by Mike Masnick
Fri, Aug 26th 2016 10:49am
by Mike Masnick
Fri, May 6th 2016 12:49pm
from the time-to-end-it dept
Thankfully, it appears that some lawmakers are finally starting to speak out. Rep. Darrell Issa, who is rarely shy about stating his opinion, has written an absolutely fantastic attack on civil asset forfeiture in the LA Times.
Civil asset forfeiture allows police to seize property as long as they believe that the assets in question were somehow connected to criminal activity.He points out an insane statistic: In 2014 "police officers took more property from American citizens under civil asset forfeiture ($5 billion) than criminals took in burglaries ($3.5 billion)." Think about that for a second. Issa admits that there's some "nuance" in those stats (in terms of what they include and don't include) but it's still pretty clear that law enforcement is taking an awful lot of things (and money) away from people with basically no due process at all.
“As long as they believe” — that's the key part.
Authorities don't have to actually prove the person was guilty of a crime. They don't have to even file charges. The presumption of innocence is thrown to the wayside.
It's an egregious violation of the 4th Amendment, but that's not even the most glaring problem with the system.
Under current law, most states allow police departments to absorb up to 100% of the value of the confiscated property — whether it's cash, cars, houses or guns — and use the proceeds to pad their budgets. It's an obvious conflict of interest — and boy, is it profitable for law enforcement agencies.
Issa notes that some states have started to pass rules that limit asset forfeiture (including requiring an actual conviction against a person and limiting how much money can be kept), but law enforcement supporters have been hitting back hard against any such legislation. And, with the DOJ reopening its "equitable sharing" program, many local law enforcement agencies are just shifting their asset forfeiture efforts to the federal program, rather than the state program:
It should come as no surprise that in states that have implemented caps and limits, law enforcement simply relies on the federal program instead.Issa notes that it's time for legislation at the federal level to change things:
In 2015, the Drug Policy Alliance found that whereas revenue collected under California's forfeiture laws had remained constant over the previous 10 years, revenue under the federal program had more than tripled.
As more and more states reconsider their civil forfeiture systems, the federal government needs to set a framework for smart reform. That starts with closing the equitable-sharing loophole, and requiring police to satisfy a higher burden of proof to a judge before seizing property under federal law.It is difficult to come up with a reasonable argument why the basic reforms mentioned here shouldn't be allowed. Requiring a conviction seems like a due process necessity. But, you can expect that there will be angry pushback from law enforcement groups that have been funding operations through all of this stolen money for a long time.
by Tim Cushing
Fri, Apr 22nd 2016 3:37pm
Court Says Government Needs More Than The Permission Of A Couple Of Underperforming Drug Dogs To Justify Seizure Of $276,000
from the evidence:-it's-a-thing dept
The Seventh Circuit Appeals Court has done something few courts do: told law enforcement it can't have that sweet, sweet "drug" money it lifted from two brothers for no other reason than that it felt there was something shady about its very existence.
Police responded to a call about a home invasion at the residence of Pedro and Abraham Cruz-Hernandez. While inside the house, officers came across a handgun, a small amount of marijuana and a scale. This apparently prompted the arrival of two drug dogs, considering they're not usually standard equipment for home invasion investigations.
When searching the brothers' van, police found $276,080. So, they took it. Why? Because their dogs said they could.
A police drug dog signaled the presence of drugs in Pedro’s van, which was parked outside the house. After obtaining a search warrant, the police discovered in the van a safe containing $271,080 in currency and two pages of handwritten notes including dates and numbers. The cash was bundled with rubber bands in stacks of $5,000. A second dog alerted to the safe. No drugs, however, were found in either the van or the safe.It didn't matter that neither drug dog could adequately perform the single task required of them. The "alerts" were all the justification law enforcement needed to rob the brothers of their money.
As is standard operating procedure in asset seizures, no charges were brought but the "guilty" money remained in the possession of law enforcement. The brothers challenged the forfeiture. The government then tried to use a mistake any person could have made to justify its possession of the brothers' money.
The government also pointed to two alleged disavowals of ownership by Abraham: (1) a record created by U.S. Immigration and Customs Enforcement (ICE) six weeks before the police seized the safe, in which Abraham had said that he did not have any “equities” in the United States, and (2) Abraham’s application for cancellation of removal, filed with the assistance of immigration counsel six months after the seizure, in which he lists only $2,000 in “cash assets.” The government represented that Pedro and Abraham, when deposed, had testified that they told the truth to the police and to immigration officials.The problem here is that Abraham was asked to list his cash assets. A normal person not versed in the convoluted fuckery that is asset forfeiture would reasonably conclude that his assets only include what's actually in his possession. As the government was still in possession of the $276,080 at the point Abraham was asked, he reasonably concluded he could only legally claim the $2,000 he had access to. The government took this reasonable conclusion and twisted it to mean Abraham had relinquished his claim on the $276,000.
In legal terminology, the government claimed the contradictory statements constituted a "sham affidavit." The court doesn't see it the government's way, though. (Emphasis in original.)
Changes in testimony normally affect the witness’s credibility rather than the admissibility of the testimony, and thus the sham-affidavit rule applies only when a change in testimony “is incredible and unexplained,” not when the change is “plausible and the party offers a suitable explanation such as confusion, mistake, or lapse in memory.”Not only that, the court notes, but an element common to nearly all asset forfeitures doesn't help the government's case much.
