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. The case illustrates several of the themes I discussed in a recent column explaining how cops became highway robbers:
Cops can always find an excuse to stop you. On the morning of April 15, 2013, Trooper Justin Simmons, who is part of an “interdiction team” that looks for contraband and money to seize, pulled over William Davis and John Newmerzhycky, who were traveling west on Interstate 80 in a rental car, a red Nissan Altima. Simmons later said he had received a vague tip from “an Illinois law enforcement officer” to be on the lookout for a red car, but he did not know why. Obviously that did not rise to the level of reasonable suspicion, which Simmons needed to stop the car. So instead he claimed that he pulled Davis and Newmerzhycky over because Newmerzhycky, who was driving, failed to signal as he passed a black SUV. But as can be seen in the video recorded by Simmons’ dashcam (starting around the 00:28 mark), Newmerzhycky did signal. 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. The Register reports that its “review of 22,000 warnings and citations given by the [interdiction] teams from 2008 to 2012 showed that 86 percent went to non-Iowans.” Because Iowans are much better drivers, of course.
Cops can extend a traffic stop after issuing a citation or a warning, provided the motorist “consents.”Around the 1:27 mark in the video at the top of the Register‘s story, after Simmons has ostensibly concluded his business and sent Newmerzhycky on his way, he pulls a Columbo, engaging Newmerzhycky in a conversation-cum-interrogation about the real object of the stop. “Hey, John?” he says as Newmerzhycky starts returning to his car. “Do you have time for a couple of questions? Do you have something illegal in the car?” Things quickly go downhill from there. Newmerzhycky denies having drugs or large amounts of cash. Simmons asks for permission to search the car. Newmerzhycky says no. Simmons asks if it’s OK to bring a police dog by for a sniff. “I’d prefer to be on my way,” Newmerzhycky says. Simmons asks again. “Do I have the right to say no to that?” Newmerzhycky asks. He does, since he is officially free to go at this point. Simmons answers the legal question honestly, and Newmerzhycky reiterates his desire to be on his way.
A dog sniff is not a search, but it can justify a search. Refusing to take no for an answer, Simmons says Newmerzhycky seems nervous (who wouldn’t be in these circumstances?), and he uses that observation as justification for calling Trooper Eric VanderWiel, a K-9 officer with a drug-detecting dog. That move is highly suspect, since the Supreme Court has said police may not forcibly extend a routine traffic stop merely to wait for a drug-sniffing dog. At the same time, the Court says an olfactory inspection by a canine is not a search and can be conducted at will, without any evidence of criminal activity, provided a traffic stop is not “unnecessarily prolonged.” VanderWiel’s dog supposedly alerted to the back of the car, at a point where the dog was conveniently hidden from the dashcam. In practice, such an assertion gives cops a license to search any car they want, since “a court can presume” a police dog’s alert by itself provides probable cause unless the defendant proves the animal is unreliable.
Cash is inherently suspicious. The troopers found $85,000 inside Davis’ locked briefcase, plus another $15,000 in Newmerzhycky’s computer bag, where they also found a grinder with bits of marijuana in it, which resulted in a citation for possession of drug paraphernalia—the only Iowa charge brought against either man. (Both bags were in the trunk, so maybe the dog really did smell contraband—or maybe she is trained to smell cash.) Naturally, Newmerzhycky’s denial that he was carrying a lot of currency counted as evidence that he was up to no good, although it is not hard to see why an innocent person might lie in this situation, especially given how things turned out. But the truth is that police automatically assume large sums of cash must be related to drug trafficking or other criminal activity. They have a strong incentive to do so, since they get to keep the money. In Iowa law enforcement agencies receive 100 percent of the proceeds from civil forfeitures they initiate. From 2011 through 2013, the Register reports, Iowa’s interdiction teams seized about $7 million in cash from motorists.
“There is absolutely nothing illegal or uncommon about people driving through the United States with out-of-state plates…and carrying amounts of cash,” the lawyer who filed Davis and Newmerzhycky’s lawsuit tells the Register. “There’s nothing illegal about carrying cash, and yet law enforcement begins to treat individuals who are carrying cash as if they are criminals.” Ultimately the state agreed to return $90,000 of the two men’s money, a third of which was consumed by legal fees.
That was not the end of their trouble. “Both of their California homes were searched the next day by law enforcement based on a tip from an Iowa agent,” the Register notes. Although both men have state-issued cards identifying them as patients allowed to use cannabis for symptom relief, the paper says, they still faced “felony drug charges” because of the marijuana found in their homes. According to Davis and Newmerzhycky’s California lawyer, prosecutors dropped those charges after watching the video of the traffic stop.
In their lawsuit, Davis and Newmerzhycky argue that the stop, the search, and the seizure were unconstitutional. They want the rest of their money back, plus compensation for their ensuing troubles, including a stroke that Newmerzhycky attributes to the stress caused by the criminal charges.
[Thanks to Joe Kristan for the tip.]