Cold Consent: DEA is seizing cash with no cause at airports, train and bus stations

Federal drug agents may be racially profiling and unjustly seizing cash from travelers in the nation's airports, bus stations and train stations. A new report released by the Office of the Inspector General for the U.S. Department of Justice examined the Drug Enforcement Administration (DEA)'s controversial use of "cold consent."

In a cold consent encounter, a person is stopped if an agent thinks that person's behavior fits a drug courier profile. Or an agent can stop a person cold "based on no particular behavior," according to the Inspector General report. The agent then asks people they have stopped for consent to question them and sometimes to search their possessions as well. By gaining consent, law enforcement officers can bypass the need for a warrant.

But after reviewing the DEA's policies, the Inspector General concluded, "cold consent encounters and searches can raise civil rights concerns." In one incident, DEA agents cold-stopped an African-American woman at an airport and allegedly subjected her to "aggressive and humiliating questioning"; the woman was a Pentagon lawyer and travelling on government business.

Little wonder research by the U.S. Department of Justice found that cold consent encounters are "more often associated with racial profiling than contacts based on previously acquired information." Cold consent has even been compared to stop-and-frisk.

Moreover, agents can seize cash they find during a cold consent encounter. According to data analysis conducted by the Institute for Justice, half of all DEA cash seizures from 2009 to 2013 were under $10,000. Thanks to civil forfeiture laws , law enforcement can take cash and other valuable property, based on an officer's often subjective determination of probable cause, even from those who have not been charged with a crime.

Disturbingly, the Inspector General found that DEA interdiction task force groups have been seizing cash from travelers and then urging them to sign forms disclaiming their own cash and "waiving their rights." In one cold consent encounter, DEA agents stopped another African-American woman in part because she was "pacing nervously" before boarding her flight. After gaining her consent, the agents searched her luggage and found $8,000.

A drug dog then alerted to the cash, and the DEA seized it. However, the Inspector General report did not state if any drugs were actually found or if the woman was ever charged with or convicted of a crime in connection with the seizure. Not to mention that most U.S. currency in circulation has been exposed to drugs.

During the stop, DEA agents urged the woman to "sign a disclaimer of ownership form abandoning her money, but she declined to do so." Ultimately, the DEA settled her case. But she kept only $3,600—the government took the rest.

Nor was she alone. From 2009 to 2013, DEA interdiction task force groups seized $163 million in cash from 4,138 seizures. Among these seizures, only 21% were contested, while a portion or all of the cash was returned in 41% of the contested cases. In other words, the government returned only $8.3 million, a mere 5% of what was seized. (Since the DEA does not specifically track which seizures came from cold consent searches, these figures may also include cash seized through other tactics.)

These cash seizures also echo concerns that civil forfeiture can detrimentally affect minorities. Appearing on Fox News in February, Sen. Rand Paul argued that civil forfeiture "predominantly has targeted black individuals, poor individuals, Hispanic individuals." Down in Tenaha, Tex., police pulled over African-American and Latino drivers and then threatened to hand their children over to Child Protective Services unless the drivers signed over their cash. In Philadelphia, law enforcement has seized millions from people never charged with a crime. As investigative journalist Isaiah Thompson reported, the victims are "generally black or Hispanic, working-class and poor." The even won a Pulitzer Prize "for exposing the unjust seizure of millions of dollars from motorists—most of them minorities—by a sheriff's drug squad."

While the Inspector General review did not examine how often criminal indictments accompanied cash seized through cold consent, other sources indicate that many law-abiding people routinely lose their property to the government as a result of civil forfeiture. Last year, a blockbuster investigative report by into a federal forfeiture program called "equitable sharing" found that 81% of cash and other properties taken were from people never charged with a crime.

Likewise, according to a 2012 OIG audit, of all property seized by the DEA and other federal agencies from fiscal 2001 to 2011, only 14% of such seizures proceeded as criminal forfeiture cases. In other words, criminal convictions accompanied federal forfeiture cases about one-seventh of the time.

Moreover, federal law has created a perverse incentive for law enforcement to pursue forfeiture aggressively. As the Institute for Justice revealed in its report, "Policing for Profit," the DEA and other federal agencies can keep 100% of the proceeds from forfeited property. Local and state agencies can get a cut too if they participate in "equitable sharing." Under this program, a local or state agency collaborates with a federal agency and then moves to forfeit the property under federal law. The agency can reap up to 80% of the proceeds of the forfeited property, while the feds take at least 20%. DEA interdiction task force groups have routinely participated in equitable sharing.

Lawmakers are starting to take action. Last month, Congress held a hearing scrutinizing both civil forfeiture and cold consent. To reform federal civil forfeiture laws, Sen. Rand Paul and Rep. Tim Walberg have reintroduced the Fifth Amendment Integrity Restoration (FAIR) Act. If enacted, the FAIR Act would eliminate the profit incentive for many federal agencies and require the federal government to present more compelling evidence before taking someone's property with civil forfeiture. Violating the Constitution should not give the government a payday.