Abraham’s explanation for his answer on the immigration form is not only plausible, but is correct. We suspect that many people—in particular immigrants completing a form for ICE—would not be aware that a legal claim is an asset. But whether they would or not, a legal claim—even a claim to money—is not itself a “cash asset.” See CASH, Black's Law Dictionary (10th ed. 2014) (defining cash as “1. Money or its equivalent; 2. Currency or coins, negotiable checks, and balances in bank accounts.”). Moreover, when deposing Abraham the government’s lawyer did not ask about his understanding of a “cash asset” or whether his attorney had explained the definition of that term. There is no reason, therefore, to reject out-of-hand Abraham’s deposition testimony that he had been truthful in his immigration filings.
It is also telling that the government has presented virtually no evidence that the brothers are involved in drug trafficking. There was nothing to indicate past or current drug dealing by the brothers or anyone else living with them in the house, nor was there any suggestion that either brother used the bedroom where the apparent drug paraphernalia was found. Though drug dogs had alerted to the safe and currency, the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance.(Given this limited sampling includes both dogs "claiming" drugs were present when no drugs were, it's likely the government felt records on training, methodology and field performance would only have made its case weaker.)
Neither did the government point to evidence (e.g., an experienced drug investigator’s opinion) to substantiate its assumptions that the notes found in the safe were a “drug ledger” or that counting and bundling currency is something that only drug dealers would do. “Absent other evidence connecting the money to drugs, the existence of money or its method of storage are not enough to establish probable cause for forfeiture,” much less enough to meet the now-heightened standard of a preponderance of the evidence.And, finally this little kick to the government's ribs:
Courts have concluded that the government failed to meet its burden in cases with better evidence than this [one]...And with that, the Appeals Court sends it back to the lower court with the judgment in favor of the government vacated. Considering the brothers appear to have "substantially prevailed," the government may find itself cutting a check for legal fees. In hindsight, it would have been smarter to have returned the money when it became apparent there was no basis for a criminal case. But that's not how the government rolls. Cash is presumed guilty until proven innocent, even when it's little more than two underperforming drug dogs and a small baggie of marijuana "justifying" the seizure.
by Mike Masnick
Wed, Feb 17th 2016 12:41pm
Remember How US Marshals Seized All Those 'Hoverboards' At CES In A Patent Dispute? The Company Has Now Dropped The Case
from the wait,-what? dept
And now that Changzhou has attempted to present its side... Future Motion turned tail and ran, ran away. It flat out dropped the case once it was clear that Changzhou was going to challenge the lawsuit. In fact, Changzhou is so up in arms over this that it's not accepting the case being closed and has asked the court to reopen the case so that it can seek attorney fees from Future Motion.
The filing by Changzhou is well worth reading. It accuses Future Motion of misleading the US Patent Office and the court, claiming that the lawsuit and the seizure were a combination attempt to stifle a competitor and get publicity for itself, and that this all helped Future Motion raise more money. It also says that Changzhou's product, the Trotter, does not infringe on Future Motion's patents. From the filing:
CES is the world's largest electronics and technology show, and was a major opportunity for Changzhou to promote sales of its Trotter product. Instead, Future Motion orchestrated an effort to obtain a baseless TRO and to effect seizure of Changzhou's products from CES. These acts caused Changzhou to lose sales and suffer public embarrassment at a critical juncture in marketing its new Trotter product. Indeed, Future Motion engaged in a significant media campaign to gain freee publicity from the fact that it wrongfully prevented Changzhou's sales....And this is why we're supposed to have an adversarial process in court, folks. Whichever side you come down on, it's ridiculous (1) that without even hearing the other side, the court simply ordered that the CES booth be raided and all products and other supplies be seized and (2) that the US Marshals got involved and seized the product.
Moreover, Future Motion directly relied upon its baseless TRO to obtain additional financial backing for itself. On February 3, 2016, Future Motion announced that it had obtained $3.2 million in additional funding for its business.... One of the stated bases for obtaining that funding was that Future Motion "vigorously protects its Intellectual Property as it protects safety and a ride experience that cannot be replicated by knock-offs."... Interestingly, Future Motion dropped this lawsuit against Changzhou on February 4, 2016 the next day after announcing it obtained the new funding.
It is now apparent that Future Motion's actions were conducted with full knowledge that that the asserted patents... were non-infringed and invalid.... Future Motion undoubtedly sought the TRO and preliminary injunction with the expectation that Changzhou would not fight back in this litigation, and therefore would not discover the fatal flaws in Future Motion's case. Unfortunately for Future Motion, Changzhou did fight back.
Changzhou filed an opposition to the preliminary injunction motion on January 29, 2016, explaining in detail that the two patents in suit were both noninfringed by Changzhou's Trotter product and invalid in light of Future Motion's own prior art (as well as the prior art of others), most of which was never disclosed to the United States Patent Office.... For example, with respect to Future Motion's design patent, its "proof" of infringement consisted of a single sentence by the inventor, coupled with a few of the figures in the patent.... This was insufficient on its face, as a design patent must be construed and infringement evaluated based on all of the figures.... Further, with respect to Future Motion's utility patent, the "proof" of infringement provided no claim construction analysis (which is required under Federal Circuit law) and relied on a conclusory claim chart.... Moreover, Future Motion baldly stated that it was aware of no anticipatory prior art to either patent, but it neglected to tell the Court about prior art disclosures of Future Motion's own product and other similar products....
Upon reviewing Changzhou's opposition and supporting declarations, Future Motion simply gave up, filing a voluntary notice of dismissal. Even then, Future Motion only offered to dismiss without prejudice despite the uncontroverted evidence that the patents in suit were non-infringed and invalid.
