A push three years ago for more accountability from Kansas law enforcement agencies that seize cash, cars and contraband — often without filing criminal charges against the owner — has generated a wealth of new information.
On examination, however, the numbers often don’t add up.
A review of nearly 2,000 reports filed so far found widespread inconsistencies in the way seizures are reported. More than half of the law enforcement agencies have failed to report some of their seizures as required and have done so with the blessing of the Kansas Bureau of Investigation, which is charged with gathering and posting the information on a publicly accessible website.
“It was the Legislature’s intention that we know the value of seizures, no matter at what stage in the process they are, whether they are pending, whether they have concluded,” said Rep. John Carmichael, D-Wichita. “The intention was to have that data available so that the Legislature could look at additional legislation to deal with what most of us perceived to be the overuse of civil asset forfeiture.”
Civil asset forfeiture allows police to seize and keep cash, cars — even real estate — that they believe is connected to criminal behavior. No criminal charges need to be filed. Since the new reporting law went into effect in July 2019, Kansas law enforcement agencies have reported seizing $9.5 million in cash and $2.5 million in property.
More than 1,000 incident reports are available. Each contains more than 150 pieces of information about a seizure. Another 720 annual reports, which summarize details from incident reports, have been posted. A KBI spokesman said the website is typically updated weekly, but as of late January the last update appeared to be five months old. After a reporter for Kansas Reflector inquired about the frequency of updates, hundreds of new reports were added, including nearly 200 from 2019.
Changes to annual reports for 2019 have been revised as recently as March 30. Sometimes corrections made by agencies are not reported in data posted online. Incident reports are grouped by year but in some cases have been placed in the wrong year, making it impossible to reconcile data from the incident reports with totals in the annual report.
State law requires that the KBI review reports for accuracy and correct them. Just 80 of the state’s 370 law enforcement agencies had forfeiture activity to report in 2020, but among annual reports that year, 91 agencies reported a starting fund balance that didn’t match the fund’s 2019 ending balance.
Account discrepancies
Numbers in incident reports frequently don’t add up. Sometimes it’s as simple as a typographical error, or two transposed digits. In many cases, it’s impossible to tell from the report.
The calculation would appear to be straightforward: the amount of cash seized should equal the amount forfeited plus the amount returned. But in 80 incident reports, the numbers don’t match. In more than half of those, the difference exceeds $1,000.
The incident reports are, in turn, supposed to agree with financial information on the annual reports. The reporting law says the KBI “shall determine whether each agency’s financial report matches the agency’s seizing report.” If it doesn’t, the reports are either to be corrected or the KBI is to declare the agency to be noncompliant and prohibited from any further seizures until it becomes compliant.
The KBI’s measure of what it terms a “substantial match” is not particularly stringent — the discrepancy cannot be more than $5,000 or 10%.
The KBI has identified just one agency in 2019 and one in 2020 whose annual reports failed the substantial match test. In both instances, it was the Clark County Sheriff’s Department.
The 2019 discrepancy isn’t difficult to spot. The Clark County sheriff filed three incident reports in 2019 showing a total of $85,082 in forfeited cash. Its annual report showed $1.17 million. In 2020 the difference isn’t as great: a single incident report for $28,047 compared with $88,061 in the annual report.
Calls to Sheriff John Ketron and county attorney Joseph Milavec were not returned.
A review of the incident reports shows more than two dozen agencies don’t substantially match totals in annual reports filed for 2019 and 2020. None was flagged as failing to match.
For example, based on the 2019 incident reports posted by the KBI, total net forfeitures in state court by the Kansas Highway Patrol that year were $318,831. However, the KHP’s annual report put the figure at $275,825. The KBI did not flag the report as failing to match.
Many of the state’s law enforcement agencies have only a handful of employees, with none devoted to full-time accounting. The Kansas Highway Patrol, which has a $120 million annual budget, has a full-blown accounting department.
The KHP, when asked for an explanation, spent many hours searching for the discrepancy and found that four incidents grouped by the KBI as 2019 cases actually are 2020 cases, said Lt. Dax Lewis, who oversees asset forfeitures for the KHP.
The revision brings the 2019 numbers much closer to the reported figure — the reports now make the total $270,409. But moving the four incidents to 2020 now creates a $58,044 discrepancy in that year.
If the difference is more than $5,000, the agency is supposed to be flagged as noncompliant and prohibited from making civil asset forfeitures until it comes into compliance.
Capt. Cory Odell of the Junction City Police Department offered two reasons for why there was a more than a $45,000 difference between information on the agency’s seizure reports and its 2019 annual report, and an $11,000 difference in 2020.
“The first and most common reason is that the incident report is generated within 60 days of judgment,” Odell said in an email. “However, the annual report is produced every year.”
He said even though cash has been forfeited, it may still be needed as evidence in ongoing criminal cases and therefore may still be stored in an evidence locker.
“Assets are only listed on the annual report after they have been deposited,” he said.
The KBI’s handbook makes no mention of such an exemption.
