Now the Seventh Circuit has issued a decision, which may not be the last one in a case that has been going on for 11 years, allowing for the possibility that the science that it previously accepted as definitive might actually be undermined by other research. U.S. v. Funds in the amount of $100,120, No. 11-3706 (7th Cir. 2013)
Briefcase at Chicago Train Station
On December 4, 2002, Vincent Fallon purchased a one-way ticket for a train scheduled to travel from Chicago to Seattle on December 6. Drug Enforcement Administration agents see one-way tickets as a possible indication that a passenger is a drug courier. Two agents approached Fallon after he boarded the train and began to question him. Fallon, according to one agent, was sweating and trembling, but denied that he was carrying weapons, drugs, or more than $10,000 in currency. Fallon allowed agents to search his duffle bag but declined to permit them to open his briefcase, which was locked. Fallon claimed to not have a key to open the briefcase, but admitted that it contained about $50,000, which he said was to purchase a house in Seattle. Agent Eric Romano said he was going to hold the briefcase for further investigation and directed Fallon to come with him off the train.
At the Amtrak police office, Romano called the Chicago Police Department and requested a drug-detection dog. In Fallon’s presence, Romano used a pocketknife to pry open the briefcase, and saw the bundles of currency. Fallon now said that the currency actually belonged to a third person with whom Fallon said he was going to invest in glass blowing and glass art.
Richard King, a canine officer with the Chicago Police Department arrived, and the DEA agents present told him they suspected the currency of being “narcotics transaction money.” Officer King was thus being advised that the drugs would quite likely result in an alert by his dog, precisely the situation that resulted in so many false alerts in the 2011 Davis study. Romano placed the briefcase in the roll-call room of the Amtrak police office, after which Officer King brought his drug detection dog, Deny, into the room and ordered him to search for drugs. Not surprisingly, Deny alerted to the briefcase and the DEA agents confiscated it. Deny had previously conducted drug sniffs in the roll-call room, though no illegal drugs or suspected currency had been in that room the day of this sniff.
Procedural History
The government initiated a civil forfeiture proceeding against the funds, and Fallon and another man, Nicholas Marrocco, filed a joint claim. Marrocco was the actual owner of the funds. Marrocco was not charged with any crimes and argued that the funds were the fruit of an illegal search and should be suppressed. The district court granted Marrocco’s motion, holding that the agents had had reasonable suspicion to hold the briefcase temporarily but lacked probable cause to open it prior to Deny’s alert. In 2009, the Seventh Circuit reversed, based on the inevitable discovery doctrine. U.S. v. Marrocco, 578 F.3d 627 (7th Cir. 2009).
On remand, the government filed a motion for summary judgment and Marrocco filed a motion to exclude any evidence concerning Deny’s alert to the briefcase. Marocco also requested a hearing to challenge evidence offered by the government purporting to establish that drug-dog alerts to currency demonstrate that the currency has recently been in contact with illegal drugs. The motion for a hearing was denied, and the government withdrew its motion for summary judgment but then filed another, to which Marrocco responded by arguing that drug-dog alerts to currency are generally unreliable, Deny’s training was inadequate, and the sniff was conducted in an unsound manner. Marrocco produced expert affidavits, which the government moved to strike. The district court denied the motion to strike but said that the government could challenge the expert evidence. The district court denied the government’s motion for summary judgment.
The government filed a third motion for summary judgment, arguing that the evidence established that the funds were either the proceeds of an illegal drug transaction or were intended to facilitate such a transaction, and listed four reasons that this was the case.
- Fallon fit a drug courier profile, apparently because he bought a one-way ticket and was nervous.
- Marrocco’s tax returns, W-2s, and deposition testimony revealed that his expenses exceeded his income for the previous four years, and that thus his legitimate sources of income were insufficient to explain the funds. It was not considered that many people have savings, and many borrow cash from relatives and friends.
- Records and affidavit testimony from King regarding Deny’s training, certification, and past field performance proved that Deny was a reliable drug dog.
