Pubdate: Tue, 09 Sep 2014
Source: Washington Post (DC)
Copyright: 2014 The Washington Post Company
Authors: Robert O'harrow Jr. and Michael Sallah
Page: A1
Bookmark: (Asset Forfeiture)
Note: Third of three day series


Many Drivers Faced a Long Ordeal in Court to Try to Get Their Money 
Back From Police

Mandrel Stuart and his girlfriend were on a date driving on 
Interstate 66 toward the District when a Fairfax County police 
cruiser pulled out of the median and raced after them. The cruiser 
kept pace alongside Stuart's old blue GMC Yukon for a while, then 
followed behind for several miles before turning on its flashing lights.

The traffic stop on that balmy afternoon in August 2012 was the 
beginning of a dizzying encounter that would leave Stuart shaken and 
wondering whether he had been singled out because he was black and 
had a police record.

Over the next two hours, he would be detained without charges, 
handcuffed and taken to a nearby police station. He also would be 
stripped of $17,550 in cash - money that he had earned through the 
Smoking Roosters, a small barbecue restaurant he owned in Staunton, 
Va. Stuart said he was going to use the money that night for supplies 
and equipment. The reason for the police stop: Stuart's SUV had 
tinted windows and a video was playing in his sightline. He was never 
charged with a crime, and there was no evidence of criminal 
wrongdoing. But police took his money because they assumed it was 
related to the drug trade.

Stuart would have to fight the federal government for any chance of 
getting his money back.

"Why didn't he just give me a ticket?" Stuart asked the prosecutor. 
"What was the reason for him harassing me as much as he did?"

Stuart's case is among 400 seizures from 17 states examined by The 
Washington Post to assess how the practice known as "highway 
interdiction" has affected American drivers. Their experiences, 
gleaned from legal papers and interviews, contain striking 
similarities that underscore questions about police power in an era 
when security has often trumped the rights of individuals.

Many of the highway officers involved were trained in the techniques 
of interdiction after the Sept. 11, 2001, terrorist attacks, some 
with financial support from the departments of Homeland Security and 
Justice. The officers were able to seize cash and have their 
departments share in the proceeds through a long-standing Justice 
Department civil asset-forfeiture program known as Equitable Sharing. 
Police can also make seizures under their states' laws.

Their methods often involve the use of minor traffic infractions as 
pretexts for stops; an analysis of "indicators" about drivers' 
intentions, such as nervousness; a request for warrantless searches; 
and a focus on cash. In most of the cases, police never make an arrest.

Some of the drivers had prior run-ins with police and lived their 
lives in cash economies, paying for everything from food to rent and 
business expenses with hard currency. Many of them had to engage in 
long legal struggles to get their money back after officers made 
roadside judgments about one of the most fundamental of American 
rights - the right to own property.

Police say the stop-and-seizure tactic hurts drug organizations and 
increases security on the highways. But drivers and their advocates 
say that all too often it is the innocent who suffer the emotional 
and financial consequences of misplaced power.

"We have been fighting this battle for a number of years . . . but it 
is just breathtaking to hear what is happening on a grand scale," 
said Scott Bullock, senior attorney at the Institute for Justice, a 
nonprofit civil liberties group in Arlington. "It should not exist in 
a country that respects fundamental notions of due process."

In several of the cases reviewed by The Post, police claimed to smell 
drugs before searching vehicles but did not turn up any. That's what 
happened to Vincent Costello, a home-improvement contractor, and his 
girlfriend, Romilda Demartino.

It was May 2010, and the couple were traveling from Queens in New 
York to Florida. They were stopped on U.S. Highway 17 by a sheriff 's 
deputy in Charleston County, S.C., who said Costello's work van had a 
cracked windshield. Deputy Mason Ashby asked them a series of 
questions about their travels before bringing up the matter of currency.

Ashby is among 88 deputies in the department who have been trained in 
methods promoted by Desert Snow, the nation's leading interdiction 
training firm. Ashby's boss, Capt. Ransom Williams, moonlights as one 
of Desert Snow's trainers.

Costello told Ashby the couple had visited a relative and were 
heading to Pompano Beach, Fla., to fix up a house they had bought in 
foreclosure. As Ashby listened, he claimed he noticed the odor of 
marijuana. Based on his "training and experience," Ashby decided 
Costello was probably involved in drug-related or other criminal 
activity and sought a search of the van, according to court records.

Ashby asked how much currency was in the van. Costello gave a 
low-ball estimate of $5,000 to $10,000, records show. He agreed to a 
search because he believed he had done nothing wrong, he told The 
Post. Ashby did not find any drugs, but he turned up more than 
$32,000 in the van and seized it through the federal Equitable Sharing Program.

