MWD (Photo credit: U.S. Embassy Montevideo)
On December 4th, A.D. 2012, Supreme Court of Louisiana issued an opinion in the matter of case number 2012-K-0466, styled:
“STATE OF LOUISIANA
VERSUS
$144,320.00 TINA BEERS
132 WOODY LANE,
SILVER CITY, NC 27344, ET AL.”
The case was based on a traffic stop. A Louisiana traffic cop stopped a woman (“Tina Beers”) driving a van from North Carolina and asked for permission to search her vehicle for drugs. She consented, and he subsequently found nine bundles of cash hidden in the van that were worth $144,320. The “State” found no drugs in her van, and never charged the woman with any crime, but did seize the cash. (Of course.)
The woman and her sister subsequently made a motion to overturn the seizure for lack of probable cause. The trial court ruled against the sisters’ motion. The appellate courts ruled for, against and then for the motion. The Louisiana Supreme Court ruled against the motion.
The Supreme Court’s opinion is about 19 pages and offers a lot to be learned. But one aspect of the case that intrigues me is the traffic cop’s reliance on a drug-sniffing dog to justify the seizure of the cash.
In general, I think it’s absurd, insulting and degrading to allow the police to rely on the quasi-testimony of a damned dog to find people guilty of anything. How can any defendant cross examine a dog “witness”?
I agree that a dog might be used to raise some suspicion, but a dog’s signals should not, in themselves, constitute evidence. A dog is like a metal detector at the door of a court house. If the detector buzzes, it’s not proof that someone is committing a crime by packing a guy or knife. It’s only evidence that they may be packing some metal. Once the metal detector buzzes, the man going through the detector empties his pockets, takes off his belt buckle, and removes the package of gum with the aluminum wrapper from his coat pocket.
So far, the government doesn’t call in the SWAT team every time the metal detector buzzes. Instead, the people assigned to the metal detector simply conduct a more thorough search to determine if the visitor is packing a 45 or a wristwatch with a heavy metal bracelet.
Similarly, if a dog “alerts” to a possible evidence of drugs, that alert should mean nothing other than it’s time to conduct a more thorough, scientific analysis of the person, vehicle, property to which the dog “alerted”. All by itself, the dog can’t “testify” to the presence of drugs. The dogs are not infallible. The dog’s “alert” only signals a heightened probability that drugs might be present.
In any case, here are some of the Louisiana Supreme Court’s comments relative to the drug-sniffing dog’s use and reliability:
On page 3 of the Supreme Court’s opinion, we read:
“After discovering the large amount of currency, Trooper Dupuis transported Beers to the State Police regional office in Lafayette, Louisiana. State Trooper Jackson, a regional narcotics agent, took custody of Beers’ vehicle and assisted Trooper Dupuis in removing nine plastic shrink-wrapped bundles of money from the floor compartment. Trooper Jackson placed the bundles in what he called a “neutral room.” He then brought in a trained drug-detecting police dog to sniff the room, and the dog alerted to the bundles of currency, which according to Trooper Mire indicates the presence of “illegal narcotics.” No further testing was performed on the money. The currency was counted and valued at $144,320, consisting of 5, 10, 20, 50, and 100-dollar bills. In subsequent requests for admissions, the State admitted no narcotics were found in Beers’ vehicle and the State did not charge her with a crime related to this incident.”
Page 4:
“The affidavit shows Trooper Mire became a Louisiana State Trooper in 2001 and was assigned to the West District Narcotics Section in January 2005, after receiving instruction on investigating illegal narcotic trafficking. He noted his experience and training taught him drug traffickers frequently carry large amounts of cash and the cash they carry often contains narcotics residue. Trooper Mire testified trained drug-detection dogs like the one used here generally alert to the scent of narcotic residue on currency derived from drug trafficking. He also testified Interstate 10 is a known corridor for drug trafficking.”
Pages 7 & 8:
“The court of appeal found probable cause was not established by the drug dog alerting to the scent of narcotics on the currency because of “the prevalence of currency in circulation [8] which would contain such a strike.”10
. . . .
10 In a footnote, the court of appeal stated, “recent studies have found that a majority of the currency in circulation contains drug residue.” However, no study was cited, nor did the court indicate a police dog would alert to every trace quantity of drug residue.”
Commentary & Questions
The nine bundles of cash were placed in a “neutral room” (note the quote marks in the original text from the Louisiana Supreme Court; these quote marks suggest that the term “neutral room” is a kind of police slang rather than an official name or even objective description for that particular room). The dog was brought into the “neutral” and subsequently “alerted” on the bundles of cash.
Q: What, exactly, is the “neutral room”?
Q: Is the “neutral room” intended to have no conflicting scents that the dog(s) might alert on?
Q: When was the last time the “neutral room” had drugs in it prior to this particular incident?
Q: Is the “neutral room” cleaned and deodorized after each use to insure that any scent from a previous collection of property suspected of being contaminated with drug residue had been removed?
Q: What evidence exists to verify that any lingering scents in “neutral room” had been actually “neutralized” before the nine bundles of cash were placed in the room?
. . . .
Q: How were the nine bundles of cash placed in the “neutral room”? Were all nine bundles stacked in a single pile—or were they spread out into nine, distinctly-separate bundles?
Q: When the dog “alerted” to the bundles, did it “alert” to each individual bundle? Or did it alert to all nine bundles ts the same time?
Q: If the dog alerted to all nine bundles at the same time, is it possible that only one bundle carried any drug residue but the other eight did not?
