Stop and Seize: Aggressive Police Take Hundreds of Millions of Dollars From Motorists Not Charged With Crimes

By Michael Sallah, Robert O’Harrow Jr., and Steven Rich, The Washington Post

07 September 14

 

fter the terror attacks on Sept. 11, 2001, the government called on police to become the eyes and ears of homeland security on America’s highways.

Local officers, county deputies and state troopers were encouraged to act more aggressively in searching for suspicious people, drugs and other contraband. The departments of Homeland Security and Justice spent millions on police training.

The effort succeeded, but it had an impact that has been largely hidden from public view: the spread 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, a Washington Post investigation found. Thousands of people have been forced to fight legal battles that can last more than a year to get their money back.

Behind the rise in seizures is a little-known cottage industry of private police-training firms that teach the techniques of “highway interdiction” to departments across the country.

One of those firms created a private intelligence network known as Black Asphalt Electronic Networking & Notification System that enabled police nationwide to share detailed reports about American motorists — criminals and the innocent alike — including their Social Security numbers, addresses and identifying tattoos, as well as hunches about which drivers to stop.

Many of the reports have been funneled to federal agencies and fusion centers as part of the government’s burgeoning law enforcement intelligence systems — despite warnings from state and federal authorities that the information could violate privacy and constitutional protections.

A thriving subculture of road officers on the network now competes to see who can seize the most cash and contraband, describing their exploits in the network’s chat rooms and sharing “trophy shots” of money and drugs. Some police advocate highway interdiction as a way of raising revenue for cash-strapped municipalities.

“All of our home towns are sitting on a tax-liberating gold mine,” Deputy Ron Hain of Kane County, Ill., wrote in a self-published book under a pseudonym. Hain is a marketing specialist for Desert Snow, a leading interdiction training firm based in Guthrie, Okla., whose founders also created Black Asphalt.

Hain’s book calls for “turning our police forces into present-day Robin Hoods.”

Cash seizures can be made under state or federal civil law. One of the primary ways police departments are able to seize money and share in the proceeds at the federal level is through a long-standing Justice Department civil asset forfeiture program known as Equitable Sharing. Asset forfeiture is an extraordinarily powerful law enforcement tool that allows the government to take cash and property without pressing criminal charges and then requires the owners to prove their possessions were legally acquired.

The practice has been controversial since its inception at the height of the drug war more than three decades ago, and its abuses have been the subject of journalistic exposés and congressional hearings. But unexplored until now is the role of the federal government and the private police trainers in encouraging officers to target cash on the nation’s highways since 9/11.

“Those laws were meant to take a guy out for selling $1 million in cocaine or who was trying to launder large amounts of money,” said Mark Overton, the police chief in Bal Harbour, Fla., who once oversaw a federal drug task force in South Florida. “It was never meant for a street cop to take a few thousand dollars from a driver by the side of the road.”

To examine the scope of asset forfeiture since the terror attacks, The Post analyzed a database of hundreds of thousands of seizure records at the Justice Department, reviewed hundreds of federal court cases, obtained internal records from training firms and interviewed scores of police officers, prosecutors and motorists.

The Post found:

• There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities kept more than $1.7 billion of that while Justice, Homeland Security and other federal agencies received $800 million. Half of the seizures were below $8,800.


• Only a sixth of the seizures were legally challenged, in part because of the costs of legal action against the government. But in 41 percent of cases — 4,455 — where there was a challenge, the government agreed to return money. The appeals process took more than a year in 40 percent of those cases and often required owners of the cash to sign agreements not to sue police over the seizures.


• Hundreds of state and local departments and drug task forces appear to rely on seized cash, despite a federal ban on the money to pay salaries or otherwise support budgets. The Post found that 298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.


• Agencies with police known to be participating in the Black Asphalt intelligence network have seen a 32 percent jump in seizures beginning in 2005, three times the rate of other police departments. Desert Snow-trained officers reported more than $427 million in cash seizures during highway stops in just one five-year period, according to company officials. More than 25,000 police have belonged to Black Asphalt, company officials said.


• State law enforcement officials in Iowa and Kansas prohibited the use of the Black Asphalt network because of concerns that it might not be a legal law enforcement tool. A federal prosecutor in Nebraska warned that Black Asphalt reports could violate laws governing civil liberties, the handling of sensitive law enforcement information and the disclosure of pretrial information to defendants. But officials at Justice and Homeland Security continued to use it.

Justice spokesman Peter Carr said the department had no comment on The Post’s overall findings. But he said the department has a compliance review process in place for the Equitable Sharing Program and attorneys for federal agencies must review the seizures before they are “adopted” for inclusion in the program.

