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Nevada Court Shuts Down Federal Civil Forfeiture Loophole That Bypassed State Restrictions

from the gotta-play-by-ALL-the-rules dept

Marine vet Stephen Lara’s lawsuit against the Nevada Highway Patrol (NHP) and forfeiture abuse in general in that state has paid off. Not just for Lara, whose $86,900 was returned to him shortly after he filed this lawsuit, but for all residents of the state, who are now less likely to see cops walk off with their property just because of a convenient loophole that allows them to bypass local restrictions on seizures.

Lara was pulled over by the Highway Patrol in February 2021, allegedly for following another vehicle too closely. During the traffic stop, several NHP officers gathered, milled around for awhile, and finally “discovered” nearly $87,000 in Lara’s vehicle. Lara had receipts for the cash — lots and lots of receipts generated by ATMs and bank tellers. But it didn’t matter to the troopers, who claimed their drug dug smelled drug residue on the cash, which meant it only could have been obtained by illegal means.

Of course, drug residue is present on almost all cash in circulation, which — following this logic — would make almost all cash everywhere the byproduct of illegal activity. The troopers took his cash. To ensure they’d still be able to keep most of it, they called up some DEA buddies, which allowed the NHP to use the “federal adoption” loophole that would allow them to keep up to 80% of anything they seized.

Three years later, Lara’s lawsuit was still a going concern, despite the state and NHP’s best efforts to terminate it. One year after the court allowed the lawsuit to move forward, it has arrived at a decision that ensures it won’t just be Lara benefiting from its ruling. (via the Institute for Justice)

After a long discussion of the competing claims and the “dual sovereignty” (state and federal) precedent that governs this case, the court says it is indeed possible for local law enforcement to utilize federal loopholes to obtain property it might not have been able to accomplish under state law alone. But that doesn’t end this discussion. From the opinion [PDF}:

[T]here is no question that federal law enforcement agencies have full authority to adopt seizures from state law enforcement agencies and then start forfeiture proceedings in federal court—divesting state courts from jurisdiction over the seized item. There is also no question that federal law enforcement agencies have full authority to then transfer the proceeds recovered from the forfeiture proceedings back to the state law enforcement agency that originally seized the property. But this does not necessarily mean that state law enforcement agencies may participate in this process. State law enforcement agencies must be able to point to independent authority permitting them to participate in this process.

State law doesn’t contain any language expressly allowing federal adoption of forfeitures. But neither does it specifically forbid this. However, the plain language of the law “places strict requirements” on asset forfeitures engaged in by local law enforcement. But a lack of specific denial is not the same thing as explicit permission. And that’s where the NHP went wrong in the Lara case.

Unlike other forfeiture statutes in other states, nothing in Chapter 179 expressly allows NHP to hand over seized property to federal law enforcement agencies. This Court, unlike the above mentioned state appellate courts that found their respective state law enforcement agencies could participate in the federal equitable sharing program, cannot point to a state statute justifying NHP’s participation in the federal equitable sharing program. Without the appropriate statutory authority, NHP is unable to participate in the federal equitable sharing program to the detriment of the state forfeiture statutes.

Two aspects of the law tacitly forbid federal adoption of seizures, even if they don’t refer directly to the loophole exploited here.

When NHP participates in the federal equitable sharing program, it circumvents the statutory requirements set upon it in Chapter 179 of the NRS. For example, when NHP participates in the federal equitable sharing program, it effectively circumvents the requirements of NRS 179.1171(3), as the seized property may be forfeited without following the dictates of the statute. And when NHP participate in the federal equitable sharing program, it effectively circumvents the requirements of NRS 179.1175(2), as the currency may very well not be placed in an interest-bearing account—despite not receiving the requisite court order.

More basically, subsection (3) says forfeitures must be filed in the court of the county where the cash was seized — something that is no longer possible once the feds are involved. Subsection (2) says the seized funds must be placed in an “interest-bearing” account — something that very likely may not happen if federal agencies take control of the funds.

That’s two strikes against the law. The third (not that it matters, this ain’t baseball) is the lack of explicit permission to involve federal agencies in local forfeitures. As the court points out, this could have easily been added to the law if that’s what legislators intended. It cites numerous other states laws that give local agencies permission to work cooperatively with federal agencies before going back to tap the forfeiture law in an irritated manner, emphasizing yet again there’s nothing in the law that gives local cops permission to do the things the state troopers chose to do here.

The end result is this: local forfeitures need to follow state law. And if the seizure looks like it won’t survive the specifics of state law, law enforcement agencies are strictly forbidden from calling the feds in hopes of salvaging some part of the seizure. Without a doubt this will result in fewer people being robbed of their cash by opportunistic local agencies. And Lara has scored a rare double-win against forfeiture, not only getting back every cent that was taken from him but forcing law enforcers to, you know, actually follow the laws they cite when they start picking people’s pockets.