And that explanation cannot account for the $45,000 discrepancy. A review of criminal cases filed in connection with 2019 seizures shows only one with a pending criminal case at the end of the year, and it involved the seizure of $2,000.
The second reason Odell offered was that reporting rules keep changing.
“The State of Kansas has changed their reporting criteria a couple of times in the last several years and have required different information each time so that not everything adds up until they pick a method and stick with it for a few years,” he wrote.
Tracking changes
Agencies track forfeited cash in three funds: pending, for cases before they are resolved; state, for tracking proceeds forfeited under Kansas law; and federal, for proceeds forfeited by federal agencies. Some of the 91 agencies, including the Wichita and Lawrence police departments, had mismatched balances in all three funds.
Officer Charley Davidson, of the Wichita Police Department, said the reporting system is complex.
“All (we) do is submit reports to the KBI,” he said. “The KBI’s the one that manages all of this, does the checks and balances, makes sure it’s approved as far as the numbers, makes sure the numbers match, makes sure the numbers are right. We just submit a report.”
The Lawrence Police Department’s fund balances didn’t agree until after a reporter asked the agency about it in late March. A spokeswoman for the police department directed questions about why that happened to the KBI.
“The Lawrence Police Department did not submit revised numbers,” said Laura McCabe, the department’s spokeswoman.
The KBI suggested changes came from law enforcement agencies.
“There are some agencies that had made a change to their report after the full data extract had been uploaded to the (KBI) website,” said Brooklyn Graves, who manages the forfeiture reporting at the KBI, in an email. “These changes were then reflected in the new data extract that we published at the end of March.”
The changes in question were made to reports on activity in 2019. The reports were due by Feb. 1, 2020, and the original version of the spreadsheet on the KBI website was dated March 29, 2020. An updated version of the 2019 annual report posted by the KBI approximately a month ago contains no changes to Lawrence’s numbers.
But a third version, dated March 30, revised starting and ending balances for all three of the department’s funds in 2019.
During a 90-minute Zoom call in early March, KBI staff didn’t address the agency’s responsibility for making sure numbers match.
The reporting system “went live July 1, (2019), and there was an annual report at the end of 2019, and (agencies) were asking their local accountants, ‘Hey, how much money do we have in this one and in that one?’ And they weren’t used to doing that,” said Mitch Beemer, who managed the reporting program when it was implemented.
One example of reporting inconsistencies involves the Wakeeney Police Department.
In 2019, Chief Ashley Garza had just taken over the five-officer department. It missed the Feb. 1, 2020, deadline for filing its 2019 annual report, which earned it a place (along with 16 others) on the KBI’s noncompliant agency list. Wakeeney later filed a report, which took it off the August 2020 version of the KBI’s noncompliant list. By then, all but four of the original agencies were in compliance. However, Wakeeney’s annual report did not appear in the 2019 online data until a few weeks ago.
The next year started the same way. The Wakeeney Police Department filed an annual report after the deadline. According to the 2020 annual report available from the KBI’s website, Wakeeney started 2020 with $30,853 in its state forfeiture fund, spent nothing from the fund over the course of the year, but ended the year with no money in it.
That’s not what Garza’s records showed when she was asked about the report.
Garza said the department’s 2019 annual report shows an ending balance of $30,853 in the state fund. The 2020 annual report she has on file shows the same amount as the starting balance, as it should, but also shows that her department spent $806 over the course of the year, ending with $30,047.
“I do know we made some mistakes on this last report,” she said, but she has no idea why the report on the website doesn’t show the corrected numbers.
After changes in late March, the online report reflects the corrections.
Federal factor
Of the $9.5 million in cash seized by Kansas law enforcement agencies since the new reporting requirements went into effect, half — $4.5 million — was turned over to federal agencies for forfeiture.
The Kansas reporting law says seizure assets are to be “accounted for in a manner that allows accurate tracking and reporting of deposits and expenditures.” That includes detailing whether criminal charges were filed in the case, how much of the seized asset was forfeited and how much of the seizure the agency received.
With federal forfeitures, that is unclear.
“What I’ve been told by law enforcement … is if they file it in federal court maybe, at some point in time, they will be notified that out of $100,000, we may get $10,000,” said Rep. John Barker, R-Abilene. “They never really know. (The Department of) Justice decides how it’s divvied up. If they need additional funds, your share will be smaller.”
Beemer, who oversaw the KBI’s data collection when the new reporting law went into effect, acknowledged the uncertainty.
“Once it’s over at the feds, the local agency kind of loses control of it,” Beemer said. If the local agency does get a share from the federal government, it’s often unclear which seizure it came from.
“They may get one lump check back that may be for three different seizures,” he said, “and they may not even know what percentage” they received.
Carmichael said that was a shortcoming the new law was intended to address.
“What was happening at the time was that forfeitures which went into the federal system fell into a black hole,” he said. “It was our intent that we shine some light on what is in the hole.”
