Madison - St. Clair Record

Friday, November 15, 2019

Should investigators hired by the State's Attorney be able to arrest suspected drug traffickers?

By Taryn Phaneuf | Jul 26, 2016

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A special investigation unit designed to crack down on drug trafficking on main thoroughfares in Madison County is on hold while the Illinois Supreme Court reviews the legality of a program that arguably gives state’s attorneys their own police force.

Madison County State’s Attorney Tom Gibbons set up the State’s Attorney Felony Enforcement (SAFE) team in late 2014, modeled after a program created in LaSalle County. Of the state's 102 counties, these two are the only ones to establish the program.

The SAFE team, Gibbons determined, would add another layer of protection to the community as it fights drug-related crimes and deaths. But the program barely got off the ground. The LaSalle County State’s Attorney had appealed a series of lawsuits against his office over arrests made by his SAFE unit. He asked the Third District Appellate Court to overturn a trial court’s determination that SAFE special investigators don’t have the authority to arrest people.

In June 2015 — just a month after Gibbons’ team started training and conducting preliminary field exercises — the appellate court ruled against LaSalle County, affirming the lower court’s opinion that the program was out of line.

“The Madison County SAFE Team was created as part of the continued, proactive response to the heroin epidemic in Madison County,” Gibbons told the Record. He hopes the Supreme Court will reverse the Third District’s opinion, so the SAFE team can “get back to the work of protecting our community by taking heroin off the streets before it ever gets into the dealers’ hands.”

Questions of overreach

LaSalle County State’s Attorney Brian Towne formed the first State’s Attorney Felony Enforcement team in late 2011. By his design, the unit, which included officers with drug interdiction experience, would work with other agencies and with canine assistance to intercept drug traffickers on Interstate 80 in the county. Towne authorized this team of special investigators to operate with police authority, including making traffic stops and arresting people — powers that defense attorneys say they shouldn’t have.

Gibbons’ team looked similar. It started with two special investigators who were already working for his office. Two more investigators joined later. They had worked in highway drug interdiction already while employed by other agencies. The team also included a trained drug detection dog named Fleck. A member of the team was also a certified K-9 handler. The team partnered with the Highland Police Department, which would provide dispatching, booking facilities and evidence storage, and could add manpower, Gibbons said.

In January 2012, Towne’s special investigator, Jeff Gaither, stopped Cara Ringland because he noticed the mud flaps on the U-haul van she was driving east from California were not in compliance with regulations. Riding along with him was Peru police officer Jeremiah Brown. The K-9 unit that’s dispatched each time a member of the SAFE team makes a stop found about 100 pounds of marijuana in the U-haul. Ringland was brought up on two felony drug charges. The SAFE team also attempted to seize $3,300 found in the vehicle.

By August of that year, Ringland had filed a motion to void her arrest because she claimed it was conducted by officers working outside their jurisdiction and that she was stopped without probable cause. Similar arrests and motions were filed by several other people who were pulled over, searched and arrested on drug charges by Gaither, a retired Illinois State Police officer, as he worked for a special investigator for Towne’s SAFE unit.

Gaither’s authority as a special investigator to make traffic stops and arrest people was brought into question in court. On one hand, he hadn’t submitted his fingerprints like he was supposed to do when he was hired as a special investigator. But judges at the trial and appellate level took issue on a more fundamental level.

“It is important to note,” the appellate decision states, “that the State’s Attorney has the authority to appoint special investigators to perform only three specific functions: serving subpoenas, making return of process and conducting investigations that ‘assist the State’s Attorney in the performance of his duties.’ The statute is conspicuously devoid of any other functions a special investigator may undertake.”

Meaning, nowhere in there does it say special investigators can make traffic stops, defense attorneys argued. Towne disagrees with the limitation, arguing that the third power to conduct investigations is broad enough to include “all manner of investigatory activity.” He says his point of view is supported by state law that gives investigators the same powers as policeman. But the court was not persuaded.

