Volume 43, Issue 2 (Spring 2025)
By Louis S. Rulli*
Civil forfeiture is widely criticized for incentivizing law enforcement to forfeit property from law-abiding owners for agency profit. This Feature examines a nefarious and underdiscussed police tactic—roadside waivers—that is used to obtain consent from motorists during highway traffic stops to permanently seize their cash and waive all hearing rights to challenge the forfeiture of their property.
On interstate highways, police pull over unsuspecting motorists for minor traffic violations and then prolong traffic stops in search of drugs and cash. When police find cash, but not drugs, they falsely threaten motorists with money-laundering charges. Police then confront motorists with pre-printed waiver forms that permanently forfeit their cash and waive their notice and hearing rights. Motorists are isolated on the side of the road, have no access to legal help, and are understandably intimidated by the threat of criminal charges. They are coerced into signing roadside waivers on the promise that by doing so, they can go on their way without any criminal charges. Under such duress, innocent motorists surrender their money and their rights.
The police in Tenaha, Texas, were infamous for their aggressive use of roadside waivers, and their tactics have served as a blueprint for similar abuses across the country. This Feature recounts the stories of motorists stopped in diverse locations to show that state and local police tactics are strikingly similar. Police use intimidation, isolation, false threats of crimes, and promises of leniency to induce motorists to sign over their property and their rights on interstate highways.
These abusive police tactics have led five states to enact legislation prohibiting roadside waivers, and other states have similar legislation pending. This Feature calls for a universal legislative ban that prohibits all law-enforcement officers—police and prosecutors—from inducing a person to waive their property or hearing rights before (and unless) a civil forfeiture action is filed. Such legislation should declare void and unenforceable any waiver document that is executed before a civil forfeiture action is filed. Without a comprehensive ban, police will continue to use roadside waivers to forfeit lawful cash while evading procedural reforms enacted by thirty-seven states over the past decade to protect innocent property owners.
This Feature also urges judges to declare roadside waivers per se unenforceable when they are challenged in court. Roadside waivers fail under well-established contract principles and constitutional demands. Roadside waivers lack consideration and are the product of intimidation, coercion, and duress. They violate public policy and infringe upon Fourth Amendment and due-process concerns. And, in some states, roadside waivers deprive property owners of jury rights. The invidious nature of roadside waivers and the intimidating circumstances under which they are executed demand blanket unenforceability without the need for individual fact finding.
Finally, this Feature contends that prosecutors violate their special duty to facilitate procedural justice when they draft, accept, or process roadside waivers. The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has already cautioned prosecutors about their ethical duties when entering into plea bargains with unrepresented persons in misdemeanor cases, and this guidance should provide clear warning that prosecutors violate their ethical responsibilities when they deprive innocent motorists of their property and hearing rights through roadside waivers.
