Search and Seizure Law Blog

In a report released to the City of Albuquerque Police Department and to the media and public, the New Mexico Attorney General states that her office is unable to locate over $58,000 APD officers have seized from 2002 to 2004. While the report indicated that the City of Albuquerque suspected employees of the evidence room of theft, the Attorney General declined to prosecute citing concerns about APD's supervision and record keeping. The attorney general's report is an important first step. However, the report fails to address the unlawfulness of the APD seizures of cash in the first instance.

Assistant Attorney General Michael Cox wrote the following memorandum for public release:

Memorandum from Michael Cox, director of the Attorney General's Office's Special Prosecutions Division, to Attorney General Patricia Madrid regarding the Evidence Room of the Albuquerque Police Department.

Overview: The investigation of currency and jewelry missing from APD Evidence was referred to us on March 4, 2004, by then Chief of Police Gil Gallegos. An initial investigation by APD's own investigators indicated money and jewelry, which had been seized as evidence by APD and stored in the Evidence Room, were missing.

I should note at the outset that the larger issues of lost or compromised evidence, so prominently featured in the press lately, were not within our mandate and were irrelevant to our criminal investigation. Our sole objective was to determine if criminal activity had occurred and if sufficient evidence could be developed to support prosecutable cases against any individuals. We did not investigate the integrity of evidence, aside from money, which was the focus of the investigation. Issues of mismanagement were also not investigated except to the limited extent that they hampered or handicapped our investigation. Contrary to media accounts, the Attorney General's Office was not requested to undertake, and did not conduct, a comprehensive audit of evidence in connection with this investigation. As far as we can tell, a comprehensive cataloging of the thousands of items in evidence has never been conducted.

Initially, APD referred to our office 76 cases in which currency, jewelry, guns or drugs were believed to be missing. While our review of these cases revealed numerous discrepancies regarding currency, all other evidence was accounted for. The investigation was then focused on currency and expanded to cover currency reports from January 1, 2001 through March of 2004, and APD provided 2,526 police reports involving currency spanning this time period. Additionally, APD provided copies and originals of the money log, money deposits, bank records, as well as access to the Evidence Room. An exhaustive and thorough investigation was conducted: one special agent of the Attorney General and three APD Detectives worked full-time for months: sixty-five (65) subpoenas were served on various individuals, sixty-one (61) interviews were conducted, and tens of thousands of documents were examined.

Money handling procedures: The investigation established that certain procedures were mandated for the handling of seized currency, and also indicated that these procedures were inadequate and not always followed. A detailed explanation of the system, and its flaws is essential to understanding the numerous problems encountered in prosecuting the case.

After money was seized, the officer who seized it filled out an evidence tag, at either a substation or at the Evidence Room. The evidence tag was affixed to the bag containing the money. Money above a certain amount was to be verified and countersigned by a supervisor. The officer recorded the evidence in an Evidence Log kept at the substation and also indicated the amount seized in the property section of his police report. When evidence was picked up at a substation by evidence room technicians, the technician initialed the Evidence Log to show that they had taken possession. For currency over a set amount, the technicians were required to obtain verification and countersignature by an evidence room supervisor.

When evidence was taken to the Evidence Room, an evidence card (originally paper, later electronic) was created by Evidence Room personnel. When currency was placed in the Evidence Room vault, it was logged into the money log, which showed when money was placed in or removed from the vault, and by whom. Evidence Room technicians created a deposit log when the money was readied for deposit, which included money seized in a number of cases, referred to as a bulk deposit. An Evidence Room supervisor was required to verify the deposit log and deposit prior to the currency being deposited in the bank by an Evidence Room technician.

Incomplete/inadequate documentation: Inadequacies built into the system combined with a failure to follow the established procedures severely hampered the investigation. Amounts recorded on APD reports did not always coincide with amounts entered on evidence tags and evidence logs, and incorrect entry of case numbers on reports, evidence tags, and logs allowed for misplacement of currency. The data entry procedure, which initially required records personnel to enter all records of evidence taken, was changed at some point before the end of 2002 so that responsibility for this function was transferred to the evidence personnel, and this eliminated an important existing double check in the system.

APD's failure to use simple accounting practices created serious gaps in evidence. A review of the available documents suggests that some $58,000 was missing during 2002 and 2003. However, the primary methods of tracking money, database searches of police reports, according to interviews conducted, did not guarantee that all reports were found. During our investigation, APD was uncertain that all relevant reports of money seized were found. Consequently, an exact count of missing money could not be determined. The investigation did not find evidence of any reconciliation between the money seized, the cash deposited, nor the person making deposits. In addition, supervisor verification of amounts proved to be either absent, or pro forma and unreliable. No record was kept of the identity of the individual actually depositing the money into the bank. No internal or external full physical inventory or audits of the Evidence Room were ever conducted nor were any financial audits or reconciliations of money within the evidence room conducted.

