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HomeMy WebLinkAbout1/15/2003 - STAFF REPORTS (16) DATE: JANUARY 15, 2003 TO: CITY COUNCIL FROM: CHIEF OF POLICE PARTICIPATION IN THE STATE OF CALIFORNIA BUREAU OF NARCOTICS ENFORCEMENT INLAND CRACKDOWN ALLIED (INCA) TASK FORCE RECOMMENDATION: It is recommended that the City Council approve an agreement with the State of California Bureau of Narcotics Enforcement (BNE) to allow our continued participation in the Bureau of Narcotics Enforcement's Inland Crackdown Allied (INCA) Task Force, with an option to extend that agreement for an additional three years. SUMMARY: Each year since 1993, the City of Palm Springs has entered into an agreement with the State of California Bureau of Narcotics Enforcement (BNE) to continue participation in the Inland Crackdown Allied (INCA) Task Force. The State BNE reimburses the City for the overtime worked by the officer participating in the Task Force. By participating in this Task Force the City shares in any assets seized by this Task Force. In the past two years the City of Palm Springs has received over $200,000 from our participation in this Task Force. BACKGROUND: Since September 1993, the Palm Springs Police Department has been participating in the Bureau of Narcotics Enforcement Inland Crackdown Allied (INCA) Task Force by having an officer assigned to that Task Force. The Bureau of Narcotics Enforcement supports the efforts by reimbursing the City for the overtime worked by the officer assigned to the Task Force. The City also shares in any assets seized by this Task Force. In the past two years the City has received over $200,000 by participating in this Task Force. On September 4, 2002, during a City Council meeting an issue was raised by two private citizens that asset seizure laws were a violation of "due process" and asked that City Council not approve the Police Department's involvement with the INCA task force. There was also an issue raised about a large settlement lawsuit by the City of Brea on the use of informants, which allegedly creates additional liability for the INCA Task Force members. The City Council asked the City Attorney to review the issues raised and ensure that the INCA task force was in compliance with the law. The Chief of Police was also directed to bring the issue before the Police Advisory Committee. C�� Attorney Anthony Taylor has reviewed the law, policies and procedures related to asset seizure and use of informants. His analysis and recommendations are attached to this report. The issue was brought before the Police Advisory Committee. The Police Advisory Committee passed a motion supporting the Chief of Police in the arrest and prosecution of drug offenders. Several members of the Police Advisory Committee were also members of the Human Rights Commission. These members recommended that the discussion of drug legalization, asset seizure procedures and related drug laws was best held in the Human Rights Commission forums and referred the citizens with this case to that particular commission. The Human Rights Commission scheduled a forum on January 9, 2003 for discussion of this topic. A verbal update will be given to City Council at the meeting on January 15, 2003. Chief of Police Approved: City Manager Attachment: 1. Analysis of Asset Seizure Laws and Informants 2. Agreement 3. Minute Order ATTACHMENT #2 INCA TASK FORCE ASSET FORFEITURE SHARE AGREEMENT JULY I, 2002 A. It is hereby agreed by those agencies that have entered into the Memorandum of Understanding (MOU) that 1. The Bureau of Narcotic Enforcement (BNE) will be responsible for processing any assets seized by the INCA Task Force with the prosecuting agency. 2. BNE will incur necessary expenses home by the INCA Task Force during an investigation, i.e., informant payment, drug purchases, etc. This may be supplemented by funds from the INCA Task Force Operations Fund per policy (Attachment#3). 3. Each participating task force agency will receive one (1) share of any monies seized, with the exception of BNE and Riverside Police Department. BNE will receive four (4) shares. Riverside PD will receive three (3) shares. a. At present, there are ten (10) participating agencies in the task force (BNE, Riverside PD, Riverside SD, Hemet PD, U.S. Immigration and Naturalization Service (OCDETF), Chino PD, Corona PD, California Department of Alcohol Beverage Control (ABC), Palm Springs Police /7 7 1. Department, and the Beaumont Police Department. b. The total number of shares as of July 1, 2002, is fourteen (14). BNE =4; Riverside PD = 3; Riverside SD = 1; ABC = 1; Corona PD = 1; Chino PD = 1; Pahn Springs PD = 1; Beaumont PD = 1; and Hemet PD = 1. (1) The City of Riverside agreed on June 3, 1991 to provide a helicopter for use by the INCA Task Force. The Riverside PD receives two additional shares to cover the expense of the helicopter. (a) The helicopter will be provided by Riverside PD to the INCA Task Force on demand, unless unusual circumstances prevent it. (2) INS will receive no (0) shares. (3) The percentage to be distributed to a participating agency will be determined by dividing their respective share(s) by the total number of shares. (4) If an agency has removed its TFO for a period of two months or more, that agency will not share in any seizures by the Task Force after that two month period. B. It is further agreed that 1. When additional agencies join or additional personnel are assigned by a participating agency to the INCA Task Force, the total number of shares will increase. a. The percentage allotted to each agency will therefore decrease. 2. C. It is also agreed that 1. When INCA Task Force is assisted by a law enforcement agency not represented in the INCA Task Force, BNE will compensate that agency/those agencies from BNE's share. 2. Real estate will be sold and proceeds will be divided as per A-3. 3. Any vehicles and cellular phones seized and forfeited will be sold or auctioned as per current state law and the proceeds distributed as per A-3. D. This agreement shall be a part of the Memorandum of Understanding entered into by the INCA Task Force member agencies. 3. ATTACHMENT#3 INCA TASK FORCE OPERATION FUND POLICY JULY 19 2002 A. The INCA Task Force Executive Board has established a fund for the following purposes: 1. Purchase of equipment 2. Payment of services rendered 3. Payment to informants who provide information or assistance to the task force that results in the arrest of narcotic traffickers and/or the seizure of illegal drugs or profits from the sale of illegal drugs. 4. Training for task force members. B. An account is maintained by a member agency of the INCA Task Force and is funded by forfeited assets of seizures in which the task force was involved. The following governs the INCA Task Force Fund: 1. On any forfeiture of$3,000 or less, all funds to law enforcement will be deposited in the Operation Account. 2. Five percent(5%) of any forfeiture over $25,000will be deposited in the account. a. If forfeiture is less than $25,000, no funds will be dispersed to the account unless the forfeiture is $3,000 or less [per (1) above]. b. A maximum of$200,000 will be maintained in the account. At no time will the balance go over $200,000, without approval of the Executive Board. 