Ashby called a fellow deputy who was assigned to a regional U.S. Drug 
Enforcement Administration task force. The second officer asked 
Costello why he didn't leave the money in a bank. Costello said he 
needed it to buy supplies to fix up the Florida house. In court 
papers, the police justified their seizure by claiming that Costello 
was unusually nervous. They also said that Florida is a source of 
drugs for New York and that drug smugglers often use large amounts of cash.

Costello told The Post he could not believe that Ashby and his 
colleague disregarded the fact that they found no marijuana in the 
van. Before the couple were permitted to leave, Ashby made Costello 
hand over the money in his pocket, Costello said.

"He turned around and he says, 'Give me the money out of your back 
pocket,' " Costello said. "I said, 'What if the car breaks down?' The 
guy has such an attitude with me. He said, 'You have a debit card. Go 
find an ATM.' "

When Costello said he was not leaving without a receipt, the deputy 
pulled out a scrap of paper and wrote down the sum he was taking: $32,934.

Department officials did not return calls seeking comment about the stop.

Costello hired a local attorney to get the money back. After making a 
few calls, the lawyer told him to accept a deal from the government 
for half of the money. Costello agreed. But his legal fees were 
$9,000 - leaving him with only about $7,000. None of it makes any 
sense to him. "Why would [they] give anything back if they thought 
you were guilty?" he said.

Police can also seize cash under their state laws.

Matt Lee of Clare, Mich., got snared in an interdiction net in 2011 
on Interstate 80 in Humboldt County, Nev. Lee was a 31-year-old 
college graduate who had struggled to find work and had moved back in 
with his parents to save money. When a friend promised him an 
entry-level job as a sales rep at a photo studio in California, Lee's 
father, a postal employee, lent him $2,500 in cash and Lee drove west 
in a decade-old Pontiac Bonneville.

On his third day, Lee was passing through the Nevada desert, wearing 
aviator sunglasses. A sheriff 's deputy raced up alongside the 
Bonneville, stared at Lee and then pulled him over.

Humboldt County Sheriff 's Deputy L.A. Dove, a member of the K-9 drug 
interdiction unit, has received instruction from the 4:20 Group, a 
contractor for the DEA and one of the leading interdiction trainers 
in the country.

Dove asked whether Lee was carrying any currency and summoned a K-9 
officer. Dove told Lee, who is white, to get out of the car and stand 
at the edge of the desert, while a dog sniffed for drugs. The deputy 
told Lee that he didn't believe his story that he was moving to 
California, because he was carrying so little baggage, Lee told The 
Post. Lee has no criminal record.

When a search turned up Lee's remaining $2,400 in cash, Dove and his 
colleague exchanged high-fives, Lee said. Dove said he was taking the 
money under state law because he was convinced that Lee was involved 
in a drug run. Lee was left with only the $151 in his pocket.

After he was set free, Lee said, his hands were shaking so much that 
he couldn't call his parents. "I just couldn't believe that police 
could do that to anyone," Lee told The Post. "It's like they are at 
war with innocent people."

Things went downhill for him. Depressed and distracted, Lee botched 
his final interview and did not get the job he was aiming for in 
California. He hired a Reno lawyer to get his money back, and 
Humboldt County agreed to return it. But the attorney took about half 
as his fee and costs, $1,269.44, leaving Lee with only $1,130.56.

Humboldt sheriff 's officials did not respond to a request for an 
interview with Dove.

In February, Lee wrote an angry opinion piece about his experiences 
for the Silver Pinyon Journal, an online news service in Humboldt County.

"I intend to throw a spotlight on this little operation they've got 
going on in Humboldt County, Nevada," he wrote. "I intend to make it 
as difficult as possible for them to continue with their modus 
operandi. If they are going to violate civil rights, I'm going to 
make sure people hear about it."

This year, the department was the focus of media coverage of lawsuits 
filed by motorists to recover their seized cash, two of which were 
later settled.

Jose Cristobal Guerrero of Raleigh, N.C., was stopped by police in 
DeKalb County, Ga. He had just visited his brother's suburban Atlanta 
home to pick up his two nephews and take them to Mexico to see their 
grandfather when police blocked his family's Chevy Tahoe SUV in a parking lot.

Guerrero, a Mexican national with permanent resident status in the 
United States, was a construction foreman who once served as a church 
deacon. But on this day in July 2005, he was caught up in a drug 
investigation, according to legal documents and interviews.

