Judge: Calif. man's detention amounted to 'illegal arrest'

2011-03-18T16:00:00Z 2011-03-18T18:50:07Z Judge: Calif. man's detention amounted to 'illegal arrest'By LORI PILGER / Lincoln Journal Star JournalStar.com
March 18, 2011 4:00 pm  • 

It looks as if a California man is closer to getting back $93,000 seized nearly two years ago after a traffic stop near Seward. 

It all started June 18, 2009, when a Nebraska State Patrol trooper running radar stopped Michael Fox, 48, for speeding on Interstate 80 near the Waco exit.

In a complaint filed in U.S. District Court in Omaha, Assistant U.S. Attorney Nancy Svoboda said Fox consented to a search of his rented Ford Explorer after Trooper Rob Pelster gave him a warning for driving 5 mph over the limit.

Inside a pillowcase in a camouflage bag in the SUV, another trooper found 19 bundles of cash -- $93,120 in all -- wrapped with rubber bands, she said.

Svoboda said Fox was put in handcuffs, and the SUV was towed to the Lincoln traffic office, where a dog later indicated the odor of drugs on the money.

In February, U.S. Magistrate Judge Thomas Thalken recommended the evidence and statements obtained after Fox was detained and the cash seized be suppressed.

And in an order this week, Chief U.S. District Judge Joseph Bataillon agreed with Thalken's findings: The initial stop was justified and there was valid consent for the search that followed, but the officer lacked sufficient information to justify seizing the money and detaining Fox.

A dog did alert to the scent of drugs on the money, but not until after the money had been seized and Fox taken 36 miles from where he was stopped, Thalken said.

At the hearing, Pelster said he took Fox, handcuffed in his backseat, to the Lincoln office to interview him and give him a chance to explain where the money came from and so the patrol could further process the SUV.

Court records say he put Fox in an interview room where he was handcuffed to a cement bucket anchored on the floor and took $160 cash from him for the fee to tow the SUV.

There, Pelster told Fox that if he filled out a voluntary disclaimer form for the money seized he could "wipe his hands of this" and be on his way. Fox asked about the repercussions if he refused and said he wanted to talk to a lawyer. But eventually, he signed the form.

He later filed a claim to get the money back.

Thalken said taking Fox to the NSP Lincoln traffic office was unreasonable, that his detention amounted to an illegal arrest and that "coercive law enforcement pressure" had been employed in the case.

He suppressed Fox's statements, saying they were not made voluntarily, and found that Fox signed the disclaimer form involuntarily.

Reach Lori Pilger at 402-473-7237 or lpilger@journalstar.com.

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