UPDATE: On Monday afternoon, Muskogee County District Attorney Orvil Loge dropped both the civil and criminal charges against Eh Wah. In an interview with The Washington Post, Loge said “I looked at the case and met with the officers, and determined that we would not be able to meet the burden of proof in the criminal case and in the civil case.” Loge said a check for the full amount of money taken from Eh Wah will be mailed to Eh Wah’s lawyers as soon as possible.
The original story follows.
Eh Wah had been on the road for 12 hours when he saw the flashing lights in his rear-view mirror.
The 40-year-old Texas man, a refugee from Burma who became a U.S. citizen more than a decade ago, was heading home to Dallas to check on his family. He was on a break from touring the country for months as a volunteer manager for the Klo & Kweh Music Team, a Christian rock ensemble from Burma, also known as Myanmar. The group was touring the United States to raise funds for a Christian college in Burma and an orphanage in Thailand.
Eh Wah managed the band’s finances, holding on to the cash proceeds it raised from ticket and merchandise sales at concerts. By the time he was stopped in Oklahoma, the band had held concerts in 19 cities across the United States, raising money via tickets that sold for $10 to $20 each.
The sheriff’s deputies in Muskogee County, Okla., pulled Eh Wah over for a broken tail light about 6:30 p.m. on Feb. 27. The deputies started asking questions — a lot of them. And at some point, they brought out a drug-sniffing dog, which alerted on the car. That’s when they found the cash, according to the deputy’s affidavit.
There was the roughly $33,000 from ticket sales and donations, much of it earmarked for the religious college back in Burma, according to Eh Wah and the band members.
There was the $1,000 in cash donations to the orphanage in Thailand, small bills bundled in two or three dozen sealed envelopes with the orphanage’s name written on them.
There was $8,000 in cash from the band’s CD and souvenir sales. A $9,000 cash gift to one of the band’s members from his family and friends in Buffalo — cash that Eh Wah says he didn’t even know was in the blue and white gift bag he had been asked to hold. And $2,000 in cash for Eh Wah and the band’s incidental expenses on the trip: meals and tolls, for example.
All told, the deputies found $53,000 in cash in Eh Wah’s car that night. Muskogee County Sheriff Charles Pearson said he couldn’t comment on the particulars of Eh Wah’s case because of the open investigation, but it is clear from his deputy’s affidavit that the officers didn’t like Eh Wah’s explanation for how he got the cash. “Inconsistent stories,” the affidavit notes. Despite the positive alert from the drug-sniffing dog, no drugs, paraphernalia or weapons were found. Just the cash.
They took Eh Wah to the police station for more questioning. They let him drive his own car there, with deputies’ vehicles in front of and behind him the whole way. They interrogated him for several hours.
“I just couldn’t believe it,” Eh Wah said in an interview. “An officer was telling me that ‘you are going to jail tonight.’ And I don’t know what to think. What did I do that would make me go to jail? I didn’t do anything. Why is he saying that?”
Eh Wah tried to explain himself, but he had difficulty because English isn’t his first language. He says he had a hard time understanding the officers, and they had a hard time understanding him. He told them about the band and his role with it and how he had been entrusted with the cash. He even had the officers call one of the band’s leaders, Saw Marvellous Soe, who had decamped to Miami while the band was on a break.
Marvellous saw Eh Wah’s number on his phone, but when he answered, he was surprised to hear someone speaking with a thick Southern drawl that he could barely understand — “like in the movies,” Marvellous said in an interview.
“The police officer started asking questions,” Marvellous recalled. “I explained: ‘We are a music team. We came here for a tour.'” Marvellous tried to explain that the band was from Burma.
“He kept telling me, ‘You are wrong, you are wrong,'” Marvellous said. “Everything I said, [he said,] ‘You are wrong.’ I said: ‘We are doing a good thing! And now you are accusing us of being like a drug dealer or something like that.'”
After that phone call, Eh Wah began to realize that no matter what he did or said, he wouldn’t be able to satisfy the officers’ questions. “I realized that they were seizing all of the money. I was like, ‘This can’t be happening.’ But I didn’t know what to do.”
The officers ended up taking all of the money — all $53,249 of it. “Possession of drug proceeds,” the property receipt reads. But they let Eh Wah go. They didn’t charge him with a crime that night, instead sending him back on the road about 12:30 a.m., with the broken tail light.
What happened to Eh Wah is known as civil asset forfeiture. It comes from a relatively obscure corner of the law that allows authorities to seize cash and property from people they suspect of a crime. In most states, and under federal law, authorities get to keep the proceeds regardless of whether the person is ever convicted, or even charged, with criminal wrongdoing.
Under civil forfeiture, the burden of proof is on the property owner to prove their innocence to get their stuff back. This turns the common criminal-law principle on its head: When it comes to civil forfeiture, you are guilty until proven innocent.
Two years ago a wide-ranging Washington Post investigation shined a spotlight on the practice, finding that, since Sept. 11, 2001, more than $2.5 billion in cash seizures had occurred on the nation’s highways without either a search warrant or an indictment. Those findings prompted some limited steps toward reform at the federal level.
But the forfeitures uncovered by The Post investigation, and the reforms taken to limit them, happened under the auspices of federal law. There is a completely different universe of forfeiture activity that happens strictly under state law.
Oklahoma has some of the most permissive forfeiture laws in the nation, according to a 2015 report by the Institute for Justice, a civil liberties law firm. The group gave the state a D-minus on its civil forfeiture laws, citing no conviction required to forfeit, poor protections for innocent property owners and a statute that allows up to 100 percent of forfeiture proceeds to go directly back to law enforcement, creating a possible profit motive.
