Drug War

How Cops Became Robbers

Three features of civil forfeiture law and five Supreme Court decisions make it easy for police to take money from motorists.

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One afternoon in August 2012, Mandrel Stuart was driving with his girlfriend into Washington, D.C., when a Fairfax County cop pulled him over on Interstate 66, ostensibly because the windows of his SUV were too dark. Lacking the device necessary to check whether the tinting of the windows exceeded the legal limit, Officer Kevin Palizzi instead cited Stuart for having a video running within his line of sight. While Palizzi was filling out the summons, another officer arrived with a drug-detecting dog. Claiming the dog alerted to the left front bumper and wheel of Stuart's GMC Yukon, the cops searched the car and found $17,550 in cash, which they kept, assuming that it must be related to the illegal drug trade.

Stuart, who had planned to use that money to buy equipment and supplies for his barbecue restaurant in Staunton, Virginia, was astonished that a routine traffic stop could so easily turn into grand theft. But as Washington Post reporters Michael Sallah, Robert O'Harrow Jr., and Steven Rich explain in a revealing and troubling series of stories that ran last week, taking Stuart's hard-earned money was perfectly legal, thanks to civil forfeiture laws that turn cops into highway robbers.

"I paid taxes on that money," Stuart told the Post. "I worked for that money. Why should I give them my money?" Although the financial difficulties that ensued from his encounter with Officer Palizzi forced him to close his restaurant, Stuart ultimately got his money back after challenging the forfeiture in court. Because the government lost the case after a federal trial, it even had to pay Stuart's legal bills, which totaled nearly $12,000.

Other innocent motorists who lose their cash to cops are not so lucky, finding that the cost of fighting a forfeiture leaves them with a fraction of their money even if they convince the government to return it. Since 2001, the Post reports, some 62,000 cash forfeitures have been pursued under federal law in cases that, like Stuart's, did not involve search warrants or criminal indictments. Legal expenses help explain why only one-sixth of those forfeitures were challenged. If the cops take a few thousand dollars from you, it makes little sense to spend thousands of dollars to get it back, especially since there is no guarantee of success and your expenses will be reimbursed only if you go to trial and win.

Three key features of civil forfeiture law give cops this license to steal:

The government does not have to charge you with a crime, let alone convict you, to take your property. Under federal law and the laws of many states, a forfeiture is justified if the government can show, by a preponderance of the evidence, that the seized property is connected to a crime, typically a drug offense. That standard, which amounts to any probability greater than 50 percent, is much easier to satisfy than proof beyond a reasonable doubt, the standard for a criminal trial. Some states allow forfeiture based on probable cause, a standard even weaker than preponderance of the evidence.

The burden of proof is on you. Innocent owners like Mandrel Stuart have to prove their innocence, a reversal of the rule in criminal cases. Meanwhile, the government hangs onto the money, which puts financial stress on the owner and makes it harder for him to challenge the forfeiture.

Cops keep the loot. Local cops and prosecutors who pursue forfeiture under federal law, which is what happened in Stuart's case, receive up to 80 percent of the proceeds. Some states are even more generous, but others give law enforcement agencies a smaller cut, making federal forfeiture under the Justice Department's Equitable Sharing Program a tempting alternative. The fact that police have a direct financial interest in forfeitures creates an incentive for pretextual traffic stops aimed at finding money or other property to seize. The Post found that "298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008."

The Fifth Amendment Integrity Restoration (FAIR) Act, a bill introduced by Sen. Rand Paul (R-Ky.) in July, addresses each of these issues. The FAIR Act changes the standard of proof in federal forfeiture cases from "preponderance of the evidence" to "clear and convincing evidence." That change does not go as far as the Institute for Justice, a public interest law firm that has been fighting forfeiture abuse for years, would like. I.J. argues that civil forfeiture should be abolished, meaning that a criminal conviction, based on proof beyond a reasonable doubt, would be required for the government to take property allegedly connected to a crime. But Paul's reform would make it harder for the government to prevail if a forfeiture case goes to trial, which might deter seizures of large sums in situations where the evidence is weak.