DeKalb Officer Mike DeWald had been watching Guerrero's brother's 
home as a part of an ongoing investigation into one of the tenants. 
DeWald asked Guerrero a few questions and Guerrero described his 
family's travel plans and said he was carrying $13,630, his attorney 
later said.

Police brought a K-9 unit to the scene, and the dog indicated the 
presence of drugs. The officers emptied the family's suitcases onto 
the pavement, court records show. No drugs were found.

When DeWald found the money, he seized it and began processing it 
through the federal Equitable Sharing Program.

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, according to his attorney, Josh Stone.

Federal prosecutors in Atlanta defended seizing the cash "on grounds 
that it was furnished or intended to be furnished in exchange for 
controlled substances."

The prosecutors eventually offered to return half the money, but 
Guerrero refused. Ultimately, prosecutors agreed to return all the 
money to Guerrero - but only if he signed an agreement that he would 
not sue the police or prosecutors. He signed and received his $13,630 
in 2008, three years after his money had been seized. The Post found 
that more than 1,000 people have signed such agreements to get all or 
part of their money back.

In one respect, Guerrero was lucky. His construction firm paid a 
small amount to make his legal struggle possible, and Stone had 
agreed to do much of the work without pay. Given the time involved, 
the legal bills would have been $50,000, Stone said. But he agreed 
not to press for his fee from the government as part of the settlement.

"We didn't take this case to make money," Stone said. "Most people 
don't have this kind of money to fight these cases."

In a footnote to his court filings, Stone tried to reframe the 
circumstances to show the authorities why the stop was so wrong.

"This case should be extremely troubling for any red-blooded 
American. Jose Guerrero is a legal immigrant to this Country with a 
stable and exceptional employment record," he wrote. "One can only 
imagine the cries of outrage if Americans were subject to similar 
treatment by the Mexican authorities."

Sally Quillian Yates, the current U.S. attorney in Atlanta, told The 
Post that "under our current office practice, we would not have 
proceeded forward with this case."

DeWald, who now works for the Sandy Springs, Ga., Police Department, 
said his decision to seize the money was carefully considered and 
based on the totality of the circumstances. "There was a lot involved 
in that case," he said. He added that highway interdiction is an 
important tool for police, who strive to make lawful seizures.

"We're not out here trying to violate anybody's rights," he said. 
"The Fourth Amendment is something we have to hold dear to our 
hearts. We have to operate within the scope of the law."

When the Fairfax police cruiser turned on its lights, not far from 
the Fairfax County Parkway in Northern Virginia, Mandrel Stuart did not panic.

At 6 feet 1 inch tall and 225 pounds, he was big and genial. At 35, 
he was experienced in dealing with the police. He had lived a rough 
life as a young man, with multiple arrests for possessing or peddling 
small amounts of pot.

Officer Kevin Palizzi began by asking about the movie that was still 
playing on screen inside the vehicle, "Flashdance." It is illegal to 
drive with a video playing in sight of the driver.

Though Palizzi later said that he initiated the stop because Stuart's 
tinted windows appeared to be too dark, he did not have the device 
needed to check to see whether the tinting was within legal limits, 
police records show.

As his partner began talking with Stuart's girlfriend, Palizzi asked 
Stuart to join him behind the SUV, where he began peppering him with 
questions. Where did he live? What did he do in Staunton? Why was he 
going to the District of Columbia? What was his criminal history?

"He admitted to having been arrested for a lot of things in the 
past," Palizzi said in the police report. "He kept asking why we were 
asking so many questions and wanted to know why he was not able to 
leave already."

Palizzi went to his cruiser to write a summons for the video 
infraction but not for the tinted windows. A K-9 officer arrived in 
the meantime, and, as he walked around Stuart's Yukon, his dog seemed 
to smell drugs on the left front bumper and wheel. That was what they 
needed to conduct a search.

Palizzi is a member of Black Asphalt Electronic Networking & 
Notification System, an informal national intelligence network 
started by the founder of Desert Snow, according to documents 
obtained by The Post. Palizzi trains other officers in the 
techniques. "He truly is one of the most passionate officers I have 
ever seen," said Fairfax County police spokesman Don Gotthardt. "His 
passion is to take drugs off the street."

Palizzi did not return calls seeking an interview.

During the stop, Palizzi drew on his training to take stock of 
indicators of possible criminal activity, documents and interviews 
show. He thought it was suspicious that Stuart's girlfriend did not 
know where they were going.

He also thought the dash and interior trim of the 12-year-old car 
were "suspiciously loose," and he took as evidence a "yellow straw 
with green residue," according to his report of the stop.

