This article is written by Charles B. Frye, Attorney at Law, Houston, Texas.
What are the risks of transporting large sums of cash when you’re traveling? Obviously, you could get robbed or get involved in an accident and lose the money. Your car could catch on fire while you’re buying gas and your currency could go up in smoke. A number of bad things could happen if you carry a large amount of cash on you when you travel. But, one risk that many folks never consider is that a law enforcement officer could decide to seize your cash, even if you are not committing a crime and the officer cannot show any reason to believe that you have committed a crime.
If you’ve never had a law enforcement officer stop you for a traffic violation and then ask for your “consent” to search your vehicle, you probably find it difficult to believe that you or any other “law abiding citizen” could become embroiled in a criminal case or a forfeiture lawsuit just because you happen to be carrying a large amount of currency. But, it can, and does, happen.
One Texas Court of Appeals case, Deschenes v. State, 253 S.W.3d 374 (Tex.App.‑Amarillo 2008, pet. ref.), catalogued the various ways that the State tries to justify a seizure and later forfeiture of a large amount of currency discovered after a traffic stop. Justice Pirtle wrote in the majority opinion in Deschenes listing twenty two arguments the State advanced to justify the seizure:
“Here, the evidence tending to establish a connection between the money and some unnamed criminal activity amounts to mere conjecture. In support of a nexus between Appellant’s $17,620 and some unidentified “criminal activity,” the State points to profiling characteristics and a positive alert by a narcotics dog: (1) Appellant opened the passenger door to speak to the officer, handed him his wallet when asked for his license, and exited on the passenger side at the officer’s request; (2) car had energy drinks and fast food wrappers on the floorboard giving it a “lived‑in” look; (3) he could not give his uncle’s exact address in San Diego; (4) he was traveling east to west on Interstate 40; (5) he was nervous throughout the encounter; (6) he stared at his vehicle rather than maintaining eye contact when answering one of Esqueda’s questions; (7) he denied carrying a large sum of cash; (8) he was in possession of scales; (9) he avoided showing Esqueda [the investigating officer] the money; (10) the money was in a plastic bag; (11) it was a large amount of money; (12) the money was divided into bundles and wrapped with rubber bands; (13) he had an empty suitcase; (14) he denied having any drugs in his vehicle; (15) he stated he was going to Las Vegas; (16) he failed to produce “documentation” for the money; (17) a narcotics dog alerted to the money and the large empty suitcase; (18) an odor of narcotics on the empty suitcase; (19) the close proximity of the cash to the empty suitcase that presumably contained narcotics at one time; (20) an odor of narcotics on the cash; (21) the money was enough to purchase a felony amount of narcotics; (22) money from drug trafficking travels east to west.”
What could have lead to the State’s advancing twenty two arguments to try to justify the search of Mr. Deschenes’ vehicle and the seizure of Mr. Deschenes’ $17,500.00 in currency – and his later indictment for “money laundering”? Was Deschenes in the process of robbing a bank or making a drug deal? Hardly. He was getting a traffic ticket. Here are the facts of the case from the Court of Appeals opinion:
On January 22, 2002, DPS [Texas Department of Public Safety] Trooper Oscar Esqueda stopped [Mr. Deschenes] for speeding on Interstate 40 in Gray County. Esqueda approached [Mr. Deschenes’] car on the passenger side to avoid passing traffic, and [Mr. Deschenes] opened the passenger car door to speak with him. Esqueda observed empty beverage containers and fast food wrappers strewn on the car’s floorboard. After [Mr. Deschenes] produced his driver’s license, Esqueda informed him that he was speeding, asked him to get out of the vehicle, and sit in his patrol car.
In the patrol car, Esqueda continued to ask [Mr. Deschenes] questions. [Mr. Deschenes] told him that his car had been rented by his father and that he was traveling from Connecticut to San Diego to visit an uncle living on a naval base. Esqueda named several naval bases in the San Diego area and [Mr. Deschenes] was unsure of the specific base where his uncle lived. Esqueda became suspicious because [Mr. Deschenes] appeared defensive, nervous, and unsure of the exact location of his ultimate destination. He was also suspicious because [Mr. Deschenes] was traveling east on I‑40, a route used by drug smugglers to move drugs from the west coast to the east coast and cash from the east coast to the west coast. In his experience, smugglers typically did not know exactly where they were going and it appeared [Mr. Deschenes] was driving straight through because the car’s interior had a “lived‑in” look.