- The methodology used in the drug sniff was sound.
Seventh Circuit Analysis
On the second appeal in the matter, the Seventh Circuit said that the government bore, under 18 U.S.C. 983(c)(1), a burden of proving by a preponderance of the evidence that the funds were either the proceeds of an illegal drug transaction or were intended to facilitate such a transaction. Under 18 U.S.C. 983(c)(3), the government had to established a substantial connection between the property to be forfeited and the criminal offense.
Marrocco argued again that there were genuine issues of material fact as to whether he had legitimately acquired the funds and whether Deny’s alert demonstrated that the currency had recently been in contact with illegal drugs. As to the first issue, the circuit court determined that the district court erred in finding as a matter of law that Marrocco could not have acquired the funds legally.
The Seventh Circuit then considered Marrocco’s argument that Deny’s alert did not establish that the funds had been in contact with illegal drugs because drug dog alerts to currency are generally unreliable, Deny’s training was inadequate, and the sniff was unsound.
Currency Contamination
Marrocco argued that significant amounts of U.S. currency are innocently contaminated with trace quantities of drugs, usually cocaine (chemically, benzoyl-methyl-ecgonine). The Seventh Circuit had accepted this argument in U.S. v $506,231 in U.S. Currency, 125 F.3d 442 (7th Cir. 1997), but had changed its position in 2005 in U.S. v. $30,670, relying largely on the research of Dr. Kenneth Furton. Dr. Furton had determined that, in the words of the current case, “drug dogs do not sniff cocaine per se, but rather methyl benzoate, which dissipates quickly.” The circuit court had thus ruled that drug dog alerts to currency are probative of illegal drug activity.
Marrocco offered the testimony of Dr. Sanford A. Angelos, a forensic chemist, who, in an affidavit, challenged the conclusions of Dr. Furton. Dr. Angelos (who died in 2011), cited a paper by Paul Waggoner, Canine Olfactory Sensitivity to Cocaine Hydrochloride and Methyl Benzoate, SPIE, 2937, 216-226, which found that drug dogs can alert to illicit cocaine samples with concentrations of methyl benzoate below their detection thresholds. Dr. Angelos also stated, according to the circuit court, “that, so long as cocaine is present on the currency, the cocaine will continue to generate methyl benzoate and thereby replenish the methyl benzoate lost to evaporation.” Dr. Angelos argued that cocaine residue can become trapped in currency and that the amounts of cocaine residue on currency assumed by Dr. Furton’s study might be incorrect. According to the court:
“The 1997 Furton study relied upon a study finding that circulated Canadian currency contained no more than 10 nanograms of cocaine. See J.C. Hudson, Analysis of Currency for Cocaine Contamination, 22 Can. Soc. Forensic Sci. J. 203–18 (1989). However, Angelos avers that other studies have found that significant amounts of circulated United States currency contain from 1 microgram (100 times as much cocaine as the Hudson study found) to over 1000 micrograms (100,000 times as much cocaine as the Hudson study found).”
Dr. Angelos noted that another of Dr. Furton’s studies dating from 1999 had posited a lower threshold at which dogs could detect methyl benzoate than had been stated in the 1997 research on which the Seventh Circuit had relied in U.S. v. $30,670 (1 to 10 micrograms in the later research, as against at least 10 micrograms in the earlier research). The circuit court noted that one study cited by Dr. Angelos might actually contradict his arguments:
“One of the studies upon which Angelos relies indicates that the amount of methyl benzoate produced will decrease over time. See Lindy E. Dejarme, et al., Formation of methyl benzoate from cocaine hydrochloride under different temperatures and humidities, 2937 Proceedings of SPIE 19, 21 (February 1997). Although we lack the advantage of expert testimony explaining this part of the study, it appears that the study found that ‘pure’ cocaine only continues to produce methyl benzoate for about 2880 minutes (that is, 48 hours) depending on the temperature and humidity conditions. If so, it is difficult to see how the Funds, which Marrocco claims to have saved from years earlier, could still be producing methyl benzoate based on cocaine that allegedly tainted the Funds before Marrocco acquired them. Further, this seems to conflict with Angelos's claim that cocaine remaining on currency for extended periods of time ‘will slowly break down and release methyl benzoate.’ Regardless, the proper interpretation of this study and the import of its findings can best be developed through expert testimony—perhaps at a Daubert hearing.”