3. The five percent (5%) to the account will be calculated prior to disbursement to the member agencies of the INCA Task Force or to any assisting agency. 1. INCA Task Force Operation Fund Policy a. Any amounts required by law will be paid first, e.g., General Fund, District Attorney's office, etc. 4. Compliance with BNE Policy and Procedures Manual Section 11.0 (Inforniant Procedures) is mandatory. a. A BNE Informant Control Number must be assigned to every informant before payment can be made. 5. Three members of the Executive Board shall approve any extraordinary expenses from the INCA account, such as a. Payments to informants b. Expenditures on equipment over $5,000. 6. Routine expenditures will be approved by the Chairman of the Executive Board. 7. Any equipment purchased with funds from this account will be placed into service for use by the INCA Task Force, but may be loaned out to member agencies of the task force. 8. The INCA Task Force Program Manager shall keep accurate records on this account, reflecting deposits and expenditures. a. The Quarterly Report will include this information. 9. If the INCA Task Force is dissolved, any remaining funds will be disbursed back to the member agencies as per the Asset Forfeiture Share Agreement in existence at the time of dissolution. Yr 06/24/2002 MEMORANDUM TO: Chief Gary Jeandron CC: Mr. David Ready, City Manager; Mr. Dave Aleshire, FROM: City Attorney City Attorney DATE: November 5, 2002 FILE NO. 04195-0010 RE: Legal Sufficiency Review of the Inland Crackdown Allied (INCA) Task Force Policies and Procedures I. INTRODUCTION. Our office has recently reviewed the legal sufficiency of INCA Taskforce policies and procedures as set forth in Chapters 11.0 and 17.0 of the State of California's Bureau of Narcotic Enforcement (BNE) manual. The policies and procedures within this Chapter are based on applicable State law, as set forth in Penal Code § 701.5, Health & Safety Code §§ 11469 et. seq. and applicable federal law. Specifically, our review has focused on two issues concerning the INCA Taskforce: (1) the legality of the asset forfeiture provision of the taskforce, and (2) the use of informants, and particularly juvenile informants, in the taskforce. II. SUMMARY CONCLUSIONS. A. Asset Seizure Review. Upon our review, it is our opinion that the INCA Taskforce polices and procedures that our office has reviewed are most likely in reasonable accordance with current federal and state law. Narcotics asset forfeiture has been given extensive treatment by both the United States Congress and by the California State Legislature in enacting comprehensive legislation. The United States Supreme Court and the California State courts have likewise scrutinized asset forfeiture legislation, and routinely upheld the seizure of property used in the course of distribution of narcotics. Seizure before the conclusion of criminal proceedings is often necessary so that the subject property cannot be removed to another jurisdiction, destroyed, or concealed, before a court has the opportunity to determine whether the property is properly subject to forfeiture. The act of seizure itself cannot be equated to forfeiture of the seized property, especially since persons claiming an interest in the property are protected by statute and can seek redress from the court to obtain the return of the seized property. Similar to that of other law enforcement applications, the City's most significant liability issue here is ensuring that there is sufficient probable cause that the assets seized are the fiuit of illegal narcotics transactions, rather than property being held by innocent owners. Though we cannot predict whether the law in this area may change at some point in the future, seizure before the conclusion of criminal proceedings appears reasonably necessary to avoid property from IRV 924836 v I _1_ Chief Gary Jeandron December 30, 2002 Page 2 being removed to another jurisdiction, destroyed, or concealed, thus thwarting the efforts of law enforcement. B. Use of Informants—Juvenile Informants. Penal Code § 701.5 requires that the Police Department secure a court order before using a minor as an informant as part of a narcotics taskforce. This section does not, however, completely ban the use of minors as informants. Section 11.4 of the BNE manual, when read as a whole, seems unclear as to whether a court order is required before the use of juveniles as informants in accordance with Penal Code § 701.5. We understand that formal clarification to this policy through revising the manual is not plausible since State approval is required before the BNE manual can be revised. As such, we recommend the following action be taken: (1) the Palm Springs Police Department adopt its own policy discouraging the use of juvenile informants and only permitting the use of juvenile informants in narcotics transactions if a court order is first obtained authorizing such use; and (2) The Department meet with other taskforce members and adopt a resolution prohibiting all INCA taskforce members from using juveniles as informants in narcotics transactions unless a court order is first obtained authorizing this use. III. ANALYSIS. A. Does Narcotics Asset Forfeiture Before the Conclusion of Criminal Proceedings Violate Due Process? Generally, a person cannot be deprived of property under the Due Process Clause of the Fifth Amendment without due process of law. Case law has interpreted this general rule to require that individuals receive notice and an opportunity to be heard before the government can deprive them of property in most instances. United States v. James Daniel Good Real Property, 510 U.S. 43, 48, 114 S.Ct.492, 126 L.Ed. 2d 490 (1993). However, in the context of narcotics asset forfeiture, the United States Supreme Court has determined that such pre-hearing seizures do not offend Due Process where the item being seized is the type of property that could be removed to another jurisdiction, destroyed, or concealed, if the owner was given prior warning of the confiscation. See id.; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 94 S.Ct. 2080, 40 L.Ed. 2d 452 (1974). As such, seizure is often required before the conclusion of a criminal proceeding because the subject property could be removed to another jurisdiction, destroyed, or concealed. See id. In effect, a court could not reasonably conduct a hearing concerning the merits of seizure, where the subject IRV#24836 vl 1 ';5A � Chief Gary Jeandron December 30, 2002 Page 3 properly is removed from the jurisdiction, concealed or destroyed before a hearing is held on the merits of seizure. Based on this standard, courts have determined that in most instances real property is not the type of property could be removed to another jurisdiction, destroyed, or concealed, if the owner was given prior warning of the confiscation.' Good, 510 U.S. at 48 (finding pre-hearing seizure of real property to violate Due Process); United States v. $129,727.00 U.S. Currency, 129 F.3d 486, 493 (9th Cir. 