Civil asset forfeiture is a lot like theft

When Nevada Highway Patrol Officer Greg Monroe pulled over Straughn Gorman’s RV on Interstate 80 in January 2013, he smelled cash. But he couldn’t seize the cash. Gorman refused consent to have his RV searched for a ticket for driving too slow. Gorman said he was on his way to visit his girlfriend in Sacramento and maybe settle down in California. Monroe ran his record. It came back clean. And there was no drug sniffing dog nearby.

Drug sniffing dogs and civil asset forfeiture go together like U.S. attorney’s offices and local law enforcement. Civil forfeiture allows the government to confiscate property from people without charging them with a crime. Officer Monroe called ahead to Elko County Sheriff’s Deputy Doug Fisher, telling him he had to let Gorman go because he did not have a drug sniffing dog available. Fisher pulled Gorman over just 40 minutes later, this time supposedly for an obstructive left window curtain. After several more minutes, in which Fisher ran his record again, a drug sniffing dog arrived and alerted to a left rear compartment on the RV. Fisher told Gorman he could leave, but the RV was being impounded. Police never bothered to search the left rear compartment, but did find and seize $167,000 in cash stashed throughout the RV, under a revenue sharing program with the Feds.

Maybe Gorman sold pot in Hawaii where he worked for a paddle board company. Or maybe he was going to buy pot in California. Maybe he just didn’t trust banks. The police didn’t prove anything one way or the other. They simply seized the cash because a drug sniffing dog supposedly alerted to drugs. There were no drugs in the RV.

In 2006, Supreme Court Judge Antonin Scalia ruled that a good faith exception to the exclusionary rule was permissible because of the “new professionalism” of police. Six years later, he ruled that the only test needed to certify a drug sniffing dog was the police department’s own proficiency test. An independent test was not needed because “Why on earth would the police want an incompetent dog?” Scalia seemed incredulous that the police would want to conduct a search when there was no legally justifiable reason to search. The Supreme Court has ruled the only place a drug dog cannot be used is at the doorstep to your home. A police trained dog may simply be alerting to conscious or unconscious cues from its handler.

Luckily for Gorman, Justice Ruth Bader Ginsburg takes a more jaundiced view of the motives of police and is less in awe of their professionalism. Just last April, Ginsburg wrote for a divided court that police cannot extend a traffic stop for more than a few minutes in order to bring a drug sniffing dog to the scene. That opinion provided Gorman just enough rationale to prevail in the difficult procedure to recover his money.

In June, U.S. District Court Judge Larry Hicks ruled that the 35 minutes the police spent on the seizure was excessive, blasted the unreported conspiracy between Monroe and Fisher, and ordered the return of Gorman’s money and payment of his legal costs, estimated at $153,000. The cost of the litigation shows why most citizens whose cash is stolen by police never recover their property. Naturally the U.S. Attorney’s Office will appeal Hicks’ decision. It’s what they do.

In the last Legislature, a watered-down version of a bill sponsored by Sen. Don Gustavson and Assemblymember Jill Dickman passed to help rein in asset forfeiture in Nevada. In Congress, Sen. Rand Paul’s FAIR ACT if passed would reform the federal laws. But asset forfeiture will not completely stop until we end the drug war and stop the use of drug sniffing dogs.