In an opinion by Chief Judge Edmondson, the Eleventh Circuit reversed a $242,484 forfeiture order and instructed the trial court to enter a judgment for the claimant. The appellate court held that "the government’s case falls short of the probable cause line." Since the government failed to establish an adequate link between the money and any illegal drugs alleged in the forfeiture complaint, the claimant was not required to prove she had a legitimate source of the cash seized from her by the DEA.
Steven L. Kessler, former head of the New York state forfeiture office who now represents people challenging government claims, commented on the appellate court reversal of the forfeiture order: "Enough smoke in the past has been the basis for forfeitures, and I think the 11th Circuit at least is saying, ‘We need a little bit of a fire. The smoke itself won’t do it.’"
The January 23 decision ordered return of the cash seized in 1998 from Deborah Stanford, owner of Mike’s Import and Export in Florida. Ms. Stanford was en route to Miami in December 1998 when airport security officers in New York questioned her about her packages, and she replied they contained money. She caught her flight as security notified the U.S. Drug Enforcement Agency.
Six Florida DEA agents waited at the airport gate for Stanford’s flight to arrive. At the request of two of the agents, Stanford gave them her ticket and identification. They verified her name and returned the items. The agents asked her if she was carrying drugs or money, and she said she was carrying about $200,000 cash in her backpack. Stanford gave one of the agents permission to look into her backpack. The agent saw a "Christmas bag type package," into which he poked a hole revealing bundles of cash.
The agents asked Stanford to accompany them to the DEA office. She agreed, and upon further questioning told them she was in New York for a court case. She later said she was there to pick up money. According to court records she could not, or would not, reveal where she stayed in New York nor who gave her the cash other than to say that she received a call from her brother, who told her to meet some people and pick up money for Mike’s Import and Export. She did not produce any documentation connecting the currency to Mike’s.
The agents brought in "Rambo," a drug-sniffing dog, and placed the backpack in a hallway with other packages of similar weight and shape. The dog alerted on the backpack with the cash and agents took the money in exchange for a receipt for the seized currency. No criminal charges were filed, but federal prosecutors sought civil forfeiture of the money, claiming it was linked to drug crimes.
The appellate court stressed that because the forfeiture was based on 21 USC 881(a)(6), the drug proceeds forfeiture provision, "not just any criminal activity will support the forfeiture: the form of the criminal wrongdoing must involve ‘the exchange of a controlled substance.’"
The district court had relied on a number of circumstances to establish its finding of probable cause: (1) "the quantity of cash and its physical condition;" (2) "the route and circumstances surrounding Ms. Stanford’s travel;" (3) "Ms. Stanford’s lack of knowledge concerning the circumstances surrounding her trip to New York and the receipt of this money, including her inability to identify from whom she received it;" (4) "that Ms. Stanford twice was a ‘no show’ for her scheduled departure from New York to Miami;" and (5) "a narcotics dog alerted on the cash."
The appellate court found Stanford’s inability or unwillingness to state where she stayed in New York or identify the persons who gave her the cash to be "troubling," stating that such "evasive answers are suspicious and add to the Government’s case for probable cause." However, the Eleventh Circuit held that:
under the law, a claimant is under no duty to show that "the property derived from a legitimate source" until the Government first can establish probable cause of a substantial connection to a controlled-substance transaction.2 Allowing the Government to base probable cause on the failure to identify a legitimate source of the currency unlawfully reverses this burden. Stanford’s failure to identify the people who gave her the currency and to provide receipts is relevant to her ability to show a legitimate source or innocent ownership, but she is not required to make this showing until the Government establishes probable cause.3
The appellate justices also agreed with the district court that "the narcotics-detection dog’s alert to the currency is also worth noting, although perhaps worth little else" in the totality of circumstances of the case, stating: "The probative value of dog alerts to the smell of narcotics on currency has been called into question of late.4 Testimony indicated that as much as 80% of money in circulation may carry residue of narcotics."
The court noted the irony that on the day after seizing the cash the DEA exchanged this drug-tainted currency for a cashier’s check at a local bank, where the currency was possibly placed back into circulation for innocent people to possess. The court concluded "the dog alert, at best, tells us that this currency (like most circulated currency) may have been exposed, at some point, to narcotics."
The Eleventh Circuit reversed the forfeiture order, concluding:
Given the weakness of the elements presented, and the complete lack of evidence connecting the seized money directly to illegal narcotics, the Government’s case falls short of the probable-cause line. This citizen can keep her property.
1. United States v. $242,484, 11th Cir. (2003) No, 01-16485, DC Docket No. 99-01259 CV-DMM
2. $121,100.00, 999 F.2d at 1505. 3. Id.
4. See United States v. $506,231 in U.S. Currency, 125 F.3d 442, 453 (7th Cir. 1997); United States v. $53,082.00 in U.S. Currency, 985 F.2d 245, 250 n.5 (6th Cir. 1993).