Pubdate: Tue, 11 Nov 2014
Source: Washington Post (DC)
Copyright: 2014 The Washington Post Company
Author: Robert O'Harrow Jr.
Page: A1
Bookmark: (Asset Forfeiture)


Drivers Say Troopers in Iowa Violated Their Rights by Taking Cash

The two men in the rented red Nissan Altima were poker players 
traveling through Iowa on their way to Las Vegas. The police were 
state troopers on the hunt for criminals, contraband and cash.

They intersected last year on a rural stretch of Interstate 80, in a 
seemingly routine traffic stop that would soon raise new questions 
about laws that allow police to take money and property from people 
not charged with crimes. By the time the encounter was over, the 
gamblers had been detained for more than two hours. Their car was 
searched without a warrant. And their cellphones, a computer and 
$100,020 of their gambling "bankroll" were seized under state civil 
asset-forfeiture laws. The troopers allowed them to leave, without 
their money, after issuing a traffic warning and a citation for 
possession of marijuana paraphernalia that carried a $65 fine, court 
records show.

Months later, an attorney for the men obtained a video of the stop. 
It showed that the motorists were detained for a violation they did 
not commit - a failure to signal during a lane change - and 
authorities were compelled to return 90 percent of the money.

Now the men are questioning the police tactics in an unusual federal 
civil rights lawsuit. In the suit, filed Sept. 29, William Barton 
Davis, 51, and John Newmer-zhycky, 43, both from Humboldt County, 
Calif., claim their constitutional rights against unreasonable 
searches and seizures were violated. They also contend the stop was 
part of a pattern connected to the teachings of a private 
police-training firm that promotes aggressive tactics.

Davis is a professional poker player, and Newmerzhycky worked as 
glass blower, according to court records. In an interview, Davis said 
the men felt as though they were being "stalked" by the police.

If allowed to proceed, the lawsuit could illuminate the widespread 
but little-known police practice known as "highway interdiction." The 
suit names Desert Snow, the Oklahoma-based training firm, and its 
founder, Joe David, court records show. It also names the two Iowa 
State Patrol troopers who participated in the traffic stop and were 
trained by Desert Snow.

Desert Snow's lead instructor, David Frye, said the lawsuit has no 
merit and contains "outrageous" and "inaccurate" accusations.

"The evidence will show that the individuals who had their money 
seized were involved in drug trafficking and that the vacuum sealed 
packages of cash they had in their possession were tied to the sale 
of narcotics," Frye said in a statement to The Washington Post. 
"Desert Snow is a top-notch training program which will continue to 
teach officers how to legally and professionally identify and 
apprehend persons involved in criminal activity."

The case has created a stir in Iowa's political and law enforcement 
worlds. The Des Moines Register wrote about the lawsuit and called 
for legislative reforms in an Oct. 19 editorial that cited the I-80 
seizure and a recent investigation by The Post, which found that 
police nationwide have seized $2.5 billion in cash from almost 62,000 
people without warrants or indictments under federal civil 
asset-forfeiture laws since 2001. The laws allow police departments 
to keep up to 80 percent of the cash they seize.

"As long as police agencies know that all or some of the cash they 
seize will be funneled back into them, the roadside shakedowns are 
going to continue," the Register's Oct. 19 editorial said.

In September, The Post reported that police trained by Desert Snow, 
along with those who participate in Black Asphalt, an informal police 
intelligence network started by the firm, said they had seized more 
than $427 million in one five-year stretch. Among others things, 
Black Asphalt enables police to share tips across state lines about 
drivers who raise their suspicions.

The troopers in the Iowa case, Justin Simmons and Eric Vanderwiel, 
were both trained by Desert Snow, court documents show. They also 
were members of Black Asphalt, according to internal documents 
obtained by The Post. They were also part of a drug interdiction unit 
in eastern Iowa.

A spokesman for the Iowa Department of Public Safety said the 
troopers declined requests for interviews. In response to inquiries 
by The Post, spokesman Alex Murphy acknowledged that the troopers 
were still members of Black Asphalt. But he said they had not 
submitted any information to the network since 2012, when the 
department prohibited such reporting because of concerns about civil 
liberties and "an increased risk for civil and criminal liability for 
officers and the department."

An earlier Register analysis last year found that 86 percent of 
warnings and citations issued by Iowa's aggressive interdiction units 
between 2008 to 2012 were given to out-of-state drivers. The 
newspaper reported that the units seized more than $18 million in 
drugs and $7 million in cash from 2011 to 2013.

The stop of the gamblers in Iowa on April 15, 2013, illustrates some 
of the highway interdiction methods in use nationwide.

Earlier that morning, an officer in Illinois alerted an Iowa trooper 
to a suspicious red car with Nevada license plates driving west, 
court records show. When the Altima appeared in Iowa, Trooper Simmons 
followed it for several miles before pulling it over. He told the 
motorists that they had been stopped for failing to signal when they 
passed a black SUV.

