A Warwick family's tale of seizure

By Nathan Mayberg
WARWICK — When the Powell family sat down for their Thanksgiving meal last week, they were without the family car, which was seized by Warwick police in July.

On Wednesday, following weeks of inquiries by The Warwick Advertiser to the Warwick police and Orange County District Attorney's Office, Warwick police said the car would be returned to the family.

Warwick Police arrested Paul Powell Jr., 23, on July 27 and charged him with burglary after a local resident allegedly caught him breaking into a garage to steal a chain saw, Warwick Police Lt. Tom Maslanka said. The charge has since been reduced to misdemeanor criminal trespass.

Police took the 2008 Hyundai that Powell was driving, which was registered to his father, Paul Powell Sr., and co-signed by his sister Mariah.

On Dec. 3, Warwick Police Lt. John Rader said the District Attorney's Office is “not going to pursue forfeiture. We will be returning the car to them (the Powells).”

Proposed law
The case highlights questions over a proposed asset forfeiture law by Orange County District Attorney David Hoovler that is scheduled to be voted on by the county legislature this Thursday. The law would allow the DA to seek the forfeiture of property, such as cars and cash, from defendants in misdemeanor drug cases.

According to Maslanka, the car was held at the request of Hoovler's office. Maslanka said last month that police were unaware of where the car is.

Mariah and Paul Sr. said they were allowed by Warwick police to go into the car at the department's impound lot and retrieve their property on different occasions.

On Monday, Rader said that it was up to Hoovler as to when the Powell family would get their car back. He said the department holds cars when they are used in the commission of felonies until the DA decides if a forfeiture case will be brought.

Otherwise, Rader said there is “no reason to keep it.”

Executive Assistant District Attorney Robert Conflitti said last month that the DA has not sought a forfeiture action against the car and the felony charge had been reduced to a misdemeanor.

Assistant District Attorney Chris Borek said one week later that he was told the Warwick police had returned the car to the Powell family. That turned out to be incorrect.

On Monday, Rader said the car would be held until the DA's office notifies his department that there will be no forfeiture case. “This is the first time I'm hearing they are not going to pursue it,” Rader said.

On Wednesday, Rader said he received word from the DA's office that no forfeiture action would be brought against the owner of the car. The car will be returned, he said.

Expanded authority
Hoovler already has the ability to seek the forfeiture of vehicles in certain felony cases if the owner of a vehicle can be shown to have committed a felony act while operating the vehicle.

He has proposed a new law which would allow forfeiture actions in misdemeanor drug cases. The actions could be brought against defendants while their case is in progress, leaving them potentially without cars, cash or other property seized by police for months. Hoovler said police can seize such property as evidence now.

Speaking to legislators last month, Hoovler said “there's never been a complaint of forfeiture in Orange County ever.”

“There is no due process problem,” Hoovler said.

“We don't get involved unless and until there is a guilty plea,” Hoovler said. “Unless and until your guilty, we don't take your property.”

Powell is not facing felony charges, and has not been found guilty of charges related to the July arrest as of Dec. 3. Despite this, the family car was lost for more than four months.

An increase in the use of forfeiture laws nationwide has led to increased scrutiny.

The Powell's story
Paul Jr. said he was looking for tree-cutting jobs in town when he was stopped by a Warwick police officer on a motorcycle in July. He said he was accused of breaking a local soliciting law.

“They pulled me out of the car,” he said.

His two cousins, who were 11 and 13, were in the back seat.

Police allegedly found a Xanax pill and two Oxycodone pills in the car.

Police found chain saws which belonged to Powell and his father, who both work in the tree-cutting business. One of the chain saws was reported stolen, police said. Paul said he bought the chain saw from somebody.

Police impounded the car.
The senior Powell said police told him they needed to keep the car for evidence. “For what evidence, I don't know,” he said. “The cops don't care what they do to you.”

They weren't told when the Hyundai will be returned.

“We haven't been told nothing,” Mariah said last week. “They (police) keep saying that we have to talk to the DA.”

They didn't hear from the DA's office.

That made life difficult for Mariah who used the car to get her to her health care job. Her dad had to drive her to work and get to his own job.

Paul pays co-workers to get to work when his daughter needs the car.

The family continues making payments of more than $300 a month on the Hyundai.

Paul said his father is “struggling to pay his bills.”

Paul Sr. said “I'm down and out now. I'm just barely living. We barely made Thanksgiving.”

He didn't get to spend much time with the family on Thanksgiving as he was busy cutting trees that fell on wires across the region after the snowstorm.

When the car was seized, he said he lost two days of work trying to get the car back from police.

Law enforcement version
Maslanka said a Highland Avenue homeowner confronted Paul Jr. after seeing him steal a chain saw from his garage. The owner took the chain saw back and called police, he said.

Police initially charged Powell with a felony burglary count but that was reduced to misdemeanor criminal trespass. Powell faces charges of endangering the welfare of a child, criminal possession of stolen property and seventh-degree criminal possession of a controlled substance. None of those are felonies which could potentially subject his car to forfeiture.

“We can impound a person's vehicle if it was used in the commission of a felony,” Maslanka said. Typically, the defendants make “some arrangements for restitution” in such a case, he said.

The DA “makes a deal with the defendant,” Maslanka said.

Hoovler said last month that he was unfamiliar with the case and referred questions to his assistants.

Chief Assistant District Attorney Robert Conflitti said “I don't know why police are holding” the vehicle. He said his office has not asked for it to be held. Conflitti said this wasn't a case in which a car needed to be held for evidence.

“They know as well as we do what's evidence,” Conflitti said.

Gary Somerville, a local attorney representing Powell, said the case had been continually postponed by the DA's office and he wasn't told when the car would be returned.

Forfeiture actions have increased this year and “are very difficult to defend,” he said.

“They have to prove it's more likely than not that the vehicle was being used in the commission of a crime,” he said.

'You would hear about it'
Hoovler recently told county legislators that “95 percent of the people don't oppose” forfeiture cases. “Most of the time we take something, it is clear cut,” he said.

“I hear all this about abuse, abuse, abuse, you have no documented case in this county ever.”

“You've never heard of a case” where there was a problem, he said. “You would hear about it.”

Hoovler said legislators shouldn't confuse taking property as evidence with forfeiture.

“If you're driving in your car and you have cocaine in your car, we can take your car and hold it as evidence in the case,” he said. “Police departments do it every day because that's what they're supposed to do. Most of the time we take pictures of your car, take pictures of where the cocaine was found or where the evidence was found. We give you your car back. Are there times where we hold the car? Absolutely. But I keep hearing all this due process, due process, due process. If you're found guilty or you plead guilty, you've had your due process.”

Earlier this week, before Warwick police announced they would return the car, Paul Sr. said: “They are hurting me.”

Reporter Nathan Mayberg can be reached by calling 845-469-9000 ext. 359 or by email at comm.reporter@strausnews.com.