The Oklahoma chapter of the American Civil Liberties Union has been investigating the use of civil forfeiture in the state. Brady Henderson, the group’s legal director, said in an interview that Oklahoma law enforcement agencies often focus their efforts on the routes where cash from drug transactions typically travels, rather than the routes the drugs themselves travel.
In looking at the data of forfeitures along Interstate 40, which runs east to west through the state, “we definitely see a huge disparity of folks on those interstates focusing on the westbound travel, which tends to be the money here in Oklahoma,” Henderson said.
In essence, he says, authorities are letting the drugs get to their destinations and be sold and used so that police can grab the money from the drug sales on the return trip. This mirrors the behavior that watchdog groups and news organizations have observed in other states, such as Tennessee.
“If the whole notion is that drugs are destructive, that they hurt people, why are we letting the drugs hurt people?” he asked. “We are deliberately letting the drugs get to their final destination, get sold, get used, and in some cases letting someone die of an overdose.”
The road that Eh Wah was traveling — U.S. Route 69 — often carries traffic from the drug trade, according to Pearson, the Muskogee County sheriff. Pearson said in an interview that although he is aware that other sheriff’s departments focus their efforts on the southbound cash side of the highway instead of the northbound side where the drugs travel, that’s not the practice in his department. “We work both sides of the highway,” he said.
With Route 69 running north-south and Interstate 40 running east-west through the county, drug trafficking is a big problem in the area, he said.
“I’m not in favor of taking away anyone’s civil rights or anything like that,” Pearson said. But, he noted, “this is still our community, and when they’re bringing their drugs in, we’re going to do everything in our power to stop it.”
In an interview, Eh Wah’s attorney, Dan Alban, noted that while the deputies took all of the cash, they left Eh Wah a check written out to him for $300 from a family friend.
“If they really thought these were drug proceeds and they thought he was a drug trafficker, why would they give back a check that they thought was drug proceeds?” Alban asked. But, he said, “if the real purpose of the stop was to increase revenue, there’s no point in keeping the check because they can’t cash the check.”
Muskogee County authorities eventually charged Eh Wah with a crime, five weeks after he was stopped. They issued a warrant for his arrest April 5, for the crime of “acquir[ing] proceeds from drug activity, a felony.” For probable cause, the authorities noted the positive alert from the drug dog, “inconsistent stories” and said Eh Wah was “unable to confirm the money was his.”
Drug-sniffing dogs are notoriously prone to giving false positives. A Chicago Tribune study of three years worth of drug dog data found that the animals’ positive alerts led to the discovery of drugs only 44 percent of the time. A controlled study by researchers from the University of California at Davis found that detection dogs gave false positives 85 percent of the time.
People who know Eh Wah say they are flabbergasted at the notion that Oklahoma considers him a drug trafficker. “It is very, very strange for us, for the whole Karen community,” Marvellous, the band member, said, referring to the Burmese ethnic minority that Eh Wah and Marvellous belong to.
“Eh Wah doesn’t even know how to smoke. Eh Wah doesn’t know how to drink beer,” he said. “He’s a very simple man, simple and straight.”
The musical ensemble was playing concerts for Burmese Christian communities stretching from Utica, N.Y., to Bakersfield, Calif. They were raising money for the Dr. T. Thanbyah Christian Institute, a religious liberal arts college in Burma serving the Karen community there. They had also collected funds for the Hsa Thoo Lei orphanage in Thailand, which serves internally displaced Karen people.
Eh Wah worked at a refugee resettlement agency in Dallas, helping Karen people like him start new lives in the United States and escape persecution back home. So the Klo & Kweh Music Team naturally turned to him for help in planning and executing the U.S. tour.
The work was exhausting and stressful, but it was rewarding. Eh Wah secured all of the proper visas for the band members. He lined up a 23-city tour schedule spanning four months. He made sure that all 11 band members showed up at the right places at the right times.
Eh Wah is quiet and humble almost to a fault. When I spoke with him on the phone, I could barely make out the words he was saying. “Normally, I’m a very quiet person,” he explained. “I don’t talk a lot. The way I live my life, I never thought that I would go somewhere like jail, that I would have to explain myself with all these things that I never have done in my life,” he added. “I don’t even know what the drugs look like.”
The Institute for Justice has taken up Eh Wah’s case pro bono. It’s also representing the band, the Omaha church that sponsored the band members’ visas, the band’s audio technician and the orphanage in Thailand in their challenge of the seizure of the money.
The institute says that Eh Wah’s case is the tip of a large iceberg when it comes to civil forfeiture on the nation’s highways. “This sort of thing is happening all the time,” said Dan Alban, a lawyer with the institute. The general contours of this particular case are not unique, he said.
“What’s unique is the back story that they were raising all this money for charity, getting a few thousand bucks here and there. Months on the road and then all their money is taken away because Eh Wah’s car has a broken tail light in Muskogee County.”
Last week, the Institute for Justice filed paperwork with a district court in Oklahoma challenging the seizure and demanding the immediate return of the cash. They’re also working to get the criminal charge against Eh Wah thrown out.
Marvellous said he is astonished that something like this could happen in the United States. He said he always has held a high opinion of the country and has been grateful for how Americans opened their doors to Karen refugees like Eh Wah.
“We thought America was the best in the world,” he said. “But unfortunately this happened, and it made us [think] like American police are the same as our police in Burma.”