Drug Dog's "Alert" to Cash Not Grounds for Forfeiture When Up to 75 percent of Currency Tainted With Drugs

FORFEITURE December 1994

The U.S. Court of Appeals for the Ninth Circuit ruled that the government did not have probable cause to seize $30,060 from a motorist based only on a drug-detection dog's reaction (U.S. v. $30,060 in U.S. Currency, CA9, No. 92-55919, Nov. 8, 1994; 56 CrL 1169; BNA Criminal Practice Manual, Nov. 23, 1994, p. 572; "Drugs Taint Most Currency in Los Angeles," Washington Post, Nov. 13, 1994, p. A4).

Key to the court's ruling was a finding that up to 75 percent of all currency in the Los Angeles area is coated with traces of cocaine or other controlled substances.

Albert Alexander was stopped by police for running a stop sign. Officers noticed a bag of money on the front passenger seat. Alexander said that he had earned the money working at a local cafe. The officers searched the car but found no drugs or drug paraphernalia. When a drug-detection dog was brought to the scene, it indicated that it found the scent of a controlled substance on the cash. When the officers checked Alexander's statement that he had made the money at the cafe, they found that the story was false. The officers concluded that there was probable cause to believe that the money was involved in drug trafficking and seized it.

21 USC 881 (a) (6) allows for the forfeiture of money "(1) furnished or intended to be furnished in exchange for a controlled substance; (2) traceable to such an exchange; or (3) used or intended to be used to facilitate a violation of federal drug laws." The court found that the dog's alert alone did not establish probable cause that the money was involved in drug transactions. Suspicions of general criminality do not sustain drug forfeitures.

The Ninth Circuit has ruled in the past that a dog's alert constitutes "strong evidence" of probable cause, but does not in itself establish probable cause (U.S. v. $215,000 in U.S. Currency, 882 F.2nd 417, 419 (9th Cir. 1989), cert. denied, 497 U.S. 1005 (1990)).

The evidence of forensic toxicologist Jay B. Williams was that up to 75 percent of U.S. currency is coated with traces of controlled substances. Williams has run tests on currency since 1982, examining $1, $2, $5, $10, $20, $50, and $100 bills from such places as banks, department stores, and restaurants in the western U.S. In Los Angeles and Las Vegas, he found that 75 percent of currency has traces of illegal drugs, while in Bozeman, Montana even 10 to 15 percent of currency is contaminated. In his affidavit to the court, Williams testified that other studies have found that because some illegal drugs are "sticky," these substances cling to bills and are transferred to other bills in cash registers and wallets.

"If greater than seventy-five percent of all circulated currency in Los Angeles is contaminated with drug residue, it is extremely likely a narcotics detection dog will positively alert when presented with a large sum of currency from that area," the court said.

IN ANOTHER CASE, a federal district court in New Mexico suppressed 32.6 kilograms of cocaine found in a search after a drug dog alerted to the defendant's luggage (U.S. v. Florez, DNewMexico, No. CR 94-0222, Oct. 17, 1994). This court allows a dog's alert to establish probable cause for a search as long as the prosecution presents a record of the dog's reliability in identifying hidden drug stashes. In this case, the defense questioned the reliability of the dog and subpoenaed the dog's record. The dog's handler admitted that a complete documentation had not been kept of the dog's record, especially when the dog alerted and no drugs were found.

"[W]here records are not kept or are insufficient to establish a drug-sniffing dog's reliability, an alert by such a dog is much like hearsay from an anonymous iformant, and corroboration is necessary to support the unproven reliability of the alerting dog and establish probable cause," the court said. "To accept less would compromise the very principles that the requirement."