1997) (explaining that the distinction between movable and non-movable property is dispositive on whether a pre-deprivation hearing is required). As such, the Court in $129,727.00 U.S. Currency held that the United States Supreme Court "explicitly did not require any additional Due Process safeguards for movable personal property such as currency . . ." Id. at 493. Chapter 17.5 the BNE manual sets forth "Real Estate Seizure Criteria", which includes the initial requirement that "[p]ior to the seizure of any real property, approval shall be obtained from the state or federal asset forfeiture attorney." Additionally, after the real property is appraised, a title search is completed and probable cause for seizure is reviewed, "[t]he state or federal asset forfeiture attorney will request a hearing to determine if a seizure is necessary to preserve the property pending the outcome of the proceedings." Id., at¶ 5. Chapter 17.5 thus addresses the United States Supreme Court's concerns that real property could only be seized after affording the owner the opportunity to be heard. Good, 510 U.S. at 48. Likewise, this Chapter is also in accordance with Health & Safety Code § 11471, subdivision (e), which only allows for the pre-hearing seizure of real property under "exigent circumstances."2 In other contexts where a pre-deprivation hearing is not required, such as in the seizure of cash, the property seized is not automatically made forfeitable under existing State law. Health & Safety Code § 11488.4, sub (a). Rather, any person having interest in the seized property can object to the seizure by filing a motion with the Court for the return of the property, or contest a forfeiture proceeding which must be promptly brought by the district attorney in any ' 21 U.S.C. § 985, as signed into law by President Clinton on April 25, 2000, requires that real property be seized before a hearing only in exigent circumstances. Stefan D. Cassella, The Civil Asset Forfeiture Reform Act of 2000: Expanded Government Forfeiture Authority and Strict Deadlines Imposed on All Parties, 27 J. Legis. 97, 114 (2001). 2 Chapters 17.9, 17.16 and 17.17 further set forth asset forfeiture guidelines for vehicle, cash and other asset seizures. Read in conjunction with the strict real estate seizure requirement, these provisions are reasonably sufficient in requiring that probable cause be first established before seizure can take place and by requiring notice to interested parties. IRV#24836 v1 -3_ / ��OD Chief Gary Jeandron December 30, 2002 Page 4 event, no later than one year after seizure of the property. Health & Safety Code §§ 11488.4, subs. (a), (g), 11488.5. The State bears the burden of proving that the property is forfeitable. People v. $9,632.50 United States Currency, 64 Cal.App.4th 163, 169 In. 4 (1998). In many circumstances initiation and resolution of pending criminal proceedings are required before forfeiture can occur. For example, where seizure of a vehicle or real property occurs or seizure is made of less than $25,000 cash, the defendant must first be convicted of a specific narcotics offense in an underlying or related criminal proceeding within five years of seizure of the property for forfeiture to occur. Health & Safety Code § 11488.4, subd. (i); People v. $4,503 United States Currency, 49 Cal.AppAth 1743, 1747 (1996). Overall, the application of these procedural safeguards are left to the courts once a seizure has occurred, but these additional procedures serve to underscore that asset forfeiture is not automatic upon seizure and that anyone having an interest in the property can seek proper redress from the court. B. Compliance with Health & Safety Code§§ 11469 et seq. Health & Safety Code § 11469 requires that seizing agencies have a manual detailing the statutory grounds for forfeiture and applicable policies and procedures. Health & Safety Code § 11469, sub. (d). This manual shall include procedures for prompt notice to interest holders, the expeditious release of seized property, and the prompt resolution of claims concerning innocent ownership. Id. Seized assets must also be kept in separate funds or accounts, and agencies must protect seized property to preserve its value and avoid any appearance of impropriety. Health & Safety Code § 11469, subs. (f) - 0). Appropriate and ongoing training is also required to ensure that these standards are met. Health& Safety Code § 11469, sub. (e). Here, the BNE manual provides reasonable mechanisms to ensure prompt notice to interest holders, the expeditious release of seized property, and the prompt resolution of claims concerning innocent ownership. (Chapter 17.5, ¶ 4, requires a preliminary title search for real property; Chapter 17.8, ¶ le, in. requires a determination of the owner and lien holder's interest in a vehicle before seizure as well as resolution of"innocent ownership" claims; and 17.16, ¶ I requires a determination of owner and lien holder's interests in other assets.) Further, the BNE manual also provides reasonable policies that seized assets must also be kept in separate funds or accounts, and agencies must protect seized property to preserve its value and avoid any appearance of impropriety. For example, separate financial reports are required to be prepared for the seizure of fungible assets. (Chapter 17.8, ¶ le separate financial report for vehicle seizures; 17.16, ¶ le separate financial report for other assets.) All currency that is seized must be counted at the scene in the presence of one other person and placed into a IRV#24836 v1 -4- /1 Chief Gary Jeandron December 30, 2002 Page 5 container and sealed. Chapter 17.17. A property receipt forni is required to be filled out for all assets seized and a financial investigation number is assigned upon the commencement of a financial investigation. Chapters 17.19, 17.20 & 17.25. The BNE manual also provides under Chapter 17.2 that tskforce officers' attendance at advanced asset forfeiture classes held by the California District Attorneys Association is required, and that additional training is to be provided. This provision is most likely in reasonable accordance with the appropriate and ongoing training requirement to ensure that training standards are met. (Health& Safety Code § 11469, sub. (e).) Overall, the BNE manual appears to adequately address compliance with Health & Safety Code § 11469. C. Use of Informants in Conjunction with Narcotics Taskforce Enforcement. Our office has reviewed Section 11.0 of the BNE manual concerning the use of informants within the INCA Taskforce. Additional concerns have also been raised about the use of informants, and particularly the use of minors under the age of 18, in light of recent California legislation restricting the use of informants. This legislation, as codified by Penal Code § 701.5, restricts the use of minor informants as follows: "(a) Notwithstanding subdivision (b), no peace officer or agent of a peace officer shall use a person who is 12 years of age or younger as a minor informant. (b) No peace officer or agent of a peace officer shall use a person under the age of 18 years as a minor informant, except as authorized