“Adoptions of state and local seizures — when a state and local law enforcement agency requests a federal seizing agency to adopt a state and local seizure for federal forfeiture — represent an average of only 3 percent of the total forfeiture amount since 2007,” Carr said.

The Justice Department data released to The Post does not contain information about race. Carr said the department prohibits racial profiling. But in 400 federal court cases examined by The Post where people who challenged seizures and received some money back, the majority were black, Hispanic or another minority.

A 55-year-old Chinese American restaurateur from Georgia was pulled over for minor speeding on Interstate 10 in Alabama and detained for nearly two hours. He was carrying $75,000 raised from relatives to buy a Chinese restaurant in Lake Charles, La. He got back his money 10 months later but only after spending thousands of dollars on a lawyer and losing out on the restaurant deal.

A 40-year-old Hispanic carpenter from New Jersey was stopped on Interstate 95 in Virginia for having tinted windows. Police said he appeared nervous and consented to a search. They took $18,000 that he said was meant to buy a used car. He had to hire a lawyer to get back his money.

Mandrel Stuart, a 35-year-old African American owner of a small barbecue restaurant in Staunton, Va., was stunned when police took $17,550 from him during a stop in 2012 for a minor traffic infraction on Interstate 66 in Fairfax. He rejected a settlement with the government for half of his money and demanded a jury trial. He eventually got his money back but lost his business because he didn’t have the cash to pay his overhead.

“I paid taxes on that money. I worked for that money,” Stuart said. “Why should I give them my money?”

In defense of seizures

Steven Peterson, a former U.S. Drug Enforcement Administration agent who arranged highway interdiction training through a company called the 4:20 Group, said that patrol officers used to try to make their names with large drug busts. He said he saw that change when agency leaders realized that cash seizures could help their departments during lean times.

“They saw this as a way to provide equipment and training for their guys,” Peterson said. “If you seized large amounts of cash, that’s the gift that keeps on giving.”

There is no question that state and federal forfeiture programs have crippled powerful drug-trafficking organizations, thwarted an assortment of criminals and brought millions of dollars to financially stressed police departments.

Advocates of highway interdiction say it plays an important role in protecting the public and that officers take care to respect the rights of citizens.

“We don’t go hunting for money in general,” said Sandy Springs, Ga., Officer Mike DeWald, who has served as a trainer for 4:20. “I never have been pressured to go after money. We are in pursuit of the criminal element.”

Police trainers said that their work has helped make the country safer by teaching police to be more vigilant in identifying drug smugglers and terrorists.

“9/11 caused a lot of officers to realize they should be out there looking for those kind of people,” said David Frye, a part-time Nebraska county deputy sheriff who serves as chief instructor at Desert Snow and was operations director of Black Asphalt. “When money is taken from an organization, it hurts them more than when they lose the drugs.”

Frye and Desert Snow’s founder, a former California highway patrolman named Joe David, defended Black Asphalt, which David started in 2004. They said they have taken steps in recent years to ensure that the informal police network complies with state and federal laws. David declined to speak to The Post.

“The Black Asphalt is not flawless, however the intent behind it is,” David and Frye wrote in a letter in 2012 sent to police and obtained by The Post. “The information being moved through the system has proven itself reliable on hundreds of occasions. Much more reliable than any criminal informant. The results have been staggering. It has proven itself an extremely valuable tool for law enforcement.”

Hain, Desert Snow’s marketing official, said “the operational and software platforms of the Desert Snow site and Black Asphalt site are completely separate.” He said Black Asphalt is “a secure system for intelligence sharing” and does not store information.

“No personal identifying information from seizure reports have ever been collected or stored by the Black Asphalt,” Hain said. “The Black Asphalt software is simply a pass-through system that allows the user to input data, which is then sent directly, via e-mail, to a select group of law enforcement (i.e. local investigators, ICE Bulk Cash Smuggling Center, DEA agents, etc.). Again, none of the personal information is held within the system, only the summary of the seizure. And then the seizure narratives are only maintained for 21 days before they get purged.”

The Post obtained hundreds of Black Asphalt records from law enforcement sources with access to the system.

Among Black Asphalt’s features is a section called BOLO, or “be on the lookout,” where police who join the network can post tips and hunches. In April, Aurora, Colo., police Officer James Waselkow pulled over a white Ford pickup for tinted windows. Waselkow said he thought the driver, a Mexican national, was suspicious in part because he wore a University of Wyoming cap.

“He had no idea where he was going, what hotel he was staying in or who with,” Waselkow wrote. The officer searched the vehicle with the driver’s consent but found no contraband. But he was still suspicious, so he posted the driver’s license plate on Black Asphalt. “Released so someone else can locate the contraband,” he wrote. “Happy hunting!”

