By Jeffrey R. Hall of Hall & Rustom, LLC
Before I start, most police officers are honorable civil servants that provide a valuable service to us. Most officers do not deliberately lie or misrepresent facts in their police reports or when they testify. So I don't want you thinking a few bad eggs should spoil the bunch.
With that being said, I felt it necessary to write an article on something I feel has gotten out of hand. With Summer Camp Music Festival being a popular destination for in-state and out-of-state travelers, people should know certain tactics used by law enforcement officers to avoid the warrant requirement in searching your vehicle.
When you are pulled over and the officer has a hunch you are doing something illegally, they will try to feed that hunch by asking you to consent to a search of your vehicle. In Illinois, an officer cannot search your vehicle or home without a search warrant unless there is a legal exception. These legal exceptions are:
Many times, officers will give you a warning and it appears you can leave. But, instead of letting you walk away and leave, then they start to engage in conversation with you. Then they ask to search your vehicle. DO NOT FALL INTO THIS TRAP. DO NOT GIVE THEM CONSENT TO SEARCH. Say politely, "Thanks officer, but no thanks. I am going to leave. Have a nice day." They do it this way because courts have ruled that after he gives you the warning, you are free to leave, and the encounter from that point forward is CONSENSUAL. If you allow him to search after that, then it would be difficult to challenge the search later on.
Along with the crime prevention incentive, these officers have a financial incentive to finding drugs. Not only do they get the drugs off the street, they can seize your vehicle and in Illinois, they can forfeit your rights to the vehicle through the Drug Asset Forfeiture Proceedings under 725 ILCS 150. Then, your county State's Attorney receives 10-12% of the money brought in from the sale of the vehicle. As the article lists below, in Madison County, IL, the State's Attorney's Office there receives upwards of $4 million dollars per year from these proceedings.
For example, as of 2012, the Peoria County State's Attorney's Office has a policy of forfeiting all vehicles seized if in violation of the Drug Asset Forfeiture Act. I've been told they take this position because if they allow one vehicle to go and that vehicle is subsequently involved in some sort of accident or crime, they would be subjected to much scrutiny if they allowed the vehicle to go. This is a win/win for their office. Not only do they seize ALL these vehicles, they get a substantial amount of money from the policy under the Illinois statute.
There are many instances in Illinois where suspected police officer abuses have come up. For purposes of this article, I want to focus on a video that I watched recently that perfectly illustrates behavior we have to be aware of and prevent.
Hypothetically, let's say that you are driving your car out of St. Louis after attending a convention. You are driving the speed limit on I-70, cruise control set, and you're obeying traffic laws. Then suddenly you are pulled over and the officer tells you that he noticed you crossed over the center dividing line and he was pulling you over to investigate a violation of Improper Lane Usage. He asks you to get out of the car and discusses it with you. Ultimately, he gives you a warning and shakes your hand as if you can leave. You turn and walk away.
In the same breath as the officer is about to say goodbye, he says, "Hey, can I ask you a question?" Surprised, you say, "ummmm, yes." The officer then says, "I noticed that your passenger was kinda nervous. Are you guys hiding anything illegal in the car? You say, "No. We are just leaving St. Louis coming from a convention." The officer then starts asking you, "Do you have any cocaine? Marijuana? Heroine?" You answer no to all the questions. Then he asks, "do you have any large quantities of money you're transporting? See, this roadway has a lot of drug traffickers and we are just trying to make sure that isn't going on here. So do you have a large amount of money you're traveling with?" You say, "no, I'm poor."
By this point, you are probably wondering what the hell is going on. That's when you ask the most important question: "Officer, am I free to leave?" The officer then says, "Well, you are free to leave, but your vehicle isn't. Will you allow me to search your vehicle? If you refuse, I'm going to have my canine smell around your car and if he alerts, I'm going to search the inside." Then he gets the canine and that's where it starts to get out of hand.
Watch this video and you'll see what I mean. (Video is 18 minutes but worth watching)
As you can see, there are many problems here. First, the questionable stop. Then, the questionable warning. Next, the rolling "no" questions designed to get a consent to search. Then the highly questionable "alert" by the drug dog where it appears that the officer alerted the dog and encouraged the dog to "alert." All these questionable things about this stop happen quite frequently.
If put in this situation where you are given a warning, politely leave and simply do NOT engage the police officer in any more discussion. If the police officer does not allow you to leave, ask if you are under arrest. If he says you are not under arrest, ask again if you are free to leave. If he still says no, then you're technically considered under arrest and you should remain silent from that point forward because not much you can say or do at that moment will help you.
To better illustrate my point, I'm including an article from Huffington Post contributor Radley Balko. The article discusses the video and includes a great discussion on drug searches, police dogs, and bad cops, as the title articulates. It's a very interesting read.
Just to reiterate, I'm not saying that all police officers use these tactics. For those that do, you run the risk of tarnishing your reputation, credibility, and job status.
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Last December, filmmaker Terrance Huff and
his friend Jon Seaton were returning to Ohio after attending a "Star
Trek" convention in St. Louis. As they passed through a small town in
Illinois, a police officer, Michael Reichert, pulled Huff's red PT
Cruiser over to the side of the road, allegedly for an unsafe lane
change. Over the next hour, Reichert interrogated the two men, employing
a variety of police tactics civil rights attorneys say were aimed at
tricking them into giving up their Fourth Amendment rights. Reichert
conducted a sweep of Huff's car with a K-9 dog, then searched Huff's car
by hand. Ultimately, he sent Huff and Seaton on their way with a
warning.