pursuant to the Stop Tobacco Access to Kids Enforcement Act (Division 8.5 (commencing with Section 22950) of the Business and Professions Code) for the purposes of that act, unless the peace officer or agent of a peace officer has obtained an order from the court authorizing the minor's cooperation. (c) Prior to issuing any order pursuant to subdivision (b), the court shall find, after consideration of (1) the age and maturity of the minor, (2) the gravity of the minor's alleged offense, (3) the safety of the public, and (4) the interests of justice, that the agreement to act as a minor informant is voluntary and is being entered into knowingly and intelligently. (d) Prior to the court making the finding required in subdivision (c), all of the following conditions shall be satisfied: IRV#24836 vI _5_ l � �dz Chief Gary Jeandron December 30, 2002 Page 6 (1) The court has found probable cause that the minor committed the alleged offense. The finding of probable cause shall only be for the purpose of issuing the order pursuant to subdivision (b), and shall not prejudice the minor in any future proceedings. (2) The court has advised the minor of the mandatory nunimum and maximum sentence for the alleged offense. (3) The court has disclosed the benefit the minor may obtain by cooperating with the peace officer or agent of a peace officer. (4) The minor's parent or guardian has consented to the agreement by the minor unless the parent or guardian is a suspect in the criminal investigation. (e) For purposes of this section, "minor informant" means a minor who participates, on behalf of a law enforcement agency, in a prearranged transaction or series of prearranged transactions with direct face-to-face contact with any party, when the minor's participation in the transaction is for the purpose of obtaining or attempting to obtain evidence of illegal activity by a third party and where the minor is participating in the transaction for the purpose of reducing or dismissing a pending juvenile petition against the minor." Overall, Penal Code § 701.5 requires that the Police Department secure a court order before using a minor as an informant as part of a narcotics taskforce. This section does not, however, completely ban the use of minors as informants. Here, Section 11.4 of the BNE manual provides that "[t]he use of juveniles as informants should be avoided." The manual also requires that "the prosecutors office of [the] jurisdiction should be contacted for applicable law and local policies" before using juvenile informants. However, the policy also seems to lack clarity in providing that "[a]pproval must also be obtained from the courts or parents/guardian, whichever is applicable." Penal Code § 701.5 requires that a court order be obtained before the use of juvenile informants in nearly all uses of juveniles as informants and that the court determine whether parental consent has been properly obtained before granting any such order permitting the use of juveniles as informants. Thus, Section 11.4 of the BNE manual, when read as a whole, seems unclear as to whether a court order is required before the use of juveniles as informants in accordance with Penal Code § 701.5, or whether consent by the minor's parent alone would suffice, counter to IRV#24836 vI -6- Chief Gary Jeandron December 30, 2002 Page 7 Penal Code § 701.5. We understand that formal clarification to this policy through revising the above language is not plausible since State approval is required before the BNE manual can be revised. As such, we recommend the following action be taken: (1) the Palm Springs Police Department adopt its own policy discouraging the use of juvenile informants and only permitting the use of juvenile informants in narcotics transactions if a court order is first obtained authorizing such use; and (2) The Department meet with other taskforce members and adopt a resolution prohibiting all INCA Taskforce members from using juveniles as informants in narcotics transactions unless a court order is first obtained authorizing this use. IRV#24836 vI -7- INLAND CRACKDOWN ALLIED (INCA) TASK FORCE MEMORANDUM OF UNDERSTANDING Memorandum of Understanding Table of Contents Memorandum of Understanding 1 I. Purpose 2 II. Mission Statement 2 III. Executive Committee 2-3 IV. Management 3 V. Task Force Commander 3 VI. Overtime 3-4 VII. Equipment and property 4 VIII. Travel Expense 5 IX. Asset Forfeiture 5 X. Administration and Audit 5-6 XI. Non-Discrimination Clause 6 XII. Respective Responsibilities 6 XIIl. Workers' Compensation Insurance 6 XIV. Dishonesty Bond 6 XV. Other 7 XVI. Term of Agreement 7 XVII. Authorization 7-9 h MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (MOU) is entered into by the California Department of Justice (hereinafter "DOJ"), Division of Law Enforcement(hereinafter"DLE"), Bureau of Narcotic Enforcement (hereinafter`BNE"), and the following participating agencies: • Beaumont Police Department • California Department of Alcohol Beverage Control (ABC) • Chino Police Department • Corona Police Department • Hemet Police Department • Palm Springs Police Department • Riverside Police Department • Riverside Sheriff's Department • U.S. Inunigration and Naturalization Service NO ONE AGENCY CAN EFFECTIVELY WORK NARCOTIC ENFORCEMENT !�3 4 � 1. I. PURPOSE The purpose of this memorandum is to set forth the responsibilities of the parties signing it, in an effort know as the Inland CrackDown Allied(INCA) Task Force. Use of this task force concept is intended to ensure a well-coordinated narcotic enforcement effort and increase the flow of narcotic-related intelligence information among the various law enforcement agencies in California. II. MISSION STATEMENT The INCA Task Force is a multi-agency narcotic task force with participation by federal, state, and local agencies targeting major Colombian and Mexican drug cartels within the Inland Empire region of the Los Angeles HIDTA, with emphasis in Riverside County. The primary focus of the task force is cocaine and money laundering, with heroin and marijuana investigations as a secondary mission. When presented with a target of opportunity, the task force also investigates organizations that are involved in the sales and transportation of large quantities of methamphetamine. The intent of the task force is to significantly diminish the availability of these drugs to the Colombian and Mexican organizations and apprehend the responsible offenders, thereby increasing public safety. 