Adoption of a new computerized information system, which could have more accurately tracked money had the opposite effect: lockout problems in the new system were remedied by employees sharing each other's passwords; making it impossible to determine who created or modified information within the evidence database.

Inadequate supervision: Lack of supervision of the currency-handling employees allowed practices and procedures, which handicapped the investigation. Supervisory personnel had no experience in inventory management or banking practices: their subordinates trained them. The supervisor's verification of currency amounts was inconsistent, and in some cases there was no verification. Technicians were allowed to remove currency from the vault and evidence room without verification of amounts by a supervisor.

All evidence personnel had unfettered access to the currency vault. No record of persons entering or leaving the currency vault was maintained. The only written record of money entering or leaving the vault, the money log, was readily available to all employees - which facilitated tampering with the log - and eventually theft of critical logs. No regular deposit schedule was established: some deposits were not made until months after being logged into the Evidence Room and in some cases deposits were not made for a year. Employees were permitted to list deposits as one lump sum on deposit slips rather than reflecting specific amounts brought into evidence.

Failure to secure evidence: As early as August 2003, employees of the Evidence Room were suspected of misappropriating evidence, yet no efforts were made to secure the evidence documentation, and the suspected individuals were allowed to remain in the Evidence Room until the end of 2003.

As a result, there was ample time and opportunity for anyone in the Evidence Room to alter or steal critical records. The most essential documents, the vault money logs, are missing for critical periods in both 2002 and 2003. In October 2003, persons unknown altered numerous computer records reflecting the arrival of money in the Evidence Room, using a variety of passwords, making it impossible to determine who was responsible for the alterations. Deposit logs are missing, and in some cases, recreated, with supervisor approval. Some substation evidence logs are also missing. No monthly reconciliation of deposits was done to obtain an accurate balance.

Conclusions: As you directed, I analyzed this case for prosecutorial merit without regard for political or media issues which surround it. I also applied your usual standard to charge a case: a reasonable probability of successful prosecution at trial. It is my professional opinion that the case should not be prosecuted. I base this on a combination of factors which render the case in my judgment far too problematic to be deemed reasonably winnable: including woefully inadequate money tracking procedures, failure to follow even these minimal procedures and lost or altered evidence.

Despite being the most intensive and extensive investigation conducted by this office in the last six years, no documentary or eyewitness evidence has been found which points unerringly at any particular Evidence Room employee, including the suspects initially identified by APD.

Investigation has indicated that certain individuals were suspected of being responsible for the thefts, but it has not yielded sufficient concrete evidence to justify a criminal prosecution. We simply cannot eliminate the possibility that any given theft was committed by other Evidence Room employees: at least seven current and two former APD evidence employees had unrestricted access to the unaccounted for funds. All of our efforts to conclusively prove responsibility for the thefts by establishing a compelling pattern of theft similarly failed due to our inability to prove when or how any specific sum of money was embezzled.

While it might be possible to secure indictments in this case, we cannot prove at trial that any identified individual embezzled any specific sum of money during a specified time period, all of which are required for conviction under New Mexico law. Therefore, I recommend that the case be closed without any criminal charges being filed. I have asked two of the most experienced prosecutors in the Division, both of whom have extensive economic crime prosecution experience, to review the case and make their own independent recommendation: both agree with my analysis and my conclusion.

Attorney Cox and the Attorney General ignore that APD made the cash available for theft, because of its officers' unlawful seizures. As stated in this blog on April 25, 2005 (report of Gutierrez litigation), APD detectives repeatedly have violated state law in the seizure of cash from citizens. There was no legal accountability for the cash from the moment APD detectives seized the cash, because the state did not authorize its seizure and APD had no process in place to return the seized cash.

It is worthy to note that the New Mexico Department of Public Safety continues to seize cash for adopted forfeiture to the United States. Kennedy & Oliver is challenging the state police practice of seizing cash in contravention of state law as well in Albin v. Bakas, et al., CV 2004-1682 (First Judicial District Court (Santa Fe)).

Kennedy & Oliver will continue to aggressively pursue the Gutierrez litigation to insure that citizens are fully compensated and to put an end to APD unlawfulness in the seizure of cash.