Another provision of the FAIR Act probably would not have much impact on cash forfeitures, but it would help innocent owners of other property. The bill requires the government to prove that the owner of an asset allegedly used to facilitate a crime, such as a car or a home, himself used the property for illegal purposes, consented to that use, or was "willfully blind" to it. Current law puts the burden on innocent owners to show they did not know about the illegal use or "did all that reasonably could be expected under the circumstances to terminate such use."

The FAIR Act also would abolish the Equitable Sharing Program, which allows police and prosecutors to evade state reforms aimed at reducing forfeiture abuse. Those reforms include channeling forfeiture revenue to functions other than law enforcement, a change designed to eliminate the profit motive that warps police priorities. Similiarly, the FAIR Act would assign federal forfeiture proceeds, which last fiscal year totaled more than $2 billion, to the general fund instead of the Justice Department.

In addition to the statutory provisions that facilitate forfeiture, several Supreme Court decisions have made it easier for cops to take money from motorists:

Schneckloth v. Bustamonte (1973): Police pulled over a car with a broken headlight and a broken license plate light. When an officer asked if he could search the car, one of the six occupants said, "Yeah, sure." The cops found three pilfered checks under a rear seat and charged Robert Bustamonte, a passenger, with possession of stolen property. The Supreme Court held that a vehicle search based on consent is constitutional even without proof that the person who agreed to the search knew he was free to refuse. In several of the forfeiture cases examined by the Post, police said drivers agreed to allow searches of their vehicles.

Ohio v. Robinette (1996): A deputy sheriff stopped Robert Robinette for speeding. After giving Robinette a ticket, the deputy asked him if he was carrying contraband. When Robinette said no, the deputy asked for permission to search the car, which Robinette granted. The search discovered a small amount of marijuana and an MDMA tablet. Extending the logic of Bustamonte, the Court held that consent to a vehicle search can be voluntary even if police do not tell a motorist he is free to go after he receives a ticket.

Whren v. United States (1996): Plainclothes police officers patrolling a "high drug area" thought a truck was suspicious because it had temporary plates and lingered at a stop sign. When the officers made a U-turn and headed back toward the truck, it suddenly turned right. The cops stopped the truck, ostensibly because the driver turned without signaling and drove at an "unreasonable speed." They caught a passenger, Michael Whren, holding two bags of crack. The Court said detaining a motorist for a traffic violation does not violate the Fourth Amendment's ban on unreasonable seizures, even if a reasonable officer would not have done so without an additional law enforcement objective. The upshot is that police can use alleged traffic infractions such as Mandrel Stuart's tinted windows as a pretext for pulling people over in search of loot.

Illinois v. Caballes (2005): A state trooper stopped Roy Caballes for speeding. While the trooper was writing a warning ticket, another trooper arrived with a drug-sniffing dog, which he walked around the car. After the dog alerted near the trunk, the troopers looked inside and found 292 pounds of marijuana. The Court ruled that "the use of a well-trained narcotics-detection dog…during a lawful traffic stop generally does not implicate legitimate privacy interests." That authorized police to turn any traffic stop into a canine search for drugs like the one that led to the discovery and seizure of Stuart's cash. 

Florida v. Harris (2013): A police officer pulled over Clayton Harris's truck because it had an expired license plate. After Harris declined to allow a search of the truck, the officer walked a drug-sniffing dog around the vehicle. According to the officer, the animal got excited and sat down in front of the driver's side door handle. A search of the truck did not find any substances that the dog was trained to detect, but it did turn up 200 pseudoephedrine tablets, along with other chemicals and supplies used to make methamphetamine. The justices unanimously ruled that "a court can presume" a police dog's alert by itself provides probable cause for a search unless the defendant proves the animal is unreliable.

Taken together, these decisions mean a cop can stop vehicles pretty much at will for the sort of minor traffic violations that people routinely commit and then search those vehicles based either on "consent" that may not be truly voluntary or a dog alert that could be inaccurate, imagined, or invented. It is important to recognize that drug-detecting dogs, whether or not they are properly trained, are not nearly as reliable as the Supreme Court seems to imagine. They may react to food and other distractions, legal items that smell like contraband, and conscious or subconscious cues from their handlers, who may be mistaken or dissembling when they report an alert. Vehicle searches based on dog alerts are frequently fruitless, failing to find contraband anywhere from 56 percent to 96 percent of the time, depending on the setting. Even the best-trained dog may be wrong most of the time when it indicates the presence of drugs because the percentage of cars carrying contraband is low.