Earlier this month, Huff posted to YouTube audio and video footage of the stop taken from Reichert's dashboard camera. No shots were fired in the incident. No one was beaten, arrested or even handcuffed. Reichert found no measurable amount of contraband in Huff's car. But Huff's 17-and-a-half minute video raises important questions about law enforcement and the criminal justice system, including the Fourth and Fifth Amendments, the drug war, profiling and why it's so difficult to take problematic cops out of the police force.
THE STOP
The stop itself happened Dec. 4 on Interstate 70 in Collinsville, a town of 26,000 people just outside of St. Louis. Law enforcement officials say this stretch of highway is a drug-trafficking corridor. The account that follows is based on Huff’s video, the unedited dashboard footage from Reichert's vehicle and a Huffington Post interview with Huff.
After pulling Huff over, Reichert approaches Huff's car and asks him for his license, registration and proof of insurance. Huff complies. Reichert then asks Huff to step out of the car, because he says he can't hear him over the noise from the highway. Huff complies. Before talking to Huff, Reichert asks Seaton for ID as well, which Seaton isn't obligated to produce, but does.
Reichert then tells Huff he pulled him over for weaving across lanes. Huff says in his video that this is a fabrication. But he didn't challenge Reichert's claim at the time because, "I was from out of state, and I didn't want any trouble."
After running a check on Huff's license, Reichert tells Huff he'll let him off with a warning, and the two men shake hands. Legally, Huff is now free to go. But just as Huff is set to get back into his car, Reichert says, "Let me ask you a question real quick." Huff agrees.
It's
here that Reichert adds, seemingly as an afterthought, that Seaton
appeared nervous and apprehensive. He then asks Huff a series of what
law enforcement officers call "rolling no" questions about whether Huff
is transporting any drugs, weapons or cash. Huff says "no" to each.
In his interview with HuffPost, Huff asks, "If he thought Jon was nervous, and that might indicate drug activity, why did he wait so long to bring it up? And why did he wait until he had basically told me I could go?"
"It's a common tactic," says John Rekowski, the public defender for Madison County, where the stop took place. "[Officer Reichert] thinks he's doing something legally significant there. He thinks he's establishing that everything that happens after the handshake is consensual, because after that, Huff was technically free to go. But of course he isn't free to go."
If Huff had ignored Reichert's "Let me ask you a question real quick," gotten into his car and driven off, Rekowski says, there's no way Reichert would have let him leave. "And in Illinois, the definition of a detainment is that you aren't free to leave."
Collinsville Police Chief Scott Williams, who has seen the dash cam video, tells HuffPost "I don't have any reason to doubt the integrity of any of our officers. But we'll do our due diligence and look into that. If we find that any of our officers is taking shortcuts or violating someone's civil rights, that officer will be fired."
HuffPost was unable to reach Reichert for comment.
During the questioning, Reichert tries several times to get Huff to admit to having marijuana in his car, even if only a small amount for personal use. Huff says he has none. "I would just like to go on my way if I could," he tells Reichert. Reichert says that he's going to bring his K-9 out of the car to do an outside sweep.
Reichert pats down both Huff and Seaton and takes the dog around the car twice. He tells Huff that on the second trip, the dog has "alerted" to the presence of drugs, but did so at the front of the car, out of the view of Reichert's dashboard camera. He explains that because the front of the car is downwind, the drug scent would most likely register with the dog at the front of the car.
The dog's alert gives Reichert probable cause for a thorough hand search of Huff's car, as well as Huff and Seaton's luggage and personal belongings.
Reichert finds no drugs. He does claim to find "shake" -- marijuana residue -- beneath the seats of Huff's car. That, Reichert says, must have been why the dog alerted. Reichert never collected any of the alleged shake for testing, however, and Huff says now it's nonsense. After an hour of questioning and searching by Reichert, Huff and Seaton leave Collinsville with only a warning for an unsafe lane change.
THE FORFEITURE CORRIDOR
Asset forfeiture is the process by which law enforcement agencies can take possession of property suspected of being tied to illegal activity. Under these laws, the property itself is presumed to be guilty of criminal activity. Once the property has been seized, it's up to the owner to prove he obtained the property legitimately.
In about 80 percent of civil asset forfeiture cases, the property owner is never charged with a crime. And in Illinois -- like many states -- the law enforcement agency that makes the seizure gets to keep the cash or the proceeds of the forfeiture auction (in Illinois, the prosecutor's office gets 10-12 percent).
Critics say civil asset forfeiture is rife with poor incentives, and violates the Fifth Amendment’s protection against seizure of property without due process of law. Police can seize a car, cash, even a home on the flimsiest of evidence.
Madison County, Ill., where Huff was pulled over, is bisected by I-70 just outside of St. Louis. Interstates are a particularly rich ground for forfeiture. Law enforcement officials say that's because interstates are ideal for drug running.
Critics say it's because police can target out-of-state drivers, who are more likely than local residents to accept a police officer's baseless accusations and turn over their property, rather than refuse and face arrest, multiple returns to the state for court dates and thousands of dollars in legal expenses. Sometimes winning the property back can exceed the actual value of the property.
Faced with that choice, it isn't difficult to see why innocent people would opt to hand over their cash and head home.
"The joke around our office is that all you need for probable cause in Madison County is an Arizona, New Mexico, Texas, or Florida license plate," says Rekowski, the public defender. Collinsville defense attorney Jessica Koester says she's seen the same thing. "If you're from out of state, they're simply going to find a reason to pull you over."