111. EXECUTIVE COMMITTEE The INCA Task Force will be governed by an Executive Board. • Structure- The Executive Board will consist of the Special Agent-in-Charge (SAC) of the Riverside BNE Regional Office or his/her designee; and the department heads of each participating agency or his/her designee. The participants of the board may change on a case-by-case basis. The Chairman of the Executive Board shall be the SAC of the Riverside BNE Regional Office or his/her designee. • Participating Agency-A "Participating Agency" is an allied local, state, or federal law enforcement agency that has made a coramitnient of resources either on an on-going general commitment basis or on a case-by-case basis. • Role- The Executive Board shall meet on a quarterly basis, or as the Board deems fit, for the purpose of reviewing the activities of the INCA Task Force. The members shall have general responsibility for the oversight of INCA Task Force operations. • Policy Authority- The Executive Board shall be responsible for the INCA Task Force policies and operating procedures. The Board shall periodically review and evaluate INCA Task Force operations, goals, objectives, policies and procedures. In addition, the Board shall resolve member agency conflict with BNE policies and procedures. The selection or removal of personnel assigned to the INCA Task Force will be at the 2. discretion of the Executive Board. The Chairman of the Executive Board shall have final authority. IV. MANAGEMENT The administrative management and direction of INCA Task Force resources will primarily be the responsibility of the SAC through the Program Manager. The INCA Task Force will be staffed with state persomnel made up of Special Agent Supervisors, Special Agents, Criminal Intelligence Specialists, Auditors, Property Controllers, and Clerical Support or equivalent classifications. Local, state and federal officers will be assigned to target specific organizations. BNE shall retain supervisory control of the personnel assigned to the INCA Task Force, with the agreement that all member agency personnel assigned to the INCA Task Force shall operate under the BNE Policy and Procedures Manual. V. TASK FORCE COMMANDER A Special Agent Supervisor (SAS) from BNE shall be the Program Manager of the INCA Task Force and will report to the Executive Board through the Chairperson of the Board. The Task Force Program Manager takes direction and supervision from his SAC, the Chairman of the Executive Board. The Program Manager will provide the Executive Board with quarterly and annual reports of INCA Task Force activities. Any personnel assigned to the INCA Task Force shall work under the immediate supervision of the INCA Task Force Supervisors and shall adhere to the published policies and procedures of BNE. The INCA Task Force Program Manager will be responsible for the management of the supervisors and the overall program. VI. OVERTIME The Legislation for the INCA Task Force Program authorizes the payment of overtime to local and state law enforcement officers as established by DOJ. Funding is not available for reimbursement to federal agencies. All overtime worked by BNE personnel and all state and local law enforcement officers must be with prior approval of the Program Manager or his/her designee. If an assignment, investigation or project requires overtime, the employee must get approval from the Program Manager or his/her designee. The authorized overtime rate DOJ can reimburse a participating agency officer is not to exceed the Special Agent Range C top step overtime rate (this figure will change with cost of living raises). A maximum of(95) hours of overtime in any calendar quarter can be reimbursed if operational needs require and if funds are available from DOJ. The SAC is responsible for ensuring the overtime payments are legitimate and not excessive. Reimbursement under this section is subject to the availability of funds. Payments will be based upon the rate of pay for / � 19 3. each participating agency officer on the list attached to this Memorandum of Understanding. Overtime will be reimbursed directly to the participating agency. The 95 hour cap is only as it relates to payment by BNE and not HIDTA, OCDETF, or other funds. The disclaimer on the "Overtime Reimbursement Invoice" must be signed by the supervisor of the participating agency payroll department verifying that the authorized hours were paid by the participating agency in accordance with FLSA regulations. FLSA requires overtime to be paid at a minimum rate of one-and-one-half times the standard rate. By signing this agreement, the participating agency agrees and understands that they will be in compliance with the Federal Labor Standards Act (FLSA) and are responsible for any amount above the authorized amount DOJ can reimburse. Each participating agency is responsible for providing their respective personnel with salaries, benefits and overtime in accordance with FLSA regulations. VII. EQUIPMENT & PROPERTY BNE will provide, out of annually appropriated fiords, the necessary administrative funds and standard compliment of equipment to support the activities of the officers assigned to the INCA Task Force. Support shall include office space, administrative furnishings and supplies, specialized investigative equipment, specialized training, other requisite support and funds for the purchase of evidence and information. Each member agency agrees to provide their respective personnel with appropriate standard safety and investigative equipment and enforcement vehicle(s). Any and all property including equipment, furniture and furnishings, of whatever kind or description, purchased or acquired with DOJ finds, shall be the property of DOJ, and at the termination of this agreement and whereupon no new agreement is reached, all property shall be returned to DOJ. Any DOJ property which is damaged, broken, misplaced, lost or stolen, through gross negligence, wrongful act, or omission of an officer or agent assigned to the INCA Task Force, shall be repaired or replaced by the agency of the responsible employee at the determination of the Executive Board. Equipment purchased with fiords from the INCA Task Force Operation Fund will be disposed of per the Operation Fund policy. When any equipment purchased with funds from the INCA account is damaged or lost, a memo will be written by the agent or Task Force Officer (TFO) to the INCA Program Manager. A copy will be sent to the TFO's Agency. A decision to pay for the lost or damaged item will be made by the INCA manager and the TFO's Agency Manager. (1) (1) As agreed by Executive Board on 04/16/02 l � fta� 4. VIII. TRAVEL EXPENSE The INCA Task Force program authorizes the payment of travel expenses to state and local law enforcement officers assigned to the INCA Task Force. Funding is not available for reimbursement to federal agencies. For travel claim purposes, participating agency officers will be considered Volunteers. DOJ has adopted a policy of obtaining the services of Volunteers to assist the Attorney General in performing the duties of his Office under the "Volunteer Service Agreement." Travel expenses for federal officers may be paid from the INCA Task Force Operation Fund. • Appointment of Volunteers: No individual may be officially appointed as a Volunteer for the DOJ until the following fornis have been completed and signed: a Volunteer Service Agreement, an Oath of Allegiance for persons employed by the State of California, and an Authorization to Use Privately Owned Vehicles on State Business. The originals will be filed with DOJ and a copy will be provided to the Volunteer. • Procedures: Volunteers are subject to the same rules of conduct as state employees in general. Requests for reimbursement under the Volunteer Service Agreement must be