The arrest of 30-year-old Norman Gurley in northeast Ohio last November made national news and provoked widespread indignation among civil libertarians.
Gurley was driving a friend’s car when police stopped him for speeding. After an hours-long roadside search, the officers did not find any of the marijuana they say they smelled, nor did they find any other contraband.
But they booked Gurley, who has no criminal record, anyway, after finding an empty hidden compartment in the car.
“There was a claim by police that they felt he met a particular profile,” said Gurley’s attorney, Myron Watson.
Gurley is the first person arrested under a new Ohio law that makes it a crime to knowingly have a secret compartment in one’s car.
Now similar legislation is under consideration in Virginia. Introduced by state Sen. Chap Petersen (D-Fairfax), SB 234 would make knowingly having a secret compartment a Class Six felony, punishable by up to five years in prison and a $2,500 fine.
“It’s a tool in the toolbox for law enforcement,” said Petersen, who filed the legislation at the suggestion of the Fairfax County Organization of Police. “It really hits at human trafficking and drug smuggling.”
But according to Rebecca Glenberg, the legal director of the American Civil Liberties Union of Virginia, the bill raises serious constitutional concerns.
“This law makes a criminal out of anyone who has a car with a hidden compartment,” said Glenberg, “regardless of whether that person has engaged in any actual wrongdoing related to carrying drugs or any other contraband.”
A law-abiding person may want to put valuables in a hidden compartment when parking in a high-crime area, for example.
In addition to imposing fines and prison time, the bill, which is before the Virginia Senate Committee for Courts of Justice, also authorizes police to seize vehicles via civil asset forfeiture.
With civil forfeiture, police can seize property even if the property owner is not ultimately charged with a crime.
Nor does being acquitted of a criminal charge mean motorists automatically get their car back.
“The burden of proof is less in a civil forfeiture case than in a criminal prosecution,” said David Smith, an Alexandria-based attorney who helped draft asset forfeiture reforms at the federal level in 2000. “So the fact that you were acquitted would not prevent the government from trying to civilly forfeit the property.”
Unlike in criminal trials, in civil forfeiture hearings the government does not have to prove its case beyond a reasonable doubt.
Motorists could thus face a second trial to get their property returned.
“If the jurors don’t think drugs [are] involved they might not agree to convict,” said Smith, “and then the government could try its luck again with civil forfeiture.”
Current Virginia law provides police with a strong incentive to pursue forfeitures: Law enforcement keeps 100 percent of the proceeds, according to a report by the Institute for Justice, a libertarian nonprofit law firm that defends property owners in forfeiture cases.
Back in Ohio, prosecutors have asked a grand jury to indict Norman Gurley, said his attorney, Myron Watson.
If indicted, Gurley plans to challenge the constitutionality of Ohio’s hidden compartment law on Fourth Amendment grounds.
But an indictment is not a sure thing. “The vehicle was titled in someone else’s name,” said Watson. “So [prosecutors] probably have a big problem showing the proof of knowledge that the vehicle had a compartment in the first place.”
If SB 234 passes without revisions, Virginia officials could take a vehicle like the one Gurley was driving, even if prosecutors cannot secure an indictment.
The bill could strip otherwise law-abiding Virginians of their ride to school or work, said the ACLU’s Glenberg.
“Forfeiture laws can have devastating impacts on people who are not involved in any wrongdoing whatsoever,” said Glenberg.
In an interview Thursday, Sen. Petersen said that he is amenable to revising the bill.