Future Motion is claiming that it's dropping the lawsuit because "it had been outgunned" and that following through on the court case would cost too much. But that's ridiculous since it was Future Motion who filed the lawsuit in the first place. Those claims really do suggest that it filed the case for one reason only, which was to shut down a competitor, and then it also got a bunch of free publicity out of it. Maybe the company has a case, but if it wants to argue infringement it should have to make its case in court, not simply use the filing as an excuse to shut down and embarrass a competitor with no repercussions at all if the original claims were exaggerated or simply false.
by Mike Masnick
Fri, Jan 8th 2016 11:39am
from the how-is-it-their-concern dept
To be clear, it does appear that Changzhou is building a knockoff of Future Motion's one wheeled self-balancing scooter thing -- a device that got plenty of attention via a big Kickstarter campaign. And, Future Motion does hold both a patent on a self-balancing skateboard (US Patent 9,101,817) as well as a design patent (US D746,928), which was just granted a few days ago, on a device that obviously looks quite a lot like what both companies are selling:
If there's a legitimate patent infringement case here, as there may well be (even though I'll have some more to say about patents in this space in an upcoming post...), it's still troubling that the company got shut down in the middle of the trade show and that it involved the US government intervening in what is a civil issue. This is certainly not out of the ordinary in general. Part of the job of the US Marshals is to execute seizures related to restraining orders that are ordered by federal courts. But it still seems like pretty massive overkill for a company that's just showing some scooters at a trade show, and where they haven't had a chance to present a defense.
by Mike Masnick
Mon, Jan 4th 2016 9:37am
andrew reynolds, asset seizure, blogs, carlos linares, copyright, dhs, first amendment, free speech, hip hop, homeland security, ice, jonathan lamy, kanye west, kevin hofman, margaret nagle, onsmash, riaa, seizure
Homeland Security Admits It Seized A Hip Hop Blog For Five Years Despite No Evidence Of Infringement; RIAA Celebrates
from the fuck-you,-riaa dept
Four years ago, we were wondering whatever happened to OnSmash, as other sites that had gone to court over the seizures had had their domains returned -- and it was admitted that this was because the RIAA (which had told ICE about these websites) failed to provide any actual evidence. It appears the same thing happened with OnSmash, though it just took an extra four years to get the domain back, as OnSmash's operator, Kevin Hofman, chose not to take the riskier path that Dajaz1 took in going to court. But, the NY Times story about the return of OnSmash gets a quote from ICE admitting that they never had enough evidence:
When asked about the return of OnSmash and another site, Torrent-Finder.com, which was seized in the 2010 raid and also returned to its operator this fall, Matthew Bourke, a spokesman for the National Intellectual Property Rights Coordination Center of Immigration and Customs Enforcement, said that after working with the Justice Department, “it was determined there was not enough evidence to seize the websites.”Think about that for a second. The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.
I'm gong to repeat that:
Jonathan Lamy, a spokesman for the recording industry association, said he welcomed the return of the sites, as long as they played by the rules. “If the managers of some of these sites now seek to have the domain name returned because they wish to become legitimate operators, that’s a success,” he said.What a load of horseshit, Lamy. These sites didn't "now seek to have the domain name returned." They asked for it back almost immediately after they were seized on false pretenses based on false information provided by the RIAA. Perhaps, instead of some bullshit about these sites suddenly wanting to play by the rules, Lamy should walk down the hall to see his colleague Carlos Linares (who is still employed by the RIAA) and ask him what was up when he lied to federal investigators, helping to shut down a popular blog, violating the site's First Amendment rights?
This is from the affidavit used to seize OnSmash:
Mr. Hofman, whose day job is managing digital accounts for musicians, has already restarted OnSmash, but he said he was aware of the challenges he would face. The site has lost most of its momentum, and blogs — once at the forefront of online music promotion — have largely been superseded by social media. He noted one advantage: By embedding links from sites like SoundCloud and YouTube, where artists and labels post songs directly, there is no more gray area concerning the source of the music.Oh yeah, insult to injury: Homeland Security made him pay $7 to get the domain back.
“The plan now,” Mr. Hofman said, “is to do my best to pick up the pieces.”
I'm still amazed that these stories haven't gotten more attention. Again, if the federal government seized and shut down a print magazine people would be up in arms. But they do that for a bunch of online magazines and nobody seems to care? Again, they seized the domain based on false information and kept it for five years knowing that they didn't have enough evidence to have made the seizure in the first place.
And the guy who helped at the RIAA is still employed. Has anything happened to the ICE agent, Andrew Reynolds, who wrote the affidavit? How about the magistrate judge, Margaret Nagle, who apparently had no problem signing off on the seizures of internet blogs based on faulty evidence? Apparently, she recently retired and is now acting as a mediator. You know what might have been helpful? If someone had actually been able to mediate things back in 2010 before the RIAA, Homeland Security and Judge Nagle worked together to shut down an internet news website with no justification.
I've issued some FOIA requests to Homeland Security about both OnSmash and Torrent-Finder, and so far they've said that it would be "too burdensome" to search for any emails mentioning either site. I'm hopeful that more information will be exposed on what a colossal screwup this was.
by Tim Cushing
Wed, Oct 7th 2015 3:16am
Cops Dodge Warrant Requirement By Grabbing Two Weeks Of Data, But Entering Only 6 Hours Of It As Evidence
from the too-clever-by-much-more-than-half dept
Today's novel legal argument: take a ruling on cell site location info warrant requirements and make it fit the warrantless data haul obtained earlier by submitting only the "quantity" the court has previously OKed.