Simmons said he was issuing a warning for the failure to signal. 
After handing over the paperwork, he said the stop was over. Then he 
asked the driver, Newmerzhycky, if he had "time for just a couple 
quick questions."

Police who specialize in highway interdiction use casual 
conversations to avoid triggering legal questions about the length of 
stops. If the conversations are consensual, courts consider the added 
delay to be legal.

Highway police are trained to use the chats as an opportunity to take 
stock of alleged "indicators" of criminal activity, including nervous 
speech patterns, a pulsing carotid artery and inconsistencies in 
stories. They are also trained to seek permission for warrantless searches.

"Do you got any drugs?" Simmons asked on the video recording that was 
later obtained by his lawyer. "Any large amounts of U.S. currency?"

"Absolutely not," Newmerzhycky said.

"Nothing in there? Could I search your car?"

"I don't see any reason to. I'm not going to consent to that."

"Okay. I'm just asking you if I can," Simmons said. "No." At this 
point, the stop is supposed to come to an end and the driver allowed 
to leave, unless during the consensual conservation the officer has 
developed a suspicion - one that can be articulated - that a crime 
has occurred.

Scholars of constitutional law said that a refusal to consent cannot 
count as suspicious behavior. Nervousness on its own also is not 
sufficient to justify continued detention, they said.

But rather than release the motorists, Simmons told them he wanted to 
bring in an officer with a drug-sniffing dog.

"Could I just call him? Do you want to wait? I' ll call him and just 
run a dog around it real quick."

"I'd prefer to be on my way. I mean, I'm telling you the truth, 
there's nothing in my car," Newmerzhycky said.

"I'm just asking you if you want to wait for me to run a dog around," 
Simmons said. "I'd like to."

"Do I have the right to say 'no' to that?" "You do." "I'd prefer to 
be on my way." At that point, the stop had gone on for almost half an 
hour. Simmons told Newmerzhycky that you "seem like you were really 
nervous" and that "I've seen your pulse running here."

Minutes later, Trooper Vanderwiel arrived with the dog, which alerted 
on the back area of the car. That gave Simmons and Vanderwiel 
probable cause to search the vehicle without a warrant or the 
driver's consent. They found more than $100,000 in cash, most of it 
shrink-wrapped in plastic. They also found an herb grinder that 
contained some flakes of marijuana.

"I' ll be honest with you, we didn't find anything illegal, so you 
are not arrested, right?" Simmons said on the video. "But you are 
being detained."

In a recent interview with The Post, Davis, the passenger in the car, 
said the men lied because they were concerned the police might take the money.

The troopers took the men to a state highway maintenance facility, 
where they were joined by two state investigators and continued to 
question the men about the money and examine the car. Two hours 
later, they let the men go - without their cash. Newmerzhycky was 
given a drug-paraphernalia citation for having the grinder, a misdemeanor.

Davis and Newmerzhycky hired a lawyer and challenged the seizure in 
Iowa, citing the video of the stop. In September 2013, authorities 
reversed course and cut a deal to give back 90 percent of the money.

That wasn't the end of it, though. The day of the traffic stop, one 
of the state investigators had called authorities in Humboldt County, 
Calif., who raided the men's homes the next day. They found that each 
was growing marijuana.

California authorities brought criminal charges against them for 
unlawful cultivation of marijuana, possession of marijuana with 
intent to sell, and providing a place for the use, storage, 
manufacturing of a controlled substance.

But the California prosecutor dropped the charges in April after 
learning more about the circumstances of the traffic stop.

"We're moving to dismiss in the interest of justice because the 
officers that conducted the search warrants here in California were 
given information from an officer who was out of state," the 
prosecutor told a judge in Humboldt County. "The officer who was out 
of state got it from a traffic stop, but the traffic stop was done 
without probable cause."

The prosecutor added: "The People realize that everything else would 
be fruit of the poisonous tree."

Their attorney would later note in legal filings that Davis and 
Newmerzhycky both had permits allowing them to grow marijuana for 
personal medicinal purposes, court records show.

After the California case was dropped, Davis and Newmerzhycky hired 
another lawyer, Glen Downey, to pursue the civil rights claims.

Downey said he believes the evidence will demonstrate that the Desert 
Snow training encourages police to go too far.

"They're telling these officers how to do it step by step," Downey 
said. "They're giving them a manual on how to violate motorists' 
constitutional rights."

A spokesman for Iowa Attorney General Tom Miller said the office will 
represent the police in the lawsuit. In a statement, Miller said that 
"civil forfeiture law is an important tool needed by law enforcement 
to deny criminals (especially drug dealers) the fruits of their 
crimes" and that abuses of the law by police are "isolated."
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