The Traffic Stop, Search of Phil’s Car, and Seizure of Phil’s Life Savings
On March 13, 2017, Phil was driving through Wyoming on his way to Salt Lake City when he was pulled over on I-80 by a Wyoming Highway Patrol trooper, allegedly for not wearing a seatbelt and not staying in his lane. After a short conversation, the trooper asked Phil to get into his patrol car and then asked a series of probing questions that had nothing to do with Phil’s seatbelt or driving. The trooper asked about the details of Phil’s band and the music tour, including the name of the band, tour locations and dates. Evidently, the trooper found it suspicious that Phil’s band was called “The Dirt Brothers,” because Phil was traveling alone. (Phil had brought a drum machine to fill in for his drummer on the short tour.)
The trooper also asked Phil a compound question, along the lines of: “Is there anything in your vehicle I should know about, such as guns, drugs, large amounts of cash, methamphetamines, heroin, cocaine, marijuana, PCP, LSD, etc.?” Bewildered that drugs and guns were mentioned along with cash, Phil answered “No.” Such questions are designed to be confusing because they group perfectly legal activities—like carrying large amounts of cash—with obviously illegal ones—like trafficking in illegal drugs. Questions like these are also designed to mislead by suggesting that carrying large amounts of cash is illegal.
After asking Phil many questions unrelated to the traffic stop, the trooper then circled Phil’s minivan with a drug-sniffing dog. At first, the dog seemed to find nothing interesting about the vehicle. Then, the trooper gestured with what appeared to be a hidden tennis ball, and the dog responded. Law enforcement officers at the scene used this response as an excuse to take apart the interior of Phil’s minivan, searching for evidence of criminal activity. They found no drugs, weapons or contraband, but they did discover Phil’s life savings inside one of his speaker cabinets, where he had hidden it for safe keeping while on the road. Celebrating the discovery, the officers high-fived each other.
The Roadside Waiver
Intimidated by the officers into believing that it was somehow illegal to travel with large amounts of cash, Phil denied that the money and the speakers were his and claimed that both belonged to a friend. Despite these denials, a DCI agent, who arrived on the scene, pressured Phil to sign a waiver form releasing his ownership of the money and waiving any right to formal forfeiture proceedings under Wyoming’s forfeiture statute. Bizarrely, the waiver states: “I . . . the owner of the property or currency described below, desire to give this property or currency, along with any and all interests and ownership that I may have in it, to the State of Wyoming, Division of Criminal Investigation, to be used for narcotics law enforcement purposes” (emphasis added). Two states—Texas and Virginia—have banned law enforcement from using such roadside waivers to pressure motorists to sign away their property
Phil did not understand the legal consequences of signing the form and did not have an attorney on hand to advise him while stopped on the side of the highway. Phil also did not feel free to leave the scene of the traffic stop without signing the waiver. Phil only signed the form because he was led to believe that if he did not sign it, he would be detained further and possibly put in jail while traveling by himself in a state nearly a thousand miles from his home in Madison, Wisconsin.
After signing the waiver, Phil was sent on his way. Wyoming law enforcement officers seized Phil’s money without ever charging him with any crime. It was simple highway robbery.
Wyoming DCI Files Lawsuit to Keep Phil’s Cash, But Does Not Inform Phil
On May 4, 2017—almost two months after the traffic stop— the Wyoming Attorney General’s Office filed a petition with a state judge asking for a hearing on whether Phil’s life savings should be declared forfeited and transferred to the Wyoming DCI. The petition effectively treats Phil’s life savings as abandoned property, claiming that: “Efforts to identify the potential owner [of the seized cash] have been unsuccessful.” Despite listing his name and address in its filings, the Wyoming Attorney General’s Office never actually notified Phil about the case or the hearing, and just published the notice in a Wyoming newspaper. As a result, the hearing was held on July 5, 2017 without Phil.
But the Wyoming Attorney General’s Office knew full well that Phil said he was the owner of the seized cash and had requested they notify him of any court proceedings about the seized cash; it also knew his mailing address. That is because Phil had repeatedly corresponded with the Wyoming Attorney General’s Office about the seizure of his life savings in March and April 2017 before the petition was filed.
On March 17, 2017, for example, four days after the seizure of Phil’s life savings, Phil wrote letters to the Wyoming Highway Patrol, the Wyoming DCI and the Wyoming Attorney General’s Office revoking and disputing the waiver, explaining that the money was his, and asking for notice of any court proceedings regarding his money. The Wyoming Attorney General’s Office wrote back to Phil, asking for proof that the seized cash belonged to him and was from a lawful source. Phil responded on April 28 with a letter outlining several sources of his income for three years prior to the seizure, explaining how he planned to use the money to make a down payment for a recording studio in Madison, and provided a stack of documents that backed up his claims.
Had DCI mailed notice of the hearing to the exact same address used to mail its request for evidence of the lawful source of the cash, Phil would have been notified and would have shown up, ready to defend his right to his life savings.
Phil’s life is music. Even when he worked as a producer and video editor for the Cleveland Browns, and later the Amsterdam Admirals, he kept dreaming about making his way as a musician. One day, he quit his lucrative day job working in professional football to make this dream a reality.
To support his music career, Phil bought and renovated historic but dilapidated farmhouses. He would live in the homes while renovating them, and then sell them—ideally for profit—and move on to the next project. For additional income, Phil bought and refurbished old, broken guitars. Just like with the houses, he would buy them in a hopeless state and bring them back to life.
Over several years, Phil had saved up $91,800 to purchase a recording studio in Madison. He had just signed a contract to purchase the studio and paid an earnest money deposit; Phil planned to use most of the remaining money for the down payment after he returned home from his tour.