To get a sense of where we're going with this, here's a bit from the opening paragraphs of the opinion:
The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley's cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant.The CSLI was sought twice. This is the first sign that something's not quite right. Historical cell site location information doesn't change. That's the thing about history. And yet, the police obtained it twice: once with a subpoena (which was wrong) and once with a warrant (the lawful way to do it).
You see, the Massachusetts courts had already created a bright-line (of sorts) for the acquisition of cell site location data. Under the state's interpretation of its Declaration of Rights, cell site location info carries with it a reasonable expectation of privacy. This status demands the use of a warrant. An earlier decision determined that small amounts (up to six hours) of CSLI can be obtained without a warrant, as the limited time period makes acquisition much less analogous to long-term tracking.
The police knew they could only get six hours of CSLI without a warrant, but they had already grabbed two week's worth using only a subpoena. But the officers had an angle…
In this case, however, because the Commonwealth requested two weeks of historical CSLI, a search warrant was required, even though the Commonwealth proposes to use only six hours of the CSLI as evidence at trial.That's a very opportunistic reading of the court's intentions. If the police were so inclined, they could subpoena a year's worth of CSLI and trim it down to only the most incriminating six hours of data before presenting it in court. Or they could just go fishing with subpoenas, look over the collected data and see if they could match any six hours of it to an investigation or prosecution.
The court points out the flaw in this logic, which, let's face it, the cops knew all along.
It is important to emphasize that, in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person's CSLI is requested, not the time covered by the person's CSLI that the Commonwealth ultimately seeks to use as evidence at trial.The warrant requirement is for the "asking," not the "telling," to put it elementary school terms.
Fortunately for the police, the twice-obtained CSLI didn't harm their case too much. The defense argued that other evidence -- including statements made to the police -- should be suppressed because it originated from tainted CSLI. The court, however, concludes that a great deal of evidence was obtained independently and that only a few moments from various interviews could be traced back to inferences drawn from the cell site location info.
The court also came to the conclusion that the warrant the police sought well after it already had the subpoenaed CSLI in hand was likely legitimate, rather than just a shoddy attempt to cover up its earlier misdeed. Over the course of several paragraphs, the court lists all of the information gathered by officers prior to their issuing of the subpoena and finds it adds up to probable cause that isn't overly-reliant on the already-acquired CSLI info. The court doesn't offer any speculation as to what actually happened here, but rather points out that the CSLI was still lawfully-obtained, and anything stemming from the latter acquisition cannot be suppressed.
While this obtain-twice, admit-once method of cell site evidence acquisition didn't pay off for the criminal defendants, it at least provides another citable example of how far law enforcement agencies are willing to go to bypass the mild logistical hiccup that is obtaining a warrant.
by Tim Cushing
Mon, Aug 3rd 2015 2:52pm
from the where-'due-process'-is-commonly-abbreviated-as-'GFY' dept
Asset forfeiture: drop the charges, keep the property. I guess the person behind Saeki Co., Ltd. should feel appreciative he actually was graced with charges, rather than just had his purchased vehicles seized and spirited away with a mumbled explanation and some dodgy paperwork.
Saeki Co. bought several luxury vehicles from a place called Texas Motors (which, oddly enough, is located in Florida) with the intent to sell them for a significant markup to wealthy Japanese citizens. This is possibly illegal, but not because of any explicit export ban. The only reason it verges on illegal is because resellers like Saeki ever-so-lightly tread on the toes of major manufacturers and their authorized dealers who do the same thing.
The true legality of the situation is undetermined. The feds behind the first seizures of soon-to-be-exported vehicles didn't seem to have a firm grasp on the matter. They certainly felt it was illegal, and this feeling resulted in plenty of seizures, but these agencies didn't have any crystal-clear guidance on the matter.
The crackdown was driven largely by agents with the Secret Service and the Department of Homeland Security, who questioned whether these small export companies were violating federal law by using straw buyers — people paid small sums to buy cars — to conceal that the vehicles were being bought by people who had no intention of keeping them and were using cash from other people to make the acquisitions. Federal authorities have argued that using straw buyers is a deceptive practice that potentially deprives American consumers of a chance to buy the luxury cars and limits the ability of automakers to keep tight control over sales to domestic dealers and to foreign countries.It's not so much the American public losing a few opportunities to buy a luxury vehicle as it is the other thing: tight control of sales. The American public can't get many laws written in its favor, but large industries certainly can. This initial thrust led to lots and lots of partnerships with local law enforcement agencies conveniently located near shipping docks. And this led to lots and lots of luxury vehicles ending up in the hands of law enforcement.
Then, the government stopped the crackdown. It claimed to be making an effort to more tightly focus its forfeiture efforts as a result of Eric Holder's reform initiative. The appearance of being an errand boy for corporate interests certainly didn't help. Cases were dropped and charges dismissed. But the vehicles remained in the government's hands.
One person in Saeki Co.'s position spent two years fighting for the return of a seized vehicle and $125,000 in cash. This followed about a dozen similar settlements, most occuring after a legal battle with the agency(ies) holding the vehicles. In other cases, the prevailing parties still have yet to be fully recompensed. And others are still being prosecuted for violating a law the federal government isn't entirely clear on and has lost an interest in enforcing.
Saeki Co.'s story is the worst of the potential situations. It had eight vehicles worth nearly $900,000 seized at the Long Beach Seaport by customs agents. This happened January 3, 2013. Two months later, customs agents seized another of its vehicles (worth over $100,000) in Seattle. Two-and-a-half years later, the feds have abandoned everything about the case but Saeki's vehicles. And it simply doesn't want to talk about the seized property.