In Harris, the dog alerted to drugs that were not there. The same thing happened when Mandrel Stuart was pulled over. Recall that a police dog supposedly alerted to the left front bumper and wheel well of Stuart's SUV, implying that he had drugs stashed there. But in the end, the Post reports, the only contraband police found was "a few flecks of marijuana," totaling 0.01 gram, "in the bottom of a bag holding DVDs that were there to entertain Stuart's four kids when he drove them around." Even if we charitably assume that the dog could have smelled that minuscule measure of marijuana while standing outside of the car, that would not explain why it alerted to the left front bumper. Police nevertheless took Stuart's money on the theory that it had something to do with illegal drugs.

In another case discussed by the Post, José Cristobal Guerrero, a legal U.S. resident living in Raleigh, North Carolina, was driving to Mexico when he lost $13,630 to police in DeKalb County, Georgia, after a dog supposedly alerted to his SUV. According to Guerrero's lawyer, the Post says, "The money represented several years' worth of savings and was intended to pay for land in Mexico and bills for Guerrero's extended family there." Although no drugs were found, federal prosecutors still tried to keep the cash "on grounds that it was furnished or intended to be furnished in exchange for controlled substances." They finally agreed to return the money three years later, which never would have happened if Guerrero had not found an attorney who was willing to do the necessary legal work for free. Given the time involved, the lawyer told the Post, the bill would have been around $50,000, more than three times the amount Guerrero was trying to recover.

How sad is it that Guerrero, on his way to a country where police are notoriously corrupt and have been known to shake down innocent travelers, had that experience on our side of the border, where police are supposed to be constrained by constitutional guarantees that protect our privacy and property? Here is a warning the State Department should consider adding to its webpage of advice for visitors to this country: If you travel by car in the United States, don't carry a lot of cash, because the cops might steal it.

This article originally appeared at Forbes.com.

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25 responses to “How Cops Became Robbers

  1. Because the government lost the case after a federal trial, it even had to pay Stuart’s legal bills, which totaled nearly $12,000.

    “Loser pays” is in effect in these cases? Damn. I’ll bet those government will think twice doing this again, having to pay the cost of both its own defendant’s bills and the plaintiff’s.

    1. The $12K ought to come out of the offending officers’ pensions.

    2. *peers hard*

      Did you finish saying that with a straight face?

    3. This is just plain stupidity of local and state government for trying to take someones rightfully earned money without looking into it first. Although the guy shouldn’t have left his money in the car like that. Plus how do drug sniffing dogs find mounds of money? Arent they supposed to be sniffing out dogs.

    4. Yeah this is definitely a serious issue.

  2. Oh, and is this number two or three for use of this story for a post now?

  3. That really makes a lot of sense dude.

    http://www.Crypt-Tools.tk

  4. “…provides probable cause for a search unless the defendant proves the animal is unreliable.”

    How in the Hell is some average person expected to prove some cop’s dog is unreliable?

    These “judges” are perhaps more loathsome than the dirtbag cops that pull these stunts.

    1. HELP-HELP-HELP, won’t someone please give me some good advice?!!? I have a most EXCELLENT tax-money-saving idea that I’d like to put in to the Departments of Our Heroic Protectors in Government Almighty all across the land, and I just don’t know WHERE to submit my brilliant money-saving idea; PLEASE help. Idea summary: REAL drug-sniffing dogs are expensive to train, feed, house, and transport. EFFIGY dogs (think sock-puppet-doggie on officer’s hand) would be FAR less expensive! Officer waves sock-puppet-effigy-dog slowly over car, says wuff-wuff-wuff quietly and softly, then reaches trunk of car, goes WOOF-WOOF-WOOF loudly and urgently, now the car can be searched! Problem solved, cost-effectively! Woo-Hoo!!! ? Now? HOW do we spread this most excellent idea? Please advise? This excellent idea brought to you by the Church of Scienfoology, see http://www.churchofsqrls.com/ ?

      1. SQRLSY One

        Had some time today while waiting for my father-in-law to die here at the hospice center and took a look at your site.

        Unsolicited Advice: write less, edit more.

    2. There a “key” words the cop can used to make it seem like the dog alerted.

    3. How in the Hell is some average person expected to prove some cop’s dog is unreliable?

      Easy, take the dog to the parking lot where the judges cars are parked and see how easily they can be alerted.