Phil did not want to risk leaving his life savings unguarded in his apartment while he was gone, particularly since maintenance workers frequently entered his apartment to access the furnace for the entire apartment building, so he put the money in a large speaker cabinet that he brought with him on tour. Phil figured that a large speaker cabinet would be hard for someone to walk off with unnoticed, he would always have the speaker near him, even while performing, and few thieves would think to look inside a speaker. It was just supposed to be temporary safekeeping until he returned to Wisconsin.
Phil spent some of his income on living expenses, but he saved much of it to buy Smart Studios—a locally famous recording studio where bands like Nirvana, Smashing Pumpkins, and Garbage have recorded. 1
Of the $91,800 that Wyoming law enforcement seized from him, Phil intended to use $80,000 for the down payment. As long as the Wyoming government refuses to return Phil’s life savings, his dream of owning Smart Studios is on hold. This is why Phil teamed up with the Institute for Justice to fight for his life savings.
Civil Forfeiture: Legalized Highway Robbery
Civil forfeiture—a way for the government to take and keep your property without ever charging you with a crime, let alone convicting you—is one of the greatest threats to property rights in the nation. To make matters worse, law enforcement often use forfeiture funds to pay salaries and pad budgets, giving them a direct financial incentive to abuse this power. In July, U.S. Attorney General Jeff Sessions rolled back modest reforms to federal involvement in civil forfeiture with the explicit goal of increasing the cash flow to law enforcement agencies. 2
Fortunately, the U.S. House of Representatives voted to defund those efforts, but the overall problem remains. 3
In March 2016, Wyoming reformed its civil forfeiture law to make it somewhat more difficult for the government to forfeit someone’s property. First, the new law requires the government to establish the property’s connection to a crime by clear and convincing evidence, a higher burden than the previous standard of preponderance of the evidence. 4
Second, the new law also requires the government to give property owners 15 days’ notice of a forfeiture hearing and allows judges to award attorney’s fees and damages to successful property owners. 5
Finally, the law mandates that a post-seizure, pre-forfeiture hearing be conducted no later than 30 days after a seizure to determine whether probable cause existed to seize the property. 6
The officers who seized Phil’s life savings circumvented all these requirements by pressuring him to sign a pre-printed waiver form explicitly designed to get around the law. This waiver form not only claims that Phil wants to “give” his property to Wyoming law enforcement, but also says that no forfeiture proceeding under the reformed civil forfeiture law would be initiated.
After Phil signed the waiver, the Wyoming DCI effectively treated Phil’s life savings as abandoned property, making it easier for them to legally forfeit the money in a hearing without even notifying Phil. 7
And, since Wyoming DCI did not notify Phil of the hearing, he could not contest the forfeiture of his life savings.
The Legal Arguments
First, Phil is asking the Wyoming district court to give him a rehearing since he was never notified about the hearing in July. On December 1, 2017, the Wyoming district court will hold a hearing on whether Phil defaulted in the proceeding and whether he had a right to be notified of the attempt by Wyoming DCI to permanently forfeit his property without ever telling him about the court proceeding.
Next, Phil will attempt to get his life savings back. Phil has a number of legal arguments for why his money should be returned. First, the evidence plainly demonstrates that the seized cash belongs to Phil and that he earned it through legal means. Second, Wyoming cannot circumvent its own civil forfeiture laws through inherently coercive roadside waivers during routine traffic stops. Being pressured to sign a waiver—on the side of the road after exhaustive interrogation without an attorney present—does not constitute voluntary consent, and it should not legally bind Phil or any other motorist. Two states—Texas and Virginia—already ban such roadside waivers to prevent motorists from signing away their property under duress. Third, using the roadside waiver to attempt to sidestep the procedural protections for property owners under Wyoming’s forfeiture statutes violated both Phil’s statutory rights to those protections and his constitutional right to due process. Fourth, by failing to provide notice to Phil of the case regarding the forfeiture of his property, including the hearing that was held in July, the State of Wyoming violated both notice obligations under Wyoming statues and Phil’s constitutional due process rights to notice and a meaningful opportunity to be heard. Sixth, the trooper’s actions in extending the traffic stop without reasonable suspicion, interrogating Phil about a wide variety of topics unrelated to the traffic stop, entrapping Phil by asking misleading and compound questions that wrongly suggested it was illegal for Phil to be traveling with cash, detaining Phil, and searching Phil’s minivan without a warrant violated Phil’s constitutional rights to be free against unreasonable search and seizure under the Fourth Amendment. Phil did not consent to the interrogation and the subsequent search was involuntary. Under Wyoming law, 8
highway traffic stops do not open the door to extensive investigatory questioning and a search because a reasonable motorist does not feel free to leave in such a situation and thus cannot meaningfully consent to the extended interaction with law enforcement officers.
The petitioner in this case is the state of Wyoming Division of Criminal Investigation, represented by the Wyoming Attorney General’s Office.
The Litigation Team
The Institute for Justice
The Institute for Justice is the national law firm for liberty. IJ is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government. IJ is based in Arlington, Va., and has offices in Arizona, Florida, Minnesota, Texas and Washington State, as well as a Clinic on Entrepreneurship at the University of Chicago Law School.
IJ has come to the defense of Americans nationwide to fight civil forfeiture, including the owners of the family-run Motel Caswell in Massachusetts, a woman in Albuquerque whose car was seized by city police, small business owners across the country whose bank accounts were targeted for civil forfeiture by the IRS, and a class of property owners in Philadelphia challenging that city’s forfeiture machine.