Despite the Government’s change in policy, Plaintiff has not received administrative relief from CBP nor any communication from the Government justifying its seizure of Plaintiff’s vehicles.Other than the fact that it won't be bringing criminal charges.
In or about early 2014, Assistant United States Attorney David Lazarus advised Plaintiff’s counsel that the federal grand jury investigation undertaken in the Middle District of Florida had concluded without any criminal charge lodged against Plaintiff or any of its agents.So, no criminal activity but the government still wants to keep the cars -- which were seized under a vague "felony interference of a business model" law.
Plaintiff’s vehicles were seized by CBP not because of any wrongdoing by Plaintiff, but because of an ill-conceived program by the Government to support a vehicle export monopoly at the expense of the Constitutional rights of Plaintiff and other vehicle exporters.As the complaint points out, the government's unwillingness to respond to the plaintiff is swiftly rendering the vehicles worthless. Overseas purchasers willing to pay above US domestic retail for luxury vehicles are most likely going to want this year's model, not something that's been sitting around a government warehouse for almost three years. (And that's not taking into consideration the possibility the vehicles may have racked up miles as government agents' "work vehicles" or the occasional "drive it like you seized it" joyride.)
Then there's the simple fact that a newly-purchased vehicle starts leaking resale value the instant a purchaser drives it off the lot.
Using the generally accepted average vehicle depreciation rate of 20% in the first model year and 15% in subsequent years, the value of Plaintiff’s property has decreased in value by approximately $375,891.00 since their seizure. This measure increases every day that the Government fails to return the seized vehicles to Plaintiff.Much of the filing details "conversations" with the government about the return of the vehicles, most of which went something like this.
SAEKI CO.: So, there's no criminal charges? This means we can have our cars back, right?The lawsuit repeatedly makes claims about Saeki Co. being deprived of due process. Which it has been. But civil asset forfeiture isn't about due process. These statutes provide -- from the very start -- a way for the government to bypass the protections due process affords to citizens. The cases themselves indicate that clearly. It's not the government versus any named individual or company. It's the government against the seized property itself, which cannot advocate in its own defense and can only be spoken for if the government grants the request.
So, while the company is absolutely right about being deprived of this right, in terms of asset forfeiture, this right simply does not exist. This lawsuit may force a response from the government, but it's a step it doesn't consider to be "appropriate" in terms of disputing seizures.
What Saeki does have going for it is the government's ambivalence towards the "law" it claimed Saeki broke. If nothing else, a judge will be asking the government a few tough questions about how its ongoing non-prosecution has managed to tie up not-guilty vehicles for the better part of three years. Given the racket that asset forfeiture is, that's about the best that can be hoped for.
by Tim Cushing
Tue, Jun 30th 2015 8:23am
from the nothing-civil-about-this-forfeiture dept
A federal judge has just ordered the government to return $167,000 it took from a man passing through Nevada on his way to visit his girlfriend in California. The officers really wanted that money, too. They used two consecutive stops to jerry-rig some probable cause… even though at that point they thought they were only dealing with $2000. From the original stop forward, the entire situation was deplorable, indisputably showing that everyone involved was more interested in taking (and keeping) a bunch of cash than enforcing laws or pursuing justice.
The order is a jaw-dropping read. It begins with the flimsiest of "reasonable suspicion" and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a "left-lane violation" -- driving too slow in the passing lane. (This itself isn't actually a moving violation, but the Supreme Court's Heien decision has ensured that law enforcement needn't be slowed by actual knowledge of the laws they're supposed to be enforcing.)
This lead to some questioning, because reasons:
Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit “his chick.” Id. at 60:9-61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2- 22. Gorman’s use of the word “chick” aroused Monroe’s suspicion that Gorman’s answers were rehearsed because Monroe thought that “chick” was an unusual word for a person Gorman’s age—thirty-one at the time of the stop—to use.Obsolete vernacular = "reasonable suspicion." That and State Trooper Greg Monroe felt Gorman's claimed employment with a "beach activities and paddle board company" sounded similarly "rehearsed." Monroe went back to his vehicle and tried to rustle up a K9 unit. But there were no units nearby, the records check was coming up clean and Monroe was running out of ideas. First, he told Gorman he was free to leave. Then he started fishing:
Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded “I don’t want to talk about how much I make.” At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman’s motor home, or if he was carrying large amounts of U.S. currency. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m, Monroe asked Gorman “do you mind if we search the vehicle?,” to which Gorman said “I do mind, yes.” At this point, Monroe told Gorman that he was free to leave [for the second time], returned to his vehicle, and said “he’s carrying money” aloud to himself.Monroe smelled money and he wasn't about to let $2000 travel across his state without being apprehended. So, he called the Highway Patrol and told dispatch his suspcions, stating that the only way the vehicle could be searched was with the use of a drug dog. Dispatch called Deputy Doug Fisher and informed him that Gorman did not consent to a search and that he "might want to follow up on the information." Here we have two different law enforcement entities basically colluding to perform a search simply because one entity experienced a refusal. The court isn't impressed.
The Court is particularly troubled that the officers’ belief that Gorman would not consent to a search, and his opposition to the canine sniff, appears to have contributed to the officers’ purported reasonable suspicion to extend the stop and continue the investigation. Individuals have a right to refuse consent for a search, and the existence of this right requires that denial of consent not be a basis to prolong a stop.On top of this, Monroe called Deputy Fisher directly to "relay his suspicions." He also inflated the amount of money Gorman had admitted to be carrying with him -- from $2000 to $5000. Fisher left the Sheriff's Office ostensibly to perform a "roving patrol," but soon decided to park himself on the side of the highway in order to catch Gorman when his RV passed by. Fisher pulled the RV over after it "crossed the fog line" a few times.
