the only evidence linking the
seized money to illegal drug activity is a canine sniff that alerted
officers to the presence of narcotics on the currency itself and the
exterior of the rear passenger side of the rental car where the
currency was discovered. However, as Justice Souter recently
recognized, a large percentage of currency presently in circulation
contains trace amounts of narcotics.
1
As a result, this fact is virtually "meaningless and likely quite
prejudicial."
2 Our decision in
$ 84,615 in U.S. Currency to afford
this evidence only "slight" weight is thus well-founded.... [T]he mere
fact that the canine alerted officers to the presence of drug residue
in a rental car, no doubt driven by dozens, perhaps scores, of patrons
during the course of a given year, coupled with the fact that the alert
came from the same location where the currency was discovered, does
little to connect the money to a controlled substance offense.
3
That precise language, however, was
drawn from one of our decisions,
4
and the government in this case presented no expert testimony or other
scientific evidence that might warrant a stronger inference.
5 The significance of canine alerts
is largely a scientific question, and absent a developed record, we
decline to expand on our previous pronouncements in this area.
The law of our circuit makes clear that
the possession of a large amount of cash provides strong evidence of a
connection between the res and illegal drug activity. Yet this fact is
not dispositive. A faithful reading of the cases cited by the majority
from our court reveal that we have required some additional nexus
between the property seized and drug activity to support forfeiture. In
United States v. U.S. Currency, in
the Amount of $ 150,660.00, 980 F.2d 1200 (8th Cir. 1992), we
recognized such a nexus where the investigating officer immediately
smelled marijuana upon inspecting the currency. n2 Id. at 1203, 1206.
In United States v. $ 84,615 in U.S.
Currency, 379 F.3d 496 (8th Cir. 2004), we concluded forfeiture
was proper where the owner of the seized currency "undisputedly
possessed illegal drugs at the time" the currency was discovered. Id.
at 502. Most recently, in United
States v. $ 117,920.00 in United States Currency, 413 F.3d 826
(8th Cir. 2005), we determined that forfeiture was warranted where
materials known to be used to package and conceal drugs were recovered
in close physical proximity to the seized currency, and where the
investigating officer detected the smell of marijuana on some of these
materials. Id. at 829.
n2 Unlike our decision in U.S.
Currency, in the Amount of $ 150,660.00, the odor of narcotics on the
currency seized in this case was not apparent upon inspection, and thus
there was no immediate relationship between drugs and the currency
which would suggest the currency had recently been involved in a
controlled substance offense.