US Court Rules Paying Cash is Probable Cause for Detainment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." ~Amendment IV, U.S. Constitution

The dispute in this case stems from a suit filed by motorists who were detained after paying with cash on Florida toll highways. While the details may leave one with the impression that this is "no big deal," it is important to understand that this ruling by the US Court of Appeals has far-reaching implications and virtually nullifies the 4th Amendment.

This lawsuit, filed last year by a family of motorists and on behalf of all freedom-loving motorists, claimed that they were effectively held hostage by the Florida Department of Transportation (FDOT) and private contractor Fanueil, Inc. after paying their toll in cash. According to FDOT policy in place at the time, motorists were randomly detained for paying in "large denomination bill" as small as $5. Toll collectors would not let the motorist proceed until a "Bill Detection Report"  was completed, recording information about the vehicle and personal information from the motorist's Driver License.

Some have claimed that this detainment policy was actually a harassment technique, in order to punish drivers who refused to purchase the SunPass transponder. The device is used to collect tolls digitally, through a bank account linked to the device.

The benefit of these devices, which are in use by states nationwide, is an ease in congestion at toll-booth choke-points. The driver only has to slow down, rather than stop and complete a transaction manually, as they pass through the toll plaza. These systems are also thought to save the driver money, with a discounted rate on tolls. That is not always the case though. as erroneous ticketing and other glitches can actually leave the motorist paying significantly more.

The more prevalent drawback, for anyone who values their privacy, is that the government and private companies alike are compiling a profile of your personal driving habits. How that data is used, and who it can be shared with, is not exactly clear. It has become an urban myth that states are issuing speeding tickets by simply calculating the time between toll booths and sending you a ticket in the mail, but that data is recorded nonetheless, meaning that they could do this even if they aren't yet. Taking it a step further, it is not unreasonable to suggest that perhaps a private company running a toll road might not share that data, with say, your insurance company.

We do know that this information has been turned over to courts in non-criminal matters, such as divorce proceedings and other civil lawsuits. That is not speculative. This means that this data may be used against you, by someone who is suing you, aside from any criminal implications or traffic infractions. Attempting to protect one's privacy by refusing the digital device and paying cash instead, was made moot by these "Bill Detection Reports" which documented at least as much, if not more information about the vehicle and driver passing through the checkpoint.

Then again, you might just be a driver from out of state, who has little choice but to pay in cash. Of course, out of state drivers are also of keen interest to law-enforcement and agencies like Homeland Security. (Video) Suffice to say, there could be any number of reasonable reasons why a motorist might be paying cash at a toll booth, other than being a terrorist..

Is The E-ZPass Box A Trojan Horse For Privacy Invasions?

CBS 2 Investigates: Living Through An E-ZPass Nightmare

Nonetheless, none of those reasons are suffice to protect your 4th Amendment rights against illegal search and seizure, according to Wednesday's ruling.

"The fact that a person is not free to leave on his own terms at a given moment, however, does not, by itself, mean that the person has been 'seized' within the meaning of the Fourth Amendment," the court wrote in its unsigned decision. 

Wait, WHAT?! 

As it pertains to persons, rather than property, lawyers.com defines "seize" as follows:

 "to detain (a person) in such circumstances as would lead a reasonable person to believe that he or she was not free to leave"

These motorists were blockaded from proceeding, even after they had paid their toll. They were not free to leave. There was no sign when entering the toll road, warning them that they might be detained for reasons other than paying a toll, and thereby invoking an implied consent, by proceeding onto the tollway. Nor was their a policy sign stating that any denomination of US currency was not an acceptable form of payment. Indeed, the toll-takers did accept the bills, but only while detaining the motorist and demanding personal information.

It is important too to keep in mind, that these toll agents are not sworn police officers, but employees of a private company. Nor is any crime alleged, which might trigger a lawful state of arrest. Without an allegation that a crime has been committed, or a court order, there is no lawful basis by which to detain any person. It seems clear, that the FDOT, the private company, and the individual toll-takers themselves might actually be guilty of a crime, namely False Imprisonment, as defined in Statute 787.02 of the Florida Penal Code.

The term “false imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will. A person who commits the offense of false imprisonment is guilty of a felony of the third degree

By keeping the gate down, they did use force directly, and with threat of force from police should they proceed, in order to imprison and/or detain those motorists against their will. Is any private agent now a "lawful authority" qualified to detain another person for any reason, so long as it is a matter of "regulation?" According to this decision, the answer is now yes. It can now be written into public codes, that you do not have Constitutional rights.

"In Florida, a person's right and liberty to use a highway is not absolute; it may be regulated in the public interest through reasonable and reasonably executed regulations," the ruling of the panel continued.

In other words, you have no Constitutional rights when you "choose" to drive on a highway. So long as it is in the public interest, or seen to be in the public interest, regulations supersede your Constitutional liberty. Not only can your rights be written off by some public code that you never heard of before, but that code can also be enforced randomly, at the personal discrimination of the agents enforcing said codes.