“If we were to accept that tortured construction, investigators would, in fact, be police officers, and the three enunciated duties of the appointed State’s Attorney special investigators would be rendered superfluous. We cannot fathom how patrolling Interstate 80, issuing warning tickets, and confiscating contraband can be realistically viewed as ‘conducting investigations that assist the State’s Attorney with his duties.’ The prosecution of drug dealers and traffickers is indisputably a duty of the State’s Attorney; outfitting his own drug interdiction unit is not,” the court wrote. “Such a statutory construction would effectively give the State’s Attorney the power to create and maintain the equivalent of his own police force. Taken to its furthest logical conclusion, the SAFE unit would be no different than the county sheriff’s police.”

The court went on to say that the legislature wouldn’t have intended to create another police force.

“In our view, the legislature clearly intended that special investigators appointed by the State’s Attorney have police powers to the extent necessary to assist the State’s Attorney in cases brought before him and originated by traditional police agencies, or in cases where the police were unable or unwilling to investigate,” the court wrote.

Gibbons disagrees with the Court, saying it conflicts with Illinois statutes.

“The appellate ruling is contradictory in its reasoning — first recognizing the full police powers of the special investigators, yet limiting their police powers by preventing them from conducting self-initiated investigations,” Gibbons said.

Following the money

While the courts scrutinize SAFE’s statutory viability, an investigation by Chicago Lawyers into the drug money seized by LaSalle County’s special investigators raises other concerns. Using data that can only be obtained through Freedom of Information Act requests, the magazine found that two bank accounts associated with various drug money added about $1.7 million since the program started in 2011.

The investigation includes anecdotes of cash seized during traffic stops that yielded no arrests or charges. Records showed the money was spent on travel to drug law enforcement conferences and on charitable programs, including sports team sponsorships and a college scholarship.

Towne’s use of the funds doesn’t seem appropriate, Bryant Jackson-Greene, a criminal justice policy analyst at the Illinois Policy Institute, told the Record.

“That’s not what we want police using these funds for,” Jackson-Greene said. “If they are going to be seized, it should be going toward things that are making the community safer.”

Towne also used the money to pay investigators’ salaries and purchase various equipment, including guns, ammunition and office furniture. But the money raises concerns for people because the law outlines ways that seized drug funds can be used and Towne appears to stretch the boundaries, according to Jackson-Greene..

Authors of the Chicago Lawyer investigation suggest the SAFE team may have violated the Cannabis Control Act and the Drug Asset Forfeiture Procedure Act. The laws dictate how drug asset forfeitures can be spent, including on resources for deterring drug abuse and trafficking. But it shouldn’t be an alternative source of administrative funding, the law states. The Cannabis Control Act suggests supplying grants to local substance abuse treatment programs.

During the brief time the Madison County SAFE team operated, investigators made no arrests or seizures, Gibbons said, adding that the unit was outfitted using previously seized drug money.

“Essentially, we were making drug dealers pay for us to catch more drug dealer,” Gibbons said. He gave no other indication of how he would use funds seized by the Madison County SAFE unit.

To Jackson-Greene, even the noble purpose of saving taxpayer money doesn’t justify seizing funds if the person hasn’t admitted to or been convicted of a crime.

“You can’t justify theft by saying you’re using it for a good cause,” he said. “Property rights are too important to let police routinely violate them.”

He supports reforming civil asset forfeiture laws to outlaw civil asset forfeiture, which has been done in other states, including New Mexico. Others, such as Michigan, have taken steps to make the process more transparent. In Illinois, records of these seizures can only be acquired through FOIA requests, which limits public oversight of a practice that nets thousands, sometimes millions, of dollars for police agencies. Additionally, a person whose property was seized has to pay to challenge the action, putting up a 10 percent bond, but not less than $100.

Records obtained by Illinois Policy Institute show at least one instance of a seizure that netted $234 — a sum someone is unlikely to pay $100 to get back but could have for a legitimate reason, Jackson-Greene said.

He said that everyone deserve due process.

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Illinois State PoliceIllinois Supreme CourtIllinois Policy InstituteMadison CountyLaSalle County