Local news reports indicate that Illinois law enforcement agencies along the I-70 corridor have ramped up their forfeiture efforts in recent years. Rekowski said one tactic police use is to put up a sign for a "drug checkpoint" roadblock ahead. In 2000, the U.S. Supreme Court said such checkpoints are illegal; roadblocks are legal for DWI checks, but not for narcotics checks. But Rekowski says that isn't the point.
"They put the sign up so there's only one exit you can take to avoid it. Then they pull over and search anyone who tries to exit before the roadblock."
That tactic too is constitutionally suspect. Police can't pull a driver over merely for exiting before an announced (and illegal) drug checkpoint. "But, of course, that isn't why they'll say they've pulled you over," Rekowski says. "They'll say you crossed two lanes to get to the exit, or switched lanes without signaling, or that you cut someone off."
The Edwardsville Intelligencer reported in 2010 that the Madison County State's Attorney's Office has reaped a half-million dollars from the policy over eight years, which at the prosecutor's take of 10-12 percent suggests a total bounty of $4.5 million to $5 million. Madison County Assistant State's Attorney Stephanie Robbins, who handles forfeiture cases for the office, told local paper the Telegraph in 2010, "Law-abiding citizens have nothing to worry about."
But maybe they do. Jerome Chennault, a Nevada resident had the misfortune of driving through Madison County on his way home after visiting his son in Philadelphia.
Chennault said he had withdrawn $22,870 in cash to take with him before leaving Nevada, which he had intended to use for a downpayment on a home. After he was pulled over for following another car too closely, Chennault gave police permission to use a drug dog to sweep his car. The dog then "alerted" to the bag containing Chennault's cash.
Police found no actual drugs on Chennault or in his car. He was never charged with a crime. But the dog alert itself was enough to allow police to seize Chennault's cash. Over the next several months, Chennault had to travel to Edwardsville, Ill., at his own expense to fight in court for the return of his property. He had to put up a bond equal to 10 percent of the value of the property taken from him in order to secure it.
Cheannault won in court. His money was returned. But he won't be reimbursed for his travel or his legal expenses.
Similar stories have been reported along other forfeiture corridors across the country. In Teneha, Texas, police reportedly routinely pull over cars from out of state (the highway is popular for drivers, flush with cash and jewelry, going to and from casinos). A Nashville TV station recently reported on a stretch in Tennessee where the vast majority of police stops were of suspected drug runners leaving the city, meaning the police apparently preferred to let the drugs come into the city so they could seize the cash on the way out.
"When we saw the Huff video in our office, we just laughed," Rekowski says. "Not because it wasn't outrageous. But because it's the kind of thing we see all the time. The stop for a so-called 'inappropriate lane change,' the games they play in the questioning, the claims about nervousness or inappropriate behavior that can't really be contradicted. It's all routine."
According to Koester, the defense attorney in private practice, "The dog alert that happens off-camera isn't unusual either. You see that all the time."
Koester and Rekowski say the Huff stop has all the markings of a forfeiture fishing expedition. "You see where he asks if [Huff] is carrying large amounts of U.S. currency," Rekowski says. "It's pretty clear what they're after. These kinds of cases put my kids through college." He laughs, then adds, "I'm only half joking."
THE DRUG DOG
HuffPost showed the video of Huff's stop to two K-9 experts. Gene Papet is executive director of K9 Resources, a company that trains detection dogs, including police dogs. Papet found a number of problems with the way Reichert handled his dog.
"Just before the dog alerts, you can hear a change in the tone of the handler's voice. That's troubling. I don't know anything about this particular handler, but that's often an indication of a handler that's cuing a response." In other words, it's indicative of a handler instructing the dog to alert, not waiting to see whether the dog will alert.
"You also hear the handler say at one point that the dog alerted from the front of the car because the wind is blowing from the back of the car to the front, so the scent would have carried with the wind," Papet says. "But the dog was brought around the car twice. If that's the case, the dog should have alerted the first time he was brought to the front of the car. The dog only alerted the second time, which corresponded to what would be consistent with a vocal cue from the handler."
Russ Jones is a former police officer with 10 years in drug enforcement, including as a K-9 officer. He's now a member of Law Enforcement Against Prohibition, a group of current and former cops and prosecutors who favor ending the war on drugs. "That dog was going to do what ever (Officer Reichert) needed it to do," Jones says. "Throughout the video, the dog is looking for handler feedback, which isn't how it's supposed to work."
In the 2005 case Illinois v. Caballes, the U.S. Supreme Court ruled that having a drug dog sniff the exterior of a vehicle during a routine traffic stop does not violate the Fourth Amendment. But in a dissent to that opinion, Justice David Souter pointed to mounting evidence that drug dogs aren't as infallible as police departments often claim. Souter noted a study that the state of Illinois itself used in its briefs showing that in lab tests, drug dogs fail 12.5 to 60 percent of the time.
Since then, more evidence has emerged to support Souter's concerns.
The problem isn't that the dogs aren't capable of picking up the scent, it's that dogs have been bred to please and interact with humans. A dog can easily be manipulated to alert whenever needed. But even with conscientious cops, a dog without the proper training may pick up on its handler's body language and alert whenever it detects its handler is suspicious.