Filed Under: asset forfeiture, civil asset forfeitue, dea, legalized theft, nevada, nevada highway patrol, stephen lara

DEA Gives Former Marine Back $86,900 Cops Took From Him During A Nevada Traffic Stop Caught On Body Cam

from the one-of-America's-longest-running-scams dept

Because law enforcement just can’t stop taking money from innocent people, here’s another roadside shitshow that has resulted in an attempt to force the government to give back money it flat out stole.

This one has a couple of twists. First, it involves body cameras, so the whole depressing farce can actually be watched as it unfolds. The second twist is the federal government, which arrived (via cell phone) to pitch in with the theft.

This is what happened to Stephen Lara, 16-year military veteran and innocent person, as he traveled through Nevada on his way to visit his daughters in California.

On his drive from Texas to California, a Nevada Highway Patrol officer engineered a reason to pull him over, saying that he passed too closely to a tanker truck. The officer who pulled Stephen over complimented his driving but nevertheless prolonged the stop and asked a series of questions about Stephen’s life and travels. Stephen told the officer that his life savings was in the trunk. Another group of officers arrived, and Stephen gave them permission to search his car. They found a backpack with Stephen’s money, just where he said it would be, along with receipts showing all his bank withdrawals. After a debate amongst the officers, which was recorded on body camera footage, they decided to seize his life savings.

That’s the short version. That’s also the sanitized version. The longer, more excruciating depiction of these events can be seen here:

His motion [PDF] for the return of the $86,900 the NHP took from him goes into greater detail, including the fact that the officers left him stranded on the road without even enough money to finish his trip to California.

It explains the origin of the cash:

Lara made the trip with the $86,900 in cash that is the subject of this motion—his life savings, which he was holding in the hopes of purchasing a house for his daughters. Lara has kept his savings in cash for as long as he can remember, although all his income goes through banks before he withdraws it. Lara took his savings with him on the trip because there had been several property crimes in his parents’ neighborhood, and his parents planned to be out of town for a portion of the time Lara was away; thus, he did not feel comfortable leaving that much money behind.

The huge stack of receipts — which can be seen on the officer’s body cam footage — also explains the origin of the cash, all of which was traceable directly to Lara’s bank accounts and from those accounts to the sources of income.

The traffic stop was obviously pretextual. The officer who pulled him over didn’t even bother following up on the alleged violation (following too closely) and went directly into asking a bunch of questions about drugs, contraband, cash, etc. Lara was upfront about the cash. He even gave the officer permission to search the vehicle.

When the trooper saw the cash, he called in another officer to help him seize it. And that officer brought a dog, which made everything ok.

Then, a sergeant from NHP arrived. He had Lara’s money placed in a nearby field and instructed the officer who pulled Lara over to have his dog search for it. The dog found the money and purportedly alerted to the presence of drugs. The sergeant then ordered that the money be seized. At Lara’s urging, the officers inspected his ATM receipts and even took pictures. The money, bundled together using his daughter’s hair ties, was placed in an evidence bag. Although no DEA agent was present, Lara was given a receipt telling him to contact a DEA agent. Lara was then told he was free to go.

The drug dog was the permission slip — the thing that told the officers they could ignore all the documentation bundled with the cash. Of course it would alert on cash. Almost all cash in circulation has drug residue on it. And it’s not like this fact isn’t well known.

The other permission slip was the DEA agent. Although the agent was never on the scene, he was on the phone with the trooper (these conversations can be heard in the body cam recordings). The NHP trooper sought a federal adoption of the seizure via the DEA, making it easier to avoid state limitations or restrictions on cash seizures.

The money was taken from Lara on February 19, 2021. Calls to DEA were unfruitful but finally forced the agency to issue a notice of seizure on April 5, 2021. As the Institute for Justice (which is representing Lara) pointed out, this delay violated federal civil asset forfeiture law. The DEA had 90 days to either give the money back or proceed with the forfeiture. It chose to do neither.

But even if the DEA had done what it was supposed to, this would still be bullshit. There was likely no legal basis for the stop. There was no reason for the extended questioning. And there was definitely no reason — given the complete lack of suspicion expressed by any officer involved that Lara was involved in anything illegal — for the NHP and DEA to walk off with Lara’s money.

The good news is public pressure works. The Institute for Justice has been instrumental in forcing the DEA to hand back money it has stolen from innocent people. The problem is, of course, that not every case gets this sort of effective representation. And in many cases, the amount is big enough to matter to the people it’s taken from, but not big enough to justify spending the amount of money needed to force the government to return ill-gotten gains.

In this case, it worked. Shortly before Lara’s story went national, the DEA agreed to return his money to him. Along with the IJ, Lara is suing to have the Nevada’s forfeiture laws found unconstitutional. But beyond the return of the money, securing a copy of footage of the stop is a crucial win. It shows exactly how these stops unfold and the machinations of law enforcement officers to take cash from people they allege are criminals, but who are apparently not criminal enough to charge with any crimes.

Filed Under: body camera, civil asset forfeiture, dea, legalized theft, nevada, nevada highway patrol, police, stealing money, stephen lara

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 87,000incash,but87,000 in cash, but 87,000incash,but87,000 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