Many Nebraska money forfeiture cases begin when people with out-of-state license plates travel through Nebraska heading west and are stopped by law enforcement. Immediately law enforcement asks whether the driver or passenger have any large sums of cash or whether they intend to purchase marijuana in states such as Colorado, California or Oregon. Law enforcement then finds a reason to search the vehicle and the cash is taken.
In the State of Nebraska it is illegal to have drug money under Nebraska Revised Statute §28-416(17). In these cases, there is often some minor traffic violation such as following too closely that law enforcement provides as the reason for the traffic stop. During the traffic stop, law enforcement talks to the driver and possibly the passenger and determines that the travel story does not make sense. Shortly thereafter, a drug dog is called to the scene and the dog sniffs the vehicle, alerts and indicates to the odor of narcotics. The vehicle is searched and the cash is seized. Once the cash is seized, if the defendant is in Lancaster, Seward, or Hamilton County, it is likely that he will be charged under the state criminal statute for possession of drug money. If the defendant is in a different Nebraska county, the cash is more likely to be seized by the federal government under a civil forfeiture action.
Nebraska’s Constitution protects against double jeopardy and therefore it is unlawful to charge a person with possessing drug money and also attempt to forfeit it under Nebraska Revised Statute §28-431. However, recently in cases where the government has lost the motion to suppress and the criminal case is dismissed prior to a jury trial, the State may attempt to refile the case under §28-431 in an attempt to get the court to forfeit the seized property to the government.
First, an innocent motorist who is stopped with a large sum of cash must claim the cash. Often the state patrol or homeland security will interrogate a person with a lot of cash and ask that they sign a form waiving their right to the money. If the person indicates they have no interest in the money, it will be very difficult to get that money back in the future. Once the money has been taken, the claimant can file a motion with the court requesting that the evidence be preserved for an independent test for the defense. This is important for a couple of reasons.
First, there are labs that will do independent tests for the odor of narcotics on the cash. This allows the defendant to challenge whether the drug dog actually alerted to the odor of narcotics or just the odor of cash. Second, it is the government’s procedure to put the money in the bank and back into the stream of commerce. If the government does this, it destroys the evidence and, under the rules of spoliation, could result in a favorable ruling for the defendant.
Third, once that cash is in evidence, it will be more difficult for federal agencies such as the DEA to get a hold of the money and pursue a civil forfeiture action while the criminal case is pending.
It is important to note that drug dogs indicate to the odor of narcotics. While the case law certainly suggests that a well-trained and certified drug dog indicating to the odor of narcotics is sufficient for probable cause, the issue becomes if the drug dog handler can actually testify that the drug dog indicated to the odor of narcotics on the cash. The defendant may file a Motion in Limine or request a Daubert Hearing on the admissibility of the evidence as to whether the dog actually indicated to the odor of narcotics on the cash. Furthermore, there is quite a bit of research and case law indicating that most cash is contaminated with the odor of narcotics.
In cases where the cash is seized by the federal government through a civil action rather than a federal action, the defendant can either wait to go through the federal forfeiture process or the defendant may file a motion to return the property under Rule 41g of the Federal Rules of Criminal Procedure. Under this rule, no pending criminal case is needed. The defendant will need to pay the filing fee in federal court but can take the initiative to get the money back as opposed to waiting for the federal government to make a decision as to what it intends to do with that cash.
