It’s after midnight at mile marker 204 on westbound Interstate 70 near Foristell. St. Charles County police officers watch for suspicious cars. Once they identify a car, they begin to look for a minor traffic violation to justify a stop. “Failing to keep right” is a common one.
After pulling over and questioning the motorists, police take them to a nearby towing company, Superior Towing, just off the highway at 11 Elaine Drive in O’Fallon. There, often in the middle of the night, police begin to take apart the vehicle and interrogate the occupants. They are looking for large amounts of cash, signs of a drug connection and inconsistencies in the motorists’ stories.
When Fleck, a trained police dog, smells marijuana on wads of cash, the officers advise the suspects that the best way to avoid years in prison is to sign a legal waiver surrendering ownership of anything in the car, including the money. Many readily sign and are released on a traffic ticket. The money — often tens of thousands of dollars — goes into police department coffers.
“People are in awful situations,” said Justin Gelfand, a former federal prosecutor who has represented some of the people taken to Superior Towing. “These often are in very coercive, unusual environments, literally waiving their right to their cash in a towing lot in the middle of the night.
“Basically they are told we can take you to jail; you won’t see your family for years,” Gelfand said. “The coercive elements are shocking. … They don’t know their rights. … They are in unenviable situations, they are scary, they are intimidating ... this is literally highway robbery by law enforcement. The idea that law enforcement should somehow have the right to take things from people and keep them, that is insane.”
Last year, St. Charles County officers employed this civil asset forfeiture tool to stop 39 motorists along I-70. They seized $2.6 million, records show. That was the biggest haul of any police agency in the state.
No state criminal charges were filed in any of the 39 cases, according to documents filed with the Missouri state auditor. Twelve of the cases occurred after midnight; almost half involved motorists with Hispanic or Asian surnames.
This is the reality of civil asset forfeiture in Missouri and in many states around the nation. An investigation by the Pulitzer Center on Crisis Reporting, St. Louis Public Radio and reporting partners around the country found that police routinely seize large amounts of cash and are able to keep the money to build jails, construct new police headquarters, buy police cars and purchase computers and other electronic gear.
The Forfeiture Workaround
The asset seizure tactics employed in St. Charles County and elsewhere seem to directly contradict Missouri law, which requires a criminal conviction before an asset is forfeited to state government. Once that happens, the law requires that the money go to schools. But St. Charles County officers and other police departments across Missouri sidestep state law. They seize cash without proof of a crime and keep the assets for police, not school use.
Missouri law enforcement departments use the federal Equitable Sharing program to get around the state law. The program permits local law enforcement agencies to turn over their civil asset seizures to the federal government, which then “adopts” them. The feds keep 20% for their trouble and return up to 80% to the local law enforcement agencies. No criminal charge or conviction is required.
It’s a legal way to wash away the strict state law requirements.
Reformers who tried to close off the federal loophole in the last Missouri legislative session found themselves branded as anti-police. The proposal was killed.
Win-Win for Law Enforcement
To law enforcement officials, the federal Equitable Sharing program is a godsend.
St. Charles County Prosecuting Attorney Timothy Lohmar said in an interview that federal Equitable Sharing is a “valuable resource for us. … It does two things for us. It takes the proceeds of criminal activities out of the hands of the criminals, (and) it benefits local law enforcement to enhance our training and enhance our equipment. It’s a win-win.”
Lohmar said the cash forfeiture funds are used to send prosecutors to child abuse training, domestic abuse training and trial preparation classes.
“We have two major interstates that run through the western part of our county,” he said. “As a result of that, we have a lot of drug activity. We are not taking property from innocent people. We are taking illegal proceeds of drug trafficking.”