submitted on Form 262, Travel Expense Claim, in accordance with the current contract in effect for Bargaining Unit 7, California Union of Safety Employees (CAUSE). Payments will be based upon the authorized travel and related expenses incurred as a result of an authorized investigation. The SAC of the regional office, or his/her designee, must approve and submit the original signed travel expense claim to BNE headquarters after determining the monies claimed are in accordance with the Volunteer Service Agreement and authorized in accordance with the Department of Personnel Administration regulations, Title 2, the State Administration Manual, Sections 0700 to 4100, and the current CAUSE contract. IX. ASSET FORFEITURE Based on the attached Asset Forfeiture Agreement(Attachment#2),proceeds derived from an asset forfeiture, under state or federal law, initiated in the course of investigations conducted by the INCA Task Force, will be shared equitably among member agencies. The equitable sharing will be based on the attached formula developed by the Executive Board. All forfeiture procedures and sharing will be based upon the appropriate provisions of state or federal law and policy. Modification to the attached Asset Forfeiture Agreement requires approval by the members of the Executive Board. X. ADMINISTRATION AND AUDIT In no event shall the member agencies charge any indirect costs to DOJ for administration or implementation of this agreement during the term thereof. Any and all records pertaining to i �3 A 5. INCA Task Force expenditures shall be readily available for examination and audit by employees of BNE, DOJ and the Attorney General's Office, or any member agency. XI. NON-DISCRIMINATION CLAUSE All participating agencies will comply with Title VI of the Civil Rights Act of 1964 and all requirements imposed or pursuant to the regulations of the U.S. Department of Justice (CFR, part 42, Subparts C and D) issued pursuant to Title VI relating to discrimination on the grounds of race, color, creed, sex, age or national origin and equal employment opportunities. XII. RESPECTIVE RESPONSIBILITIES For the purpose of indemnification, each participating agency of the INCA Task Force shall be responsible for the acts of its participating officer(s) and shall incur any liabilities arising out of the services and activities of those officers while participating in INCA Task Force operations. Personnel assigned to the INCA Task Force shall he deemed to be continuing under the employment of their jurisdictions and shall have the same powers, duties, privileges, responsibilities and immunities as are conferred upon them as peace officers in their own jurisdictions. There is no intent on the part of any agency in the INCA Task Force to create a separate legal entity subject to suit. XIII. WORKERS' COMPENSATION INSURANCE By law, all employers must provide workers' compensation benefits to employees, including special employees under their supervision, who are injured in the course of their employment. Task force members employed by other law enforcement agencies will be considered general employees of that agency and special employees of the Department of Justice. Pursuant to Insurance code Section 11663, the general employer will be liable for the entire cost of workers' compensation benefits payable on account of injury occurring in the course of and arising out of this special employment. XIV. DISHONESTY BOND Sate employees are covered under a bond protecting the state against thefts or embezzlement of state money or property and other dishonest acts of employees. The DOJ Volunteers are included in this bond. l7, l4 :2z 6. XV. OTHER There shall be a system of checks and balances with regard to any intelligence or infonnation gathered, that will require the necessary restrictions to protect each participating agency's integrity in terns of its mission, operational procedures, and regulations. XVI. TERM OF AGREEMENT The tern of this agreement shall be from July 1, 2002 , through December 31, 2003 . The term of this agreement may be terminated by any party for good cause shown by notice in writing to the Executive Board Chairman thirty (30) days prior thereof. An extension of this Memorandum of Understanding will be granted pursuant to the agreement of the Executive Board. XVIL AUTHORIZATION The participating agencies, by their duly authorized officials, have executed this Memorandum Of Understanding on the respective date indicated below. Gene Hernandez, Chief Chino Police Department SIGNATURE DATE Lary Smith, Sheriff Riverside Sheriff's Department SIGNATURE DATE Pete Hewitt, Chief Hemet Police Department SIGNATURE DATE 7. :5 a3 . l.c ccr-n1F.- As residents, taxpayers and voters in Palm Springs, we urge the Council to support participation in INCA. Drug sales, prostitution, stolen vehicles, burglaries and vandalism have plagued our neighborhood. The most effective tool for law enforcement is the task force. We take exception to the statements made by an Orange County Judge in opposition to this. Point by point he says: 1. This strips away civil liberties. What about our civil liberties? Simply put, if a drug addict steals our property, lets say a television and we have the serial number for it, and it is recovered during a drug bust, that property is returned to us. If the TV is laundered then the monetary benefit is recovered it cannot be traced back to us. So the next best thing is to put that recovery back in the system to off set our cost of services. It really stretches the imagination to think the criminal has a right to retain any asset gained at our expense, both in our loss of property and the cost of services, we are paying twice, thereby rewarding the criminal and penalizing us! As we have seen in our neighborhood, the criminal element does not work and pay taxes. Their assets are obtained illegally from us, are not taxable, and should be returned to us in any way possible. 2. Encourages corruption. We sense that a lack of action by this city would send the message of corruption by not taking the necessary steps to combat this problem. 3. Targets small time criminals instead of major dealers. We are not sure how he defines major dealers, but when buyers actually line up on our street to make purchases daily from the local hooker, we consider that pretty major. Frankly, we encourage targeting any criminal, large or small. 