DEA Returns $87,000 It Helped Nevada Law Enforcement Steal From An Ex-Marine

from the 'everything-checks-out,'-they-said-while-they-helped-themselves-to-his-m dept

Another bullshit forfeiture has attracted national press attention. This one has some added bonuses, like local cops stating on (body cam) that the easiest way to get their hands on the seized money would be to ask the feds to come in.

It's the usual stuff: a pretextual stop, a bunch of questions unrelated to the alleged violation, and the theft of a person's money based on nothing more than an officer's speculation about its origin. (alternate link)

The Nevada trooper first told Stephen Lara the highway patrol was educating drivers “about violations they may not realize they’re committing,” and that he’d been pulled over for following a tanker truck too closely. Eventually the trooper admitted having an ulterior purpose: stopping the smuggling of illegal drugs, weapons and currency as they crossed the state.

Lara — a former Marine who says he was on his way to visit his daughters in Northern California — insisted he was doing none of those things, though he readily admitted he had “a lot” of cash in his car. As he stood on the side of the road, police searched the vehicle, pulling nearly $87,000 in a zip-top bag from Lara’s trunk and insisting a drug-sniffing dog had detected something on the cash.

The drug-sniffing dog was wrong, apparently. Or even if it was right, it was detecting something present on almost all cash in circulation: drug residue. No actual drugs were found in Lara's car.

What was found was $87,000 in cash, but $87,000 supported by a stack of receipts from ATMs, showing Lara had pulled this cash from his own accounts. That lined up with Lara's story, which the Highway Patrol didn't even find unbelievable. It also lines up with comments from someone unlikely to burnish the reputation of someone who is (allegedly) $18,000 behind on child support payments. Matt Zapotosky of the Washington Post tracked down Lara's ex-wife, Kimberly Olson, who confirmed his predilection for having lots of cash on hand.

Olsen said she thought Lara might have kept his money out of the bank in part so he would not have to turn it over in child support. But she noted that even when they were married years ago, Lara “just liked to have his cash” and made frequent withdrawals.

She said Lara did not seem to spend an inordinately high amount but liked to “show off” the cash itself, and spend it on his kids. She said she did not think he was a drug trafficker.

Of course, the trooper who pulled Lara over had none of this information. But he did have a stack of ATM receipts that appeared to indicate the source of the funds. Ultimately, none of that mattered. The Highway Patrol wanted the money, so they found a way to get it. Despite one trooper stating he thought Lara was legit, the law enforcement agency sought outside help to make it easier to retain at least a portion of the $87,000.

Video of the stop, recorded on multiple body cameras, shows a trooper and Lara having a genial conversation, with Lara agreeing to be searched. The troopers pull the cash from his trunk and remark that the bills seem to be new. Lara points them to the receipts, which he says prove the money is his.

“As odd as it is, everything lines up,” a trooper says at one point.

In the video, Lara tells the troopers he does not trust banks. At one point, a sergeant on the scene calls someone — apparently a DEA agent — to confirm the forfeiture process.

“It’s too easy to do an adoption,” the sergeant says.

It is too easy. That's one thing that's been obvious for years. States have belatedly realized a lot of forfeiture amounts to little more than state-ordained armed robbery. But restrictions deployed at state level can almost always be bypassed by asking the feds to step in. And forfeiture adoption policies require the federal government to kick back a certain percentage of the take to the locals who initiated the seizure.

So, that's how things went for Lara. Nevada troopers took his cash, called in the DEA, and the DEA initiated the forfeiture. That happened back in February of this year. Lara challenged the seizure. Then he went public with his accusations. And that appears to be what has triggered a belated change of heart by the DEA, six months after it took control of Lara's money.

It was only after Lara got a lawyer, sued and talked with The Washington Post about his ordeal that the government said it would return his money.

But that's not the end of it for the law enforcement agencies involved in this. Lara may be getting his money back but he's not abandoning his litigation. He's trying to secure a ruling blocking the Nevada Highway Patrol from utilizing the federal adoption option to get a cut of cash it might have trouble securing on its own.

Some of the damage has been undone. But let's not forget the government kept Lara's money for six months for no other reason than it was "too easy to do." That's unacceptable.

