Asset forfeiture is back in the news again. No sooner had it been recommended that Canadian visitors to the US do everything they can to avoid interactions with law enforcement officers (i.e, drive super-carefully, don't consent to searches, avoid long conversations with officers by continually asking if you're free to go, etc.) in order to prevent any large amounts of cash being seized, then an incident occurs that throws all that semi-useful advice out the window.
The Des Moines Register highlights an Iowa forfeiture case, the subject of a federal lawsuit filed this week, in which state troopers took $100,000 in winnings from two California poker players traveling through the state on their way back from a World Series of Poker event in Joliet, Illinois.
Driving carefully and obeying traffic laws? Mostly worthless.
More than 10 minutes after he began following the car, [State Trooper Justin] Simmons initiated a traffic stop, claiming Newmerzhycky failed to signal while passing a black SUV.
However, attorneys have now argued that a dash camera video taken from Simmons' patrol cruiser — which was several car lengths behind the Altima — shows Newmerzhycky using his turn signal, contrary to the troopers' report.
Don't just take the attorneys' word for it. Go view the video yourself at the Des Moines Register website
(where it will "conveniently" AUTOPLAY). Around the 30-second mark, you can clearly see the left-hand turn signal being used.
Bad news is: the courts pretty much don't care whether or not any infraction actually occurred, as long as an officer claims it happened, as Reason's Jacob Sullum points out:
In the absence of such contrary evidence, cops are free to invent minor traffic infractions to justify a stop they want to conduct for other reasons. Although it does not condone such prevarication, the Supreme Court has said any valid legal reason makes a stop constitutional, even if it's a pretext for a more ambitious investigation.
In this case, there's "contradictory evidence," but all that really means is a person subjected to this is facing a long, expensive legal battle to reclaim his or her funds. Iowan "interdiction teams" have made the most of this loophole -- as well as a civil asset forfeiture program that has netted local law enforcement nearly $7 million over the last three years -- targeting non-Iowan drivers 86% of the time.
As for avoiding long conversations with law enforcement by pressing the "am I free to go?" question… that didn't exactly work either.
The two gamblers nearly got away with leaving with their legally-obtained funds, but the trooper extended the detainment by asking for favors. All he wanted to do was "ask a couple of questions." And bring in a drug dog. John Newmerzhycky (who I'll be referring to by his first
name should the need arise) asks if he can decline this extra attention. The officer agrees he can, but then asserts that John seems too "nervous." Who wouldn't be, knowing that law enforcement officers aren't generally inclined to believe the cash stashed in your rented vehicle was legally obtained?
In fact, who could possibly avoid triggering any
of these signs of suspicion, which are presented in drug interdiction training as indicators of guilt? From the federal lawsuit [pdf link
Defendant Desert Snow and Joe David’s training taught Trooper Simmons that completely innocent behaviors were indicators of criminal activity, including:
Dark window tinting
Air fresheners or their smell
Trash littering a vehicle
An inconsistent or unlikely travel story
A vehicle on a long trip that is clean or lacks baggage
A profusion of energy drinks
A driver who is too talkative, or too quiet
Signs of nervousness, such as sweating, swallowing or redness of face
Designer apparel or other clothing that seems inappropriate
The list of contradictions is all the justification interdiction officers need to turn baseless traffic stops into full-blown search-and-seizures. Talk too much or too little while standing outside your too clean or too dirty vehicle and you too could be relieved of your cash, electronics -- even the vehicle itself.
Shortly thereafter, the drug dog arrived and John gave the officers permission to search the vehicle, performing the alert everyone expected to happen, albeit off-camera. (It would have been captured on camera had Officer Simmons not switched his off upon his arrival at the scene.) The officers opened the trunk and found the $100,000 in cash and the one thing it needed to justify taking it all: a grinder with bits of marijuana in it.
This minor paraphernalia charge was the only
charge brought against the two men. Because John had previously denied the vehicle held "large amounts of cash" during the trooper's roadside fishing expedition, it was presumed that the grinder was simply a small part of a much larger drug operation.
And, to add the last little dig at the two men whose $100,000 they had seized, an interdiction agent called in a tip that resulted in police searching both men's residences in California. Marijuana was found in their homes, but it was for legal, medicinal purposes. Felony charges were briefly pursued but were dropped once the California prosecutors viewed the traffic stop video.
But these two didn't give up. They fought back, finally forcing the state to return $90,000 (apparently there's some sort of surcharge/skim that automatically comes out of "forfeited" funds), one-third of which went directly to reimbursing their lawyers for their efforts. Now, they're hoping to take a bit more back from the state via a lawsuit. John claims to have lost his home and his business due to the expenses and stress incurred as a result of this battle. The other plaintiff, William Davis, said the loss of funds prevented him from entering other tournaments -- something he does for a living. He was also kicked out of his apartment by his landlord, who presumed that a search by police officers was actually an indicator of criminal activity, which is (like anywhere) a violation of lease conditions.
In addition, the searches by Humboldt County (CA) officers triggered the freezing of both men's bank accounts. Despite having charges dropped by the local prosecutor and despite having the money returned to them by the state of Iowa, these accounts remain frozen to this day.
So, not only did Iowan law enforcement lift $100,000 from these men, they also effectively made them jobless and homeless. Civil asset forfeiture affects much more than your cash on hand. It can destroy your life. And all many officers need to start this ball rolling is a contradictory checklist and the presence of cash or drug paraphernalia. At that point, you may only be a suddenly luckless poker player just 'passing through,' but in the eyes of interdiction teams, you may as well be Pablo Escobar himself.