Waselkow’s department did not respond to a request for an interview.

The Post’s review of 400 court cases, which encompassed seizures in 17 states, provided insights into stops and seizures.

In case after case, highway interdictors appeared to follow a similar script. Police set up what amounted to rolling checkpoints on busy highways and pulled over motorists for minor violations, such as following too closely or improper signaling. They quickly issued warnings or tickets. They studied drivers for signs of nervousness, including pulsing carotid arteries, clenched jaws and perspiration. They also looked for supposed “indicators” of criminal activity, which can include such things as trash on the floor of a vehicle, abundant energy drinks or air fresheners hanging from rearview mirrors.

One recent stop shows how the process can work in the field.

In December 2012, Frye was working in his capacity as a part-time deputy in Seward County, Neb. He pulled over John Anderson of San Clemente, Calif., who was driving a BMW on Interstate 80 near Lincoln. Frye issued a warning ticket within 13 minutes for failing to signal promptly when changing lanes.

“The results have been staggering. It has proven itself an extremely valuable tool for law enforcement.”

—David Frye and Joe David, talking about the Black Asphalt network in a 2012 letter to police

He told Anderson he was finished with the stop. But Frye later noted in court papers that he found several indicators of possible suspicious activity: an air freshener, a radar detector and inconsistencies in the driver’s description of his travels.

The officer then asked whether the driver had any cocaine, methamphetamine, heroin or large amounts of cash and sought permission to search the BMW, according to a video of the stop. Anderson denied having drugs or large amounts of cash in his car. He declined to give permission for a search. Frye then radioed for a drug-sniffing dog, and the driver had to wait another 36 minutes for the dog to arrive.

“I’m just going to, basically, have you wait here,” Frye told Anderson.

The dog arrived and the handler said it indicated the presence of drugs. But when they searched the car, none was found. They did find money: $25,180.

Frye handcuffed Anderson and told him he was placing him under arrest.

“In Nebraska, drug currency is illegal,” Frye said. “Let me tell you something, I’ve seized millions out here. When I say that, I mean millions. .?.?. This is what I do.”

Frye suggested to Anderson that he might not have been aware of the money in his vehicle and began pressing him to sign a waiver relinquishing the cash, mentioning it at least five times over the next hour, the video shows.

“You’re going to be given an opportunity to disclaim the currency,” Frye told Anderson. “To sign a form that says, ‘That is not my money. I don’t know anything about it. I don’t want to know anything about it. I don’t want to come back to court.’?”

Frye said that unless the driver agreed to give up the money, a prosecutor would “want to charge” him with a crime, “so that means you’ll go to jail.”

An hour and six minutes into the stop, Frye read Anderson his Miranda rights.

Anderson, who told Frye he worked as a self-employed debt counselor, said the money was not illicit and he was carrying it to pay off a gambling debt. He would later say it was from investors and meant to buy silver bullion and coins. More than two hours after the stop had begun, he finally agreed to give up the cash and Frye let him go. Now Anderson has gone to court to get the money back, saying he signed the waiver and mentioned the gambling debt only because he felt intimidated by Frye.

A magistrate has ruled at a preliminary step in the case that Frye had reasonable suspicion to detain Anderson. Frye said he always follows the law and has never had a seizure overturned.

Legal scholars who viewed the video of the stop told The Post that such practices push constitutional limits. Officers often are taught not to tell the driver they have a right to leave at any time after a traffic stop is concluded. But extended stops in which the officer uses psychological pressure on the driver without charges or Miranda warnings can cross the line.

“Encouraging police to initiate searches for the purpose of seizing cash or other assets, rather than to seize evidence to be used in a prosecution, is a dangerous development,” said Clifford Fishman, a law professor at Catholic University and former New York City prosecutor. “It is particularly troubling if police officers are trained to manipulate the suspect into forfeiting the assets or waiving the right to contest the search.”

David A. Harris, a University of Pittsburgh law professor, said Frye’s stop crossed the line when he detained the driver while summoning a canine.

“You cannot elongate the stop to bring in the dogs,” he said. “In doing that, you’re detaining the person without probable cause. That ain’t kosher.”

A tool in the drug war

Civil asset forfeiture law is among the more unusual areas of American jurisprudence. It does not involve evidence of a crime or criminal charges. It is a civil action against an object, such as currency or a boat, rather than a person. It has its basis in British admiralty law, which allowed the taking of a ship to recover damages.