In one study published last year in the journal Animal Cognition, researchers rigged some tests designed to fool dogs into falsely alerting and others designed to trick handlers into thinking a package contained narcotics (it didn't). Of the 144 total searches performed, the dogs falsely alerted 123 times. More interesting, the dogs were twice as likely to falsely alert to packages designed to trick their handlers than those designed to trick the dogs.
In 2011, the Chicago Tribune published a review of drug dog searches conducted over three years by police departments in the Chicago suburbs. The paper found that just 44 percent of dog "alerts" led to the discovery of actual contraband. Interestingly, for Hispanic drivers the success rate dipped to 27 percent, again supporting the theory that drug dogs tend to confirm the suspicions (and, consequently, the biases) of their handlers.
A 2006 statistical analysis (PDF) of police dog tests by University of North Carolina law professor Richard Myers concluded that the dogs aren't reliable enough to provide probable cause for a search.
HuffPost obtained the records for one Illinois state police K-9 unit for an 11-month period in 2007 and 2008. Of the 136 times this particular dog alerted to the presence of drugs during a traffic stop over that period, 35 of the subsequent hand searches found measurable quantities of illegal drugs.
See accompanying article for a more thorough analysis of the K-9 records:
____________________________________________________________________________________
An analysis of the K9 records shows that only 25.7 percent of
the drug dog's "alerts" resulted in police finding a measurable quantity
of illicit drugs. Just 13 percent resulted in the recovery of more than
10 grams of marijuana, generally considered an amount for personal use,
and 10.4 percent turned up enough drugs to charge the motorists or
their passengers with at least one felony. Read more here.
____________________________________________________________________________________
Jones, the former narcotics and K-9 officer, said those sorts of numbers are why he now opposes the drug war. "Ninety percent of these dog-handler teams are utter failures. They're just ways to get around the Fourth Amendment," he says. "When I debate these people around the country, I always challenge the K-9 officers to a double-blind test to see how accurate they and their dogs really are.
They always refuse."
These figures strongly suggest that while the Supreme Court has ruled that there's nothing invasive about an exterior drug dog sniff of a car, in truth, the dog’s alert may be nothing more than the dog confirming its handler's hunches -- which is exactly what the Fourth Amendment is supposed to protect against.
THE BAD COP
If drug dog searches and poorly incentivized forfeiture policies are bad ideas in general, both can be particularly damaging when utilized by an unscrupulous police officer. And Michael Reichert has both a reputation and a documented history of questionable scruples.
"All the departments around here are bad when it comes to these searches, but he's really the poster boy," says Rekowski, the public defender. Another defense attorney, who didn't wish to be quoted by name, went further: "The guy is a menace to society."
In a 2005 case, U.S. v. Zambrana, U.S. District Judge Michael J. Reagan overturned a federal drug conviction because he didn't find Reichert's testimony credible.
Reagan's assessment of Reichert's methods and credibility is blunt. He calls Reichert "polished" and his testimony "rehearsed, coached and robotic as to be rote." He continues, “It was a generic, almost default performance not dependent upon the facts of this case, but suitable for any case in which Reichert might testify to having found reasonable suspicion."
In that case too, Reichert's stated reason for pulling Zambrana over was that Zambrana crossed over a lane divider. According to Reagan's opinion, Reichert also stated that the motorist appeared "nervous," like Huff, and again nearly let the driver go (he told Zambrano he was "free to leave.") Then, again nearly as an afterthought, Reichert started in with the "rolling no" questions. Reichert described Zambrano's refusal to consent to a search as "suspicious."
Reagan writes that Reichert is so confident in his ability to observe body language to detect deceit, he appears to be a "human polygraph." Reichert taught a class on how to conduct roadside searches, which Reagan wrote could easily have been titled, "How to avoid the warrant requirement in searching a vehicle."
Reagan's opinion, along with the fact that Reichert was also convicted on federal charges of selling knockoff designer sunglasses, led to Reichert's dismissal from the Collinsville Police Department in 2006. But with the help of the police union, Reichert sued to get his job back.
In subsequent hearings, the local state's attorney's office said it didn't trust Reichert, as did the U.S. Attorney's Office for the Southern District of Illinois. Reagan and the state circuit court judge also made clear that they felt Reichert was untrustworthy.
Despite these concerns, in March 2009, an Illinois appellate court ordered Reichert rehired.
In much of the country, discipline and dismissal of police officers is governed by union-negotiated contracts. Some states have a “police officer bill of rights,” which affords police accused of misconduct and criminal acts more rights than are afforded other citizens. Others send officer misconduct cases to union-negotiated arbitrators. Federal law also protects police from being fired for refusing to answer questions in a misconduct investigation, even if their answers can’t be used against them in any ensuing criminal case.
Police watchdogs say all of this makes it extremely difficult to fire even cops with long histories of misconduct.
These concerns have been raised at police and sheriff departments across the country, including in King County, Wash.; Maywood, Calif.; Gary, Ind.; Cincinnati, Covington, Texas, Aurora, Colo., San Diego; Spokane, Wash., Louisville, Ken.; Milwaukee; and the entire state of Florida.
By spring of 2009, Reichert was back on the job in Collinsville. Soon after, federal prosecutors raised new concerns about Reichert's credibility. Those too were dismissed.
In January 2011, Williams gave Reichert the Chief's Award of Merit (PDF), and in April 2011, he was named Officer of the Month. For the latter, Reichert was cited for making six arrests and seven citations out of 166 total incidents. According to Williams, "incidents are dispatched calls for service. They range from traffic crashes to domestic disputes and everything in between."
Despite Reichert's past, Williams said he sees no reason to question the officer's integrity.
