The old joke asks why Willie Sutton robs banks. The answer is the obvious: Because that’s where the money is. While states are legalizing the sale of marijuana, whether for medicinal or recreational use, there’s a gaping hole between businesses legally growing and selling marijuana and where the money from its sale goes.

The dashboard camera video shows eastbound Interstate 70 traffic whizzing past Dickinson County sheriff’s deputy Kalen Robison’s patrol car, which is parked crosswise in the median about three miles west of Abilene.

Robison suddenly pulls out into the left lane, accelerates rapidly and within a couple of miles pulls behind a white van, which immediately moves onto the shoulder and stops. As he walks up to the passenger-side window of the van, which turns out to be an armored vehicle, he tells dispatchers he believes the van has Colorado plates.

Robison tells the driver he pulled her over because the tag was partially obscured, then asks what she is hauling.

From this traffic stop, a series of events unspooled that resulted in more than $1.2 million being seized in what an attorney describes in a court filing as “the repeated and continuing highway robberies of armored cars by government agents.”

After breathless discussion, it was decided that even if the sale of marijuana was legal, the transporting of marijuana proceeds across state lines was not. And with the blessing of prosecutors, law enforcement began stopping the armored vans of Empyreal, which was started for this purpose with highly specific processes and training because of the nature of the cash in the back.

“I decided to start Empyreal with hopes of trying to fix some of the challenges that I experienced on the other side of the service model, being a financial institution working with armored car companies,” [Empyreal CEO Diendra] O’Gorman said. “I have prided myself on my career being focused on compliance and helping financial institutions with their Bank Secrecy Act and Anti-Money Laundering [Act] compliance. It’s been everything that we do and every part of the equation for us, making sure that we are following the rules.”

O’Gorman said many people think there are no banks or other financial institutions that will accept money from marijuana dispensaries. There are many that will—at least 700 nationwide, she said—but the banks impose rigorous reporting and record-keeping requirements.

“It’s a pretty hefty compliance list,” she said.

While Empyreal would have to be pure as the driven snow, in compliance with the morass of regulations regardless of their consistency or clarity, no similar duty exists for law enforcement. If ever a situation cried out for judicial intervention, this was it. Here were armored cars carrying cash proceeds from lawful marijuana dispensaries targeted by cops, because that’s where the money was.

Empyreal filed a lawsuit last month against Dicus, U.S. Attorney General Merrick Garland, FBI Director Christopher Wray and Anne Milgram, administrator of the Drug Enforcement Administration, in response to traffic stops and subsequent seizures of more than $1 million in cannabis business proceeds from two of its vehicles on Nov. 16, 2021, and Jan. 6, 2022.

The lawsuit demands that the defendants stop targeting Empyreal for what the company claims are illegal seizures amounting to “highway robbery.”

Granted, calling it “highway robbery” is a bit cutsie, but if ever such a characterization was appropriate, it would seem this was the case.

In a decision [January 31, 2022] to deny a temporary restraining order sought by Empyreal Logistics, U.S. District Court Judge John W. Holcomb said the firm had not proven it and its customers are in compliance with California’s medical marijuana laws or that Sheriff Shannon D. Dicus had exceeded his legal authority.

“Empyreal has not come close to meeting that burden,” he said.

Judge Holcomb had some harsh words about the case. Not for the police tactics of targeting marijuana proceeds, but for Empyreal.

“The court is compelled to express its concerns regarding Empyreal’s litigation tactics,” District Judge John W. Holcomb wrote.

Holcomb advised attorneys for Empyreal to stop cutting procedural corners and reminded them of their obligation to be candid with the court.

What set Judge Holcomb off?

As an example, he cited a declaration from Empyreal Chief Executive Officer Deirdra O’Gorman that “most” of the company’s cannabis-industry clients hold medical marijuana licenses.

“The word ‘most’ implies that some of Empyreal’s cannabis-industry clients do not hold medical cannabis licenses,” Holcomb said.

O’Gorman also testified that “three of the four” cannabis businesses whose cash were seized by the San Bernardino County Sheriff’s Department have state-issued medical marijuana licenses.

“The court can only presume that the fourth business did not hold such a license,” Holcomb said. “Because Empyreal has not shown by a preponderance of evidence that it has strictly complied with California’s medical marijuana laws, it has not demonstrated that the federal Defendants’ actions were beyond their authority.”

Whether this means that Empyreal fell short of being sufficiently “pure” in its processes to overcome the stringent regulations, which would frankly fall on Empyreal’s shoulders given the nature of their business and their claim to be in strict compliance, or some other issue is unclear. There remains the issue that if one of the four customers’ licenses is in question, what about seizure of the lawful proceeds of the other three? Then again, there’s the problem of co-mingling, although strict record keeping should suffice to overcome the issue.

Though the temporary restraining order was rejected, the Virginia-based Institute for Justice, which is representing Empyreal, said Wednesday the lawsuit will move ahead in an effort to prevent the Sheriff’s Department from illegally targeting the company’s vehicles, said senior attorney Dan Alban.

The lure of sweet money under civil asset forfeiture is strong, and unlike stops where cops are raised on robbery of out-of-state drivers with a few hundred dollars in their pockets and no wherewithal to fight the government’s in rem forfeitures, this is a big money battle for who gets to keep the  huge amounts of cash that the police know will be found in the back of an armored car. But as marijuana becomes legalized, the ancillary needs such as transferring cash from dispensaries to banks can’t become a cash machine for the cops if legalization has any chance of succeeding.