Court Says Gov't Has To Do More Than Say It Doesn't Believe The Property Owners If It Wants To Keep The Cash It Seized

from the so-much-for-the-K-9-unit-as-star-witness dept

The federal government thought it had laid an easy claim to someone else's cash, but the DC Court of Appeals is telling the government it's not quite as easy as it makes it out to be.

The court lets everyone know things aren't entirely normal with the first sentence of the opinion [PDF]:

This is a civil-forfeiture case, which is why the plaintiff is the United States of America and the defendant is a pile of cash.

From that starting point we arrive at two sets of claims. First, the government's:

The government claims that the cash is subject to forfeiture because it is connected to the “exchange [of] a controlled substance,” i.e., drug trafficking.

And here is the government's sole basis for this conclusion:

This case traces its roots back to March 28, 2014, when an Amtrak passenger mistakenly removed another person’s backpack from a train at Washington’s Union Station. Later that day, he opened the backpack to find a shopping bag containing $17,900 in cash.

Commendably, he turned the backpack over to Amtrak police. In addition to the money, Amtrak police officers found inside the bag a student notebook and other personal effects. One of the papers contained the name Peter Rodriguez, as did the train manifest. A police narcotics dog alerted to the backpack, suggesting the presence of drug residue.

That's basically it. A dog said it smelled drugs. Or, rather, an officer said a dog said it smelled drugs. The only other thing the government has to offer is that it doesn't believe the appellants' story about the legality of the money.

Using a contact number from the manifest, a detective with the Metropolitan Police Department called Peter Rodriguez, who gave a detailed description of the contents of the backpack—except for the money. Twice asked whether there was money in the backpack, Peter said no. Later, the detective called Peter to inform him that currency was found in the backpack, and that the bag—sans cash—could be recovered from Amtrak, though the money would remain with the MPD Asset Forfeiture Unit.

Shortly thereafter, appellant Angela Rodriguez, Peter’s mother, contacted MPD, explaining, according to the government’s verified complaint, that the cash belonged to her and her domestic partner, appellant Joyce Copeland, who lives with her in New York City. The couple, she recounted, had left the money in a bag in Peter’s apartment, but neglected to tell him that it contained currency. When Peter later announced that he was coming to New York to visit his mother, she told him to bring the bag along. Unconvinced by Ms. Rodriguez’s story, the police formally seized the currency and turned it over to the DEA, which initiated administrative forfeiture proceedings.

The government says the appellants' story is unbelievable -- that someone wouldn't just stash $18,000 in someone's backpack and not tell them about it. The court points out it really doesn't matter what the government believes.

In this case, the couple has offered sworn testimony detailing how they amassed the money, why they transported it to North Carolina, and how it ended up in Peter’s hands. In fact, there is little in the record other than their declarations. Certainly, nothing in the record directly contradicts the pair’s sworn account—no evidence that they did not travel to North Carolina, for instance, nor evidence that the cash had another source. Given our responsibility to “view[] the evidence in the light most favorable” to the couple and to “accept . . . uncontroverted fact[s],” Johnson, 823 F.3d at 705, we have little trouble concluding that the couple has asserted ownership and offered “some evidence” of ownership sufficient to withstand summary judgment.

It also points out why cash seizures in particular raise these issues, and why the government shouldn't be so quick to assume every story told by appellants is bullshit.

[B]ecause the case concerns cash, it demonstrates how challenging it can be to document ownership of property seized by law enforcement. Indeed, the very qualities that make paper money useful for illicit activity—in particular, its untraceability—often make it difficult to prove that any cash is legitimate, no matter its source. This is especially true for those in our society who rely on cash to the exclusion of banking and other financial services. As Justice Thomas has recognized, it is “the poor and other groups least able to defend their interests in forfeiture proceedings” who bear the brunt of civil asset forfeiture. Leonard, slip op. at 4 (internal citation omitted). And it is these same groups that are “more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture.” [...] So especially when cash is at issue, requiring more than “some evidence” of ownership would be onerous, unfair, and unrealistic.

The court also has nothing good to say about the government's singular insistence that the appellant's money story is made up, despite being unable to produce any evidence to the contrary. Taking the government at its word eliminates any remaining shreds of due process left in the forfeiture process.

