Stop and Seize: How aggressive police take millions from motorists not charged with crimes

Sep 10, 2014

A new Washington Post investigation highlights the rise of an aggressive brand of policing that has spurred the seizure of hundreds of millions of dollars in cash from motorists and others not charged with crimes.

The reporters behind the investigative report took questions about how this culture arose, what's happened to those caught in legal battles to reclaim their money, and what it all means for you.

Welcome everyone! Post reporters Steven Rich and Robert O'Harrow are here to answer your questions on their Stop and Seize investigative report. Let's get started.

Welcome to the Stop and Seize chat. Thanks again for joining us. We look forward to all your questions.

Hi, Great reporting! Where can I find out what I'm legally able to do & say to prevent a traffic violation stop from escalating into a potential search and seizure. I'm guessing it's not so simple because NYS might have different laws than NJ or Del. etc?

Good question. The law is pretty complicated. But it come down to this: individuals have rights that protect them from police overreach and intrusions into their privacy. Police have authorities that allow them to pursue suspicious situations. In our report, there is a "Know your rights" box that might be helpful.

Here's the Know your Rights information from the report:

During traffic stops on the nation’s highways, the U.S. Constitution’s Fourth Amendment protects motorists “against unreasonable searches and seizures.” The law also gives police the power to investigate and act on their suspicions.

1. Police have a long-established authority to stop motorists for traffic infractions. They can use traffic violations as a pretext for a deeper inquiry as long as the stop is based on an identifiable infraction.

2. An officer may detain a driver only as long as it takes to deal with the reason for the stop. After that, police have the authority to request further conversation. A motorist has the right to decline and ask whether the stop is concluded. If so, the motorist can leave.

3. The officer also has the authority to briefly detain and question a person as long as the officer has a reasonable suspicion that the person is involved in criminal activity. Reasonable suspicion is based on specific and articulable facts but falls short of the legal standard for making an arrest.

4. A traffic infraction or reasonable suspicion alone do not give police authority to search a vehicle or a closed container, such as luggage. Police may ask for permission to search; drivers may decline. Police do not have to tell drivers that they have a right to refuse.

5. An officer may expand a roadside investigation if the driver’s responses and other circumstances justify a belief that it is more likely than not that criminal activity is occurring. Under this standard, known as probable cause, an officer can make an arrest or search a vehicle without permission. An alert by a drug-sniffing dog can provide probable cause, as can the smell of marijuana.

6. Police can seize cash that they find if they have probable cause to suspect that it is related to criminal activity. The seizure happens through a civil action known as asset forfeiture. Police do not need to charge a person with a crime. The burden of proof is then on the driver to show that the cash is not related to a crime by a legal standard known as preponderance of the evidence.

Sources: Jon Norris, criminal defense attorney; David A. Harris, University of Pittsburgh law professor; Scott Bullock, civil liberties lawyer, Institute for Justice; Department of Homeland Security.

I always thought American system was full of checks and balances. If an average reader can surmise that cops are getting away with highway robbery then clearly police officers and their supervisors and local political leaders ought to be in the know. Who is providing any oversight here?

Oversight is clearly a big issue here. Though the departments of Justice and Homeland Security have encouraged highway interdiction, and in some cases funded the training, there's not a lot of federal oversight. The local oversight is provided by the same departments that in some cases benefit financially from the seizures. It appears to vary a lot.

 

Any indication from your investigation on the percentage of seizures associated with the highway interdiction coincided with an actual arrest related to drug smuggling or money laundering?

According to an analysis of Department of Justice data I did a little while back, indictments accompanied slightly less than ten percent of cash seizures made through the federal Equitable Sharing program.

Should you try to record and video a traffic stop; if so, do you have to ask the cop's permission before doing so? Thanks.

You might check out this post from The Switch blog on our site for more information on the subject.

According to the article, "Courts have held that, as a general rule, individuals have a right to record law enforcement officers carrying out their duties in public spaces."

Out of the 400 cases you investigated, did you come across more than the 5 instances of overreach that you posted? How many others have stories like Stuart, and how many have unsympathetic stories?

