The McCarville Report » Policing For Profit Lawsuit Names Oklahoma Firm

The two men in the rented red Nissan Altima were poker players traveling through Iowa on their way to Las Vegas. The police were state troopers on the hunt for criminals, contraband and cash.They intersected last year on a rural stretch of Interstate 80, in a seemingly routine traffic stop that would soon raise new questions about laws that allow police to take money and property from people not charged with crimes.By the time the encounter was over, the gamblers had been detained for more than two hours. Their car was searched without a warrant. And their cellphones, a computer and $100,020 of their gambling “bankroll” were seized under state civil asset-forfeiture laws. The troopers allowed them to leave, without their money, after issuing a traffic warning and a citation for possession of marijuana paraphernalia that carried a $65 fine, court records show.Months later, an attorney for the men obtained a video of the stop. It showed that the motorists were detained for a violation they did not commit — a failure to signal during a lane change — and authorities were compelled to return 90 percent of the money.

Now the men are questioning the police tactics in an unusual federal civil rights lawsuit. In the suit, filed Sept. 29, William Barton Davis, 51, and John Newmerzhycky, 43, both from Humboldt County, Calif., claim their constitutional rights against unreasonable searches and seizures were violated. They also contend the stop was part of a pattern connected to the teachings of a private police-training firm that promotes aggressive tactics.

‘Your property is guilty until you prove it innocent’(11:36)

In the wake of Sept. 11, 2001, an aggressive brand of policing called “highway interdiction,” which involves authorities seizing money and property during traffic stops, has grown in popularity. Thousands of people not charged with crimes are left fighting legal battles to regain their money. (Gabe Silverman/The Washington Post)

Davis is a professional poker player, and Newmerzhycky worked as glass blower, according to court records. In an interview, Davis said the men felt as though they were being “stalked” by the police.

If allowed to proceed, the lawsuit could illuminate the widespread but little-known police practice known as “highway interdiction.” The suit names Desert Snow, the Oklahoma-based training firm, and its founder, Joe David, court records show. It also names the two Iowa State Patrol troopers who participated in the traffic stop and were trained by Desert Snow.

Desert Snow’s lead instructor, David Frye, said the lawsuit has no merit and contains “outrageous” and “inaccurate” accusations.

“The evidence will show that the individuals who had their money seized were involved in drug trafficking and that the vacuum sealed packages of cash they had in their possession were tied to the sale of narcotics,” Frye said in a statement to The Washington Post. “Desert Snow is a top-notch training program which will continue to teach officers how to legally and professionally identify and apprehend persons involved in criminal activity.”

The case has created a stir in Iowa’s political and law enforcement worlds. The Des Moines Register wrote about the lawsuit and called for legislative reforms in an Oct. 19 editorial that cited the I-80 seizure and a recent investigation by The Post, which found that police nationwide have seized $2.5 billion in cash from almost 62,000 people without warrants or indictments under federal civil asset-forfeiture laws since 2001. The laws allow police departments to keep up to 80 percent of the cash they seize.

“As long as police agencies know that all or some of the cash they seize will be funneled back into them, the roadside shakedowns are going to continue,” the Register’s Oct. 19 editorial said.

In September, The Post reported that police trained by Desert Snow, along with those who participate in Black Asphalt, an informal police intelligence network started by the firm, said they had seized more than $427 million in one five-year stretch. Among others things, Black Asphalt enables police to share tips across state lines about drivers who raise their suspicions.

The troopers in the Iowa case, Justin Simmons and Eric Vanderwiel, were both trained by Desert Snow, court documents show. They also were members of Black Asphalt, according to internal documents obtained by The Post. They were also part of a drug interdiction unit in eastern Iowa.

A spokesman for the Iowa Department of Public Safety said the troopers declined requests for interviews. In response to inquiries by The Post, spokesman Alex Murphy acknowledged that the troopers were still members of Black Asphalt. But he said they had not submitted any information to the network since 2012, when the department prohibited such reporting because of concerns about civil liberties and “an increased risk for civil and criminal liability for officers and the department.”

An earlier Register analysis last year found that 86 percent of warnings and citations issued by Iowa’s aggressive interdiction units between 2008 to 2012 were given to out-of-state drivers. The newspaper reported that the units seized more than $18 million in drugs and $7 million in cash from 2011 to 2013.

The stop of the gamblers in Iowa on April 15, 2013, illustrates some of the highway interdiction methods in use nationwide.

Earlier that morning, an officer in Illinois alerted an Iowa trooper to a suspicious red car with Nevada license plates driving west, court records show. When the Altima appeared in Iowa, Trooper Simmons followed it for several miles before pulling it over. He told the motorists that they had been stopped for failing to signal when they passed a black SUV.

Simmons said he was issuing a warning for the failure to signal. After handing over the paperwork, he said the stop was over. Then he asked the driver, Newmerzhycky, if he had “time for just a couple quick questions.”

Police who specialize in highway interdiction use casual conversations to avoid triggering legal questions about the length of stops. If the conversations are consensual, courts consider the added delay to be legal.

Highway police are trained to use the chats as an opportunity to take stock of alleged “indicators” of criminal activity, including nervous speech patterns, a pulsing carotid artery and inconsistencies in stories. They are also trained to seek permission for warrantless searches.

“Do you got any drugs?” Simmons asked on the video recording that was later obtained by his lawyer. “Any large amounts of U.S. currency?”

“Absolutely not,” Newmerzhycky said.

“Nothing in there? Could I search your car?”

“I don’t see any reason to. I’m not going to consent to that.”

“Okay. I’m just asking you if I can,” Simmons said.

“No.”

At this point, the stop is supposed to come to an end and the driver allowed to leave, unless during the consensual conservation the officer has developed a suspicion — one that can be articulated — that a crime has occurred.