Q: If only one or some of the nine bundles included any drug residue, did the police have any authority to seize the bundles that did not have traces of drug residue? I.e., if the dog only alerted to one bundle, must the police return the other eight bundles to the suspect?
Q: When the dog alerted in the “neutral room,” did it alert to a mere drug residue or to the presence of drugs in sufficient quantity to constitute a criminal offense?
Q : Is the dog trained to distinguish between a drug residue and an quantity of drugs sufficient to trigger criminal prosecution?
Q: Does the dog think he’s finding a significant quantity of drugs—or does the dog only think he’s finding residue?
Q: If the dog alerted to finding a significant quantity of drugs but actually only alerted to a small residue of drugs that was imperceptible to people, isn’t the fact that the dog alerted to mere, unseen residue evidence that the dog’s “opinion” is unreliable? I.e., if the dog “alerted” to five kilos of cocaine but no drugs were actually found, doesn’t that indicate a false positive and an unreliable dog “witness”?
Q: If the “neutral room” is routinely used for conducting the “sniff test,” and if the dog’s nose is super-sensitive to mere “residue,” could the dog’s alerts to the nine bundles actually have been alerts to a microscopic residue of drugs on the floor of the “neutral room”?
Q: After the dog “alerted” to the presence of drugs in the “neutral room,” was the dog rewarded with a doggy treat or with praise by the dog’s handler?
Q: Does the dog have a vested interest (receiving treats or praise) in “alerting” to the presence of drugs?
. . . .
Q: Given that the bundles of cash were wrapped in shrink wrap plastic, is it possible that the drug residue that the dog allegedly sensed was on the exterior shrink-wrap plastic rather than the currency inside each bundle?
Q: If the drug residue was only on the exterior, shrink-wrapped plastic, would the police have the right to seize the currency inside each bundle—or only the exterior shrink-wrapped plastic?
Q: Did the police dog “alert” as to whether the drug residue was on the exterior of the bundles or on the interior cash?
Q: If the dog did not specifically “alert” to the cash inside one or more of the bundles, what probable cause exists to seize the currency inside of the bundles rather than only the plastic wrapper?
. . . .
Given that there are nine bundles of cash that are “valued” at $144,320, it follows that the average sum of cash in each bundle is about $16,000. Given that the cash consisted of “5, 10, 20, 50, and 100-dollar bills,” the minimum number of “bills” in any bundle would seem to be 160 (160 $100 bills = $16,000). In fact, when you add in the “5, 10, 20, and 50” dollar bills, there were probably 200 to 500 bills in each bundle. Thus, there may have been anywhere from 1,800 to 4,500 bills in the nine bundles of cash—and there might’ve been a lot more.
Q: If a dog alerts to a bundle of bills, does the dog alert to each bill that’s contaminated with drug residue or does he alert to the entire bundle?
Q: How sensitive is the dog’s nose? I.e., what is the minimum number of bills contaminated with drug residue that the dog will alert to? One? Twenty? One hundred?
Q: If the dog’s nose will alert to a single dollar bill that’s contaminated with drug residue, and if the police find a bundle of, say, 200 dollar bills and the dog alerts to that bundle, does the dog signal how many of the bills in that bundle are contaminated? Is any effort made to distinguish between those bills that are contaminated by drug residue and those that are not?
Q: If a dog alerts to a single dollar bill in a bundle of, say, 200—do the police have the authority to seize all 200 bills—or only the one (or several) bills that can be shown to be contaminated by drug residue?
Q: If the dog didn’t specifically alert to every dollar bill in each of the bundles, on what basis are the police entitled to seize all of the dollars (not just the ones that are contaminated)?
. . . .
As one appellate court observed, the presence of drug residue on dollar bills is so prevalent, that it really doesn’t mean anything. In other words, it wouldn’t be the least bit surprising if some or all of the bills in anyone’s wallet are carrying some drug residue.
Q: If we were to sic the dog on the offering plates in most churches, would the dog probably alert to the presence of drug residue on the offering? Would the police therefore be entitled to seize the offerings?
Q: Isn’t it true that some banks are known to assist in the laundering of drug money?
Q: If we were to allow the dog to sniff each bank teller’s cash drawer at the First National Bank, out of ten cash drawers, how many are likely to cause the dog to “alert”? One? five? All ten?
Q: If the dog alerts to just one teller’s cash drawer, are the police entitled to seize all of the cash in that tray as “drug-related”?
Q: If the dog alerts to just one teller’s cash drawer, are the police entitled to seize all of the cash in the entire bank?
. . . .
The idea that a mere “alert” by a dog should be deemed sufficient evidence to warrant seizing cash is logically untenable.
The cash in our church offering baskets, bank teller’s cash drawers, and even policeman’s wallets will probably all show traces of drug residue. Should all of that cash be subject to seizure on the say-so of a mere dog?
Drug-sniffing dogs may be useful, but they can’t be regarded as having provided definitive evidence that any cash or object is definitely contaminated with drug residue, nor that an object that is contaminated with drug residue was actually associated with some drug-related offense.
In the particular case cited, I’ll bet that the drug-sniffing dog was just a gimmick used to justify the taking of $144,320 with little or no evidence or cause.
By using some of the previous questions, I think it might be fairly easy to make drug-sniffing dogs and the officers who rely on them look pretty stupid in court.
A complete copy of the Louisiana Supreme Court’s opinion in the case can be downloaded at: http://thenewspaper.com/rlc/docs/2012/la-slimseize.pdf