"It is out of the elements off the highway, well lit and they are sitting there with our officers. It’s where we can search it effectively. Maybe the cash is concealed in the dashboard and we need tools. Typically (the motorists) are sitting right there with car. The car is in a big bay, a huge area inside. If we find money and we release the driver on the spot with the car, there is no charge." — Capt. Chris Hunt, St. Charles County police
Lohmar said that in handling the cases, the first thing he asks is: “If we kept this case, is there a state crime that we could prosecute? If the answer is yes … then we move on to the second step: Based on the totality of the circumstances, would this crime be better handled by the federal agencies involved?”
In almost all instances, the cash has been transported across state lines, which provides the federal connection that allows the county to send the money through the federal workaround. State law doesn’t apply. No criminal conviction is required for the forfeiture of the cash — the alert of a drug dog is enough. After the federal workaround, most of the money goes back to the police and none goes to the schools. The people stopped on the highway are never prosecuted under state law and usually go on their way.
Lohmar said that, by definition, no state charges are filed when the cash seizures are sent through the federal government. Federal authorities look for patterns in drug distribution, he said. They’re not interested in prosecuting the “mules” transporting drugs and cash; they're trying to put together bigger drug prosecutions, which sometimes occur in federal court.
Lohmar insisted that police always know there is a crime involved when they seize cash, send it to the federal government and let the suspect go on his way. “I know that all of the property seized in St. Charles County is cash — we don’t seize anything but cash — and when we do that, we can prove without a doubt that the person involved is involved in criminal activity,” he said.
Lohmar said he didn’t know enough to comment about the details of the St. Charles County police tactic of moving stopped motorists to Superior Towing and interrogating suspects there while pressing them to sign waivers giving up the cash.
St. Charles County Capt. Chris Hunt defended the Superior Towing procedure in an interview. He said Gelfand’s description of a coercive atmosphere is the “polar opposite of what occurs there. There’s no coercion. All of the cases out there are based on solid police work.
“Superior Towing has a facility big enough that we can pull them off the road. It is a safety component. It is out of the elements off the highway, well lit, and they are sitting there with our officers. It’s where we can search it effectively. Maybe the cash is concealed in the dashboard and we need tools. Typically (the motorists) are sitting right there with car. The car is in a big bay, a huge area inside. If we find money and we release the driver on the spot with the car, there is no charge,” he said.
Hunt said it is misleading to focus on the 39 civil asset forfeiture cases that had no criminal charges filed, because there are a lot of highway stops that don’t involve forfeitures but do result in arrests and drug seizures.
“We have arrested murderers, rapists and seized thousands of pounds of drugs. Civil asset forfeiture is only a portion of what we are doing out there.”
But Gelfand, the federal prosecutor turned defense lawyer, said: “Law enforcement likes to use crime speak … they like to say this is part of combating drugs, combating violent crime, ‘We’re going after drug smugglers.’ But in these cases, nobody is charged with a crime, and that’s not because of the graceful mercy of law enforcement. It’s because there is no proof that a crime occurred.
“Nobody should have their property taken in such a haphazard (way) as it is now,” Gelfand said. “What happens in Missouri is that law enforcement agencies intentionally circumvent the protection that already exists in Missouri law. ... There is no excuse for that.”
Gelfand testified at Missouri House hearings this past summer on the tactics St. Charles County police use at the tow lot to pressure motorists to give up ownership of their cash to stay out of jail. Rep. Shamed Dogan, R-Ballwin, chaired the hearings. He supported a bill to force state law enforcement to follow Missouri law in requiring proof of a crime before an asset is forfeited.
Gelfand supports Dogan’s efforts. “At a minimum, they would compel the majority of incidents to actually comply with state law. ... It would take out the adverse incentives for law enforcement agencies to personally benefit from the property that they are taking.”
Dogan was shocked by St. Charles County's use of tow lots.
“For the vast majority of people, if you’ve had your car towed, they are telling you you can either do this, sign this form, or we’re going to hold you here for a long time. Most people’s instinct is to do anything you have to do to get out of that room. When people do sign their rights away, there should be more protections. A lot of our Fourth Amendment protections don’t seem to apply in cases of civil asset forfeiture.”