4. Pressure on Law Enforcement to raise revenue...placing the incentive in the wrong place. That sounds like a typical government attitude, heaven forbid that our public servants should ever consider the economics of performing their service to the community. We cannot think of any honest taxpayer would oppose that concept? And finally, a Libertarian who is quoted as saying, just s nd a message and say NO. The on . message we got from that was ga a en light t e criminals., / A 1 0 v � As residents, taxpayers and voters in Palm Springs, we urge the Council to support participation in INCA. Drug sales, prostitution, stolen vehicles, burglaries and vandalism have plagued our neighborhood. The most effective tool for law enforcement is the task force. We take exception to the statements made by an Orange County Judge in opposition to this. Point by point he says: 1. This strips away civil liberties. What about our civil liberties? Simply put, if a drug addict steals our property, lets say a television and we have the serial number for it, and it is recovered during a drug bust, that property is returned to us. If the TV is laundered then the monetary benefit is recovered it cannot be traced back to us. So the next best thing is to put that recovery back in the system to off set our cost of services. It really stretches the imagination to think the criminal has a right to retain any asset gained at our expense, both in our loss of property and the cost of services, we are paying twice, thereby rewarding the criminal and penalizing us! As we have seen in our neighborhood, the criminal element does not work and pay taxes. Their assets are obtained illegally from us, are not taxable, and should be returned to us in any way possible. 2. Encourages corruption. We sense that a lack of action by this city would send the message of corruption by not taking the necessary steps to combat this problem. 3. Targets small time criminals instead of major dealers. We are not sure how he defines major dealers, but when buyers actually line up on our street to make purchases daily from the local hooker, we consider that pretty major. Frankly, we encourage targeting any criminal, large or small. 4. Pressure on Law Enforcement to raise revenue...placing the incentive in the wrong place. That sounds like a typical government attitude, heaven forbid that our public servants should ever consider the economics of performing their service to the community. We cannot think of any honest taxpayer would oppose that concept? And f all , Libertarian who is quoted as saying, just send a message and say NO. a only And g e t f o that was give the green lig the criminals. i s As residents, taxpayers and voters in Palm Springs, we urge the Council to support participation in INCA. Drug sales, prostitution, stolen vehicles, burglaries and vandalism have plagued our neighborhood. The most effective tool for law enforcement is the task force. We take exception to the statements made by an Orange County Judge in opposition to this. Point by point he says: 1. This strips away civil liberties. What about our civil liberties? Simply put, if a drug addict steals our property, lets say a television and we have the serial number for it, and it is recovered during a drug bust, that property is returned to us. If the TV is laundered then the monetary benefit is recovered it cannot be traced back to us. So the next best thing is to put that recovery back in the system to off set our cost of services. It really stretches the imagination to think the criminal has a right to retain any asset gained at our expense, both in our loss of property and the cost of services, we are paying twice, thereby rewarding the criminal and penalizing us! As we have seen in our neighborhood, the criminal element does not work and pay taxes. Their assets are obtained illegally from us, are not taxable, and should be returned to us in any way possible. 2. Encourages corruption. We sense that a lack of action by this city would send the message of corruption by not taking the necessary steps to combat this problem. 3. Targets small time criminals instead of major dealers. We are not sure how he defines major dealers, but when buyers actually line up on our street to make purchases daily from the local hooker, we consider that pretty major. Frankly, we encourage targeting any criminal, large or small. 4. Pressure on Law Enforcement to raise revenue...placing the incentive in the wrong place. That sounds like a typical government attitude, heaven forbid that our public servants should ever consider the economics of performing their service to the community. We cannot think of any honest taxpayer would oppose that concept? And finally, a Libertarian who is quoted as saying, just send a message and say NO. The only message we got from that was give the green light to the criminals. 1 � 1\ �y b cue R: 'L•�b James Evans 1268 E. Ramon Road I am here about the asset forfeiture policy used by INCA, Inland Crackdown Allied, the local State Drug Task Force and it's pending contract with the city of Palm Springs. Palm Springs should not renew its approval of INCA so long as INCA uses asset forfeiture in its activities. INCA refused to participate in the Palm Springs Human Rights Commission educational forum. As well, INCA has failed to respond even to a single question put forth by the Palm Springs Human Rights Commission or by citizens attempting to inquire about INCA's past use of asset forfeiture. This behavior indicates that INCA intends to continue to operate above and beyond the review and interests of its individual community members. Such an attitude creates an environment ripe for governmental abuse and corruption that goes part and parcel with the cash and property looted via asset forfeiture. During the Human Rights Commission forum, assistant city attorney Taylor repeatedly trumpeted his book of California code, saying that asset forfeiture was the law. Let me remind the Council that Federal marijuana laws have yet to be reformed to reflect our failed drug wars and changed attitudes. Still the voters of California and several other states along with local communities have overwhelmingly approved the use of Medical Marijuana in direct opposition to Federal laws. wo_� Refusing to participate in asset forfeiture is not about causing legal chaos as Mr. Taylor suggested. It is not about letting violent drug cartels fun free. And it is not about a weakening of police support or being soft on violent crime. It is about doing what is right and confronting violent criminals head on, not through the side door tactic of asset forfeiture. I urge the Council to heed the pleas, warnings, and suggestions made by California Superior Court Judge, James P. Gray to the Palm Springs Human Rights Commission. Say no to the abuse and corruption that all too easily follows the use of asset forfeiture in law enforcement. At a minimum the Council should continue to table the issue until INCA has satisfied all questions asked of it so that a fully informed decision can be made before committing Palm Springs to a formal contract. Thank you. Statement by LANNY SWERDLOW 1 Cordova Ct. — Palm Springs CA 92264 — 760-324-2972 Palm Springs City Council Meeting January 15, 2003 Renewal of Contract with Inland Crackdown Allied (INCA) Task Force Since 1993, the Palm Springs City Council has approved participation with the Inland Crackdown Allied (INCA) Task Force. The participation had become so routine that its annual approval was part of the Council's Consent Calendar along with non-controversial items like approving payrolls and minor maintenance agreements. When I came before the Council last September with questions about INCA, you recognized that there were some serious questions that needed answering and referred the matter to the city attorney's office and the Police Advisory Board. So after five months, how much