      1. Won’t work, the dog won’t get the signals from the handler that the handler wants the dog to signal.

  5. Confiscation of property and related drug laws are relatively small compared to some of the other rights violations the government is engaged. However, they have the potential of uniting the left, right and a portion of the middle without motivating any real moral righteous challenge except from some law enforcement sectors.

    Thus, it may not be too bad of a wedge issue upon which Rand Paul can build political support for other liberty issues generally. Same is true of his stand on NSA and drones. You know, the guy might have a chance.

  6. This has been creeping up for a century a little at a time and is fully supported by both R’s and D’s. Today you can be permanently stripped of your federally guaranteed second amendment rights for the crime of bigamy in some states and until a few years ago sodomy was a felony in some states. Possibly millions of people have been stripped of that right for decades old convictions for crimes which are no longer felonies and in some cases are no longer even crimes in the state of conviction. Why would we be surprised our rights are now privileges when we’ve been insisting on rights being treated as taxable, regulated and licensed privileges for generations. The greatest fear of the average American is a fellow American with rights.

    1. The 2nd obviously can be an important amendment when you or your property are threatened by a criminal, but it is, eh umm…a secondary right, and fearing fellow Americans who are armed is not that irrational of a fear. Property rights and speech rights are, on the other hand, primary and foster broad support by our fellows, I think. Things are not as bleak as you post suggest, perhaps.

  7. These are reasons I have absolutely no sympathy for cops who lose their lives or are crippled in the line of duty. There are good cops out there, but there seems to be getting more and more of these bad cops which is making me cold to all of them. Everytime I see a news piece on a downed cop, my first reaction is, wonder how many kids he’s burned, pets he’s shot, people he’s choked, money he’s stolen in civil forfeiture, etc.

  8. Five years ago, when things were getting pretty wicked, my wife and I decided to keep some cash outside of the banks (as if – if things REALLY went to hell – the cash would retain value). I have fears in redepositing that money in that I may run afoul of some monitoring unit or IF I’m pulled over heading to the bank with the money. If I do it in a serial fashion, I’ll be marked by the FBI/NSA/CIA/OMB/FCC/ESPN/FDIC/ERISA/FDA/IRS/IMDB for electronic surveillance, but if a take a wad and am pulled over because my license plate is crooked, Rover will smell the money and it’s taken from me. This country should NOT be this way.

    1. If you’re in Canada, bringing $10K to the bank makes it mandatory the clerk alert the authoritahs (FINTRAC legislation). They have discretion under that amount so a couple or three visits with lesser mad stacks and you’ll be visited by the RCMP. Why not just rent a safe deposit box at 2 different banks and stuff the cash in there (I know, the rental agreement says you won’t put cash in there but seriously, nobody is going to check until you die).

  9. Banks do search for multiple deposits made during a short timeframe totaling = $10K, to try to find people evading the $10K reporting purpose. Not sure if htat timeframe is hours, days, or weeks, but they do it.

    And yes, it’s because if they don’t, the Feds come down on the banks for not doing a good enough job. And I would be willing to bet that the Feds would have no problems actually fining a large bank who doesn’t do this type of thing, for criminal charges related to accessory to money-laundering if they ever caught someone who had made 3 small deposits the same day.

    Seconded – the country should not be this way.

  10. should have been, “for not doing a good enough job to identify money-launderers, financing terrorism, etc.”

    And totalling GT or ET $10K, not just GT.

  11. Sounds like a 3rd world nation

  12. If you are transporting drugs, I don’t have a lot of sympathy. However, people need to be aware, the police are not your friend. There is no reason for a police officer to search your car if you are stopped for speeding. If they ask, you tell them “no”. There is no probable cause. When the officer starts the “why is you have nothing to hide” all you need to respond is ” the 4th amendment.” In college I took a business law class in which the professor made it clear under no circumstances should you ever willingly give up your rights. Make them arrest you. When they find nothing, you sue the city,the department and the officer personally and wipe them out. The only way to stop the militarization of the police which has been happening since the 1970s is to say, “no”.

    1. Actually, the proper response would be “What does that mean? Your question makes no sense, officer”.

  13. Fuck Rand Paul for not trying to abolish CAF.

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