The court did not discuss other possible sources of methyl benzoate that could have contaminated the currency Fallon was carrying, but this might be appropriate to consider in a Daubert hearing. This substance is used in many products including solvents, dye carriers, flavorings, and cosmetics, and can come from numerous sources. If Fallon had stored certain items, such as lip balm, some sunscreen and hand creams, or enough of over 2,000 other substances in the briefcase with the cash, a possible source of transfer could be indicated.
As to whether the Deny’s alert was probative of a substantial connection between the currency and illegal drug activity, the circuit court said that a genuine issue of material fact existed.
Currency No Long Available for Testing
The court noted that the funds were no longer available for testing because “[p]resumably the government deposited the Funds into a bank account.” The court noted that “Deny’s alert would be unnecessary if the government had used laboratory testing to determine whether the Funds contained amounts of cocaine in excess of the amounts reported in general-circulation currency. By failing to perform such testing (and failing to preserve the Funds until the conclusion of this proceeding), the government eliminated laboratory testing as a source of evidence.” Recent research, which will be mentioned below, may add to the significance of the failure to retain the actual currency for forensic purposes.
Deny’s Training and Performance
Officer King stated that Deny had received 500 hours of pre-certification training and was certified by the Chicago Police Department Training Division as a Police Utility Dog in July 1998. Most of Deny’s alerts in training were to actual drugs, not tainted currency. Dr. Lawrence J. Myers, a defense expert, “avers that there is no scientific evidence demonstrating that a drug dog’s ability to detect cocaine translates into the ability to detect cocaine residue on currency.”
Another defense expert, a dog trainer and behavior consultant, David Kroyer, according to the court:
“… states that the government's evidence regarding Deny's training indicates that Deny was not trained to distinguish between the odor of illicit cocaine and odors such as baking soda, vitamin B-12, and other agents used in creating or "cutting" the cocaine. Consequently, according to Kroyer, Deny's training likely (if mistakenly) instilled in him the tendency to alert not only to the odor of cocaine but also to odors of agents which are used in creating illegal cocaine (but which are not necessarily connected to illegal drugs).”
Dr. Myers and Kroyer stated that “it is industry standard to ‘proof’ a drug dog off of uncontaminated currency—that is, to ensure that the drug dog does not alert to uncontaminated currency.” Kroyer interpreted Deny’s records as indicating that the dog had once alerted to uncontaminated currency. These two witnesses said that it was industry standard to use an outside agency to certify a dog, but that Deny was only certified by the Chicago Police Department Training Division. Dr. Myers emphasized:
“[T]here was no evidence that Deny's training was performed under double-blind testing conditions. Dr. Myers explains that failing to use blind testing can result in ‘cueing’—that is, unconsciously signaling the drug dog to alert or not alert based on the handler's knowledge that the target of the sniff contains or does not contain drugs.”
The district court had held as a matter of law that Deny’s training and field performance established by a preponderance of the evidence that he was a reliable drug dog. That court had relied on U.S. v. Limares, 269 F.3d 794 (7th Cir. 2001), which had focused on the field statistics of the dog in question (Police and Military Dogs, 141, n. 38, 166, n. 6). The district court had determined that the evidence concerning deficiencies in Deny’s training was irrelevant because it suggested “that proof of Deny’s reliability requires something more than evidence of his performance in the field.” The Seventh Circuit, however, said that Limares was procedurally very different from the case at hand because Limares concerned whether there was sufficient evidence to issue a warrant based on probable cause in an ex parte proceeding, not on whether a dog is reliable in a civil forfeiture proceeding (which involves a higher burden of proof).
