Court Says Government Needs More Than The Permission Of A Couple Of Underperforming Drug Dogs To Justify Seizure Of $276,000
from the evidence:-it's-a-thing dept
The Seventh Circuit Appeals Court has done something few courts do: told law enforcement it can’t have that sweet, sweet “drug” money it lifted from two brothers for no other reason than that it felt there was something shady about its very existence.
Police responded to a call about a home invasion at the residence of Pedro and Abraham Cruz-Hernandez. While inside the house, officers came across a handgun, a small amount of marijuana and a scale. This apparently prompted the arrival of two drug dogs, considering they’re not usually standard equipment for home invasion investigations.
When searching the brothers’ van, police found $276,080. So, they took it. Why? Because their dogs said they could.
A police drug dog signaled the presence of drugs in Pedro’s van, which was parked outside the house. After obtaining a search warrant, the police discovered in the van a safe containing $271,080 in currency and two pages of handwritten notes including dates and numbers. The cash was bundled with rubber bands in stacks of $5,000. A second dog alerted to the safe. No drugs, however, were found in either the van or the safe.
It didn’t matter that neither drug dog could adequately perform the single task required of them. The “alerts” were all the justification law enforcement needed to rob the brothers of their money.
As is standard operating procedure in asset seizures, no charges were brought but the “guilty” money remained in the possession of law enforcement. The brothers challenged the forfeiture. The government then tried to use a mistake any person could have made to justify its possession of the brothers’ money.
The government also pointed to two alleged disavowals of ownership by Abraham: (1) a record created by U.S. Immigration and Customs Enforcement (ICE) six weeks before the police seized the safe, in which Abraham had said that he did not have any “equities” in the United States, and (2) Abraham’s application for cancellation of removal, filed with the assistance of immigration counsel six months after the seizure, in which he lists only $2,000 in “cash assets.” The government represented that Pedro and Abraham, when deposed, had testified that they told the truth to the police and to immigration officials.
The problem here is that Abraham was asked to list his cash assets. A normal person not versed in the convoluted fuckery that is asset forfeiture would reasonably conclude that his assets only include what’s actually in his possession. As the government was still in possession of the $276,080 at the point Abraham was asked, he reasonably concluded he could only legally claim the $2,000 he had access to. The government took this reasonable conclusion and twisted it to mean Abraham had relinquished his claim on the $276,000.
In legal terminology, the government claimed the contradictory statements constituted a “sham affidavit.” The court doesn’t see it the government’s way, though. (Emphasis in original.)
Changes in testimony normally affect the witness’s credibility rather than the admissibility of the testimony, and thus the sham-affidavit rule applies only when a change in testimony “is incredible and unexplained,” not when the change is “plausible and the party offers a suitable explanation such as confusion, mistake, or lapse in memory.”
Abraham’s explanation for his answer on the immigration form is not only plausible, but is correct. We suspect that many people—in particular immigrants completing a form for ICE—would not be aware that a legal claim is an asset. But whether they would or not, a legal claim—even a claim to money—is not itself a “cash asset.” See CASH, Black’s Law Dictionary (10th ed. 2014) (defining cash as “1. Money or its equivalent; 2. Currency or coins, negotiable checks, and balances in bank accounts.”). Moreover, when deposing Abraham the government’s lawyer did not ask about his understanding of a “cash asset” or whether his attorney had explained the definition of that term. There is no reason, therefore, to reject out-of-hand Abraham’s deposition testimony that he had been truthful in his immigration filings.
Not only that, the court notes, but an element common to nearly all asset forfeitures doesn’t help the government’s case much.
It is also telling that the government has presented virtually no evidence that the brothers are involved in drug trafficking. There was nothing to indicate past or current drug dealing by the brothers or anyone else living with them in the house, nor was there any suggestion that either brother used the bedroom where the apparent drug paraphernalia was found. Though drug dogs had alerted to the safe and currency, the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance.
(Given this limited sampling includes both dogs “claiming” drugs were present when no drugs were, it’s likely the government felt records on training, methodology and field performance would only have made its case weaker.)
Neither did the government point to evidence (e.g., an experienced drug investigator’s opinion) to substantiate its assumptions that the notes found in the safe were a “drug ledger” or that counting and bundling currency is something that only drug dealers would do. “Absent other evidence connecting the money to drugs, the existence of money or its method of storage are not enough to establish probable cause for forfeiture,” much less enough to meet the now-heightened standard of a preponderance of the evidence.
And, finally this little kick to the government’s ribs:
Courts have concluded that the government failed to meet its burden in cases with better evidence than this [one]…
And with that, the Appeals Court sends it back to the lower court with the judgment in favor of the government vacated. Considering the brothers appear to have “substantially prevailed,” the government may find itself cutting a check for legal fees. In hindsight, it would have been smarter to have returned the money when it became apparent there was no basis for a criminal case. But that’s not how the government rolls. Cash is presumed guilty until proven innocent, even when it’s little more than two underperforming drug dogs and a small baggie of marijuana “justifying” the seizure.