Filed Under: asset forfeiture, cash, civil asset forfeiture, legalized theft, nevada, nevada highway patrol, police, pretextual stop, stephen lara

Court Tosses Evidence From Pretextual Stop When Dashcam Shows Cop Had Zero Reason To Perform A Stop

from the 'i-um-just-wanted-to-congratulate-you-on-your-lawfulness-or-something' dept

The #BacktheBlue types like to say stuff like "If you don't want to get arrested, don't break the law." But breaking the law is never a prerequisite for a traffic stop, search, and/or arrest. The nation's top court has already said cops don't actually have to enforce real laws. They can predicate stops on what they perceive the law to be, whether or not any actual law was broken.

Pretextual stops have also been given the Court's blessing. As long as there's a good enough reason to initiate a stop, cops can begin fishing for info or consent for a search. But they have to be quick about it and they have to have something approximating reasonable suspicion to continue questioning unrelated to the stop. There's not enough of a bright line drawn anywhere that would ensure success in a lawsuit or a suppression hearing. Cops know this so they play the odds.

Sometimes this doesn't work out for the cops. It's a rarity but it happens. And it's happening more frequently thanks to the Supreme Court's Rodriguez decision and the increasing use of cameras by law enforcement officers.

The Newspaper has grabbed another ruling highlighting a completely bullshit traffic stop that led to drug and gun charges against the driver. The stop was completely pretextual. Pretext doesn't invalidate a stop but the pretext itself must be valid -- either a real traffic violation or one close enough to the real thing that the court can be persuaded to grant good faith.

None of that happened here. The defendant sought to suppress the evidence recovered from the search of his car, arguing he did not break any traffic law that would have given the officer justification to initiate a stop. The government argued that the defendant did not activate his turn signal before performing a right hand turn. It claimed Officer Caleb Sarchet "observed" this violation himself. Officer Sarchet needs to get his eyes checked.

From the decision [PDF]:

The video evidence from Officer Sarchet’s cruiser camera reveals that Defendant activated his turn signal prior to approaching the stop sign at the intersection of Poplar Street and Linn Street and prior to turning from Poplar Street right onto Linn Street. (Govt. Exhibit 2). The video also show that Defendant’s car approached that stop sign close to the righthand curb and that, after Defendant made the right turn, he proceeded in a legal manner for some distance and safely pulled to the curb when Officer Sarchet activated his police cruiser’s overhead lights. (Id.). Moreover, the video reveals that Defendant completed the right-hand turn with reasonable safety and no other traffic might have been affected by his movement. (Id.). In short, the video evidence establishes that Defendant made the right turn at the intersection in accordance with CMC Sections 506-80 and 506-84 after coming to a complete stop.

To "objectively" believe someone violated the law, someone has to, you know, actually violate the law. The officer also claimed he thought the state's window tint law was violated but undercut that assertion with another assertion, resulting in this own goal.

In light of Officer Sarchet’s testimony clarifying that the sole basis for the traffic stop was Defendant’s alleged turn signal violation, (Doc. 33 at Page 30), the Court need not analyze whether Officer Sarchet had probable cause to belief Defendant violated Ohio Revised Code § 4513.241.

The court distinguishes this cop's BS from the permissible BS allowed by the Supreme Court's Heien decision.

The Supreme Court held that that a police officer's objectively reasonable mistake of law can give rise to reasonable suspicion. In this case, Officer Sarchet stopped Defendant’s car solely because he believed that Defendant violated CMC § 506-80. However, the video evidence reveals that Defendant did not do so. Hypothetically, if a police officer’s alleged sole basis for a traffic stop was that a defendant ran a “green light” (which is obviously not a traffic violation), the Court doubts that the Supreme Court would determine that police officer’s action to be objectively reasonable, as disregard of fact and law are not the same as a mistake of fact and law.

All the evidence from the stop disappears. The defendant is free to go since every bit of evidence the government had came from a traffic stop predicated on someone observing traffic laws.

Filed Under: dashcam, evidence, lies, police, pretextual stop, traffic stops

Ignorance Of The Law Is No Excuse, Court Tells Cop

from the one-small-stopgap-in-a-torrent-of-unearned-forgiveness dept

We've grown accustomed to law enforcement being given a pass for not knowing the laws they're enforcing. A 2014 Supreme Court decision made being ignorant precedential, providing cops with an out citizens can't use. Ignorance of the law can be the best excuse when it's a cop trying to keep his evidence from being thrown out of court.

With rare exceptions, courts have said it's okay for officers to predicate stops on perceived traffic violations, rather than actual traffic violations. Officers really have to make an effort to run afoul of the Supreme Court-created Fourth Amendment loophole.