Florida v. Harris
This brought the Seventh Circuit to the point where it had to take the Supreme Court’s decision in Florida v. Harris into account. That decision had determined that courts should not treat “a dog’s field performance as the gold standard of evidence.” Instead, “evidence of a dog’s satisfactory performance in a certification or training program” is more probative. The circuit court said that the “Supreme Court specifically envisioned attacks on the drug dog’s training.” The court also stated that “[i]f Deny did alert to untainted currency during one of the three times he was tested, then that fact ... could cause a trier of fact to doubt Deny’s reliability.”
“Similarly, Kroyer avers that a drug dog trained on illicit street cocaine rather than pure pseudo-cocaine must be proofed off of the odors of the agents used in creating or ‘cutting’ cocaine (for example, baking soda or vitamin B-12) to ensure that the dog can distinguish cocaine from these other odors. King states that Deny was trained with currency tainted by illegal drugs. And the training log indicates that Deny was not proofed off of the odors of the agents commonly used in ‘cutting’ cocaine (but which are common household products) because the log contains all of Deny's pre-certification training searches and none of the entries involve testing Deny against any of the agents used in ‘cutting’ the cocaine. Thus, Kroyer's averments on this issue provide an additional reason to think that Deny's training was inadequate.”
The circuit court concluded that the fact Deny was certified in-house by the Chicago Police Department might not be sufficient by itself to dispute reliability, it had some significance when combined with the other reliability issues raised.
Cueing and False Alerts
Dr. Angelos, in his affidavit, stated that Deny may have been cued or the briefcase may have become contaminated at the train station. The circuit court said that Marrocco had produced no evidence that the roll-call room was contaminated with enough cocaine to trigger a drug-dog alert. The court cited McCoy v. Harrison, 341 F.3d 600 (7th Cir. 2003), as well as U.S. v. $30,670, as establishing that the mere possibility of cross-contamination does not deprive a dog’s alert of probative weight. The circuit court noted conflicting evidence with regard to where the briefcase was during the sniff in the roll-call room, but said that this issue “can be explored more thoroughly on remand,” presumably in the Daubert hearing already suggested as appropriate for the district court to hold.
Recent Forensics Research
Four scientists at the University of Central Oklahoma and Oklahoma State University quantified cocaine contamination on bills of different denominations using gas chromatography/mass spectrometry or liquid chromatography/mass spectrometry. They looked at bills from three sources:
- questioned bills in criminal cases
- control bills
- uncirculated bills received directly from the Bureau of Engraving and Printing (BEP).
The researchers noted that it “is unlikely that members of the illicit drug trade have actually physically handled the number of bills that are currently circulating with cocaine contamination.” One means of contamination comes from the use of mechanical currency counters employed in retail and financial institutions which have a “homogenizing” effect on the trace contaminants in the money supply. This was first noticed in 1993 when uncirculated bills from a teller’s drawer at a bank in West Columbia, Texas, were found to have high contamination levels. After it was determined that the bills had been counted by the bank’s mechanical currency counter, the interior of the counter was swiped, and the swipe generated “a massive cocaine peak” in a plasmagram. The researchers found that “a single exposure to a contaminated currency counter will contaminate the bills to the ambient level.”
Variations were detectible between nearby locations. Manhattan had levels more than twice as high as New Hyde Park, New York (0.812 ng/bill vs. 0.334 ng/bill); Miami had levels more than twice as high as Fort Lauderdale (2.83 ng/bill vs. 0.102 ng/bill); El Segundo, California had levels almost 15 times as high as Downey, California (11.5 ng/bill vs. 0.784 ng/bill). Bill specimens coming to the FBI Laboratory’s Chemistry and Toxicology Unit from 1993 to 2001, by comparison, assayed in the area of 80 ng/bill. A bill that shows a sufficiently high degree of contamination may possibly be associated with illicit drug trafficking.