The government’s argument perfectly illustrates why credibility determinations and the weighing of evidence are left to juries rather than judges. Government counsel may well be able to convince judges that it is inconceivable someone would choose to keep sizeable cash savings, to travel with cash, or to pay for routine expenses using cash rather than a credit card, but a jury of laypeople with different and more diverse life experiences might view these very same choices with considerably less suspicion. We are thus especially reticent to circumvent the jury process and throw out sworn testimony because it is out of line with our own lived experiences.

The appeals court reverses the lower court's decision. The government will have to do something it explicitly tries to avoid by using civil asset forfeiture rather than criminal asset forfeiture: taking a case to trial and actually having to provide more definitive evidence than "the dog said it smelled like drugs."

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Filed Under: cash, civil asset forfeiture, dc circuit appeals court, law enforcement


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  1. icon
    Hugh Jasohl (profile), 6 Jul 2017 @ 4:08pm

    Rights Violators

    Police dogs are also known as rights violators. Based solely upon the non distinguishing actions of this animal, your right to not be unreasonably searched or have property seized is thrown out.

    reply to this | link to this | view in thread ]

  2. icon
    Anon E. Mous (profile), 6 Jul 2017 @ 4:09pm

    Of course the Government and it's law enforcement partners want to keep the no evidence needed and little if any documentation or notice to those whose cash they have looted from having the paper trail to follow to fight to get their cash back.

    This is free money for both the Government and it's law enforcement partners and they have purposely tried to obfuscate how and why they seized assets or funds and make it as obstacle filled as possible to get those funds or assets back to the rightful owner and those tactics are all be design to delay and frustrate a victim into giving just giving up trying to get the funds or assets back.

    I find it amazing that agencies that are sworn to uphold the law frequently flout it and break it at will and with no consequences to be had.

    Never mind that a person hasnt even been been charged with a crime nor found guilty of one but its lets get those cash or assets at all cost so we can all get a taste.

    Used to be as a child you were taught that the policeman is your friend and is there to help you, nowadays you have to be wary of said policemen because they are out to steal your money or assets if they can, cant tell who is the good guy and the bad guy anymore

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 6 Jul 2017 @ 4:23pm

    Just Curiosity

    Has anybody tested police dogs to see which, drugs or money, they are more reliable at sniffing out?

    reply to this | link to this | view in thread ]

  4. icon
    Hugh Jasohl (profile), 6 Jul 2017 @ 4:29pm

    Re: Just Curiosity

    Has anyone tested drug dogs to make sure they aren't just allowing searches where there is no legal reason to grant them. The dogs don't get killed for too many false positives. I'm not even certain they even bother to track false hits since it still gave them permission to look through your stuff.

    reply to this | link to this | view in thread ]

  5. icon
    Discuss It (profile), 6 Jul 2017 @ 4:30pm

    Of course the dog alerted

    Two reasons the dog alerted:

    1. Because the officer expected it to alert. Either consciously or not, the officer may have acted in a way that the dog knew it would get a treat if it alerted.

    2. I read a story some years back that a lab tested around 10,000 $100 dollar bills and more than 85% tested positive for micro levels of cocaine.

    Having been employed in a job in the past that required I carry cash in order to open for business, I can tell you that I had no end of trouble with LE over it. Despite a letter on government letter head explaining that the cash was required by law, and a contact to reach out to confirm that yes, this was legal, it was frequently seized. I always got it back, sometimes later that day, sometimes later that week. In the mean time, the officers involved got a new one chewed for them when the state called up wanting to know why they didn't bother to verify the facts.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 6 Jul 2017 @ 4:51pm

    Re: Rights Violators

    Not to mention that drug-sniffing dogs might as well be tea leaves as far as a cop's ability to discern the truth from them.

    reply to this | link to this | view in thread ]

  7. icon
    stderric (profile), 6 Jul 2017 @ 4:53pm

    Re:

    I find it amazing that agencies that are sworn to uphold the law frequently flout it and break it at will and with no consequences to be had.