Another rare exception to the Heien rule has surfaced. The Kansas State Court of Appeals has denied an officer's attempt to salvage a stop and the evidence derived from it by asking for an application of the "ignorance of the law is an acceptable excuse" band-aid. The appeals court isn't willing to allow an officer's personal interpretation of motor vehicle laws to stand in for the actual wording of the law used as an excuse to pull a driver over. (via The Newspaper)

In this case, the driver was ultimately charged with DUI and not operating a vehicle with an ignition interlock device. The defendant argued the stop wasn't reasonable under the Fourth Amendment because the violation stated as the reason for the stop wasn't actually a moving violation.

The officer argued it was. At the center of the case were the vehicle's tail lights. The left light was broken. The other two -- right and middle -- were still functional. Highway Patrol Officer Reed Sperry testified that he was mistaken about Kansas' tail light law. From the decision [PDF]:

Sperry admitted that he misunderstood the law about brake lights. He testified that he mistakenly believed that Lees' brake lights needed to be as widely spaced laterally as practicable and mounted at the same height. In other words, he thought that both the left and right brake lights had to be working and that the middle brake light did not count. Sperry testified that he stopped Lees for a brake light violation, and he said nothing about any intent to perform an inspection under K.S.A. 8-1759a.

Despite this, the state argued that the officer's mistake shouldn't result in the suppression of evidence. It pointed to the Supreme Court's Heien decision while arguing the officer's "reasonable" mistake did not make the stop unlawful.

First, the state appeals court goes to the state law to see if it contains any ambiguous language. Nope.

In Kansas, the requirements for stop lamps are set forth in K.S.A. 8-1708(a) which states that "[e]very motor vehicle . . . shall be equipped with two (2) or more stop lamps meeting the requirements of subsection (a) of K.S.A. 8-1721."

K.S.A. 8-1721(a) states: "Any vehicle may be equipped and when required under this act shall be equipped with a stop lamp or lamps on the rear of the vehicle which shall display a red or amber light, or any shade of color between red and amber, visible from a distance of not less than three hundred (300) feet to the rear in normal sunlight, and which shall be actuated upon application of the service or foot brake, and which may, but need not, be incorporated with one (1) or more other rear lamps."

As the court notes, the undisputed evidence shows the driver's car had two (2) working tail lights, even with the left side light burnt out. The US Supreme Court's decision happens to be directly on point, since it also deals with tail lights and state laws. Surprisingly, this doesn't help Officer Sperry. In the Heiein case, the law used to predicate the stop was unclearly-worded. The same can't be said for the Kansas law.

Applying Heien and Pianalto, the State asserts that Sperry's mistake of law about the brake light violation was objectively reasonable, rendering the traffic stop lawful. But as Lees points out in his brief, the statutes at issue in Heien differ from the statutes at issue here. In Heien, it was ambiguous how many functioning brake lights the statute required; but the Kansas statutes are clear that only two functioning brake lights are required.

Again, the definition of "reasonable" must be applied to the officer's misinterpretation of the law. Remarkably, the Kansas appeals court says the standard of reasonableness for officers is higher than the standard for citizens.

Reading K.S.A. 8-1708(a) and K.S.A. 8-1721(a) together, no reasonable officer would think that the law required brake lights to be spaced laterally as far as practicable and mounted at the same height, as Sperry wrongly believed; neither statute suggests such a requirement in any way. Granted it may be reasonable for the average citizen to believe the law likely requires left and right brake lights, but law enforcement officers are not average citizens. They must reasonably study the laws they are duty bound to enforce.

If officers are finding it difficult to stay on top of the laws they're supposed to enforce, maybe they need to have a few chats with lawmakers and remind them that quality is better than quantity. Officers expect citizens to know the details of laws officers themselves are unclear on. Courts seems to expect it, too. That's completely backwards. It's like expecting a client to know the law better than their legal representation.

But that's how law enforcement operates day in and day out. Pretextual stops happen hundreds of times a day based on legal violations officers may only think have occurred. It's not until someone challenges the stop itself in court that the reasonableness of the officer's actions is even questioned. What we see on the surface in the handful of cases that reach this level of review is only a tiny percentage of the legally-unreasonable stops made daily by law enforcement. And it's unlikely to change until more courts hand down decisions like this.

Filed Under: heien rule, ignorance of the law, kansas, police, pretextual stop