more do you know? If you watched the Human Rights Commission forum, you might know more about asset forfeiture, but you didn't learn hardly anything about INCA. INCA continues to shield itself behind a wall of impenetrable secrecy refusing to reveal anything of consequence about its operation. There are many disturbing elements in INCA's operation, but one of the most is its use of asset forfeiture. As currently allowed under state law, the American Civil Liberties Union considers that it violates our 4°i, 5°' and 14"' amendment rights to due process. Most people whose property is seized under asset forfeiture laws are never convicted of a crime or even charged with a crime. hi addition, since the money raised from asset forfeiture goes directly to law enforcement, asset forfeiture has distorted police priorities. They spend more time on crimes where they can seize property, sell it and keep the money and spend less time on crimes like murder, rape, burglary and fraud where there is no financial incentive. At the Human Rights Forum, Sgt. Dan Rose of the Palm Springs Police Narcotic Task Force stated that all people whose property is seized have been convicted of a crime. But he had no figures to back up his claim. Joe Aguanno from the Human Rights Commission submitted a list of questions to Police Chief Gary Jeandron to submit to INCA to get answers on this very issue. Asking how many people whose assets were seized by INCA were ever convicted of a crime and what was the racial make-up of these seizures and convictions, we wanted to know how effective the use of asset forfeiture by INCA has been in capturing Columbian and Mexican drug cartel members which, as stated in INCA's mission statement, is their primary target. INCA refused to answer any of these questions and refused to participate in the Human Rights Forum exploring these issues. I would think that their refusal to be accountable to the city of Palm Springs would be very unsettling and should certainly raise red flags about their operation. You would not approve a contract to have City Hall's parking lot swept with as little information as you have about INCA. In addition to INCA's refusal to be accountable for their programs, the entire handling of this issue should raise your eyebrows. 1. Although you referred the matter to the Police Advisory Board for consideration and advice, a decision was made to send it to the Human Rights Commission instead. This decision was not made by the Police Advisory Board but was made for the Board. Why was the City Council's decision to refer it to the Police Advisory Board overtunied? The decision wasn't made by the Police Advisory Board so who made the decision and what was their authority to override your directions? 0VER 2. Why did Police Chief Jeandron make an end run around the City Council's original decision by resubmitting the contract to the city council as a Consent Calendar item, and before it had been considered by the Human Rights Commission? No one involved in this issue was informed that the INCA contract had been resubmitted including the Police Advisory Board and the Human Rights Commission. 3. One of the most troubling aspects of the INCA contract is the potential liability incurred by Palm Springs through its participation and acceptance of approximately $100,000 a year in asset forfeiture monies from INCA. Although Anthony Taylor, a lawyer for a law firm that contracts with the City Attorney's office, stated that he believed that the city did not expose itself to liability, the city attorney's office has never put his belief in an official written opinion of the City Attorney's office. 4. Why does the motion before the City Council contain the new clause "with an option to extend the agreement for an additional tluee years?" Since the first contract was approved in 1993, this has never been part of the contract agreement. Why is it added now? And who makes the decision to exercise the option? And why is it for three years instead of one year? When I asked the question of City Manager Rick Ready, he said he didn't know, but would contact the City Attorney's office and would get back to me on Wednesday. He never called back. 5. Why was the contract renewal put back on the Council agenda only six days after the Human Rights Forum? Bill Feingold, Chairman of the Commission told me that in order for them to make a recommendation of any kind, it couldn't be done until the January 23 meeting of the Human Rights Commission. The entire handling of the INCA contract renewal has railroad written all over it. Is this really how you want Palm Springs City government to be run? Do you consider it acceptable that rather than discuss the issue, Police Chief Jeandron attacked me personally in both the Desert Sun and the Desert Post Weekly for aiding drug dealers because I came to you with concerns over the INCA contract? Does this encourage Palm Springs citizen's to come forward with their concerns or does this send a chilling message that it is best to keep your mouth shut. Is this the way you envision how the government of the city of Palm Springs should operate? Is this why you ran for public office so you can approve proposals to allow government to seize the assets of a citizen who has never done anything wrong? I would ask you to consider the ethical as well as the legal implications of the continued association with an organization like INCA. Earlier this week I submitted to your office, the following motion to replace the current one approving the INCA contract. The Palm.Springs City Council supports regional coordination of Police agencies to combat, drug crimes. In order to make an informed decision on participation with the California Bureau of Narcotic's Inland Crackdown Allied(INCA) Task Force, the Palm Springs City Council authorizes the creation of a Palm Springs Drug Lain Commission. The purpose of the commission would be to advise the council on the best methods to fight drug crime, coordinate with other police agencies and develop programs and,forums to encourage public participation in the creation of effective and humane drug legislation. The first priority of the Drug Law Commission would be to provide the City of Palma Springs with information on INCA and to advise the Council on participation in its programs. All of you know what is right. The only question is which of you has the courage to do it. F MINUTE ORDER NO. APPROVING AN AGREEMENT WITH THE STATE OF CALIFORNIA BUREAU OF NARCOTICS ENFORCEMENT (BNE) TO ALLOW OUR CONTINUED PARTICIPATION IN THE BUREAU OF NARCOTICS ENFORCEMENT'S INLAND CRACKDOWN ALLIED (INCA) TASK FORCE, WITH AN OPTION TO EXTEND THAT AGREEMENT FOR AN ADDITIONAL THREE YEARS. I HEREBY CERTIFY THAT this Minute Order, approving an agreement with the State of California Bureau of Narcotics Enforcement (BNE) to allow our continued participation in the Bureau of Narcotics Enforcement's Inland Crackdown Allied (INCA) Task Force, with an option to extend that agreement for an additional three years, was adopted by the City Council of the City of Palm Springs in a meeting thereof held on the 15th day of January, 2003. City Clerk t �/J