    That isn't really what amazes me. What I find surprising is that only a few people care about civil forfeiture until it (or other BS behavior) effects them personally; and if you mention it to someone, three times outta four you'll get labeled a conspiracy-theory-spouting libertarian anarcho-hippie. Is social evolution selecting for sociopathy?

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 6 Jul 2017 @ 5:01pm

    Re: Rights Violators

    If the dog really alerted to the bag then they should have had the bag tested in a lab. That could have provided the hard evidence they needed (even if it was falsified). Failing that, how can the dog's alleged action be sufficient evidence to warrant a forfeiture? Is law enforcement so accustomed to doing whatever they want now that they don't even bother trying to fake up their cases and just rely solely on unsubstantiated claims?

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 6 Jul 2017 @ 5:03pm

    Re: Re: Re: Just Curiosity

    Dogs will "alert" to any interesting scent. Shit, for example.

    reply to this | link to this | view in thread ]

  10. identicon
    tin-foil-hat, 6 Jul 2017 @ 5:11pm

    Re: Re: Rights Violators

    Yes. Just because the propaganda asserts it's the most free country in the world doesn't mean it's not a fascist police state. Other countries in the free world don't feel the need to talk about how free they are non-stop.

    reply to this | link to this | view in thread ]

  11. icon
    Hugh Jasohl (profile), 6 Jul 2017 @ 5:54pm

    Re: Of course the dog alerted

    This is one of the many reasons why approval ratings for congress is at an all time low. We are ready to start over again since we have recreated the circumstances that caused this country to break free in the first place.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 6 Jul 2017 @ 6:06pm

    Re:

    Trying to determine who's the good guy and who's the bad guy as regards police? The answer is simple, they're all bad guys to a lessor or greater extent. There's the really bad guys that give the police and law enforcement in general a bad name. And then there's the lessor bad guys (who would otherwise be good guys) simply because they're unwilling to discipline their own, thereby turning themselves into bad guys.

    reply to this | link to this | view in thread ]

  13. icon
    OldMugwump (profile), 6 Jul 2017 @ 6:09pm

    Re: Rights Violators

    Clever Hans. https://en.wikipedia.org/wiki/Clever_Hans

    Clever Hans was a horse that could do arithmetic and answer yes/no questions.

    Even its owner was convinced - truly - that the horse did it.

    All the horse was really doing, of course, was picking up on cues from its owner. Asked "what is 3 + 4?", the owner would show relief after Hans stomped his hoof seven times. So Hans stopped stomping.

    A famous case.

    Police dogs? Same? Who can prove otherwise?

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 6 Jul 2017 @ 6:17pm

    Re: Re: Just Curiosity

    I think that the drug dogs should have to be certified yearly by an independent service.

    But, good luck finding a service that will give true results because if they disqualify too many (read as ANY) dogs then some enterprising retired officer will start their own independent service and start FISA-ing (rubber stamping) the departments' dogs. Poof, amazingly the department has no disqualified dogs this year!

    reply to this | link to this | view in thread ]

  15. icon
    orbitalinsertion (profile), 6 Jul 2017 @ 7:22pm

    Re: Re: Rights Violators

    _That could have provided the hard evidence they needed (even if it was falsified)._

    The thing with that, though, is... you may be (wrongfully) arrested, but you can't be convicted for the smell of drugs. Go find the damn drugs. Investigate whomever. Watch them as much as investigation of a suspicion is warranted (or even allowed by superiors, given priorities and the quality of the case presented).

    That is assuming the dog alerted to something more than the scent concert venue left on the bag, or a fireworks display, or maybe burgers or donuts... or nothing.

    If there is no investigation after "seizing" the money, at the very least, then we know they are full of it. There is a good chance that if it were actual drug money, someone may be scrambling any way they can to cover that amount.

    But no, they just want to trawl everyone's communications and send people to prison for years over crumbs found under a floor mat. Call that law enforcement, because I don't.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 6 Jul 2017 @ 7:41pm

    If cash is evidence of involvement in crime I think a defense lawyer should carefully not carry cash into the courtroom, and bring this up in court. I bet the prosecutor, bailiff, prosecution witnesses and even the judge will be found to be carrying cash.

    reply to this | link to this | view in thread ]

  17. icon
    Bergman (profile), 6 Jul 2017 @ 7:58pm

    Re: Re: Re: Rights Violators

    There is also the fact that about 90% of all paper currency in the US has traces of cocaine on it, whether the owner of it is trafficking in drugs or not.

