Below is today’s column in USA Today in which I discuss the increasing revenue acquired through car searches and seizures. Some of these stops are thinly disguised drug checkpoints where a sobriety stop quickly turns to questions about drugs and drug money. Police are using pretextual stops and DUI stops as a way to circumvent the Supreme Court decision in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), where the Court drew the line at drug checkpoints and ruled that such stops were unreasonable even though it ruled a few years earlier that DUI checkpoints were reasonable. The DUI ruling was denounced as an all-to-familiar ruling from the Court which abandons principle for convenient compromises. Many warned the Court that it was placing the country on a slippery slope where road blocks would be thrown up around the country in the name of fighting drunk driving while searching for other things. The Court ignored the warnings and soon roadblocks appeared across the country. There is admittedly limited data on such practices but there is sufficient antedoctal evidence to raise a concern of the emerging pattern.
Across the country, citizens are increasingly finding themselves stopped on routine traffic stops or sobriety checkpoints only to be subjected to extensive questioning and searches. At a time of decreasing budgets, police seem to be hitting the streets in search of their own sources of funding.
Federal and state officers are tapping into an increasingly lucrative tactic called “churning” or “policing for profits.” This is how it often works:
Officers stop cars on a pretext such as not using a turn signal and then ask a series of questions about drugs or contraband in the car. If the driver does not consent to a search, officers will sometime declare that the driver is acting suspiciously and call in a drug dog or search the passenger for their own personal safety. Any drugs found can then be used to seize the car and any money inside of it. The result is that police are mining our highways for jackpot stops.
Churning has become the self-help solution for some federal agencies. The most recent example of this trend was highlighted by an investigation into the Bureau of Alcohol, Tobacco, Firearms and Explosives. The Justice Department’s inspector general found that the ATF conducted dozens of unauthorized undercover investigations into illicit cigarette sales and lost track of 420 million cigarettes worth $127 million. The investigation concluded that the ATF was engaging in churning operations designed to fund its operations and misused $162 million in profits.
The same tactic is occurring on the state level where police are using highways to troll for cash and contraband. Empowered by a U.S. Supreme Court ruling that sobriety checkpoints are constitutional, they’re setting up sobriety checkpoints to question drivers on drugs and contraband.
In Mayfield Heights, Ohio, this summer, police used the threat of an unconstitutional search to give them a basis for stopping and searching vehicles. They put up signs warning drivers that they were approaching a drug checkpoint. There was no actual checkpoint, rather, they simply looked for anyone pulling off the road or taking evasive action. When people challenged the ruse, assistant prosecutor Dominic Vitantonio responded, “We should be applauded for doing this. It’s a good thing.”
The Supreme Court allowed such deceptive use of stops in 1996 when it declared that it would no longer consider the motivations of police for such stops. Once allowed to engage in pretext stops, police have every motivation to use the tactic. To put it simply, police are developing an addiction to drug money.
Consider the case of George Reby, an insurance adjuster from New Jersey. Last year, he was stopped in Tennessee by officer Larry Bates for speeding and asked whether he had a large quantity of money. Reby said he had about $20,000 and explained that he planned to buy a car. Bates seized the money. He did not arrest Reby, mind you. Reby committed no crime. The officer stated that police would keep the money until Reby could prove to their satisfaction that it was legitimate.
Life savings taken
Then there is Tara Mishra, who had given her life savings to friends as her share in a new business. Last year, a Nebraska state trooper stopped her friends for speeding and asked to search for drugs. The couple agreed, and the troopers found more than $1 million. Though the couple explained why Mishra had given them the money and though no drugs were found, police kept the cash after a K-9 analysis found drug residue on it.
It was another pretext. Studies show a high percentage of money has such residue on it. Mishra was forced to litigate until a federal judge ordered the money returned to her in July.
In searching a car on a pretext, the odds of scoring an arrest can be as low as one in 100 stops, so some police departments appear to try to make up the difference in volume. For example, one study found the California Highway Patrol stopped about 34,000 cars in 1997 but seized contraband during only 2% of the stops.
At such stops, citizens invoke their rights at their own peril. One recent video shows an irate officer ordering a driver to pull to the side after he questioned the basis for the stop. He was forced to wait for a drug dog, which signaled the presence of drugs after the officer notably pointed at the door. The police then unleashed a full drug search. After finding no drugs, the officer is heard warning his partner, “He’s perfectly innocent, and he knows his rights; he knows what the Constitution says.”
Of course, his rights really are not much of a barrier when the Supreme Court has expressly stated that it will not question motives of officers.
Until either the court or Congress acts, citizens will continue to be harvested on our highways by departments seeking new sources of funding.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.
USA Today: October 30, 2013