Dog Days for Forfeiture

Everyone's cash is drug money.

One of the government's treasured tools for seizing money from citizens appears to be going to the dogs.

In November, the Ninth Circuit Court of Appeals in California upheld a grant of summary judgment in the case of U.S. v. U.S. Currency, $30,060. The cash belonged to Albert Alexander, a Los Angeles-area man pulled over for running a stop sign. He had the money sitting in the front seat in a plastic bag in banded stacks of $1,000 each. The amount, the cops argued, is almost exactly equal to the street price of 2 kilos of cocaine. On the evidence of this and the positive reaction of a drug-sniffing dog to the money, he was arrested and his money impounded. Alexander claimed he was going to use the money to buy an interest in a friend's business.

The criminal charges against Alexander were dismissed, but the feds stepped in and tried to claim his money as drug-related, and thus subject to forfeiture. Jerold Bloom, Alexander's attorney, argued that the drug-sniffing dog's reaction to the money wasn't sufficient proof that the money had anything to do with drugs. Various forensic surveys of American currency have shown that the percentage contaminated with cocaine, especially in big cities, ranges from 75 percent to 97 percent.

Says Barbara Grantland, national president of Forfeiture Endangers Americans' Rights (FEAR), "The sorting belts at the Federal Reserve have this residue on them. Janet Reno's money has drugs on it. You have money with drugs on it in your pocket right now."

Based on the questionable link between carrying drug-contaminated money and dealing drugs, the appeals court agreed to throw out the case. (The feds have until December 22 to decide to call for a rehearing, or failing that to appeal to the U.S. Supreme Court.) This was the first appeals court decision to be decided on this basis, though a previous district court case in Tennessee, Jones v. Drug Enforcement Administration, came to a similar conclusion that was not appealed.

"I'm surprised they went as far as they did for just $30,060," Bloom says, then admits that the principle is probably more important to the feds than the money.

The principle is important because dogs are an important part of the Drug Enforcement Agency's repertoire, says Rick Barnett, a San Diego lawyer specializing in forfeiture cases. He says the precedent set will "absolutely" be important. "Tons of forfeiture cases, especially airline cases, depend on those dogs." Grantland of FEAR also emphasized the importance of drug-sniffing dogs in airports, where they are used on anyone who fits a preset profile, such as anyone carrying or using large amounts of cash.

Lee Arian, the assistant U.S. attorney who argued the appeal for the government, thinks they could have won if he could have argued at the district level that the trace amounts that have been found to contaminate most currency might be too small for a dog to detect, and that a dog's alert is still meaningful.

Grantland, though, calls using dogs to identify money as coming from drug dealing "a hoax" because big-time drug dealers don't tend to store their cash in the same bag as their drugs. So, he says, any drug presence on money is a sign, at best, of "use, not distribution." Barnett says that the problem with the dogs is that they are too sensitive. "We don't know if they are reacting to a bale of marijuana in a locker or some residue from a jacket that someone was wearing when someone walked by them smoking."

The next important step, Barnett says, will be for a decision that says dog alerts are not sufficient probable cause to even conduct a search.