As for Huff, he said he just wants to raise awareness, so fewer people are subjected to the same sorts of searches he and Seaton were.
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Remember: If you are pulled over, be polite, have your Driver's License and proof of insurance ready for the officer to see, and make sure your hands are visible. Don't forget you have rights though. Do not consent to any search under any circumstance, no matter what the officer promises you.
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.
LEGAL DISCLAIMER:
Before I start, most police officers are honorable civil servants that provide a valuable service to us. Most officers do not deliberately lie or misrepresent facts in their police reports or when they testify. So I don't want you thinking a few bad eggs should spoil the bunch.
With that being said, I felt it necessary to write an article on something I feel has gotten out of hand. With Summer Camp Music Festival being a popular destination for in-state and out-of-state travelers, people should know certain tactics used by law enforcement officers to avoid the warrant requirement in searching your vehicle.
Tricking you into consenting to search:
When you are pulled over and the officer has a hunch you are doing something illegally, they will try to feed that hunch by asking you to consent to a search of your vehicle. In Illinois, an officer cannot search your vehicle or home without a search warrant unless there is a legal exception. These legal exceptions are:
- Whether or not he sees something illegal in plain view
- Whether he is in hot pursuit
- Whether he is searching incident to your arrest (if he's detained you and is taking you to jail he can search your vehicle incident to that arrest)
- Whether you give consent for him/her to search
Many times, officers will give you a warning and it appears you can leave. But, instead of letting you walk away and leave, then they start to engage in conversation with you. Then they ask to search your vehicle. DO NOT FALL INTO THIS TRAP. DO NOT GIVE THEM CONSENT TO SEARCH. Say politely, "Thanks officer, but no thanks. I am going to leave. Have a nice day." They do it this way because courts have ruled that after he gives you the warning, you are free to leave, and the encounter from that point forward is CONSENSUAL. If you allow him to search after that, then it would be difficult to challenge the search later on.
Forfeiting your vehicle and making money from it:
Along with the crime prevention incentive, these officers have a financial incentive to finding drugs. Not only do they get the drugs off the street, they can seize your vehicle and in Illinois, they can forfeit your rights to the vehicle through the Drug Asset Forfeiture Proceedings under 725 ILCS 150. Then, your county State's Attorney receives 10-12% of the money brought in from the sale of the vehicle. As the article lists below, in Madison County, IL, the State's Attorney's Office there receives upwards of $4 million dollars per year from these proceedings.
For example, as of 2012, the Peoria County State's Attorney's Office has a policy of forfeiting all vehicles seized if in violation of the Drug Asset Forfeiture Act. I've been told they take this position because if they allow one vehicle to go and that vehicle is subsequently involved in some sort of accident or crime, they would be subjected to much scrutiny if they allowed the vehicle to go. This is a win/win for their office. Not only do they seize ALL these vehicles, they get a substantial amount of money from the policy under the Illinois statute.
There are many instances in Illinois where suspected police officer abuses have come up. For purposes of this article, I want to focus on a video that I watched recently that perfectly illustrates behavior we have to be aware of and prevent.
Example:
Hypothetically, let's say that you are driving your car out of St. Louis after attending a convention. You are driving the speed limit on I-70, cruise control set, and you're obeying traffic laws. Then suddenly you are pulled over and the officer tells you that he noticed you crossed over the center dividing line and he was pulling you over to investigate a violation of Improper Lane Usage. He asks you to get out of the car and discusses it with you. Ultimately, he gives you a warning and shakes your hand as if you can leave. You turn and walk away.
In the same breath as the officer is about to say goodbye, he says, "Hey, can I ask you a question?" Surprised, you say, "ummmm, yes." The officer then says, "I noticed that your passenger was kinda nervous. Are you guys hiding anything illegal in the car? You say, "No. We are just leaving St. Louis coming from a convention." The officer then starts asking you, "Do you have any cocaine? Marijuana? Heroine?" You answer no to all the questions. Then he asks, "do you have any large quantities of money you're transporting? See, this roadway has a lot of drug traffickers and we are just trying to make sure that isn't going on here. So do you have a large amount of money you're traveling with?" You say, "no, I'm poor."
By this point, you are probably wondering what the hell is going on. That's when you ask the most important question: "Officer, am I free to leave?" The officer then says, "Well, you are free to leave, but your vehicle isn't. Will you allow me to search your vehicle? If you refuse, I'm going to have my canine smell around your car and if he alerts, I'm going to search the inside." Then he gets the canine and that's where it starts to get out of hand.
Watch this video and you'll see what I mean. (Video is 18 minutes but worth watching)
As you can see, there are many problems here. First, the questionable stop. Then, the questionable warning. Next, the rolling "no" questions designed to get a consent to search. Then the highly questionable "alert" by the drug dog where it appears that the officer alerted the dog and encouraged the dog to "alert." All these questionable things about this stop happen quite frequently.
If put in this situation where you are given a warning, politely leave and simply do NOT engage the police officer in any more discussion. If the police officer does not allow you to leave, ask if you are under arrest. If he says you are not under arrest, ask again if you are free to leave. If he still says no, then you're technically considered under arrest and you should remain silent from that point forward because not much you can say or do at that moment will help you.
To better illustrate my point, I'm including an article from Huffington Post contributor Radley Balko. The article discusses the video and includes a great discussion on drug searches, police dogs, and bad cops, as the title articulates. It's a very interesting read.