The "Bill Detection Report" was not filed for all cash-paying motorists, or even for all motorists paying in specific denominations such as $100's or $50's. Instead, these toll-takers had free-reign to discriminate against any motorist they chose who did not use a digital payment device, and to detain them against their will, for an indeterminate amount of time, ostensibly to fill out this report.

Detaining these motorists really is the critical factor here too. It's not as if the toll-agent was simply reviewing a videotape, to record the vehicle information and license-plate details on travelers who had paid the toll in cash. The agent physically detained these motorists, and demanded personal information from them, in order to fill out the report, before they were allowed to proceed. The concept of "probable cause" has been reduced to something as trivial and non-criminal as paying a debt/fee with cash. A presumption of guilt as these agents hold motorists against their will while seizing personal information without a warrant.

"The Chandlers (Plaintiff's) have not alleged that they were forced to pay their tolls with large-denomination bills, thereby subjecting themselves to whatever delay was caused by completion of the Bill Detection Report," the court ruled. "They chose to pay their toll with large-denomination bills. Nor have they alleged that they asked to withdraw the large report-triggering bill in favor of a smaller delay-free bill and were denied that opportunity." 

Talk about putting the cart in front of the horse. The judge's seem to be collectively ignoring the gorilla in the room to focus on semantics. What difference does it make what denomination the Chandler's paid with?! It's not as if they were paying with a check that needed to be verified by a bank, and it's not as if there was any allegation the cash might be counterfeit. By what right does one private citizen (privately contracted toll-taker) have the right to detain another private citizen (motorist) simply because of the denomination of the cash in their pocket? If such a right cannot be specified, then this case should have absolutely been decided in favor of the motorists.

The Constitution specifies nothing about cash denominations or the authority of a toll-taker. It makes no difference whatsoever whether or not the Chandlers were "forced" to pay their tolls in large denomination bills. In fact, the 4th Amendment specifies that this right "shall not be violated" and then lists the only very specific exceptions. No public code or ongoing private enterprise is listed there among the causes for a search and seizure of any kind, much less imprisoning another citizen, however briefly. Even if the toll-collector themselves were required to make documentation of a cash payment, there is still no right prescribed by which to detain a person while they perform that task.

Furthermore, there is no "bargaining clause" in the Constitution by which the Chandlers might have been obligated to bargain for their freedom by offering to pay with a lower denomination. Nor were they informed what denominations would trigger such a "delay" as the judges term it. In fact, as we have already seen, the trigger was not even the bill itself, but rather the personal discretion of the toll-collector or some other unspecified arbitrary directive. Paying with cash was not in fact the trigger, as many motorists, even paying with large bills, were not detained.  The onus is not on the plaintiff to specify why they were detained, only to show that they were in fact seized and interrogate, without a warrant or probable cause specific to their person(s).

Let us imagine for a moment, that you pump $10 worth of gas into your car on your way to work, and you go into the gas station to pay the attendant with a $20 bill. Now imagine for a moment that the clerk says "Sorry, I can't let you back out of the store until I fill out this form. You will also have to provide me with your personal information so that I can include it on the form. You are not free to leave until you comply, and the form is completed." He then proceeds to roll down the security gate, barring you from leaving. You then stand there waiting for another ten minutes while the clerk wrestles around the back room trying to find the box of forms. You watch as other customers, also paying with $20 bills come and go. Finally, after submitting your private info and the clerk takes his own sweet time filling out the form, you are released to go and explain to your own boss why you are late for your shift. Does this sound reasonable? Certainly not. Yet this is what has just been made "legal" and justified by this ludicrous decision.

Worse, it also means that from now on, probable cause is no longer based upon you specifically as a citizen, but as a blanket which can be applied arbitrarily, any place, any time, and for any reason. Probable cause does not even require the allegation of a crime anymore. For all intents and purposes, with this ruling, there is nothing stopping a state from writing a law that says police no longer need a warrant to come into your home if you use cash, or for any other non-criminal reason. Or even a private security guard for that matter. A town could pass a law which says that a store employee can hold you in their store, for as long as they want, while filling out some form or another. Or perhaps can even come into your home without a warrant, to document its contents in order to check against their own inventory of recently stolen goods perhaps. What is to stop a mall security guard from holding you in the security office, after a store clerk reports that you paid for your lunch with a $100 bill?

Now these examples may sound ridiculous, but no more ridiculous than this ruling is, because this is effectively what these judges have decided. That the 4th Amendment no longer applies to anyone unless it serves the public interest and does not violate any other code.

PDF file of the court's decision

This is not the only assault against the 4th Amendment either, in Florida specifically, revealing a pattern of efforts to eviscerate this portion of our Constitution. Read under the "Constitutionality" argument in this article:

Why Drug Testing of Welfare Recipients is a Bad Idea 

You might also like to read:

Arbitrary Arrests and the Rule of Law

America is dead, long live America.


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