Esqueda then asked [Mr. Deschenes] whether he had any weapons in his car, grenades, or narcotics such as marihuana or cocaine. [Mr. Deschenes] looked at his car and answered in the negative. Esqueda’s suspicions were further heightened when [Mr. Deschenes] looked at his car when he answered rather than maintaining eye contact. Esqueda also asked whether [Mr. Deschenes] was carrying any large sums of money. [Mr. Deschenes] indicated he was not and responded he had eighty dollars and several credit cards on his person and intended to fund his trip using a debit card. Esqueda observed [Mr. Deschenes]‘s nervous behavior appeared to increase as the traffic stop progressed. He further testified that the typical motoring public became less nervous as a stop progressed and things were explained to them. In his opinion, a person involved in some type of criminal activity remains nervous, or becomes more so, the longer there is contact.
Esqueda issued a warning to [Mr. Deschenes]. While [Mr. Deschenes] was signing the warning, Esqueda asked [Mr. Deschenes] if he could search his car and [Mr. Deschenes] consented. During the search, Esqueda again observed that [Mr. Deschenes]‘s nervousness escalated. Esqueda found nothing in the passenger side of the vehicle or passenger compartment and found no evidence of drugs or contraband in the car. Esqueda then took the keys from the ignition and went back to search the trunk.
[Editor’s Note: Please take special note that AFTER the officer had written the traffic citation, for the ONLY offense of which the officer was aware, THEN he asked for “consent” to search Mr. Deschenes’ vehicle. Obviously, Mr. Deschenes could have, and should have, politely said “no thank you, officer.”]
In the trunk, Esqueda observed three pieces of luggage — a large, tan suitcase, a medium, black suitcase, and a small carry bag. Esqueda asked [Mr. Deschenes] to show him the bags’ contents. [Mr. Deschenes] showed Esqueda some clothing in the medium bag. Esqueda then asked [Mr. Deschenes] to show him what was in the small carry bag. He believed [Mr. Deschenes] was apprehensive about opening the remaining bags. [Mr. Deschenes] opened the carry bag and showed Esqueda some hygiene articles and underwear; however, from Esqueda’s perspective, he believed [Mr. Deschenes] appeared to be ignoring a blue plastic sack inside the bag.
Esqueda pressed down on the carry bag and felt something hard inside. [Mr. Deschenes] then looked up at Esqueda and said, “Okay, I lied.” Esqueda looked in the sack and found five bundles of cash held together by rubber bands. When he inquired how much money was in the bag, [Mr. Deschenes] responded $17,500. Esqueda testified that, in his experience, people smuggling or transporting illegal proceeds often bundled the money with rubber bands and placed it in plastic bags.
Esqueda then searched the medium bag and found a set of scales. [Mr. Deschenes] indicated he used the scales to “weigh stuff.” The large, tan bag was empty. [Mr. Deschenes] stated he owned the money and had brought it with him because he was thinking of going to Las Vegas. He told Esqueda that he had worked for the money.
Esqueda suspected [Mr. Deschenes] was transporting scales to measure drugs and intended to use the empty suitcase to store drugs. Based upon his observations, Esqueda believed the cash represented proceeds from illegal transactions. He accompanied [Mr. Deschenes] to his patrol car and called for a canine officer. When Esqueda asked [Mr. Deschenes] why he lied about the money being in his vehicle, [Mr. Deschenes] responded he was nervous telling anyone he had a large amount of cash in his car because, when he was young, he had problems with the police taking his money.
[Editor’s Note: Again, please take special notice that the law enforcement officer could not identify any specific criminal offense that may be tied to the currency – only that the “believed the cash represented proceeds from illegal transactions.”]
When DPS Trooper Tony Rocha arrived with DPS Canine Storm, Esqueda asked him to run [Mr. Deschenes]‘s car. Storm was trained to detect an odor of marihuana, methamphetamine, cocaine, and heroin. Storm did not alert to the interior or exterior of [Mr. Deschenes]‘s car. Rocha put Storm in the trunk and he alerted to the small carry bag containing the currency and the large empty suitcase. Esqueda then arrested [Mr. Deschenes] for money laundering, seized the $17,620, and deposited the money in a bank.