Just to reiterate, I'm not saying that all police officers use these tactics. For those that do, you run the risk of tarnishing your reputation, credibility, and job status.
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Illinois Traffic Stop of Star Trek Fans Raises Concerns About Drug Searches, Police Dogs & Bad Cops
3/31/2012
Huffington Post Article
By Radley Balko
Earlier this month, Huff posted to YouTube audio and video footage of the stop taken from Reichert's dashboard camera. No shots were fired in the incident. No one was beaten, arrested or even handcuffed. Reichert found no measurable amount of contraband in Huff's car. But Huff's 17-and-a-half minute video raises important questions about law enforcement and the criminal justice system, including the Fourth and Fifth Amendments, the drug war, profiling and why it's so difficult to take problematic cops out of the police force.
THE STOP
The stop itself happened Dec. 4 on Interstate 70 in Collinsville, a town of 26,000 people just outside of St. Louis. Law enforcement officials say this stretch of highway is a drug-trafficking corridor. The account that follows is based on Huff’s video, the unedited dashboard footage from Reichert's vehicle and a Huffington Post interview with Huff.
After pulling Huff over, Reichert approaches Huff's car and asks him for his license, registration and proof of insurance. Huff complies. Reichert then asks Huff to step out of the car, because he says he can't hear him over the noise from the highway. Huff complies. Before talking to Huff, Reichert asks Seaton for ID as well, which Seaton isn't obligated to produce, but does.
Reichert then tells Huff he pulled him over for weaving across lanes. Huff says in his video that this is a fabrication. But he didn't challenge Reichert's claim at the time because, "I was from out of state, and I didn't want any trouble."
After running a check on Huff's license, Reichert tells Huff he'll let him off with a warning, and the two men shake hands. Legally, Huff is now free to go. But just as Huff is set to get back into his car, Reichert says, "Let me ask you a question real quick." Huff agrees.
In his interview with HuffPost, Huff asks, "If he thought Jon was nervous, and that might indicate drug activity, why did he wait so long to bring it up? And why did he wait until he had basically told me I could go?"
"It's a common tactic," says John Rekowski, the public defender for Madison County, where the stop took place. "[Officer Reichert] thinks he's doing something legally significant there. He thinks he's establishing that everything that happens after the handshake is consensual, because after that, Huff was technically free to go. But of course he isn't free to go."
If Huff had ignored Reichert's "Let me ask you a question real quick," gotten into his car and driven off, Rekowski says, there's no way Reichert would have let him leave. "And in Illinois, the definition of a detainment is that you aren't free to leave."
Collinsville Police Chief Scott Williams, who has seen the dash cam video, tells HuffPost "I don't have any reason to doubt the integrity of any of our officers. But we'll do our due diligence and look into that. If we find that any of our officers is taking shortcuts or violating someone's civil rights, that officer will be fired."
HuffPost was unable to reach Reichert for comment.
During the questioning, Reichert tries several times to get Huff to admit to having marijuana in his car, even if only a small amount for personal use. Huff says he has none. "I would just like to go on my way if I could," he tells Reichert. Reichert says that he's going to bring his K-9 out of the car to do an outside sweep.
Reichert pats down both Huff and Seaton and takes the dog around the car twice. He tells Huff that on the second trip, the dog has "alerted" to the presence of drugs, but did so at the front of the car, out of the view of Reichert's dashboard camera. He explains that because the front of the car is downwind, the drug scent would most likely register with the dog at the front of the car.
The dog's alert gives Reichert probable cause for a thorough hand search of Huff's car, as well as Huff and Seaton's luggage and personal belongings.
Reichert finds no drugs. He does claim to find "shake" -- marijuana residue -- beneath the seats of Huff's car. That, Reichert says, must have been why the dog alerted. Reichert never collected any of the alleged shake for testing, however, and Huff says now it's nonsense. After an hour of questioning and searching by Reichert, Huff and Seaton leave Collinsville with only a warning for an unsafe lane change.
THE FORFEITURE CORRIDOR
Asset forfeiture is the process by which law enforcement agencies can take possession of property suspected of being tied to illegal activity. Under these laws, the property itself is presumed to be guilty of criminal activity. Once the property has been seized, it's up to the owner to prove he obtained the property legitimately.
In about 80 percent of civil asset forfeiture cases, the property owner is never charged with a crime. And in Illinois -- like many states -- the law enforcement agency that makes the seizure gets to keep the cash or the proceeds of the forfeiture auction (in Illinois, the prosecutor's office gets 10-12 percent).
Critics say civil asset forfeiture is rife with poor incentives, and violates the Fifth Amendment’s protection against seizure of property without due process of law. Police can seize a car, cash, even a home on the flimsiest of evidence.
Madison County, Ill., where Huff was pulled over, is bisected by I-70 just outside of St. Louis. Interstates are a particularly rich ground for forfeiture. Law enforcement officials say that's because interstates are ideal for drug running.
Critics say it's because police can target out-of-state drivers, who are more likely than local residents to accept a police officer's baseless accusations and turn over their property, rather than refuse and face arrest, multiple returns to the state for court dates and thousands of dollars in legal expenses. Sometimes winning the property back can exceed the actual value of the property.
Faced with that choice, it isn't difficult to see why innocent people would opt to hand over their cash and head home.
"The joke around our office is that all you need for probable cause in Madison County is an Arizona, New Mexico, Texas, or Florida license plate," says Rekowski, the public defender. Collinsville defense attorney Jessica Koester says she's seen the same thing. "If you're from out of state, they're simply going to find a reason to pull you over."
