FEAR-List Bulletin 12/3/94 - Another Victory in the Ninth Circuit - Federal Appeals Court Holds Drug-Dog Sniff Not Enough To Forfeit Cash

Another Victory in the Ninth Circuit: Federal Appeals Court Holds Drug-Dog Sniff Is Not Enough to Forfeit Cash

FEAR-List Bulletin December 1, 1994 - posted by Brenda Grantland

On November 8, 1994, the U.S. Court of Appeals for the Ninth Circuit again took the lead in asset forfeiture reform by putting dog alert evidence into its proper perspective.

For the past ten years, the lure of asset forfeiture revenue has prompted law enforcement officers to use dog sniffs as witch- hunting tools to seize cash -- any amount of cash -- without any other evidence of criminal behavior. So called "drug-sniffing dogs" are supposedly trained to alert to the smell of drugs on money, and their noses, police claim, are so sensitive that they can detect miniscule amounts of drugs. When dogs "alert" to cash, the officers claim that proves that the money has come into contact with drugs, therefore, the money is drug proceeds, and the person whose money was seized is a drug courier. FEAR has long pointed out the falacy of this argument -- the dog's alert may prove there is drug residue on some of the cash, but that proves nothing about the person from whom the money was seized.

In United States v. $30,060, the Ninth Circuit held that a drug dog alert has little probative value in showing that cash was connected to drug trafficking.

The court recognized the fact that "cocaine can be easily transferred simply by shaking hands with someone who has handled the drug: a pharmacist, toxicologist, police officer, or drug trafficker" (quoting Andrew Schneider & Mary Pat Flaherty's Presumed Guilty series for the Pittsburgh Press, August 1991.) A dollar bill used to snort cocaine goes back into circulation, contaminating all the other bills it comes into contact with -- in wallets and cash drawers, the court explained.

The court's opinion cited reports showing that 75% to 90% of all circulated currency in Los Angeles (the city where the seizure occurred) is contaminated with cocaine residue. The court stated:

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. Given this high degree of certainty, the probative value of a positive dog alert in currency forfeiture cases in Los Angeles is significantly diminished and "the continued reliance of courts and law enforcement officers on [such an alert] to separate `legitimate' currency from `drug-connected' currency is logically indefensible." U.S. v. $30,060, quoting Jones v. Drug Enforcement Administration, 819 F.Supp. 698, 721 (M.D. Tenn. 1993). This case is too recent to have a citation in F.3d, and apparently Westlaw hasn't yet reported it. But in the meantime it can be cited under the California Daily Opinion Service (C.D.O.S.) citation, United States v. $30,060, 94 C.D.O.S. 8532, (U.S. Ct. of App. for 9th Cir. # 92-55919, filed Nov. 8, 1994).