    Dogs will alert on the cash drawers of every teller station of every bank in the United States. They will alert on every grocery store cash register. They will even alert on the money in their handler's wallet.

    A dog alert is not the evidence of wrongdoing the police like to claim it is.

    reply to this | link to this | view in thread ]

  18. icon
    Bergman (profile), 6 Jul 2017 @ 8:00pm

    Re: Just Curiosity

    Given that approximately 90% of all paper money in the US has enough cocaine residue on it for a drug sniffing dog to detect, including those bills in the cop's own wallets, the fact a drug sniffing dog alerts on money doesn't actually prove anything.

    reply to this | link to this | view in thread ]

  19. icon
    Bergman (profile), 6 Jul 2017 @ 8:02pm

    Re:

    How many cops have cash in their wallets?

    Given that 90% or so of all US paper currency is tainted with enough cocaine residue for a dog to alert on, that would be a fascinating defense exhibit.

    reply to this | link to this | view in thread ]

  20. icon
    127.0.0.1 (profile), 6 Jul 2017 @ 8:17pm

    As Dog's my witness ...

    Give a dog a bone, and it will 'say' anything you want it to say, usually by wagging its tail, if it has one.

    I would love to see a drug-sniffing dog take the stand, in a jury trial, and definitively indicate what the government's lawyer has been smoking.

    reply to this | link to this | view in thread ]

  21. icon
    Rapnel (profile), 6 Jul 2017 @ 8:25pm

    I can't possibly see how any self-respecting "drug" dog won't signal on any fat pile of cash unless said wad was hot off the press. There's only so much printed money and there are never-ending piles of drugs - these two things are destined to cross paths several times over.

    The Drug War is a hugely duplicitous machine entrenched into society for truly nefarious purposes. Everyone has lost except the government and its associated pi complex. And they're damn near working on a near total loss of street cred these days - and for what seems like a lot of pretty good reasons - so I agree, fuck these guys, find actual proof or fuck off. "We're here to help." Help with what, exactly?

    Fuck the Drug War. We've lost more than we're ever going to get back freely. It's high time to stick a cork into that black-hole of freedom sucking suckiness.

    Next up: "Terror - How We Won the World" a gripping 14-hour mini-series shot in real time followed by "What Would You Like to Loose Today? One full quarter of your hard earned money or your head?" You be the decider, next week on "Fuck You, We're From the Government." showing on, uhm, all cable channels for your viewing pleasure commercial free for just five more dollars. (* Any use of pirated captions for the hearing impaired will be punishable by the loss of one hand or one eye depending solely upon the remaining parts available to us so that you too can look the part. Have a nice day.)

    reply to this | link to this | view in thread ]

  22. icon
    TKnarr (profile), 6 Jul 2017 @ 8:34pm

    Re: As Dog's my witness ...

    I'd love to see an attorney in one of these cases call up the officer and hand him a sealed envelope, telling him to put it in whatever pocket he chooses. Then he hands the judge another envelope and says "Here's the police lab's analysis of what's in the first envelope, along with the lab's statement that they placed the sample in the envelope and sealed and signed it themselves and that it's the same sample they analyzed. Let's have the dog search the officer and the officer tell us whether the dog alerted or not, then your honor can open the envelope and tell us what the dog alerted to. Sound fair?".

    reply to this | link to this | view in thread ]

  23. icon
    JoeCool (profile), 6 Jul 2017 @ 9:51pm

    Re: Re: Re: Re: Rights Violators

    Not to mention a "drug" dog will alert to ANYTHING they like. It's quite possible this dog "alerted" to the smell of cheeseburgers. Dogs sniffing out everything from bombs to cancer is the current snake oil. Future generations will laugh at how stupid a lot of today's "forensic" evidence is.

    reply to this | link to this | view in thread ]

