The Explainer: Stop, search and seize? I think not, officer

Dear Explainer,
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.
― James

Dear James,
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.

Mind if I have a look? Yes, as a matter of fact, I do mind.

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.”

The ProbableCauseMobile: A form of personal expression or basis for a search? I opt for the former.

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.”
– Charles

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.

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18 comments

  1. Patrick

    What a lousy experience. Wonder how or even if the cop acknowledged the damage when it occurred? Not that it would change things.

  2. Chris Stuart

    Might I add to the excellent article and comments that you may wish to contact the U.S. Attorney’s office responsible for the jurisdiction where you were driving at the time you were pulled-over (there may be several such offices in a given state). In the event that yours was not an isolated incident, and that the cummulative facts demonstrate a Constitutional violation, your input could be important in bringing a law enforcement agency to account for its suspect practices.

  3. Gilliemarie

    Right on Charles – NEVER EVER EVER EVER agree to a search – unless they get a search warrent! A friend could have ‘something’ fall out of a pocket and you are on the hook . . .

  4. JClev

    Charles – does any of this (i.e., 4th Amendment) apply to Border Patrol and/or Homeland Security? I grew up near Detroit, where crossing the Ambassador Bridge into Windsor was a regular occurrence for us, and my experience was that a particular number of “random searches” are performed on a per-hour basis in each direction (i.e., by both border agencies). I was present in quite a few vehicles which were ordered to pull over for a random search, and this was long before Sept 11 amped up the border security. Is it a free-for-all at the borders? Moreover, does the driver have any right to refuse the search, or will that end up in being denied entry (or worse)?

  5. Jim

    Yah. That kind of bogus asset forfeiture is endemic in certain parts of the country. There are occasional exposes – 60 Minutes did one a few years ago – but the practice goes on. And once the assets are grabbed up, under most civil forfeiture laws the burden is on the asset owner to prove the assets are not drug proceeds. And our current Supreme Court has facilitated the practice by putting their stamp of approval on pretext stops a couple years ago.

    I’m an upstate NY criminal defense lawyer & will be getting those DVDs in my ongoing and mostly futile attempt to educate my clients. At least in NY, the police have to have probable cause even to ask for consent to search, not that that helps much in actual practice. I have a stuffed fish mounted on a plaque on my office wall. The plaque says “If I had just listened to my lawyer and kept my mouth shut, I wouldn’t be up here on this wall!” Legally you are always, always better off not consenting, even if you have something to hide.

    Best advice, absolutely right, don’t carry large amounts of cash, especially if you are likely to get stopped for DWB.

    Charles, wonderful that you’ve made it through chemo! I’ve got three people close to me going through the same thing. I hope you’ll be LUGging the races again next year.

  6. LD

    Ugh! This kind of thing makes me want to move back to Canada. This is NOT the land of the free!
    I too have been subject to and seen or heard this kind of thing. My heart goes out to minorities. Talk about swimming against the current. I think this kind of shit is the norm and not an exception.

  7. Jim

    @JClev – the 4th Amendment applies at the borders, but it is a watered down version of it compared to the applications inland. At the border, the security and sovereignty interests of the nation are considered paramount, and the government has the right to exclude people and things that can’t be proven to belong. That means the burden is on the traveler to show proof of citizenship and to demonstrate goods & vehicles are not contraband, and entitled to enter.

    Even with the relaxed 4th Amendment standards, searches must be reasonable. A person may not be detained indefinitely at the border, their goods may not be detained indefinitely for “inspection,” the border term for search. If they suspect you have swallowed drugs in bags to smuggle them in they can hold you and wait until you crap in a bucket (which they then inspect) and they can get you x-rayed, though they can’t cut you open. You can be arrested but an arrest (versus a relatively short term detention) still has to be based on probable cause you committed a crime, and regular due process (federal criminal procedure, Miranda, speedy trial) requirements are in play. You may also be cited for civil violations – smuggling in or our prohibited produce, technology or counterfeit goods (e.g. knockoff Gucci purses, pirated DVDs) can get you a fat civil fine, or criminal charges. Security at the borders has been ramped up since 9/11 but the basic legal standards have not changed significantly there; just more people are getting searched, and in greater depth than before. You do not have the right to refuse border inspection; well, you do, kind of, but if you refuse then you can be refused entry into the country. You probably don’t want to do that unless you like Canada – a lot.

  8. Jesus from Cancun

    I can’t speak for the rest of Mexico, but in and around Cancun we have police checkpoints and we are all used to them.
    They might spend 20 hours a day watching cars drive by, and 4 hours stopping randomly to search for anything illegal and to apply breathalizers if they feel like it.

    It’s clear that Mexican laws and ways of thinking are sharply different to those in the U.S. For us, the chekpoints make us feel safe. I don’t mind stopping to stretch my legs while a kind officer takes a look under my seats. I know that those searches have found drugs and weapons that I don’t want to be in the place where my kids are growing up.

    I work in a resort, and our guests often ask what are those checkpont about. They are sometimes afraid or renting a car and having to speak with people they don’t understand, who carry big weapons on their shoulders.
    But we just tell them how WE feel. Those checkpoints stop cars randomly, and they are making our city a safer place. Just don’t drive drunk and don’t carry anything you shouldn’t, and smile as they take a look.
    If you have something to worry about, then you are the reason they are there.

    Now, pulling someone over for a bogus reason outside of the checkpoints is as unacceptable here as anywhere else. It has happened, but we have an independent office for the protection of human rights, and they have helped citizens report this type of police behavior and punish the offending officers.

    So, if you travel to Cancun, be glad that we have those checkpoints. You are safer here because of them. And if you rent a car and are pulled over without justification, go with the flow, and then speak to your resort manager and they can get you an appointment with the Human Rights Office. They will make sure that the cops do their jobs right.

    Happy New Year to all!!!

  9. Rod Diaz

    Will respectfully disagree with Jesus above. Cancun, being a tourist town, might be a special case. In other places, you don’t trust the police to do a good job as much.

    I am also from Mexico (the capital, in my case). Known of a few cases where cops actually planted something. Weapons in one case.

    In most of Mexico police are corrupt in varying degrees, you are just hoping they are looking for better targets than you. So you cooperate out of coercion, not because what they do is legal or for the greater good. It goes with the territory, policemen are in general poorly educated, trained, and paid. Some have to pay for their weapons and bullets.

    As a personal experience, policemen actually stole my families handgun stopping a robbery. It was good they caught the robbers. It was bad they stole a weapon. My father reported it as stolen, fearing it would be used while still registered under his name. It was returned when the local constable suggested “looking behind the furniture”.

    I am not suggesting resisting. That could be much worse in Mexico, especially a military checkpoint. You just hope for the best. But don’t trust them much.

  10. Big Mikey

    Charles – talk about a grand entrance. I suspect that’s what the RKP guys had in mind when they brought you on board. Great article.

    Particularly like the advice that’s applicable to all the readers. Those are great references, and apply in not just the situation described by the writer.

    Keep it up guys. Looking forward to a great 2012.

  11. Pingback: The Explainer: Searching through the in-box : Red Kite Prayer

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