The Explainer: Stop, search and seize? I think not, officer
After months of searching for a job in my field, I finally got an offer. I accepted, even though it was across the country. I emptied my bank account, loaded up a U-Haul truck with my personal possessions — mostly bikes and books — and made the big move from my home in Atlanta to Northern California.
In Missouri, I got pulled over by a local sheriff’s deputy who said I had a brake light out. (I later checked the lights and they were working .) I am not one to play the “race card,” but I think you should know that I am a black man in my late 20s with dreads.
Anyway, the deputy got pretty worked up when he saw the big wad of cash (I think it was around $2,000) in my wallet when I pulled out my license. He got really aggressive and demanded that I let him search the truck. At first, I said “no,” but he told me he could confiscate my cash as “suspected drug proceeds” and that things would go much more quickly if I cooperated. I just wanted to get back on the road and I finally agreed and let him search.
It didn’t go fast and he unpacked the entire load in the back of the truck. And, no, he didn’t find anything. Not only did I have to repack the contents, but while he was digging through my stuff, he scratched the finish on my Colnago and dropped a heavy box of books on one of my racing wheels. Dammit! A Zipp 404 isn’t cheap and I had to get the wheel repaired to replace spokes. The rim survived, but I don’t think he cared. Can I bill the department for the damage to my wheel and frame? I get pissed off every time I get on my bike and see that ugly scratch on the top tube.
First, let me say that answering your question in a column on a cycling site is something of a stretch, but your situation is one that has long bothered me and the fact that you are a bike racer gives me enough of a hook to rant on the subject.
Second, congratulations on the new job. In this economy, that’s a big score, even if it required a cross-country move.
Now to your summary question: Can you bill the sheriff’s department for the damage to your wheel and frame? Sadly, the most practical answer is “no.” Sure, you could simply send an invoice, but I wouldn’t hold my breath waiting for them to pay it. You could ramp up the effort by hiring an attorney in Missouri, but that would probably cost you more than the repairs and there is no guarantee of success. Unfortunately, you may have to chalk this one up to experience.
Had I been able to speak with you in advance of your trip, I would have probably suggested that you keep your life savings in the bank, use a debit card to pay expenses and transfer the balance to a new bank upon your arrival. Then, I would have suggested that you politely hold to the “never consent” rule and never willingly approve a policeman’s request to search your vehicle.
Your description of the stop gets to one of my biggest pet peeves, namely B.S. police stops based solely on vague and arbitrary profiles of suspected drug couriers. Your experience is a lot more common than you might suspect. The bottom line is that local police departments have discovered a gravy train by engaging in what are essentially random searches of vehicles in order to take advantage of an interpretation of federal law that allows them to keep a portion of assets they seize if they can show that those assets are derived from the illegal trade in drugs.
And, if history is any indicator, the standard of proof is pretty low. While the law puts the burden of proof on the police to show that forfeited assets were used in or derived from the profits of a drug transaction, the reality is that the owner of a seized asset often has to prove that it wasn’t involved in the drug trade.
Those seizures can be substantial. The cumulative amounts of cash and assets seized by local authorities have recently bumped up near the $2 billion mark each year. Some departments along known drug routes can get the majority of their budgets from asset forfeiture.
In one sense, you’re lucky in that the deputy didn’t grab your cash and force you into a court fight to get it back. So maybe — just maybe — as a purely practical matter, you might have been right in consenting to the search. But that, too, gets under my skin.
The fact that you later found your tail lights to be functioning properly just means that the very basis of this stop smells. I suspect the deputy was grasping at straws, based on some general profile he or his department had cooked up. I once heard an interview with a cop who said that full compliance with traffic rules was enough to raise suspicion in his mind because it was indicative of a driver’s paranoia. Huh?
My guess is that the stop may have been based more on the fact that you were driving a rental truck than it was your race. Of course, the fact that you are an African-American with dreadlocks probably didn’t dissuade him from pulling you over, either.
Justifying a search
There are two standards that police have to meet in order to conduct searches. First, an officer has to have a “reasonable suspicion” that you are or are about to be engaged in a criminal act, in order to detain you and do a cursory search for weapons.