  24. icon
    Roger Strong (profile), 6 Jul 2017 @ 10:44pm

    Re: Re: Rights Violators

    William Dillon was released in November after 26 years in prison when a DNA test ruled him out as the murderer. He was the second Florida man recently freed by DNA after being positively identified at trial by a star police dog, Harass II, whose trainer Bill Preston had sworn could amazingly track scents through water and after months of site contamination. In June, the Innocence Project of Florida said as many as 60 other convicts might have been "identified" by Harass II. According to an Orlando Sentinel report, only one judge (who's now retired) thought to actually test Harass II's ability in a courtroom, and he wrote that the dog failed badly. [Orlando Sentinel, 6-14-09]

    reply to this | link to this | view in thread ]

  25. identicon
    Bruce C., 6 Jul 2017 @ 11:24pm

    Re: Re: Re: Rights Violators

    Yeah, the "best" sniffing dogs from the police point of view are probably the ones that the handler has trained to alert on command.

    reply to this | link to this | view in thread ]

  26. icon
    Ryunosuke (profile), 7 Jul 2017 @ 12:16am

    it's almost as if the judge is saying the defendant is innocent until proven guilty... imagine that concept.

    reply to this | link to this | view in thread ]

  27. icon
    ThaumaTechnician (profile), 7 Jul 2017 @ 3:08am

    Re: Re: Rights Violators

    "..they should have had the bag tested in a lab."

    I'm pretty sure that if you went to any bank, withdrew $17K (or any amount over $100) and immediately had it tested for drugs, you'd get a positive result.

    Prevalence of Drug-Tainted Money Voids Case

    reply to this | link to this | view in thread ]

  28. icon
    orbitalinsertion (profile), 7 Jul 2017 @ 3:21am

    Re: Re: Re: Re: Rights Violators

    That's for sure. I just don't think dogs alert to anything in particular at all once they have left (proper) training. I am sure that they are completely capable of identifying many things. But they run with a less intelligent and more expectant crowd afterwards, again assuming that the training wasn't a load of horseshit in the first place.

    reply to this | link to this | view in thread ]

  29. identicon
    Anonymous Coward, 7 Jul 2017 @ 6:50am

    Re: Re:

    its no surprise the length the government goes through to keep its stolen money

    reply to this | link to this | view in thread ]

  30. icon
    tom (profile), 7 Jul 2017 @ 8:10am

    Recent studies reveal that dogs in general are far smarter then most folks give them credit for. Even if a drug dog is 100% accurate when it comes out of training, it will soon figure out that it gets a treat for an alert and that there is no punishment for a false alert, just a treat. Doesn't take the smart dog long to figure out how to play the treat game.

    In this case, even if the dog correctly alerted to a smell of drugs, the smell could have been residue left from a previous passenger's bag full of coke, or leftover smell from the kid's recent pot party in his house.

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 7 Jul 2017 @ 9:14am

    I agree, we really need to end the war on drugs once and for all. Make everything legal. If you want to use drugs, fine, it is up to you, but don't expect me to pay for your healthcare because you ruin your body and don't expect me to pay for your treatment or rush ambulances when you overdose. Personal responsibility. You OD, too bad, you die (unless you can afford someone to save you. It is your choice. This is the land of the free, lets make it the home of the brave also, a land where people make their own decisions and lives with the results.

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 7 Jul 2017 @ 10:16am

    get out of here.

    are you telling me that the govt claims a bag of money from god-knows-where having a whiff of drugs proves bad intent?

    who the hell handled that money before the present possessor and how many of those people handled drugs, too? money and door knobs are not reliable for anything other than being a great place to pick up a virus. well, ok, that's besides opening doors and making cops giggle.

    and that's assuming there really is a trace of drug odor and not just the untested govt assumptions about dogs.

    reply to this | link to this | view in thread ]

  33. identicon
    Anonymous Coward, 7 Jul 2017 @ 10:29am

    A friend of mine saw a case in NY involving a drug dog. Apparently the dog had a 4-page "resume" of all the certified training/testing hits and all the actual real-life hits it found. The dog's resume was read into evidence in order to establish its credibility as an expert witness.