Having been stopped for a second time in under an hour, Gorman was understandably annoyed. He told Fisher the same thing he had told Monroe during his twenty-minute stop earlier. Fisher ran the same records checks and received the same lack of anything actionable. Despite this, Fisher pushed for a canine search.
[A]pproximately twelve minutes into the traffic stop, Fisher released his drug-detection canine “Euros” from his vehicle. Fisher and Euros then approached the motor home and began walking around it in the clockwise direction, starting at the rear left-hand side of the vehicle. As Fisher and Euros circled the rear of the motorhome, Euros sat down near the vehicle’s back right compartment, facing the compartment. Fisher described this as a “committed sit and stare,” which he considered to be a positive alert.Even if you believe -- like the Supreme Court does -- that drug dogs are mostly reliable and unlikely to respond to signals (unconscious or otherwise) from their handlers, Fisher's next statements indicate that bringing a drug dog onto the scene is just an easy way to generate "probable cause" where none exists.
Gorman then referred to the back rear compartment and said “I can open that if you want to look in it. It’s charcoal and stuff like that, do you want to look in it?” Fisher replied “do you want to talk to me now?” Gorman replied “if he alerted somewhere, look in it because there’s no drugs.” Fisher then noted that odor could come out anywhere on the vehicle, and that the rear back compartment was on the “downwind side of the vehicle.”Armed with the drug dog's affirmation that drugs might be located somewhere in the RV, the deputy acquired a telephonic warrant and immediately began searching the entire interior of the RV. And while the drug dog continued to "alert" on objects inside the vehicle, no drugs were found. The only thing "illegal" in Gorman's motorhome was $167,000 in cash, stashed away in the freezer, microwave and bedroom. Gorman was (for the third time in under two hours) free to go. But his money wasn't.
Gorman fought back. Almost two-and-a-half years from the point the money was taken, it is now ordered to be returned. On top of that, Gorman will also be awarded attorney's fees. Why? Because the government lied every step of the way.
First off, two different law enforcement officers performed consecutive stops, with the second stop being predicated on the "suspicions" generated by the first. This is something law enforcement cannot do.
Here, Gorman was initially stopped for a minor traffic offense at approximately 9:03 a.m. and released at approximately 9:26 a.m. when Monroe concluded that he did not have probable cause to search the motor home. Gorman was stopped the second time, again for a minor traffic offense, at approximately 10:15 a.m., and held for more than nine minutes before Fisher asked if he could conduct a canine sniff. Fisher knew that Monroe had previously ran a records check and lacked probable cause to hold Gorman, but nonetheless two additional records checks were conducted in order to prolong the detention and make time for a canine sniff. The positive alert occurred approximately twelve minutes after the second traffic stop occurred.On top of that, the government -- when arguing for its "right" to take money just because -- claimed the two stops were entirely unrelated.
All tolled, Gorman was detained for a total of approximately thirty-five minutes without convincing independent reasonable suspicion—before the officers conducted a canine sniff of the motor home and obtained probable cause for the search. Of course, “an individual who has already been seized can still be further seized for purposes of the Fourth Amendment.” Hopkins v. Bonvicino, 573 F.3d 752, 772 n.12 (9th Cir. 2009). But a second stop requires additional reasonable suspicion independent of the reasonable suspicion present in the first stop.
In its supplemental briefing, and after it became evident that the two stops were connected, the United States argues that “Monroe’s earlier traffic stop is wholly irrelevant to the Fourth Amendment analysis applicable to Gorman’s motion to suppress.” Specifically, the United States contends that “Fisher’s traffic stop was based on his own observations of traffic violations being committed by Gorman, without regard to any information provided” by Monroe. These statements cannot be reconciled with the testimony by Monroe and Fisher, or an independent review of the evidence before the Court.Note the phrase "after it became evident." This wasn't evident at first. Deputy Fisher hid this fact from the magistrate judge when requesting a warrant over the phone and lied about what Gorman had actually told him.
[T]he warrant application never mentions Monroe’s original stop, that Monroe called Fisher with information about Gorman and Gorman’s vehicle, or that Fisher was dispatched to investigate Gorman. This omission thereby represented to the magistrate that Fisher pulled Gorman over solely due to his traffic violations, as opposed to having been encouraged to investigate Gorman by NHP and Monroe. Second, Fisher represents in the warrant application that Gorman “indicated he had no job.” This is unambiguously contradicted by the video of Fisher’s questioning of Gorman, in which Gorman states clearly that he works for a Maui paddle board company.These lies -- kindly called "omissions" by the court -- sadly wouldn't be enough on their own to suppress the evidence obtained by the search. But the application of the Supreme Court's Rodriguez decision (officers can't unnecessarily prolong stops to perform [often dog-assisted] fishing expeditions) does call for suppression.
But Deputy Fisher wasn't the only one lying. The State's Attorney's office also lied to the court.
The Court is disappointed that the United States would aggressively pursue this forfeiture action while all of its moving documents for summary judgment and supporting affidavits contained material omissions concerning the history leading to the traffic stop and canine sniff at issue. The government’s Motion for Summary Judgment, with supporting affidavits from Deputy Fisher and the Assistant United States’ Attorney, made no disclosure of anything which would have suggested that Fisher’s stop was a follow-up on Monroe’s stop and was based upon suspicion of a drug related offense.This is how the government portrayed Fisher's actions in its provided documents.