In 1970, Congress turned the federal civil asset forfeiture law into a weapon against the illegal drug trade, allowing for the seizure of aircraft, boats and vehicles used to transport drugs. The federal law was eventually expanded to include cash tied to drug trafficking and to allow the money to be shared with local and state police, who could keep up to 80 percent of the seized assets. When police make a seizure, a federal agency must approve or “adopt” it for inclusion in Justice’s Equitable Sharing Program.

It was a much more effective tool for federal prosecutors than criminal forfeiture, which required the conviction of a defendant with proof beyond a reasonable doubt. Most significantly, the law places the burden of proof on the property owner to demonstrate that an object is not tied to criminal activity.

As the drug trade ramped up throughout the 1980s, money deposited into Justice’s federal forfeitures fund increased from $27 million in 1985 to $556 million in 1993. (It reached $2.6 billion in 2007.) Some of that increase was driven by Operation Pipeline, a nationwide DEA program launched in 1986 that promoted highway interdiction training for state and local police.

Several newspapers later wrote exposés about innocent people being caught up in the forfeiture net and police spending on luxuries. The Orlando Sentinel won a Pulitzer Prize in 1993 for pointing out that the Volusia County Sheriff’s Office had used state seizure laws to take $8 million from motorists, nine out of 10 of them minorities.

The attention prompted Congress to reform federal seizure laws in 2000, allowing owners to be reimbursed for their legal fees after successful lawsuits. But a key reform was cut. It would have removed what some lawmakers called the “perverse incentive” to target cash — the sharing of money between the feds and locals. It died after police and Justice waged a “voracious lobbying” campaign, according to former representative Barney Frank (D-Mass.).

“We didn’t have the votes,” said Frank, who is still an ardent critic of asset forfeiture. “There is this terrible unfairness. It is about as fundamental a denial of their constitutional rights as I can think of.”

After Sept. 11, 2001, civil forfeiture and the war on drugs became entwined with efforts to improve homeland security. Smugglers of all kinds turned away from airports because of the tightened security and took to the nation’s interstate highway system. With federal encouragement, police from small towns, rural counties and big cities sought specialized training.

Among those that met the demand was Desert Snow, a family-owned company founded in 1989 by Joe David, a California highway patrolman. Other firms also stepped up, including the 4:20 Group, Caltraps, Hits, Diamondback Training, and Global Counter-Smuggling Training Consultants. Soon more than a dozen companies were competing for millions in state and federal grants and contracts, along with fees from local departments across the country.

The training had an immediate effect in some areas.

After the Kansas Highway Patrol arranged sessions through Desert Snow for state and local police in 2005 and 2006, the amount of cash flowing into police budgets from seizures nearly doubled, from an average of $2.6 million a year between 2000 and 2006 to $4.9 million a year after 2007.

After 25 Wisconsin State Patrol officers received training from Desert Snow in 2010, the agency’s cash seizures the following year more than doubled to $585,657. “It creates a surge period,” said Sgt. Nate Clarke, a state patrol supervisor. “These guys get all fired up because they’re seeing photo after photo of seizures on the PowerPoints.”

The number of agencies participating yearly under Equitable Sharing went up 22 percent to 2,842 between 2003 and 2007, while cash seizures without search warrants or indictments during that period rose more than 50 percent, to $242 million. Under the Obama administration, police have made more than 22,000 such seizures worth about $1 billion through the Justice Department program.

Federal support helped drive the surge. In Florida, Indiana, Oklahoma, Tennessee and Wisconsin alone, police spent a total of at least $1 million during the last decade in Justice and Homeland Security grants for Desert Snow training. The DEA, Customs and Border Protection, Immigration and Customs Enforcement and others spent an additional $2.5 million in contracts on Desert Snow training for police, records show. The DEA also paid more than $2 million for training from the 4:20 Group. Individual local and state police forces across the country paid millions more for the training using seized cash, one of the uses permitted by Equitable Sharing rules.

The police trainers estimate they have taught more than 50,000 police officers in the more aggressive techniques during the last decade.

Some trainers say they worry that an overemphasis on seizing money has distorted policing.

“Over a period of a single decade, the culture was now totally changed,” said Shawn Pardazi, a detective in Pearl, Miss., and owner of Global Counter-Smuggling Training Consultants and a former Desert Snow trainer.

As the demand for training grew, the competition among the firms for business became fierce.

“It’s all about the money,” said James Eagleson, owner of the 4:20 Group, who also once worked at Desert Snow.

Getting the money back

Decisions that police make during brief roadway stops take motorists who challenge the seizures a year on average to resolve, according to a Post analysis. For 350 owners, it took more than two years to get their money back.

