Civil forfeiture laws look a whole lot like legalized highway robbery. Because that’s basically what they are. And because of the fact that they constitute basically free money for federal and state governments, it’s highly unlikely for civil forfeitures to be overturned in court. But occasionally it happens. Take the recent, mind-numbing case of Straughn Gorman and his RV full of cash.
Mr. Gorman was driving near Elko, Nevada when a state trooper, Greg Monroe, pulled him over for driving too slow in the passing lane. This is actually not illegal in Nevada. But Gorman had an RV, so Monroe thought it might be worth searching the vehicle for seize-worthy goods.
So, rather than giving Gorman a verbal warning and letting him go, Monroe grilled him for nearly twenty-five minutes about where he was coming from, where he was going, what was in the RV, and (tellingly) whether Monroe was carrying cash in the RV.
When Gorman told Monroe he had about $2,000 in the RV, Monroe asked to search the RV. Gorman refused. Again. Monroe then said (for about the fifth time in the conversation) that Gorman was not being detained. So Gorman drove off.
On the way back to his car, Monroe said to himself out loud, “He’s carrying money.” Monroe then contacted the Nevada Highway Patrol, and asked them to dispatch a drug-sniffing K-9 unit to pull Gorman over again. He suspected Gorman had money with him to buy marijuana. Yeah. Sure he did.
So, a few minutes down the road, Gorman gets pulled over again. This time by a K-9 unit, State Trooper Doug Fisher and his dog Euros. The same inane questions led to the same unsuspicious conclusions. Fisher then walked around the RV with his dog, and unsurprisingly, his dog sat down and stared at the back compartment of the RV—apparently a clear indicator of the presence of drugs. I love what Scott Greenfield wrote about this part in his blog, Simple Justice:
The dog’s reaction is curious in this case, proving that when a dog gets excited, sniffs and claws, there are drugs in a vehicle. And when the dog doesn’t, there are drugs in the vehicle. Which is no doubt why the Supreme Court has reposed ultimate faith in our constitutional rights in dogs (or they’re just dyslexic, and thought it was God. Who can say for sure?).
Anyway, Fisher searched the RV (starting with the main cabin rather than the back compartment, obviously), and found way more than the promised $2,000. Oh, no. He found $167,000. Pay-dirt! But there were no drugs. And no indication of drugs. So, naturally, Fisher seized the money and let Gorman go.
The federal government, also naturally, adopted the civil forfeiture, entitling them to 20% of the seized funds. The Nevada Highway Patrol kept the other 80%. Now, why was the money seized? Because of a suspicion that it just might at some time be used to buy marijuana.
Also, it was conveniently left out of the reports that Fisher had been tipped off to Gorman’s RV by Monroe. In fact, it was left out of the original report that Gorman had already been pulled over that day. The whole thing stank. It was, clear and simple—a case of highway robbery.
Is it illegal to carry that much cash around with you? No. It’s not. It might be suspicious. But it’s not illegal. So, bottom line, Monroe and Fisher conspired to use their legal position to steal money from a completely innocent private citizen, and the federal government authorized that theft in order to get a piece of the pay-dirty pie.
I’m thankful that, in this case, a federal judge called bull on the whole thing and ordered that Gorman’s money be returned to him. But the legal reasoning for the reversal is less than reassuring for the future of civil forfeiture:
Monroe and Fisher took full advantage of Supreme Court rulings allowing pretextual traffic stops, routine use of drug-sniffing canines, and dog-authorized searches. But it seems they overlooked what turned out to be an important sentence in Illinois v. Caballes, the 2005 decision in which the Court said cops may deploy dogs at will during traffic stops. “A seizure that is justified solely by the interest in issuing a warning ticket to the driver,” the Court warned, “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Last April the Court elaborated on that principle in Rodriguez v. U.S., finding that an eight-minute delay for the purpose of facilitating a canine inspection violated the Fourth Amendment’s ban on unreasonable seizures. That decision proved to be Monroe and Fisher’s undoing.
In a June 12 decision, U.S. District Judge Larry Hicks cited Rodriguez in rejecting the seizure of Gorman’s money, saying his detention, which spanned two separate stops, had been unreasonably delayed so that the cops could find and take the cash. The first stop took 23 minutes, and the dog sniff happened 12 minutes into the second stop. All together, Hicks said, “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.” He noted that Fisher knew Monroe had already conducted record checks on Gorman but “conducted additional redundant checks in order to prolong the stop to allow for a canine sniff.”
Yeah. So what is the message sent here? If you’re going to outright steal someone’s money under the cover of civil forfeiture laws, you need to do it more quickly. It is also unsettling that no one is even questioning how drug dogs are being used in these cases. It’s obviously the case that a drug dog can produce a false positive, authorizing an actually unnecessary search that leads to a civil forfeiture:
It’s almost as if a dog’s alert, which (as Gorman suggested) can easily be invented or triggered by a handler’s deliberate or subconscious cues, is nothing but a bullshit excuse for a search that cops are already determined to perform. My former colleague Radley Balko recently noted a federal appeals court case featuring a dog that alerted to 93 percent of the cars it examined. That is not the sophisticated screening device described by the Supreme Court. That is “basically a probable cause generator,” as Balko put it. The appeals court, by the way, thought the dog was good enough for government work, although it was wrong four times out of 10 even when examining cars preselected by suspicious cops.
The possibility for corruption here is enormous, and there is little accountability. The NHP is currently trying to overturn the forfeiture reversal. They at least want to keep from paying the more than $150,000 Gorman racked up in legal fees trying to get his money back. No wonder most people don’t bother trying to fight these cases. If you lose the case, as most people do, you end up a double loser.
People. Seriously. We have to do something to reverse this wicked trend. We have a predatory police force. If those vested with the power to enforce the law refuse to keep it, what are law-abiding citizens supposed to do?
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