Grant Rodgers

grodgers@dmreg.com

Two California poker players are refusing to fold in a legal battle against the state, claiming Iowa State Patrol troopers unlawfully seized their $100,020 gambling bankroll.

Troopers with the State Patrol's criminal interdiction team — which works to catch drug traffickers and other criminals along interstates — used unfair procedures that target out-of-state drivers and cast suspicion on nonthreatening motorists, according to a lawsuit filed this week in federal district court on behalf of professional gamblers William "Bart" Davis and John Newmer­zhycky.

It's not illegal to travel with large sums of money, but people who get caught become suspects even with relatively little proof, said Glen Downey, the Des Moines attorney representing the men.

"There is absolutely nothing illegal or uncommon about people driving through the United States with out-of-state plates ... and carrying amounts of cash," Downey said. "There's nothing illegal about carrying cash, and yet law enforcement begins to treat individuals who are carrying cash as if they are criminals."

Davis and Newmer­zhycky's lawsuit is the latest in a string of Iowa legal battles over state troopers' tactics. Some Iowa judges have ruled that troopers stretch their authority by holding motorists for searches without reason to suspect criminal activity.

For instance, judges with the Iowa Court of Appeals ruled last year that nervousness being exhibited by a driver who is interacting with a trooper during a stop should not, on its own, be taken as an indicator of criminal activity. In that ruling, judges also said that troopers paint with a "broad and unconstitutional brush" by making decisions to pull vehicles over based on suspicions tied to out-of-state plates.

The lawsuit claims that members of the interdiction teams more often give traffic warnings and citations to drivers from outside Iowa. An October 2013 Des Moines Register review of 22,000 warnings and citations given by the teams from 2008 to 2012 showed that 86 percent went to non-Iowans.

$7 million in cash seized by troopers

A State Patrol supervisor defended the work of interdiction teams as an effective tool in catching a wide range of criminals. The teams have nabbed drug and human traffickers as well as credit card "skimmers" who target ATMs and gas pumps to steal people's private information, said Iowa State Patrol Sgt. Rob Mordini, who oversees the state's two four-person interdiction teams.

From 2011 through 2013, the interdiction teams seized more than $18 million worth of illegal drugs and about $7 million in currency, according to Iowa Department of Public Safety statistics. The seizures also included an assortment of firearms, stolen phones and untaxed cigarettes.

And though potentially controversial, cash seizures from suspicious motorists can go even further to fight against criminal organizations' use of Iowa's highways, Mordini said.

"That's why every criminal element is in the business," Mordini said. "To just take their drugs, to just take their stolen weapons, to just interrupt their human trafficking regime, you don't stop that organization. You cripple them when you take their funds."

State officials cannot comment on specific cases that are in litigation or in which legal action is pending, said Alex Murphy, a public safety spokesman.

Davis and Newmer­zhycky were westbound on Interstate Highway 80 in Poweshiek County on the morning of April 15, 2013, traveling from a World Series of Poker event at the Harrah's casino in Joliet, Ill. During the trip Davis, a longtime professional poker player, mentored Newmer­zhycky on how to improve his poker playing, Newmerzhycky said. The two had known each other for approximately two years.

At the time of the stop, Newmerzhycky was driving a rented red Nissan Altima with Nevada license plates. The Des Moines Register obtained depositions, other documents and dash camera video detailing what happened next.

At 8:50 a.m., Trooper Justin Simmons — a member of eastern Iowa's interdiction team — began following the vehicle carrying Newmerzhycky and Davis. In a report, Simmons wrote that an Illinois law enforcement officer had relayed concerns to Iowa authorities about a red vehicle, a forfeiture complaint says.

But in a deposition taken while the pair fought the seizure of their money, Simmons said he did not know why Illinois authorities had flagged the red vehicle or whether they'd suspected it was involved in criminal activity. More than 10 minutes after he began following the car, Simmons initiated a traffic stop, claiming Newmerzhycky failed to signal while passing a black SUV.

However, attorneys have now argued that a dash camera video taken from Simmons' patrol cruiser — which was several car lengths behind the Altima — shows Newmerzhycky using his turn signal, contrary to the troopers' report.

"If you sit down and you watch the video, you can see very clearly that they signaled," said Benjamin Okin, a Eureka, Calif., attorney who represented Newmerzhycky on California felony charges stemming from the stop. "If you have a bad stop, then anything that flows from that is gone."

Drug dog reacts at back side of car

Simmons took Newmerzhycky into his patrol car to conduct a "motorist interview," a tactic used by interdiction officers to ask questions of a motorist and ferret out suspicious behavior, Simmons said in a deposition. During the interview, Newmerzhycky appeared to be breathing rapidly and fidgeting with his hands — all signs interdiction officers are trained to look at as signs of potential criminal activity, Simmons said in a deposition.

"I figured, once they get our (California) addresses, we're screwed," said Davis, who was sitting in the red car at the time. "They're going to take us apart and take our money."

After telling Newmerzhycky he was free to leave with a warning, the trooper asked whether there were any drugs or cash in the car. Despite Newmerzhycky's asking if he was free to leave, Simmons called Trooper Eric VanderWiel to the scene so that VanderWiel's drug dog, Laika, could scan the car's exterior.

The pair had told the troopers they had no drugs or currency inside the car. In reality, however, Davis kept his money — $85,020 of the total — packaged neatly inside a locked briefcase.

The troopers told the pair that VanderWiel's dog "alerted" on the vehicle's back side. However, the spot where the dog alerted was out of the frame of the video from Simmons' vehicle, the lawsuit said.

During a search of the trunk, the troopers found Davis' briefcase. After taking the men and the vehicle to a nearby DOT building, troopers searched the car, finding an additional $15,000 in cash and a grinder — used to process small amounts of marijuana for smoking — inside Newmerzhycky's computer bag.

Inside the grinder were "small pieces" of marijuana, Simmons wrote in his report. Newmerzhycky was cited for possession of drug paraphernalia, the only Iowa charge either of the two faced from the stop.

After being interviewed at the DOT building, they were allowed to leave Iowa that day, but the money was seized by the troopers. Both of their California homes were searched the next day by law enforcement based on a tip from an Iowa agent, the lawsuit said.

Both men had California medical marijuana cards, but marijuana at their houses led to felony drug charges.

In the 15 months since the stop, Davis and Newmerzhycky have received some vindication in their fight against state troopers' actions. They believe the troopers' actions were unconstitutional and that troopers never had probable cause to search the Altima.

The state of Iowa filed a forfeiture complaint to try to keep the money, but agreed to a settlement after the pair hired an Iowa attorney: $90,000 was returned, though one-third of it was spent on standard attorneys' fees.

The California criminal charges stemming from the traffic stop were also dropped after prosecutors were shown a video of the Iowa stop, Okin said.

Now, both men hope to recover additional money through the lawsuit. The cash seizure forced Davis to sit out of poker tournaments through September 2013, the main source of his income, according to the lawsuit.

Newmerzhycky also wants to be compensated for damage to his health that he believes was brought on by legal troubles. He had a glass-blowing business he hoped to restart, but suffered a stroke after learning about the California charges.

"They destroyed my life, destroyed my reputation, destroyed my health," he said.