Fourth Amendment - Civil Forfeiture and Probable Cause
Explain the legality of civil forfeiture based on your understanding of the Bill of Rights. Answer the following questions:
What is civil asset forfeiture?
What is the most egregious example you found where the police abused this power? Explain.
Provide reasons why the police SHOULD be able to use civil forfeiture.
Should the Fourth Amendment protect you from this? Why/Why not?
Should the Fifth Amendment protect you from this? Why/Why not?
Should the Eighth Amendment protect you from this? Why/Why not?
Iowa Supreme Court curbs police forfeitures
Grant Rodgers , 10:49 a.m. CST December 12, 2015
Iowa's Supreme Court issued a ruling Friday that could curb the power of state police agencies to seize cash, illegal drugs and contraband from motorists — including some who are never charged with a crime.
Lawyers who fight these seizures said Friday's 5-2 decision from the Iowa Supreme Court will restrict the ability of state patrol troopers and deputies to do the type of warrantless vehicle searches that a Des Moines Register investigation found contributed to authorities seizing millions of dollars in recent years using controversial civil forfeiture laws.
Opponents of techniques used by the Iowa State Patrol and others argue that troopers use innocuous factors such as whether a car is dirty or smells like air freshener as justification for searching a vehicle.
The Iowa Department of Public Safety, however, downplayed any effects the ruling would have on future seizures.
"This decision is based on the specific facts in the case, and the case makes it clear that every fact scenario is different," a department statement released by State Patrol Sgt. Nathan Ludwig said. "It does not 'dismantle' anything. It modifies the law — as most cases do — and we will continue to do our work based on the guidance provided by the courts."
Friday's ruling came in the case of Robert Pardee, who's fighting to get back $33,100 that a trooper seized after stopping a vehicle he was riding in and finding a small amount of marijuana during a search. The trooper called for a drug dog and searched the vehicle, partly because he believed the car had a "lived-in" look that could indicate cross-country drug trafficking.
But Justice Edward Mansfield in his opinion for the majority dismissed that evidence as "unremarkable" and clearly not evidence of criminal activity.
"There were water bottles, an energy drink, a metal coffee cup, chips and dip, apples and bananas, a trash bag with some trash, a sleeping bag draped on the rear seat and a guitar case," Mansfield wrote. "Many vehicles are more lived-in than that."
West Des Moines lawyer Nick Sarcone, who's representing Pardee, said the ruling is significant because it will "dismantle" authorities' ability to use questionable factors — such as trash or a "lived-in" look — that come up regularly in cases he handles.
"Those things that they point to in any given case are not really indicators of criminal activity," he said.
Civil libertarians have long criticized how authorities use civil asset forfeiture, arguing that it forces people to come to court to prove they legally obtained their money or property. They argue that it switches the burden of proof from prosecutors to the people whose money is seized.
Proponents argue that asset forfeiture helps cripple drug gangs and criminal syndicates, and that roadside seizures plays an important role in stopping drug smugglers, human traffickers and other criminals from operating on the nation's highways.
In an interview with the Register on the topic last year, Iowa State Patrol Sgt. Rob Mordini said that factors such as trash in a vehicle are important red flags.
In Pardee's case though, Mansfield wrote that Trooper Eric Vander Wiel detained Pardee and another man for several minutes before calling in a drug dog, based on evidence that was "not that strong."
The U.S. Supreme Court ruled earlier this year that police cannot extend the length of a normal traffic stop to wait for a drug dog to arrive without reasonable suspicion of criminal activity.
Other factors that the trooper claimed were suspicious, such as the driver's failure to make eye contact with Vander Wiel when the trooper drove up next to him, didn't provide enough suspicion to detain the two men, Mansfield wrote.
"Much of the conduct here would be typical of any motorist who is approached and then pulled over by state law enforcement," he wrote.
Ultimately, any evidence that Pardee was involved in criminal activity only came after the trooper wrongly detained him, Mansfield wrote. The case will go back to Poweshiek County District Court for a new hearing on whether the money should be returned to Pardee.
Vander Wiel pulled over Pardee and another man June 13, 2012, as they drove on Interstate Highway 80. He stopped the car they were driving, which had California plates, for a minor traffic violation.
Though a small amount of marijuana was found in the car, Pardee was acquitted of a drug charge.
Chief Justice Mark Cady and Justice Bruce Zagar both dissented from Friday's majority ruling. Cady wrote that Vander Wiel had reasonable suspicion to detain the vehicle for a variety of reasons, including the trooper's claim that air freshener he saw in the car is commonly used to cover up the smell of marijuana.
Are tinted windows probable cause?
Tim Dees, Retired cop and criminal justice professor, Reno Police Department, Reno Muni...
I'm assuming that the question is asking, "Does an officer's observation of tinted windows on a vehicle constitute probable cause for a traffic stop?"
First, a police officer doesn't require probable cause to make a traffic stop. Probable cause is needed to make an arrest or to secure a search warrant, or in some cases, to make a warrantless search. The standard of proof or suspicion necessary to justify an investigative detention is reasonable suspicion.
Reasonable suspicion is a lower threshold than probable cause. The term arose out of the SCOTUS case of Terry v. Ohio. In this case, a Cleveland, Ohio police detective saw three men loitering on a street corner. It was a warm day, yet all three were wearing long coats. From time to time, one would walk over to look into the window of a business. There was nothing unlawful about any of these behaviors, but the detective perceived a less-than-innocent picture from his years of experience and training. He suspected the three men were wearing the coats to conceal firearms, and that they were planning on robbing the business. He stopped and searched the men and recovered firearms from them. All were convicted of carrying concealed firearms and/or being a felon in possession of a firearm. John Terry appealed his conviction all the way to the United States Supreme Court.
In issuing the opinion in this case, the SCOTUS created the new standard of reasonable suspicion as necessary for making an investigative detrention, or "Terry stop." Terry stops can be of people on foot, but most traffic stops are also Terry stops. During the ensuing investigative detention, if the officer develops probable cause to make an arrest or issue a citation, he may do so. Obviously, in some cases the officer has already accumulated the necessary probable cause before making the stop, depending on what he observes.
Getting back to the original question, whether tinted windows constitutes reasonable suspicion for the stop depends on several factors:
What are the laws on tinted windows in that jurisdiction?
Are the windows tinted sufficiently to appear to violate the law?
Are the conditions sufficient for the officer to make the necessary observations and make a preliminary determination that the tint is darker than the law allows?
Is excessive tinting of windows a "primary violation" in this jurisdiction, e.g. can an officer observing only a tinted window violation make a traffic stop to investigate that violation? Some states have certain traffic statutes classified as "secondary violations," meaning that an officer can issue a citation for that violation only if he has stopped the vehicle for another, primary, violation.
If the necessary conditions as listed above are met, then, yes, an officer making an observation of a vehicle with excessively tinted windows could stop that vehicle and investigate further. Any other violations that came to light during the stop would be equally enforceable.