Local news reports indicate that Illinois law enforcement agencies along the I-70 corridor have ramped up their forfeiture efforts in recent years. Rekowski said one tactic police use is to put up a sign for a "drug checkpoint" roadblock ahead. In 2000, the U.S. Supreme Court said such checkpoints are illegal; roadblocks are legal for DWI checks, but not for narcotics checks. But Rekowski says that isn't the point.
"They put the sign up so there's only one exit you can take to avoid it. Then they pull over and search anyone who tries to exit before the roadblock."
That tactic too is constitutionally suspect. Police can't pull a driver over merely for exiting before an announced (and illegal) drug checkpoint. "But, of course, that isn't why they'll say they've pulled you over," Rekowski says. "They'll say you crossed two lanes to get to the exit, or switched lanes without signaling, or that you cut someone off."
The Edwardsville Intelligencer reported in 2010 that the Madison County State's Attorney's Office has reaped a half-million dollars from the policy over eight years, which at the prosecutor's take of 10-12 percent suggests a total bounty of $4.5 million to $5 million. Madison County Assistant State's Attorney Stephanie Robbins, who handles forfeiture cases for the office, told local paper the Telegraph in 2010, "Law-abiding citizens have nothing to worry about."
But maybe they do. Jerome Chennault, a Nevada resident had the misfortune of driving through Madison County on his way home after visiting his son in Philadelphia.
Chennault said he had withdrawn $22,870 in cash to take with him before leaving Nevada, which he had intended to use for a downpayment on a home. After he was pulled over for following another car too closely, Chennault gave police permission to use a drug dog to sweep his car. The dog then "alerted" to the bag containing Chennault's cash.
Police found no actual drugs on Chennault or in his car. He was never charged with a crime. But the dog alert itself was enough to allow police to seize Chennault's cash. Over the next several months, Chennault had to travel to Edwardsville, Ill., at his own expense to fight in court for the return of his property. He had to put up a bond equal to 10 percent of the value of the property taken from him in order to secure it.
Cheannault won in court. His money was returned. But he won't be reimbursed for his travel or his legal expenses.
Similar stories have been reported along other forfeiture corridors across the country. In Teneha, Texas, police reportedly routinely pull over cars from out of state (the highway is popular for drivers, flush with cash and jewelry, going to and from casinos). A Nashville TV station recently reported on a stretch in Tennessee where the vast majority of police stops were of suspected drug runners leaving the city, meaning the police apparently preferred to let the drugs come into the city so they could seize the cash on the way out.
"When we saw the Huff video in our office, we just laughed," Rekowski says. "Not because it wasn't outrageous. But because it's the kind of thing we see all the time. The stop for a so-called 'inappropriate lane change,' the games they play in the questioning, the claims about nervousness or inappropriate behavior that can't really be contradicted. It's all routine."
According to Koester, the defense attorney in private practice, "The dog alert that happens off-camera isn't unusual either. You see that all the time."
Koester and Rekowski say the Huff stop has all the markings of a forfeiture fishing expedition. "You see where he asks if [Huff] is carrying large amounts of U.S. currency," Rekowski says. "It's pretty clear what they're after. These kinds of cases put my kids through college." He laughs, then adds, "I'm only half joking."
THE DRUG DOG
HuffPost showed the video of Huff's stop to two K-9 experts. Gene Papet is executive director of K9 Resources, a company that trains detection dogs, including police dogs. Papet found a number of problems with the way Reichert handled his dog.
"Just before the dog alerts, you can hear a change in the tone of the handler's voice. That's troubling. I don't know anything about this particular handler, but that's often an indication of a handler that's cuing a response." In other words, it's indicative of a handler instructing the dog to alert, not waiting to see whether the dog will alert.
"You also hear the handler say at one point that the dog alerted from the front of the car because the wind is blowing from the back of the car to the front, so the scent would have carried with the wind," Papet says. "But the dog was brought around the car twice. If that's the case, the dog should have alerted the first time he was brought to the front of the car. The dog only alerted the second time, which corresponded to what would be consistent with a vocal cue from the handler."
Russ Jones is a former police officer with 10 years in drug enforcement, including as a K-9 officer. He's now a member of Law Enforcement Against Prohibition, a group of current and former cops and prosecutors who favor ending the war on drugs. "That dog was going to do what ever (Officer Reichert) needed it to do," Jones says. "Throughout the video, the dog is looking for handler feedback, which isn't how it's supposed to work."
In the 2005 case Illinois v. Caballes, the U.S. Supreme Court ruled that having a drug dog sniff the exterior of a vehicle during a routine traffic stop does not violate the Fourth Amendment. But in a dissent to that opinion, Justice David Souter pointed to mounting evidence that drug dogs aren't as infallible as police departments often claim. Souter noted a study that the state of Illinois itself used in its briefs showing that in lab tests, drug dogs fail 12.5 to 60 percent of the time.
Since then, more evidence has emerged to support Souter's concerns.
The problem isn't that the dogs aren't capable of picking up the scent, it's that dogs have been bred to please and interact with humans. A dog can easily be manipulated to alert whenever needed. But even with conscientious cops, a dog without the proper training may pick up on its handler's body language and alert whenever it detects its handler is suspicious.
In one study published last year in the journal Animal Cognition, researchers rigged some tests designed to fool dogs into falsely alerting and others designed to trick handlers into thinking a package contained narcotics (it didn't). Of the 144 total searches performed, the dogs falsely alerted 123 times. More interesting, the dogs were twice as likely to falsely alert to packages designed to trick their handlers than those designed to trick the dogs.
