Seventh Circuit: Rubber Bands and Dogs Insufficient to Keep Cash
Apr. 29, 2016 (Mimesis Law) —It is not true that drug dogs are as accurate as coin flips. Only a very skillful person can determine a coin flip’s result ahead of time. But any competent officer can nudge his dog to alert in the presence of a suspicious minority, a car too nice for the neighborhood, or a motorist who insists on mouthing off and might be in line for a little inconvenience. Drug dogs are very accurate. Just not for finding drugs.
And another thing about coin flips. The other person, inconveniently, often demands to see the result. They might even notice that the coin comes up heads 70% of the time, and start to get a little suspicious. But drug dogs, thankfully, are immune to this sort of cynical empiricism, thanks to a handy United States Supreme Court opinion decision finding that a doggy diploma is just as scientifically valid as, say, determining future performance based on past results.
But, even courts have limits to their credulity, as a recent Seventh Circuit Court of Appeals decision shows.
There were these two Hispanic men, Pedro and Abraham Cruz-Hernandez. They made the mistake of reporting an armed home invasion. Once the police arrived and saw “a handgun, a digital scale, and a small amount of marijuana in a baggie,” though, all pretense that they cared about solving the crime vanished.
For some reason, a police drug dog was there on the scene. Typically, they aren’t very useful for investigating burglaries and home invasions. But this drug dog, presumably taking a break from checking for fingerprints, alerted to a van in the driveway. That alert meant that the van contained drugs. Or, at the very least, at some point there had been drugs in the car. Or that it contained cheese and sausages.
Based on the alert, the officers toddled off to a magistrate and got a search warrant. Inside the van, they found absolutely no drugs. But they did find $271,080, neatly bundled up with rubber bands. And that was way better. Because now, under the ancient theory of finders keepers, they could seize the money as contraband and dare the rightful owners to try to take it back.
When the brothers did bring suit, the government had an ace up its sleeve. Six weeks before the money was seized by the authorities, Abraham had told an immigration official that he did not have any “equities” in the United States. Even more damningly, six months after his money was stolen by officers, he told an immigration official that he had only $2,000 in cash assets.
That last one was a big deal. See, as the government pointed out, Abraham’s legal claim to the money that had been taken from him was itself a “cash asset.” And his failure to understand that legal term of art meant that he was basically saying he had never had the money at all. And the District Court bought this argument, granting summary judgment to the feds even though the brothers could substantiate that they had earned $680,000 over the course of their time in the United States, which, minus costs, came out to around $270,080.
Fortunately, the 7th Circuit was a little more dubious of this claim:
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.”)
See, not only was the government wrong to hold a reasonable misunderstanding against Abraham, it was the government itself that failed to look up the dictionary definition of an English word, hoping that its mere say-so would turn Abraham’s innocent (and truthful) statement into a quarter of a million dollar windfall for the feds.
But even if the brothers hadn’t lost all standing through their “admissions,” the government was still prepared to argue that the alert of a drug dog to a pile of money is enough to prove that the money is involved in drug trafficking when included with such other incriminating evidence as “rubber bands,” “a list of names,” and “living in the same home as someone who possesses a small amount of marijuana.”
Except the feds expected the Court of Appeals to just assume that drug dogs are reliable, as the United States Supreme Court typically does.
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.
The Seventh Circuit reversed the District Court’s grant of summary judgment to the government and remanded the case for further proceedings, including a possible jury trial. This is no windfall for the brothers, who must still find a way to pay for legal counsel to vindicate their rights.
But these are the victories that the American people must settle for when every dog has his day, every police department has an asset sharing program, and every citizen with more than a hundred dollars in cash has a giant bullseye on his back.