On January 23, 2013, ECSO Deputy Doug Fisher was monitoring west-bound traffic on Interstate 80 near Elko, Nevada.But, as pointed out earlier in the order, Doug Fisher wasn't assigned to traffic patrol and wouldn't have just been "monitoring traffic" if he hadn't received a call from dispatch about Gorman's RV, as well as a direct call from Trooper Monroe himself.
On top of the deceit at all levels, there were problems with the search itself. The drug dog alerted on a rear compartment. But rather than search that area, the deputies searched the entire vehicle.
[E]ven assuming that the officers had probable cause to search the back right compartment where the canine alerted, the Court is not convinced that the dog’s positive alert to the compartment gave the officers probable cause to search the entire motor home. Despite Gorman’s consent to search the compartment, the officers did not even begin their search of the motor home with the compartment, instead beginning with a search of the motor home’s main cabin. “Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” United States v. Ross, 456 U.S. 798, 824 (1982)The court doesn't weigh this issue specifically (although it does express its skepticism) but it doesn't have to. The prolonged detainment without probable cause is enough to suppress the evidence under Rodriguez.
The court sums it up succinctly while ordering the government to hand over not only Gorman's original $167,000, but attorney's fees as well.
Gorman is undoubtedly the successful party here.This order shows law enforcement at its ugliest: willing to lie and cheat to maintain control of what it stole.
by Tim Cushing
Wed, Jun 10th 2015 11:41am
Because The 4th Amendment Only Kicks In After The Fact, 'Reasonable Suspicion' Will Always Be Anything But
from the mere-existence-deemed-suspicious-by-law-enforcement-officials dept
But how can you not look "suspicious" while riding Amtrak?
- Unusual nervousness of traveler
- Unusual calmness or straight ahead stare
- Looking around while making telephone call(s)
- Position among passengers disembarking (ahead of, or lagging behind passengers)
- Carrying little or no luggage
- Purchase of tickets in cash
- Purchase tickets immediately prior to boarding
Too calm is suspicious. Too nervous is likewise suspicious. The straight ahead stare that's too suspicious to be deployed is undercut by looking around while using the phone. You can't win. You may as well turn yourself in (and any cash you're carrying) before boarding, rather than risk setting off law enforcement's "sixth sense" that basically turns anyone not in a law enforcement uniform into a potential suspect.
Law enforcement needs "reasonable suspicion" before it can move forward with patdowns, searches, questioning, etc. If it can't establish that, everything past that point runs the risk of nullifying any evidence obtained or arrests effected. But it's such a low bar, and it varies from officer to officer, not to mention from locality to locality (and even from agency to agency). Suspicion is hard to articulate, but "reasonable suspicion" is tied to the word "reasonable." The above list is clearly far from "reasonable."
Two stories (of many) we've covered illustrate the huge gap between what the public views as "reasonable" in terms of suspicion, and what those outside of that realm -- namely the courts -- find to be "reasonable."
Asserting your rights isn't inherently suspicious, but law enforcement has attempted to paint it as such when trying to hold onto a drug possession bust. The government has also tried to make the assertion that password-protected files on a laptop were suspicious enough to prompt further searches, but this reasoning was shot down by the court.
A 2006 National Institute for Justice report detailed some behavior officers find suspicious -- as noted during 132 hours of ride-alongs with 182 police officers.
- All black clothing, regardless of race of person wearing them.
- Nervousness, refusal to look directly at officers, "fidgeting"
- Mismatch of ethnicity (whites in a black neighborhood and vice versa)
The vague notions of "reasonable suspicion" have evolved over the past decade as law enforcement agencies increasingly view themselves as integral parts of the War on Terror. Asset forfeiture laws haven't helped, especially considering assets can be seized based on nothing more than an officer's "suspicion" the assets may be tied to illegal enterprises. (And, it must be noted, the Fourth Amendment -- despite its language about "seizures" has almost no bearing on most asset forfeiture proceedings. And due process -- the Sixth Amendment -- is often ignored as well.) Hence, this sort of thing, as detailed by the Denver Police Dept.:
Business patrons or individuals who carry large amounts of cash.That alone is supposed to be "suspicious activity" -- something that nicely dovetails into the perverse incentives of asset forfeiture laws. Cash is suspicious and must be seized before it can do further harm, whether or not the person carrying it is ever determined to be involved in criminal activity.
Even worse -- following a list of terrorist-related activities to look out for (chemical purchases, questions about building security, etc.) -- is the assertion that looking slightly out of place is inherently suspicious.
Anyone attempting to appear ‘normal’ in their behavior, such as portraying themselves as a student or tourist.Some alleged "terrorists" are nothing more than people who aren't entirely comfortable in their new environments.
The list of "reasonable" suspicions is neverending. The following are from cases where courts actually stepped up to call officers out on their "reasonable suspicion" claims.
(US vs. Davis, 2013)This is a very small sampling. Dozens more can be found here.
There was no reasonable suspicion for defendant’s stop for allegedly being nervous and only allegedly walking away from the officers after making eye contact with one and saying “shit.”
(State vs. Fontaine, Ohio, 2013)
We agree with the trial court that “overly polite” and “heavy breathing” are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.
(State vs. Richardson, 2010)
While Officer Eastwood did observe an “unusual bulge,” this fact standing alone did not provide the independent basis of reasonable suspicion that Baldwin requires, especially in light of Richardson’s immediate compliance and Officer Eastwood’s prior peaceful exchanges with Richardson.