Certain information about federal forfeitures is publicly available, but it is challenging to process. The Department of Justice provides a collection of redacted files, updated quarterly, that make up its Consolidated Asset Tracking System. The current set consists of 316 files with 40 million records.
The disconnect between seizures and their outcomes when property is forfeited in federal court can be illustrated by a seizure in 2019. According to the federal data, KHP seized $53,000 in cash on Aug. 30. In 2020, $42,400 in forfeited cash was passed back to the KHP.
The seizure was not reported to the KBI.
“It looks like I made a mistake on that,” said Lt. Dax Lewis, who oversees asset forfeitures for the KHP, noting that the new reporting had just started. “We will complete an incident report on that. It was an oversight.”
Because of the piecemeal feedback from federal agencies, a missing $53,000 seizure was essentially undetectable and drew no attention from the KBI, even after the KHP received its share of the money.
Pending problem
Many agencies fail to report other seizure information. The KBI enables them to do so, in spite of requirements in the new reporting law that the information be put into annual reports.
The state law requires “accurate tracking and reporting of deposits and expenditures of … proceeds from pending forfeiture actions.” Agencies don’t file an incident report until disposition of the cash or property — some or all of it is forfeited and the rest is returned to the owner. One exception: If assets are turned over to the federal government for forfeiture, they are treated as having reached disposition and an incident report is filed at that point by the seizing agency.
So the law created the “pending fund.”
“The pending state forfeiture fund is intended to track all currency from the point it was seized through disposition,” explains the KBI’s handbook on forfeiture reporting. “Whenever currency is seized during a reporting period with intent to forfeit, it should be reported as a deposit into your pending state forfeiture fund.”
The handbook emphasizes that the information must be reported, regardless of where the cash is stored.
“If you keep the pending currency in an evidence room or lockbox rather than a bank account, please keep in mind that you will still need to report it as if it were in a bank account,” the handbook says.
But a review of incident and annual reports makes plain that many seizures are not reported until after disposition. Half the agencies reporting seizures in both 2019 and 2020 failed to record some or all their seizures in the pending fund.
This came as no surprise to the KBI’s Beemer.
“A number of agencies don’t (report) their pending received currency if it is potentially evidence,” Beemer said. “If they maintain it as evidence, then it’s not going into that pending account.”
He explained that reporting the amount of cash being held could attract unwanted attention.
“Hopefully it’s hidden pretty well because sometimes they get pretty large amounts,” Beemer said. “So we try not to put a bullseye on agencies by really bringing to light that if there’s no activity in their pending account, it’s because they are keeping this cash on hand.”
Carmichael was unimpressed with that explanation.
“They store cocaine, they store marijuana, they store guns, they store cash, they store all types of evidence that would have a street value and a worth on the black market,” Carmichael said. “But it’s absurd to say, ‘We’re not going to tell the Legislature or the public how much the assets are that we seize because we’re afraid somebody’s going to come and steal it from the police department or the sheriff’s evidence locker.’ That does not pass the smell test.”
Cash and drugs do sometimes disappear from evidence lockers.
In January 2017, $72,020 in cash was seized by Dickinson County sheriff’s deputies during a traffic stop on Interstate 70 near Abilene. Five months later, officials discovered the cash was missing from the evidence room. The cash has never been located, nobody has been charged, and in 2020 the KBI closed its investigation into its disappearance.
Burden of accountability
Is the KBI’s reporting system too complicated? Neosho County attorney Linus Thuston thinks so.
“There are some places that have stopped doing forfeitures because of the complicated nature of the way they are supposed to file reports with the state,” Thuston said.
Even the KBI has at times been unable to help.
“I have been (at the police department) when we called and never could get a sufficient answer as to how we were supposed to file and mark these things,” he said. “I’m a lawyer, and I would have difficulties filling out this” online form.
Indeed, the KBI provided apparently conflicting answers when asked to explain some of the details of how reports are evaluated for accuracy. In an email providing details of how “substantial match” is determined, KBI staff said one of the tests involves checking changes in pending fund balances.
But when asked if the KBI attempts to verify the numbers that account for changes in the fund, staff said “this is not a part of our substantial match determination.”
Only a small percentage of the state’s law enforcement agencies — about 70 out of roughly 360 — have reported seizures in the past three years. Graham County, population 2,400, has a three-person sheriff’s department, and Sheriff Cole Presley said in his 18 years with the department, it has not filed a single forfeiture case.
Does the paperwork burden prevent agencies from using civil asset forfeitures?
“I don’t believe that,” he said. “I fill out the same reports that they do.”
He sees little difference between forfeiture reporting and the use-of-force or arrest reports his department files.
“Writing reports is a part of what we do on a regular basis,” he said. “There’s never not a day when we’re filling out some kind of report that goes into some statistical pile.”
The main reason his department hasn’t engaged in forfeitures is that given the traffic through the county, he doesn’t think it would do much to reduce local drug activity. He has no problem with the state requiring detailed seizure information.
“As far as reporting it, it’s a matter of accountability,” he said.
This story was originally published on the Kansas Reflector.