Reasonable suspicion, however, doesn’t mean a general hunch or a guess … even if you fit within their “profile” of a courier. Reasonable suspicion requires a set of specific and “articulable facts” that when viewed by a “reasonable officer” would lead one to the conclusion that a suspect was engaged in criminal activity.
Reasonable suspicion, however, does not constitute grounds for a full-on search of your vehicle. For that, he needs “probable cause,” a set of facts that requires a higher standard of evidence. If a cop can articulate that reasonable suspicion, he can do things like frisk you for weapons, or bring a drug-sniffing dog to your car and do a walk-around of the vehicle to see if the dog “alerts.” If the dog indicates the presence of drugs, the cop may be in a position to claim that probable cause exists for a search.
The whole probable cause question reminds me of a story … so forgive me if I digress for a moment.
Back in law school, I took a class in criminal procedure. My professor was talking about justifications for stops and whether those could be used for a full-on search of a vehicle. As a hypothetical, he asked whether a car traveling down the Interstate at 85 mph provided an officer with enough reason to conduct a search.
No one in the class answered, so he repeated the question. “Does traveling down the Interstate at 85 miles an hour give an officer probable cause to conduct a search of your vehicle for drugs?”
Silence. So again, he posed the question.
Finally, my study partner, an African-American with a long, long set of dreadlocks, leaned back in his chair, grinned and said “85? Noooo … but thirty-five? Probably so.”
That pesky Fourth Amendment
Of course, absent probable cause, the easiest way for a cop to get past the Fourth Amendment ban on unreasonable searches and seizures is to get you to consent to a search.
Often, the officer will suggest to you that you’re simply better off allowing him to search, because it’s a sign that you have nothing to hide. This is also where the officer has to be careful. If he intimidates you into consenting to a search, there is a good chance a court will throw out any evidence collected.
I, quite frankly, think the deputy’s threat to take your money constitutes intimidation and, even if he had found something, the evidence should have been suppressed. But, again, that takes time and money to accomplish.
My standard advice to people is to never, ever, ever consent to a search. You are not better off cooperating and the cop will never cut you a break simply because you did. Even if he goes ahead and conducts the search without your permission, you’re better off, because you can at least challenge his basis for the search.
For example, let’s imagine that the last renter of that U-Haul was a total stoner. Let’s say he had smoked his way across the country and reached his destination so blitzed that he forgot the pound of high grade sinsemilla stashed under the passenger seat. For purposes of our hypothetical, let’s forget that the deputy in your case had intimidated you into consenting to a search. Had you, out of the goodness of your heart, consented and the former renter’s reefer been discovered, you would be – to use the applicable legal terminology – “totally screwed.” At that point, no cop would cut you slack.
I do not normally do commercial endorsements in this column. Indeed, I have been known to do quite the opposite and deconstruct commercial claims to the point of showing that they are utter horse pucky. That said, I am going to recommend something produced by a Washington, D.C., non-profit called “Flex Your Rights.”
FYR has produced two rather valuable DVDs: “10 Rules for Dealing with Police” and “Busted: The Citizen’s Guide to Surviving Police Encounters.” Searching around their site, you will even run across an endorsement from yours truly. It wasn’t hyperbole when I said that my income as a lawyer would have been halved in 2011 had most of my criminal clients seen this thing before they were pulled over.
My son is a 17-year-old honor student, an athlete and a regular volunteer at local charities. He’s an all-around good kid and I have every reason to trust that he is a law-abiding citizen. Nonetheless, I bought him both DVDs, largely because of the car he drives. Yup, his van looks like it had been painted by the Freak Brothers. It’s so much of a cop magnet that we jokingly call it “The ProbableCauseMobile.” His personal choice of color scheme should not subject him to arbitrary stops. In the event it does, he should know what his rights are, don’t you think?
Ultimately, you got through the thing okay. It could have been worse. I concede that broken spokes and a scratch on your Colnago are both bad, but fighting for compensation will probably cost you more than it’s worth. Sure, send them a bill, but don’t count on seeing a check any time soon.
Good luck in the new job, be careful out there … and, relying on that oft-used phrase from the ’80s, “just say no.”
The Explainer is now a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.