CHARLES B.

“BRAD” FRYE ATTORNEY AND COUNSELOR AT LAW

808 Travis, Suite 1101 Houston, Texas 77002 (713) 236-8700 Fax: (713) 229- 8031 www.charlesbfrye.com

Tainted Currency and Asset Seizure and Forfeiture Issues
“I’m Not a Drug Dealer – Why Did the Police Seize My Money?” Your college-age son calls from the airport in Austin. He had been attending school in Chicago and had flown to Austin to see a young lady he met on the Internet. All he carried on the plane was a backpack, and, because he didn’t know when he might return to school – or visit you in Houston – he bought a one-way ticket. When he decided to return to Chicago, he approached the airline counter and, using his driver’s license with his “permanent” Houston address (your house, where he grew up), he asked for a one way ticket. He didn’t have a credit card (not after the stunt he pulled as a freshman, when you thought he could handle his own finances), so he paid in cash. All he carried was his backpack for the return trip. Before September 11th, he would have breezed through ticketing and security and would have been home in a few hours. But, this time, the airline ticket agent alerted the airport police and your son was approached by them as he waited in the gate area. Your son had been profiled – single young male, address on identification didn’t match either departure or arrival city, paid for the ticket in cash, and had no luggage, only a backpack. So, whether he’s a suspected terrorist or drug dealer, the police wanted to “eyeball” him and ask him a few supposedly innocuous questions. After those questions, the police asked if he would mind if they searched his backpack. He’s a good kid, you taught him to respect law enforcement, and, he wasn’t a terrorist or a drug dealer. So, he said “yes.” The police found three thousand dollars in currency in his backpack. (Yes, he’s a saver all right. And, since he distrusted “plastic,” he carried his cash around with him, never letting the backpack out of his sight. When the police asked him about the cash, he simply said it was his. He had saved it. He thought it best to be simple and direct and just tell them what it was. The police, however, asked your son to accompany them to an interview room, “for just a few more questions.” He did, staring to feel increasing uncomfortable as he did so. In the interview room, the senior officer unpacked the backpack’s contents, including the currency, on the table. In a few moments, another officer, this one with a K-9 unit (which is “cop

speak” for “dog”), came into the room and the dog sniffed the property, including the currency, spread out on the table. After a few moments, the officer with the dog said “that’s it – them money.” The senior officer then asked your son more pointed questions – Did he deal drugs? Did he know anyone he did? When was the last time he bought cocaine or marijuana? Your son became increasingly nervous, which only made the officer press harder with the questions. After a few moments, your son asked, “Do I need a lawyer?” To which the officer replied, “I don’t know. Do you think you need a lawyer? Have you done something wrong?” After a few more minutes, the officer gathered up the currency, placed it into another plastic bag with a tag, and, after copying your son’s identification, told him he was free to go. Your son was free to go. But his money was staying. The officers had seized the currency and would be forwarding their seizure affidavit to the district attorney’s office and a Notice of Seizure and a Petition would be filed in which the State would allege that the currency was “contraband” and subject to forfeiture under Chapter 59 of the Code of Criminal Procedure. A significant percentage of paper currency contains high traces of cocaine, and it is not necessary for the money to come into direct contact with the drug. One study found that paper currency in the United States contained an average of between 2.9 and 28.8 micrograms of cocaine depending on the year and city, with a maximum of more than 1,300 micrograms found on some 1996 bills. A gram of cocaine would fill about half a tea bag. A microgram is one-millionth of that amount. And, besides traces of narcotics, paper money is contaminated with other things, such as disease causing bacteria. One past study revealed ninety four percent (94%) of one dollar bills collected from a community in western Ohio contained disease-causing or potentially disease-causing bacteria. The study, published in 2002 in the Southern Medical Journal, was led by Peter Ender, chief of infectious diseases at Wright-Patterson Medical Center in Ohio. Whether it’s contamination by narcotics or deadly bacteria, it’s not surprising since dollar bills in the United States stay in circulation for an average of 21 months, according to the U.S. Bureau of Engraving and Printing, during which time they get handled by plenty of people. For larger bills, the life span is even longer, with twenty dollar bills lasting about 24 months and fifties staying in circulation for 55 months. So, during those time periods, who else has handled your money besides you and the bank cashier? If it was a drug dealer or user, then traces of narcotics will most likely remain on the currency. And, that could cause you a problem when the police call for the “drug sniffing” dog after they find a large amount of currency in your vehicle, in your baggage, or in your pocket. Thankfully, appeals courts have held that possession of a large sum of money is not illegal in and of itself.

In many cases where currency is seized, the State relies on a “drug dog' alert as to the presence s” of narcotics or traces of narcotics on paper money. But, it is important to remember that, under the law, a drug dog' alert is just probable cause to continue investigating, not conclusive proof s the money has been exposed to a controlled substance. Even if the dog had actually alerted on the money itself, rather than on a vehicle and on a location where wrappings from the money had been placed. “Drug dogs,” though widely used by law enforcement, are not infallible and, in fact, are often susceptible to false-positive alerts. When evaluating a drug dog’s “alert” to contraband, one must consider a number of factors, including the subjectivity of interpreting the drug dog' alert, s the subjectivity of the dog, and the inability to cross-examine the dog to challenge his “findings.”

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