A federal judge ordered the return of $1 million seized by police during a traffic stop, after police presented only a questionable drug dog sniff as evidence that the money was associated with alleged drug activity.
Nebraska state troopers pulled over a man and his wife for speeding, and obtained consent from the couple to search their car. After they found bundles of cash in the trunk, they arrested the couple for suspected drug activity – even though they did not find any drugs or drug paraphernalia. Once at the police station, they hid the money and had a drug-sniffing dog correctly identify the location of the money.
On this basis alone, they sought to retain possession of the funds, using civil forfeiture laws. Civil forfeiture allows law enforcement officers to seize assets they believe are connected to drug activity, regardless of whether they have any basis for charges or arrest against the person possessing the money. As part of the War on Drugs, it is commonplace for officers around the country to seize the funds of subjects pulled over on the highway, solely because they are carrying large amounts of cash.
In this case, the couple driving the car was not the original owner of the funds. They said they were transporting the funds for a friend they had visited in Los Angeles, who was investing the money in a New Jersey bar. The owner of the funds said she saved the money in safe deposit boxes over years of working as an exotic dancer and does not like banks.
After the initial seizure of the funds, police exchanged the cash for a cashier’s check, meaning that they no longer possessed the alleged drug-tainted bills at the time of the forfeiture.
U.S. District Judge Joseph Bataillon ordered that the money be returned, holding that “’lots of money’ is not a sufficient basis in and of itself generally for a forfeiture,” and that there is “no nexus between the currency and any illegal activity.” He pointed out that no statistical evidence was presented about the rate at which drug dogs normally can locate cash, and what percentage of all U.S. cash contains trace amount of drugs. In a 1996 dissenting opinion, U.S. Supreme Court Justice John Paul Stevens pointed out, “it has been estimated that nearly every United States bill in circulation — some $230 billion worth — carries trace amounts of cocaine, so great is the drug trade’s appetite for cash.” Just this term, the U.S. Supreme Court declined to impose higher constitutional standards on the reliability of drug dogs.
Asset forfeitures are an unfortunate outgrowth of the War on Drugs. Because police departments directly profit from assets seized, they have a perverse incentive for overreach and misbehavior, which has been borne out by reports. This is one of many incidents in which assets have been wrongly seized. But even when police have no basis for the seizure, the burden is on the individual to challenge the seizure, and it typically takes at least six months and sufficient resources to hire a lawyer.
Similar concerns have arisen when jurisdictions contract with private attorneys to handle forfeiture cases. And in a recent privatization expansion, an Oklahoma County gave a private firm a percentage of all assets seized — prompting company employees who were not even authorized as law enforcement employees to undertake their own asset seizures before a judge shut them down. Even officers at immigration checkpoints are garnering most of their seizures from small-time domestic, drug offenses, and seizing what emerges to fund continued monitoring.