Last year, Ming Tong Liu, 55, a Chinese-born American from Newnan, Ga., was stopped on I-10 in Alabama for driving 10 miles over the speed limit while heading to Louisiana to buy the Hong Kong Chinese restaurant in Lake Charles for himself and his investors — two daughters and another relative.

A Mobile County sheriff’s deputy gave Liu a ticket for speeding and asked for permission to search the car. The deputy found $75,195 in a suitcase in the back seat, neatly wrapped in white napkins and placed in a black plastic bag and then took the money after the deputy said Liu gave conflicting accounts of his travel plans.

The deputy took Liu to a sheriff’s department office and called for an officer from U.S. Customs and Border Protection, which stood to share in the money.

Liu’s attorney, Rebecca Ding-Lee, said the officers overstepped their authority, held Liu for nearly two hours and searched his car unlawfully without a warrant. “He cannot speak English,” she said. “He didn’t understand what the police said.”

Ten months after the cash was seized, customs officials agreed to return the money, documents show.

Police often rely on drug-sniffing dogs to justify warrantless searches when a driver refuses to give consent. In 48 cases examined by The Post, dogs alerted to the presence of drugs but the officers found only money.

In October 2008, Benjamin Molina, 40, a permanent resident from El Salvador, was traveling through Virginia on I-95 when an Emporia police officer pulled him over for tinted windows. A carpenter, Molina was going from North Carolina to his home in Perth Amboy, N.J. The officer wrote him a warning ticket and began asking him questions, including whether he had cash in the car.

Molina told the officer that he was shopping for a used car and had $18,000 in his pockets. Molina’s face began to tremble, which police said they took as a sign of possible wrongdoing. Molina said his cheek twitched from medication he was taking for a health condition that included kidney disease. Molina also had duct tape in his car, which police said is “commonly used by traffickers.”

The officer asked Molina, who had no criminal history, to hand over the cash. The officer placed the money in an envelope, which he set down on the ground alongside two empty envelopes.

A dog called to the scene sat down next to the envelope with the cash, indicating the presence of drugs, according to police.

The police took the money, but Molina took steps to get it back.

He hired David Smith, an Alexandria attorney and former federal prosecutor who once headed the federal government’s forfeiture program in the Eastern District of Virginia.

After Molina appealed, a federal prosecutor refunded the money. It took four months.

Smith said the Molina case is an example of the kind of overreach that the civil asset forfeiture reforms passed by Congress in 2000 were aimed at preventing.

“This type of police bounty hunting is antithetical to everything our criminal justice system is supposed to stand for,” said Smith, who helped craft the reform legislation.

Among the indicators police look for are rental cars, which are often used by smugglers.

On Nov. 1, 2011, Jose Jeronimo Sorto and his brother-in-law, Victor Ramos Guzman, were driving a rented sedan on I-95 south of Richmond when a Virginia state trooper stopped them. Both were lay leaders of the Pentecostal Nuevo Renacer church in Baltimore. They were carrying $28,500 in church funds meant for the purchase of land to build a church in El Salvador and a trailer for a new congregation in North Carolina.

Their experience has been cited as a case study in civil forfeiture abuse by The Post’s editorial page, the New Yorker magazine and others. Unknown until now in the public debate is the fact that the trooper who made the stop, C.L. Murphy, is a top interdiction trainer for Virginia State Police and Desert Snow, as well as a member of Black Asphalt.

Murphy told Sorto and Guzman that they were speeding and following too closely. Murphy said Guzman told him about the cash and consented to a search of the car.

Guzman, 39, of Sterling, Va., said he showed the trooper documents indicating that he belonged to a tax-exempt church, and he said the cash had been collected from congregation members. But Murphy disregarded their explanations, saying they contained inconsistencies. He called Immigration and Customs Enforcement, which accepted the seizure for the Equitable Sharing Program, and he escorted the men to a nearby police station. He did not issue a ticket but seized the cash after Guzman signed a waiver.

Three lawyers agreed to represent the church members for free. Three months later, they received a check from ICE for $28,500.

Virginia State Police spokeswoman Corinne Geller would only say, “The facts of the stop speak for themselves.”

ICE spokeswoman Marsha Catron defended the seizure, saying in a statement “the situation was indicative of bulk cash smuggling” and that Guzman consented by signing a waiver for the money.

“Both the male driver and passenger disclaimed ownership of the money and provided inconsistent and contradictory statements,” Catron said. She added: “Money was ultimately returned to Mr. Ramos Guzman after he provided documentation that the cash belonged to his church.”

Guzman told The Post he was truthful to the trooper the entire time. The experience left him shaken.

“They didn’t give me a chance to explain,” Guzman said. “There was no way out.”

Know your rights: 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.