In 2011, the Chicago Tribune published a review of drug dog searches conducted over three years by police departments in the Chicago suburbs. The paper found that just 44 percent of dog "alerts" led to the discovery of actual contraband. Interestingly, for Hispanic drivers the success rate dipped to 27 percent, again supporting the theory that drug dogs tend to confirm the suspicions (and, consequently, the biases) of their handlers.
A 2006 statistical analysis (PDF) of police dog tests by University of North Carolina law professor Richard Myers concluded that the dogs aren't reliable enough to provide probable cause for a search.
HuffPost obtained the records for one Illinois state police K-9 unit for an 11-month period in 2007 and 2008. Of the 136 times this particular dog alerted to the presence of drugs during a traffic stop over that period, 35 of the subsequent hand searches found measurable quantities of illegal drugs.
See accompanying article for a more thorough analysis of the K-9 records:
Jones, the former narcotics and K-9 officer, said those sorts of numbers are why he now opposes the drug war. "Ninety percent of these dog-handler teams are utter failures. They're just ways to get around the Fourth Amendment," he says. "When I debate these people around the country, I always challenge the K-9 officers to a double-blind test to see how accurate they and their dogs really are.
They always refuse."
These figures strongly suggest that while the Supreme Court has ruled that there's nothing invasive about an exterior drug dog sniff of a car, in truth, the dog’s alert may be nothing more than the dog confirming its handler's hunches -- which is exactly what the Fourth Amendment is supposed to protect against.
THE BAD COP
If drug dog searches and poorly incentivized forfeiture policies are bad ideas in general, both can be particularly damaging when utilized by an unscrupulous police officer. And Michael Reichert has both a reputation and a documented history of questionable scruples.
"All the departments around here are bad when it comes to these searches, but he's really the poster boy," says Rekowski, the public defender. Another defense attorney, who didn't wish to be quoted by name, went further: "The guy is a menace to society."
In a 2005 case, U.S. v. Zambrana, U.S. District Judge Michael J. Reagan overturned a federal drug conviction because he didn't find Reichert's testimony credible.
Reagan's assessment of Reichert's methods and credibility is blunt. He calls Reichert "polished" and his testimony "rehearsed, coached and robotic as to be rote." He continues, “It was a generic, almost default performance not dependent upon the facts of this case, but suitable for any case in which Reichert might testify to having found reasonable suspicion."
In that case too, Reichert's stated reason for pulling Zambrana over was that Zambrana crossed over a lane divider. According to Reagan's opinion, Reichert also stated that the motorist appeared "nervous," like Huff, and again nearly let the driver go (he told Zambrano he was "free to leave.") Then, again nearly as an afterthought, Reichert started in with the "rolling no" questions. Reichert described Zambrano's refusal to consent to a search as "suspicious."
Reagan writes that Reichert is so confident in his ability to observe body language to detect deceit, he appears to be a "human polygraph." Reichert taught a class on how to conduct roadside searches, which Reagan wrote could easily have been titled, "How to avoid the warrant requirement in searching a vehicle."
Reagan's opinion, along with the fact that Reichert was also convicted on federal charges of selling knockoff designer sunglasses, led to Reichert's dismissal from the Collinsville Police Department in 2006. But with the help of the police union, Reichert sued to get his job back.
In subsequent hearings, the local state's attorney's office said it didn't trust Reichert, as did the U.S. Attorney's Office for the Southern District of Illinois. Reagan and the state circuit court judge also made clear that they felt Reichert was untrustworthy.
Despite these concerns, in March 2009, an Illinois appellate court ordered Reichert rehired.
In much of the country, discipline and dismissal of police officers is governed by union-negotiated contracts. Some states have a “police officer bill of rights,” which affords police accused of misconduct and criminal acts more rights than are afforded other citizens. Others send officer misconduct cases to union-negotiated arbitrators. Federal law also protects police from being fired for refusing to answer questions in a misconduct investigation, even if their answers can’t be used against them in any ensuing criminal case.
Police watchdogs say all of this makes it extremely difficult to fire even cops with long histories of misconduct.
These concerns have been raised at police and sheriff departments across the country, including in King County, Wash.; Maywood, Calif.; Gary, Ind.; Cincinnati, Covington, Texas, Aurora, Colo., San Diego; Spokane, Wash., Louisville, Ken.; Milwaukee; and the entire state of Florida.
By spring of 2009, Reichert was back on the job in Collinsville. Soon after, federal prosecutors raised new concerns about Reichert's credibility. Those too were dismissed.
In January 2011, Williams gave Reichert the Chief's Award of Merit (PDF), and in April 2011, he was named Officer of the Month. For the latter, Reichert was cited for making six arrests and seven citations out of 166 total incidents. According to Williams, "incidents are dispatched calls for service. They range from traffic crashes to domestic disputes and everything in between."
Despite Reichert's past, Williams said he sees no reason to question the officer's integrity.
As for Huff, he said he just wants to raise awareness, so fewer people are subjected to the same sorts of searches he and Seaton were.
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Remember: If you are pulled over, be polite, have your Driver's License and proof of insurance ready for the officer to see, and make sure your hands are visible. Don't forget you have rights though. Do not consent to any search under any circumstance, no matter what the officer promises you.
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Article Author: Jeffrey R. Hall
Article Author: Jeffrey R. Hall
Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.
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