Justice Pirtle correctly points out that the State’s rationale for the seizure of the currency – the twenty two arguments – amounts to nothing more than “mere conjecture.” Helpfully, Justice Pirtle then lists the cases and the rationale which have previously held that the State’s arguments are not based on facts, not based on science, and are, in fact, just wishful law enforcement thinking. These are a few of the cases he cites:
A positive alert by a drug detection dog, standing alone, does not constitute evidence that money was used in connection with a drug deal. $7,058.84 in U.S. Currency v. State, 30 S.W.3d 580, 588 (Tex.App.‑Texarkana 2000, no pet.); $80,631.00 v. State, 861 S.W.2d 10, 12 (Tex.App.‑Houston [14th Dist.] 1993, writ denied).
Although federal circuit courts recognize “that a positive alert by a drug detection dog is, in the very least, strong proof of probable cause”; United States v. Outlaw, 134 F.Supp.2d 807, 812 (W.D.Tex. 2001), aff’d, 319 F.3d 701 (5th Cir.2003), the evidentiary value of such an alert is being questioned because the spread of trace amounts of drugs in the nation’s currency supply increases the likelihood of false alerts. Id. at 813. See United States v. $506,231 in U.S. Currency, 125 F.3d 442, 453 (7th Cir.1997) (refusing “to take seriously the evidence of post‑seizure dog sniff”); United States v. $49,576.00 in U.S. Currency, 116 F.3d 425, 427 (9th Cir. 1997) (positive alert entitled to little weight); Muhammed v. DEA, 92 F.3d 648, 653 (8th Cir. 1996) (discounting government’s argument that dog alert constituted probable cause supporting administrative forfeiture due to high percentage of currency contaminated with drug residue); United States v. $5,000 in U.S. Currency, 40 F.3d 846, 849 (6th Cir.1994)(evidentiary value of the narcotic dog’s alert is minimal because it is well established that an extremely high percentage of all cash in circulation is contaminated with drug‑residue sufficient to alert a trained dog); $80,760.00, 781 F.Supp. at 472 (“[R]ecitation of the profile elements and the alert of a narcotics detection dog, without more, does not establish probable cause to forfeit”).
In United States v. $5,000 in U.S. Currency, 40 F.3d 846, 850 (6th Cir.1994), the Circuit Court of Appeals held that the claimant’s evasive explanation of trip’s purpose provided, at best, “inchoate and unparticularized suspicion.”
Traveling a particular route does not establish probable cause for forfeiture. See United States v. $252,300.00 in U.S. Currency, 484 F.3d at 1274 (“Generalized allegations about . . . `known drug destinations’ and `known drug routes’ do not provide a nexus to drugs on these facts.”); United States v. $10,700, 258 F.3d 215, 228 (3d Cir.2001)(“[W]e cannot credit the fact that the claimant was using a major interstate to be probative of drug trafficking.”).
A number of courts have observed that nervousness is of minimal probative value, given that many, if not most, individuals can become nervous or agitated when detained by police officers. Glass v. State, 681 S.W.2d 599, 602 (Tex.Crim.App. 1984); Lassaint v. State, 79 S.W.3d 736 (Tex.App.‑Corpus Christi 2002, no pet.); $10,700 in U.S. Currency, 258 F.3d at 226. See also $252,300.00 in U.S. Currency, 484 F.3d at 1274; United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1072 (9th Cir.1994). Another source of the nervousness can be that the person is carrying a large amount of cash. United States v. A) 58,920.00 in U.S. Currency B) $38,670.00 in U.S. Currency, 385 F.Supp.2d 144, 152 (D.Puerto Rico 2005) (apparent nervousness is of minimal probative value given [the respondent] was carrying a large amount of currency in their luggage, which could be robbed or lost); United States v. One Lot of U.S. Currency ($14,665), 33 F.Supp.2d 47, 55 (D.Mass.1998)(noting that [the appellant’s] nervousness during interaction with law enforcement officers “is not an unreasonable response, regardless of the source and intended use of the currency”).
So, while there are a number of cases in both state and federal courts that have found that many of the “profile factors” used by law enforcement to justify the seizure of currency where there is no other evidence of a crime being committed are “without probative value” and “conjecture,” law enforcement officers continue to seize currency during and after traffic stops.
You are not breaking the law by carrying large amounts of cash. That, in and of itself, is no crime. But, you need to be aware that, along with all of the other bad things that can happen to your cash when you’re traveling, seizure by law enforcement officers can and does happen. That risk is not limited to “drug dealers” and “criminals” – it can and does happen to everyday citizens.
For more information visit: www.texasforfeiturelaw.com and www.forfeiturelawblog.com.