In case after case, we found instances of stops that were questioned, or which led to a negotiated settlement. We left many stories on the cutting room floor because of space. Clearly, there were some cases that appeared to involve people involved in questionable activity.

I have never been arrested and do not have any outstanding warrants. Lets assume that my one year old car is in mint operating condition and I have not broken any traffic laws. If I have no drugs and no cash in excess of $100.00 can I decline to answer additional questions, refuse a car search and expect to be released after one of these stops?

 

Legal experts say that individuals should always be polite and courteous. They say that drivers have a long-established right to decline to answer additional questions after a stop is concluded. Police are allowed to ask questions, including seeking permission for a search.

You've produced an absolutely appalling, damning, horrifying three-part series. Prior to reading this, I thought Attorney General Holder was being proactive about ending abuses like this, which particularly hits poorer small businesses that use more cash instead of bank transfers. I am appalled he apparently has done nothing to stop this grotesque abuse. Has anyone in government -- in the DOJ, in the Congress, in the Senate, at the White House -- told you after reading the articles that they might actually do something to respond to this effectively? Or will it be left to the ACLU to use the courts to fight this? What else can be done?

 

Thanks for reading. There's no way to know now what the various local, state and federal government agencies will do.

I don't understand why this process hasn't been challenged constitutionally. In Court. No charges brought? No evidence of criminal behavior - not even of a circumstantial nature. "You fit the description"? What this really amounts to is a horrible misalignment of incentives. Of course agencies looking for money to pay salaries and support operations will take every opportunity to seize cash. Anyone would....... What on earth does this conduct actually do to effectively fight crime?

 

Courts have upheld civil asset forfeiture. Law enforcement officials say that civil seizures and highway interdiction are important and effective tools -- if used properly.

Since their work has such a significant impact on the freedoms and rights of human beings, do you feel there should be regualtions put into place that hold police dogs more accountable, such as forcing into retirement the ones that repeatedly alert on drug-free vehicles?

 

The debate about drug sniffing dogs has been ongoing. Police say they can serve a tremendous role in fighting crime and drug trafficking. Some specialists say studies show the dogs also can be cued to alert if they're not properly trained and handled.  

How did you come into contact with the various victims of civil forfeiture highlighted in the investigation?

We found the people mostly through publicly-available court filings.

In your article you used data provided by the Institute for Justice, and cited to ICJ's Scott Bullock regarding legal standards for search and seizure. The Institute for Justice argues in its report that civil forfeiture laws are actually unconstitutional. Did you interview any federal or state legislators who support repeal of these laws and, if not, is it because you couldn't find anyone sympathetic to this position?

 

That's a fascinating position in a complex debate. We did not focus on the political aspects of all of this. We focused on the cases, how it works and the data.

Wow, so it sounds like the police can pretty much do what they want to do, especially escalate the initial stop, by simply saying they have 'cause to be suspicious'.Very scary

 

Some of the drivers that we interviewed felt that way too. In the legal cases, many of the stops went from a minor traffic infraction, some involving only a warning, to a search and seizure.

If you want to see what one of these stop and seizures looks like, take a look at this series of videos recorded by a dashboard camera.

Seems like the fact that Minorities are MUCH more often stopped by cops is big in the news (at least here in Missouri) Anything stand out from the perspective of race in your reporting?

The majority of the legal cases we reviewed involved blacks, Hispanics and minorities. Interviews with legal specialists and some law enforcement officials underscored those findings. 

Chris Ingraham looked at this issue in a recent post. Some of the statistics he pointed out:

- A black driver is about 31 percent more likely to be pulled over than a white driver, or about 23 percent more likely than a Hispanic driver.

- White people (50.1 percent) are more likely to get pulled over for speeding than blacks (37.7 percent) or Hispanics (39.2 percent). Relative to other races, blacks are more likely to get pulled over for vehicle defects or record checks.

- White drivers were significantly less likely to be searched than black or Hispanic drivers.

