In the piney woods of East Texas, Smith County law enforcement almost never seize property without filing criminal charges — and the tone is set by the district attorney’s office.
Smith County Assistant District Attorney Thomas Wilson, who leads the forfeiture division, said his office’s policy is to only seize property if there’s a criminal charge. He said he’s had officers call him after pulling someone over with $16,000 in cash, and he asked them: “Well, how is that illegal?”
The Texas Tribune reviewed all 35 state seizure cases in Smith County from 2016, and only two of them did not coincide with a criminal charge. In one case, Wilson said a co-defendant was charged with drug possession, and in the second, the county declined to pursue criminal charges for evading arrest and also dismissed the related seizure of a motorcycle, returning it to a man who police said didn’t pull over for miles after speeding.
But Smith County also differed from the other counties in the investigation by bringing in the lowest dollar amount per seizure. Only two cases brought in more than $10,000; more than half of cash seizures resulted in less than $1,500.
In early 2016, police in Whitehouse seized $1,359 from Otha Ray Kincade after pulling him over for speeding. At the time, Kincade was on parole after serving less than 3 years of an 8-year prison sentence for a low-level possession charge. A search of his pickup found a handful of prescription painkillers, less than 2 grams of marijuana and less than 1 gram of cocaine.
He was charged with drug possession, but two days after the seizure, he arrived at the police department with copies of checks he told police were from an automotive paint company where he worked. He told them some of the cash was his pay and some was company money to buy supplies .
A manager at the paint store confirmed to the Tribune that Kincade did work for a sister company, and the money he had on him during his arrest was from the company.
Kincade pleaded with officers to return it, according to the report, telling them the drugs were for personal use and some of the money was to pay child support, according to a police report.
An officer told him he couldn’t get his money back because he was found with cocaine, and added that Kincade could have paid child support with the money he used to buy the drugs.
“I know for a fact it was because I was a black man, simply,” Kincade told the Tribune in a letter from prison. “I couldn’t pay my child support, nor my parole fees.”
But Kincade did not fight the forfeiture in court, and he was convicted and sentenced to 2 years in prison, plus nearly 3 years from his earlier sentence because his parole was revoked.
Civil forfeiture opponents, like Panju at the Institute for Justice, have argued that police in Texas too often pursue relatively small “petty cash” seizures, targeting low-income people who aren’t likely to challenge the seizure.
Wilson said that in seizures that appear on paper to only be related to a small amount of drugs, there is always more information than what is in the court records. Police look at criminal history and previous law enforcement encounters, and he said it’s not uncommon for people who are facing forfeiture to provide false documents.
“Each officer when they approach an individual, they approach everything. So it may appear on the surface just to be a personal use amount, but that doesn’t necessarily mean that there’s not other factors that go into play,” he said.