(Schneider vs. State, 2015)
Here, although Officer Wiens testified that he would conduct a stop in the event of a color discrepancy to determine whether the vehicle was stolen, he did not testify that, in his experience, car thieves would change the color of a vehicle after it had been stolen or that a discrepancy in color was indicative of any type of criminal conduct. There was, therefore, no evidence before the circuit court that a color discrepancy was indicative of any criminal activity that would possibly allow otherwise innocent behavior to give rise to a reasonable suspicion of criminal activity.
It is clear, based on the testimony at the suppression hearing, that Officer Wiens was acting on a purely conjectural suspicion that appellant was engaged in illegal activity at the time he initiated the traffic stop.
(Parker vs. Town of Woodworth, 2015)
The issue is simple: Can a police officer conduct an investigatory stop and detain citizens otherwise legally operating motor vehicles on the public highways or private roads in this State solely because past crimes or suspicious activities have occurred in the area where motorists are traveling? The answer is not even close: “No.” There simply is no “check-em-out” exception to this Constitutional prohibition. [...] Officer Godwin could articulate nothing to establish a particularized and objective basis for suspecting Parker of criminal activity.
(US v. Thompson , 2015)
The combination of air fresheners, two phones, only one visible bag, referring to military friends to a stranger by rank and last name, clean construction gear, and no hotel reservation do not rise to more “inchoate and unparticularized suspicion or hunch.”
Police may find the courts to be too narrow in their definition of "reasonable suspicion." It's not that every case where a search is thrown out is linked to a bad cop abusing his or her power. It's that the courts don't see the situation the way cops do. This doesn't make the courts wrong, but it does explain why it's so pervasive, despite dozens of rulings finding in favor of those illegally searched.
In a case where "reasonable suspicion" was nothing more than a person being in what was termed a "high-crime area" by the police officer, the court had this to say about the law enforcement mindset:
But here, an officer’s confident body language and tone of voice are not enough to prove a high-crime claim. Allowing such a finding solely through unsubstantiated testimony (no matter how confidently stated) would give police the power to transform “any area into a high crime area based on their unadorned personal experiences.” United States v. Montero-Camargo, 208 F.3d 1122, 1143 (9th Cir. 2000) (Kozinski, J., concurring). Yet those experiences can exaggerate the criminality of an area because “[j]ust as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area.” Id. This is natural--even expected--because police “are trained to detect criminal activity”; they view “the world with suspicious eyes.” Id. But seeing some crime does not automatically make a place a high-crime area.That's the disconnect. People who aren't committing crimes wonder why they're being hassled by police officers. This is why. "Reasonable suspicion" is subjective and that determination is placed completely in the hands of those who can easily abuse it, and who are in the business of finding and detaining suspicious people. The remedy is the courts, which isn't much of a remedy at all, when you have to be arrested, held and possibly charged before you can avail yourself of your Fourth Amendment rights.
In a recent Ohio Supreme Court case, this unfortunate limitation is called out. The "reasonable suspicion" prompting the illegal search and arrest was based on little more than the "suspect" not making eye contact with a police officer.
The officer in this case was cruising a Kroger parking lot using the license plate scanner. She approached defendant because he was suspicious, but, on cross, could not identify any potential crime at all. The stop was without reasonable suspicion, and the trial court correctly suppressed the evidence. [Not looking at a police officer was considered suspicious. ¶10. How many cases have said that staring at a police officer is suspicious? Apparently some form of acknowledgment is required in this city.]The footing for reasonable suspicion constantly shifts. The assertions made in defense of bogus searches and busts are similarly ethereal. The "hunch" always remains, but when pressed for something factual and tangible, there's nothing there.
The decision quotes a 1948 ruling that clearly defines the Fourth Amendment's purpose in relation to searches.
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."Which is why the courts must sort this out. We've already seen what the Fourth Amendment looks like in the hands of police officers. It's an obstacle, at best, and it's more commonly viewed as an enemy of police work rather than a necessary check against abuses of power.
The court also examines the nexus of the Fourth Amendment and the oft-applied "good faith exception." In this too, the officer is found wanting.
The exclusionary rule has existed for a century to broadly protect our rights to be free from unlawful search and seizure. We find no basis for applying a good-faith exception under these admittedly subjective circumstances. '[G]ood faith on the part of the arresting officers is not enough.' If subjective good faith created an exception to the exclusionary rule, enforcement of the Fourth Amendment for people to be "secure in their persons, houses, papers, and effects," would be at the discretion of the police.Furthermore, quoting Justice Robert H. Jackson (who presided over the Nuremberg Trials), the court notes that it is there to provide relief in the case of law enforcement overreach, but its offerings are purely defensive, far from comprehensive and well after the fact :
Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we courts do nothing, and about which we never hear.In short: the remedy exists, but it can't prevent bogus arrests and illegal searches. On one hand, you have inherently suspicious cops far too often finding the Fourth Amendment's protections inferior to their well-honed sixth senses. On the other, you have the victims of these violations attempting to avail themselves of rights that have already been violated. In the middle, you have the courts, which can provide a much more reasonable look at "reasonable suspicion," but are also prone to extending the protections of immunity and "good faith" exceptions to far too many officers.
Unlike other rights, the government is only too happy to violate first and deal with the fallout later. Government agencies are generally wary of stifling free speech and legislators often hesitant to propose or back gun control laws, but the Fourth Amendment is one the government seldom seems worried about violating. Whatever consequences it faces for these violations are often months removed from the incident and far from guaranteed. Because of that -- and the general law enforcement mindset brought on by the realities of the job -- "reasonable suspicion" will always be anything but "reasonable."