This has been a great, eye-opening series. This is the kind of reporting I expect the Washington Post to do. These databases and police forums you talk about: Are these considered to be public records and can be requested under open records acts, or are the private records and not available to citizens? I had never heard of these before your article. I know there are similar databases on consumer purchases and banking out there, but the only ones I know that have requirements for the individuals to review and report inaccuracies are the credit reporting agencies. I know the police think they need these for investigation, but I don't think that these quasi-intuitional records should be beyond public scrutiny. If it's work product, unless its part of an ongoing investigation, it should be public record. And if they say it is all investigation related like LAPD said with their license plate readers, we should all be concerned that we are all under investigation.

 

  Thanks for taking the time to read our work. The system you are referring to is called Black Asphalt. It was begun and run as a private police intelligence system until fairly recently. It passed on confidential reports from police that contained law enforcement sensitive information. The idea was to help "connect the dots." Organizers and some users said it provided enormous help. But some law enforcement authorities worried that the reports might run afoul of civil liberties and privacy protections, as well as laws requiring reports about crimes to be made available to defendants.

Why a negotiated settlement? I'd be pretty angry if I got stopped, drug-free, no previous arrests, etc. and they took my money. And then only give half of it back? I don't see the need for negotiation -- give me ALL of my money!

Our analysis of 212,000 Justice department records shows that only a sixth of people challenge their seizures, in part because of the cost of hiring a lawyer to get the money back. Of those who challenged, 41 percent got some or all of their money back. It appears that some drivers took negotiated settlements as the best deal they could get.

What specific law permits these seizures without a prima facie showing of an illegal act. Why haven't state, federal legislators or judges entered into this argument and determined the legality of these police actions. It would appear that this issue should not be dealt with on a piece-meal basis, but rather globally.

 

A good place to start would be the CAFRA debates leading to the reform legislation in 2000. The law was passed in the early days of the war on drugs, circa 1970, and expand in 1984 to include cash seizures.  You have an interesting idea for an approach.

How much of this Seizing is a direct result of the 'Drug War' do you think? How do you think the country's changing laws regarding drugs will change the dynamic of Stop and Seize? Thanks for your great reporting!

We found that the war on drugs and the effort to protect homeland security through highway interdiction became entwined after 9/11. In some cases, interdiction could help the search for narco-terror cash.

One thing that struck me after reading these excellent articles was a feeling that the police dogs were somehow being used to justify the searches leading to the cash seizures. In the Desert Snow training materials you reviewed, did the topic of police dogs come up? What kind of 'quality controls' are there on the use of police dogs? What rights does a motorist at the scene of a traffic stop have in regards to the use of a police dog to find drugs and justify a search? Thanks.

As I noted earlier, there has been a debate about this going on for years. The court have generally upheld the validity of dog alerts to provide probable cause for warrantless searches. But critics, including legal specialists and some dog trainers, have raised questions about the ability of police to cue dogs. There's also the matter of currency -- it was established years ago that much currency is tainted by faint traces of cocaine. 

 

What was the smallest amount seized? And were most of the amounts less than the $1,000 or so it would cost to hire a lawyer to fight it?

Half of seizures made without a warrant on individuals who were not charged with a crime were less than $8,800 - More than 31,000 since 9/11, according the Justice Department data.

The defenders of highway interdiction claim that all the cash they seize is crippling drug traffickers. For this article, were any of them asked how it was they knew they were reducing drug trafficking if none of the motorists whose cash was seized were ever charged with a crime? If so, how did they respond?

   There's no question that highway interdictors have seized many drugs and much narco-cash. They also have made many arrests of drug traffickers, criminals and others. We focused on the many people who got caught up in those interdiction nets and who lost their cash but were not charged with crimes.

What's the solution to curbing this police over-reach? Is there something Congress or our state governments can do? Why can't we make it so you have to have probably cause for an arrest in order to seize?

There are plenty of possibilities. Some lawmakers on both sides of the aisle suggested cutting off sharing more than a decade ago. Any solution will have to find a balance between the utility of interdiction and seizures, and the harm that can be caused if such powerful police tools are misused.

Thanks Steven and Robert, and thanks to all of you for joining us.

In This Chat
Steven Rich
Steven Rich is the database editor for the investigative unit at The Washington Post.
Robert O'Harrow
Robert O’Harrow Jr. is a reporter with the investigative unit of The Washington Post who has focused on privacy, national security, federal contracting and the financial world.
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