Palizzi and his partner searched the car and found large bundles of 
cash in a brown paper bag. Palizzi told Stuart and his girlfriend 
they were taking the vehicle into the station for a more thorough 
search. According to a record of the stop, he gave them a choice: 
They could be left on foot at a highway exit or go with police.

"They both chose to come with us," Palizzi wrote. "For safety 
reasons, they were both searched, handcuffed and transported in the 
back of our car." Now Stuart started to fret. Everything felt out of 
control, even though he had done nothing wrong. "They were going to 
leave us at the side of the road," he told The Post. "I am saying to 
myself, 'Why are they handcuffing me if I'm not under arrest?' I 
didn't understand it."

A more intensive search of the vehicle at the station turned up only 
a few flecks of marijuana: 0.01 grams. It was in the bottom of a bag 
holding DVDs that were there to entertain Stuart's four kids when he 
drove them around.

As for the suspicious yellow straw, it turned out to be from a Capri 
Sun juice pouch that one of his kids had left behind.

During further questioning in the station house, Stuart maintained 
that he was heading into the District on a date with his girlfriend. 
He also said he was going to a friend's restaurant to buy kitchen 
equipment and staples, such as oxtail, goat and cocoa bread, for his 
own restaurant, the Smoking Roosters.

When they asked why he didn't have a checkbook or credit card, he 
said he had gotten in trouble over meal taxes and did not have an 
account. They had searched through his phone and found a street 
reference to pot in a text. When they asked whether he still smoked 
pot, Stuart answered yes.

More than two hours after stopping Stuart for driving with tinted 
windows, Palizzi tore off a piece of note paper, wrote down the 
amount of money he had seized - $17,550 - and gave it to Stuart as a 
receipt, along with his car keys and phone. And they let him go.

Stuart made a phone call: to his mother, asking for help.

Stuart faced financial problems almost immediately. He had rent to 
pay and even bigger electricity bills at his restaurant. He still had 
to buy supplies for the Smoking Roosters and pay his few employees. 
He had no credit. And now he had no cash, either.

He wanted to get his money back, but he had no idea how to sort 
through the intricacies of the federal civil forfeiture system, an 
arcane corner of the American legal world. Though he was never 
charged with a crime, he would have to prove, in effect, that he made 
the money legally.

Shawn Stout, a lawyer then based in Fairfax, does not know how Stuart 
found him. But he said it was a lucky thing. Stout was a recent 
graduate of George Mason University Law School and was looking for 
cases to take on. He was outraged by what Stuart told him about the 
stop. "It's gross," he said.

He took on Stuart under a $1,000 initial fee and began guiding him 
through the civil legal process.

In one deposition, Assistant U.S. Attorney Karen Taylor of the 
Justice Department office in Alexandria asked Stuart more than 300 
questions. Drawing on criminal records and other material she had 
obtained about Stuart, Taylor asked about his work history, his 
children and his affinity for pot. She brought up earlier run-ins 
with the law. She asked about his mother and girlfriends and wanted 
to know why he called his restaurant the "Smoking Roosters" and why 
he was going into the District.

"Me and my lady friend was going up there to pick up some supplies I 
had already ordered," he told her, adding later in the session that 
those included oxtails. "Oxtails? What's that?" Taylor said. "It's 
the tail of a cow," he said. "It's real tender."

Last year, prosecutors changed their position and offered to return 
half the money as part of a settlement. Stuart refused and Stout 
arranged to take the case before a jury. "Why should the government 
keep half of his money?" Stout told The Post.

In a day-long trial, Stuart took the stand and repeated much of what 
he had told authorities. The jury deliberated for 35 minutes before 
ruling unanimously in his favor.

In addition to returning his $17,550, the government had to pay 
Stuart's legal fees: an additional $11,825.40. Uncounted is the cost 
to taxpayers of the government's effort to keep the money.

Gotthardt, the Fairfax police spokesman, declined to comment about 
the jury's decision. But he said that interdiction and seizures are 
effective tools - as long as they are properly used.

"There is absolutely the potential for misuse and abuse," he said. 
"Fairfax County absolutely would not tolerate misuse and abuse."

Stuart was thrilled to win, but saddened by the 14-month-long episode.

Almost a year earlier, saddled with bills and lacking any credit to 
pay them, he shuttered the two-year-old Smoking Roosters. He had 
hoped to leave it to his four kids someday.

"Did I win? I lost my restaurant," he said. "I'm not whole."

Now he works in construction.
- ---
MAP posted-by: Jay Bergstrom