Midnight Interrogations in a Tow Lot
At first, Gelfand thought the process of taking a suspect to the Superior Towing lot was just an unusual fact pattern in a case or two. “And then I saw it again, and then I saw it again … and then I saw it again.”
A sample of five court records from stops in 2018 near mile marker 204 on I-70 show that in every case where an asset seizure occurred, the car and passengers were taken to Superior Towing for questioning rather than to a police department. Often there did not appear to be enough evidence of a crime to file state charges, despite Lohmar’s insistence there always is.
For example, police stopped Nhan T. Phan and Thuong Phan on March 28, 2018, in a black Chevy Traverse for traveling behind a semi “within an unsafe distance in the right lane.” The statement of facts filed by Lohmar’s office to justify the forfeiture of $100,000 lays out this story this way:
St. Charles County officers Anthony Hojsik and Stephen Schue, who have been involved in many drug arrests, made the stop. Their suspicions rose when they were greeted by the “strong odor of air freshener,” often used to cover up the odor of drugs.
Schue asked why the Phans flew to North Carolina but were returning to California, such a long distance, in the car. They said the return trip was easier, an answer Schue thought was suspicious based on “his training and experience.” Hojsik saw three cellphones in the center cup holder, “which can be consistent with criminal activity.” And Fleck, the drug dog, signaled the odor of marijuana or some other drug on cash found in the car.
The Phans said they had cash hidden in clothes because they had tried unsuccessfully to buy a beauty parlor in North Carolina. But the officers said their stories didn’t hang together. “Based on the totality of the circumstances, the investigation was moved to Superior Towing.”
The Phans agreed to let the officers look at their cellphones, which contained photos of marijuana plants. “When asked if Thuong wanted to confirm her story ... she said she would rather sign a currency disclaimer. ... A currency waiver was presented without threat or coercion,” and she signed.
“Both subjects were released without incident,” and the $100,000 in cash was deposited to United Missouri Bank. Later, the court approved turning it over to the federal government, which returns 80% to county authorities.
"I think the general public would be uncomfortable if people were arrested in public and instead of being taken to a police station were taken to a tow lot to be questioned. There are no drugs in these cases." — Justin Gelfand, attorney
Victims Are Unbankable
Gelfand said that the clients he represents are from “all kinds of walks of life."
"Small-business owners who operate with cash depending on the nature of the business. They are hard-working individuals, many of whom have immigrated to the United States. They tend to be lawfully employed small-business owners who aren’t doing anything wrong," Gelfand said.
“One of the things that is under-appreciated by the general public is that there are a large number of people in the United States who are unbankable, and there are a number of reasons that people are driving with a lot of money. It is not a crime to drive with any amount of money.”
Gelfand said the questioning in a tow lot “isn’t akin to a traditional law enforcement investigation. If I told you the same story and took out that law enforcement agency, you would say it was a terrifying crime. … Someone is taken to a tow lot and told if they did not walk away, they would never see their family again.
"I think the general public would be uncomfortable if people were arrested in public and instead of being taken to a police station were taken to a tow lot to be questioned. There are no drugs in these cases.”
When Fleck, the drug dog, alerts to the presence of cash, it proves almost nothing, Gelfand said. Drug dogs are trained to alert to marijuana, and a large portion of U.S. currency has been in contact with legal marijuana.
The chances of the motorist getting cash back are low. By waiving ownership in the towing lot, the motorists are legally saying they don’t have the right to the cash, so they can lose their standing to claim it in court. Also, people trying to reclaim their cash don’t have a right to a lawyer, and the burden of proof is against them. They have to prove the money they surrendered is theirs.
In addition, Gelfand said, “there are a number of procedural traps that if people who are not lawyers do not file certain paperwork meeting certain specifications within x number of days … they may forever lose their right to even challenge the forfeiture. … When you couple that with they are not entitled to legal counsel, obviously there are problems that arise from that lethal combination.”