforcement Team, which was involved in these raids, is the largest collector of seized property outside the Detroit area. The commander of the unit, Lieutenant Wayne Eddington did not discuss these specific cases, but said he believes people are trying to profit from medical marijuana, thinking the law will protect them.

“You have people coming from out of state who aren’t even Michigan residents that will buy a home strictly to grow marijuana and traffic it out of state where marijuana is completely legal,” Eddington said.

The summons and complaint in the Williams case and the petition for seizure order in the Kowalski case give some clues to what triggered these particular raids and seizures of property. The case against Williams describes an earlier raid on a marijuana dispensary in Battle Creek, one hour from his home.

“I used to run a compassion club (there) three years ago and somehow they got my name off a piece of paper from when I rented the building and they took it to the judge and said I was (an) agent for a dispensary and they got a warrant to raid my house,” Williams said.

In the summons and complaint, which describes a sting of the dispensary, there is no mention of Williams engaging in illegal distribution. In fact, one witness stated that he “had turned the business of the Battle Creek Compassionate Center over” to Mr. William’s son and the witness and the father had nothing to do with the dispensary for months.

Unlike criminal warrants for arrest, seizure of property suspected of being used in drug crimes, or the proceeds from crimes, requires a lower burden of proof because they are civil matters.

Attorney Daniel Grow, who represents Williams, explains that civil asset forfeiture cases can occur before, during, or after criminal prosecution because they are separate matters.

“The system is set up so that there is an incentive for the average person to resolve their claim by a plea deal,” Grow said. “Very few of these cases go to trial because they’re average people that have usually never been in trouble before and try to follow Michigan’s medical marijuana act.”

Grow said forfeiture is common in criminal cases but also happens when there are no criminal charges. It is difficult to fight seizure asset cases without criminal charges because the person must subject themselves to interrogations, depositions and give up their right to silence, as in criminal matters.

Williams says he was told he could get his property back if he paid a fine of ten percent of the value, about $5,000.

For his case, Kowalski is dumbfounded as to why police picked on him. He had been using medical marijuana after surgery in 2003 for a torn mitral valve. His heart medication caused insomnia and marijuana helps him sleep. But he has no use for the drug recreationally.

“I never really liked it,” Kowalski said. “It made me foggy headed. I’m focused on research, science, books, writing. I didn’t find it conducive to that lifestyle.”

After Michigan passed the medical marijuana law, he applied for a card.

“The parameters seemed very simple: I could grow 12 plants and carry 2.5 ounces,” he said.

Kowalski wanted to grow his plants outdoors because it was less expensive and caused fewer mold problems. He checked with the local sheriff and built a five-foot, barbed wire fence around the garden. Soon after, he agreed to be a licensed caregiver to four other patients. Under the law, he was permitted to grow 12 plants for each person.

According to the seizure petition, police spotted his plants by helicopter and could see them from the road. Kowalski lives in a rural area and said it is not possible to see exactly what is growing inside his fence about 400 feet away.

Other allegations in the complaint state that Kowalski was growing his plants inside an area that did not have a roof or cover and that he was unable to produce two of the four caregiver cards. Kowalski says he didn’t have the documentation in his house at the time but did get it from the State of Michigan registry a few days later and provided it to police within a few days.

Police also claimed they found a “ledger” but Kowalski says it was a notebook that did not show sales of any sort. He says the book contained scientific data, calculations, phone numbers and miscellaneous writings, prose and song lyrics.

Kowalski also denies ever “selling” marijuana products, as stated in the complaint. He says he charged a compensation value of $4 per gram to his clients, and only provided a few grams at any one time. He was motivated more by compassion than profit.

“A lot of people around here are poor and my clients are poor and if they didn’t have the money, I just gave it to them for free,” Kowalski said.

The petition also states that Kowalski had business cards with a false address, stating his street number was 39416 instead of 39413. Kowalski said the cards had a typo on them and mistakenly handed the police a card from the bad batch.

Last Wednesday, after Michigan Capitol Confidential contacted the agency, prosecutors lifted the freeze on his bank accounts. But they still hold his property.

“I don’t think what I did, growing medical marijuana for myself and my clients, was such a terrible thing but the treatment I’m getting from the state police is extremely harsh,” Kowalski said.

He has been forced to sell some of the property he did retain in order to pay his bills.

“The primary goal of asset forfeiture is to deter and punish drug criminals by taking away the goods, property and money obtained through illegal activity,” states the 2014 Asset Forfeiture Report filed by the Michigan State Police.

But Maj. Franklin disagrees.

“Marijuana is the largest cash cow for law enforcement, as you think about civil asset forfeiture,” he said. “Here’s what we did with some people: We didn’t prosecute [them], they didn’t go to prison, and they didn’t go to court.  They weren’t convicted of [anything], but we would make a deal with them and they’d come to us and say, ‘Hey, I need my car to go to work,’ and we’d say, OK, if you give us XYZ amount of money, you can have your car back. So, literally, it’s extortion.”

Several bills have been introduced in the Michigan legislature that would make the forfeiture process more transparent or limit it without a criminal conviction. So far, they have been stalled at the urging of law enforcement agencies.