This means that in addition to using a drug dog to assess whether cocaine may have been associated with the drug trade, prosecutors will want to assay the level of cocaine on bills before deciding whether to begin a forfeiture proceeding. The chemical technology used in this study will be combined with research on canine forensics in various ways to establish optimal procedures for forfeitures and prosecutions. The chemical research also creates possible defense strategies. If the defense can establish that the bills were obtained recently from a bank, the defense may want to have any currency counter that may have been used tested for cocaine contamination.
Thomas H. Jourdan, Allison M. Veitenheimer, Cynthia K. Murray, and Jarrad R. Wagner (2013). The Quantification of Cocaine on U.S. Currency: Survey and Significance of the Levels of Contamination. Journal of Forensic Sciences, 58(3), 616-624.
Another interesting research article that also appeared in the Journal of Forensic Sciences found that residues of amphetamine derivatives, opiates, and benzodiazapines could be detected on Euro banknotes. A Spanish research team found that a “procedure based upon extraction with organic solvent, liquid chromatography separation, and mass spectrometric detection allowed the identification of 21 drugs and metabolites in 120 used Euro banknotes collected in the Canary Islands.” This also will necessarily become an area of further research to determine whether amounts of other drugs detected can indicate anything more about the source of the contamination.
Octavio P. Luzardo, Maira Almeida, Manuel Zumbado, and Luis D. Boada (2011). Occurrence of Contamination by Controlled Substances in Euro Banknotes from the Spanish Archipelago of the Canary Islands. Journal of Forensic Sciences, 56(6), 1588-1593.
Other research described at a meeting of the American Chemical Society found that contamination levels of banknotes are increasing, so what is considered background will have to be adjusted depending on when a sample is collected. For a summary of numerous studies concerning cocaine concentrations on currency up to 2002, see Charles Mesloh, Mark Henych, and Ross Wolf (2002). Utilization of the Law Enforcement Canine in the Seizure of Paper Currency. Journal of Forensic Identification, 56(6), 704-724.
Conclusion
The Seventh Circuit is probably correct that attacking a detection dog's reliability after U.S. v. Harris will require looking closely at training and certification, with less emphasis on field performance. In-house certifications of the sort provided by the Chicago Police Department will be suspect, as those providing the certification may have reasons to assure that an adequate number of dogs are in the field. Training that does not assure that a dog can distinguish contaminated currency from uncontaminated currency, and distinguish currency from various items that can produce methyl benzoate residues, will raise significant questions about deploying a dog in situations such as Deny faced at the train station. This also will likely be a significant issue in further proceedings in this case.
On the other hand, if a dog's performance in the field can be correlated with specific amounts of drug residue on an item, such as currency, then this is no longer, for purposes of a U.S. v. Harris analysis, identical to the situation where a dog's alert may be to residual odor, minute amounts of a drug, or just a false or cued alert. If the amount of drugs on currency can be measured and compared with the threshold of the dog's capacity to recognize the drug, then surely this becomes the sort of situation where, in the words of Justice Kagan, "the dog's (or handler's) history in the field ... may sometimes be relevant...." This remains true even if the instability of methyl benzoate must be taken into account in analyzing the dog's performance.
If the dog alerts, but the cocaine residue on the bills is average for the area in which the currency was found, then the defense has an argument that methyl benzoate may have come from another source than as a byproduct from cocaine. If the dog alerts and the bills have significantly more cocaine than most bills in circulation in the area, then the prosecution has reinforced its case that the currency had a connection to the drug trade. If the dog does not alert, but the currency has high levels of cocaine residue, then the holder of the currency can still be connected to the drug trade if he or she held the currency long enough and other sources of contamination are ruled out.
As noted above, testing the currency in $100,120 is no longer possible because it was deposited into an account and entered general circulation. Any law enforcement official who does this in the future ought to have his head examined as defense counsel will be quick to point out that this is effectively destroying evidence. A dog’s alert can be reinforced by the chemical analysis, or undermined, but both approaches should be considered in the future.
This blog was written by John Ensminger and L.E. Papet.
0 comments:
Post a Comment