    That doesn't say anything about the veracity of the sniffing-dog idea, but it was fascinating.

    reply to this | link to this | view in thread ]

  34. identicon
    Anonymous Coward, 7 Jul 2017 @ 11:22am

    Re: Re: Rights Violators

    Drug-sniffing dogs are tea leaves. Cockney rhyming slang: tea leaf = thief.

    reply to this | link to this | view in thread ]

  35. identicon
    David, 7 Jul 2017 @ 12:46pm

    Re: Re: As Dog's my witness ...

    Well, I suspect that some of the more honest (and/or gullible) dog handlers likely employ them (unconsciously) like a dowsing rod: something that's good for bringing the handler's unconscious hunches to the surface. Dogs are really good at that, probably more surprisingly so than they are at smelling.

    So in this case it would be important to work with a double blind test where no-one in the court room actually knows about the substance (or its absence) in the sealed letter.

    reply to this | link to this | view in thread ]

  36. identicon
    David, 7 Jul 2017 @ 12:47pm

    Re:

    Stuck in antiquity.

    reply to this | link to this | view in thread ]

  37. icon
    That One Guy (profile), 7 Jul 2017 @ 1:56pm

    Re:

    Apparently the dog had a 4-page "resume" of all the certified training/testing hits and all the actual real-life hits it found.

    I certainly hope they included all the false positives as well, as one without the other is completely useless at establishing accuracy rates. Ten validated hits is good if you're looking at ten-ish searches, but if it's paired with ten or more false positives then it's no better than a flip of a coin if not worse.

    reply to this | link to this | view in thread ]

  38. identicon
    Anonymous Coward, 7 Jul 2017 @ 11:00pm

    Re:

    This is free money for both the Government and it's law enforcement partners and they have purposely tried to obfuscate how and why they seized assets or funds and make it as obstacle filled as possible to get those funds or assets back to the rightful owner and those tactics are all be design to delay and frustrate a victim into giving just giving up trying to get the funds or assets back.

    You are wrong in the first point. The government creates currency by fiat. They never ever have to steal it as free money.

    However, your unrelated second point is correct as it is a easy way to control what happens to select portions of society. If you take away the wealth of the people, you control how they can interact.

    The fiction that currency is money is also a means of controlling a population. The US dollar is backed by nothing just like most if not all other currencies worldwide.

    reply to this | link to this | view in thread ]

  39. identicon
    Anonymous Coward, 7 Jul 2017 @ 11:15pm

    Re:

    Where are the Cardassian courts when you need them?

    reply to this | link to this | view in thread ]

  40. identicon
    Anonymous Coward, 8 Jul 2017 @ 6:01am

    They Rape, But They Save

    I can't even wrap my head around the argument, "because I say my dog said." Tangentially, and I hope inoffensively derivative is the following...

    Police in Douglas County, Georgia are driving a brightly painted truck around the negro neighborhoods and getting hugs from all the little children in order to help them learn to love the po-po [ http://www.fox5atlanta.com/news/266608109-story ].

    The cops are "buying" their hugs with ice-cream. The cherry on top is that the funds for the program come from asset forfeitures of "drug-money." How much more Orwellian could this program be?

    Yikes! That last question was sardonically rhetorical when I typed it, and then it occurred to me to wonder...what's in the ice-cream?

    reply to this | link to this | view in thread ]

  41. identicon
    Rekrul, 8 Jul 2017 @ 9:32am

    Civil forfeiture should be illegal. Even if the property is accused rather than the person who owns it, what happened to being presumed innocent until proven guilty? In a forfeiture case, the property is presumed guilty until proven innocent in direct contravention of the law.

    reply to this | link to this | view in thread ]

  42. identicon
    Anonymous Coward, 8 Jul 2017 @ 9:32pm

    Re: Re:

    Down the hall to the left, just past the Kardashian courts.

    reply to this | link to this | view in thread ]

  43. icon
    Spaceman Spiff (profile), 10 Jul 2017 @ 1:45pm

    The dog "smelled" drugs?

    Just about every US currency bill in circulation has a residue of drugs (mostly cocaine). My shoes probably would get a "positive" hit because I walk on public sidewalks!

    reply to this | link to this | view in thread ]


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