Interstate law enforcement officers believe that drugs go east and drug money goes west. When an officer spots what he believes to be a suspicious vehicle, he or she will make every attempt to stop the driver, even going so far as to cite a minor, seemingly fictitious violation. At this point, officers will want to search the vehicle. Whether they obtain consent or have probably cause to do so is an entirely different matter.
Recently we represented a man charged with conspiracy to distribute a controlled substance. He was driving west on I-80 when an officer pulled him over. He was then placed in the front seat of the cruiser while the officer returned to our client’s vehicle to speak with a passenger. When the officer walked back to his car, he saw my client texting on his phone and asked him why he was deleting texts. The officer accused my client of destroying evidence. Destroying evidence of what? This is an odd situation, because my clients’ car had not been searched. No contraband had been found. Eventually, law enforcement searched my client’s car without consent and, of course, without a warrant. During the search, law enforcement found over 100 thousand dollars cash.
The officer claimed the currency smelled like marijuana.
Back at the police station, officers took the cash to a break room, where they conducted a discretionary sniff with a drug detection dog. The cash was hidden in a cabinet and a dog sniffed around the room. After a short time, the dog indicated that it smelled something in the cabinet where the cash was hidden.
This discretionary sniff has now become the government’s only basis for taking the money and charging my client with conspiracy to distribute. Law enforcement decided they would seize the money, but instead of protecting the evidence by sealing it in a bag, they deposited it in a bank. This creates a problem. The money can no longer be tested for the odor of narcotics because it has effectively been destroyed by its placement in a bank and its reentry into the stream of commerce. There are labs that can test cash for the odor of narcotics, but once money has been removed from the evidence locker, any odors lifted from it cannot be assumed to have been there when it was originally seized as evidence.
These types of cases are not uncommon. When law enforcement destroys evidence, we file a motion to exclude said evidence. Careless behavior by members of law enforcement can severely damage a case, especially when it leaves the prosecution with nothing but circumstantial evidence.
If you find yourself in a similar situation with law enforcement, contact the Berry Law today.
