Spoliation of Evidence in Cash Seizure Cases

Out-of-state cars traveling west through the State of Nebraska are often stopped by law enforcement. Usually, the reason for the stop is following too closely or some other minor traffic violation that may or may not have occurred.

Drug Dog

After the traffic stop, the officer will ask the driver about the purpose and destination of the travel. During this time the officer will attempt to establish reasonable suspicion so they can detain the defendant and search for cash, drugs, or weapons.

Based on the answers provided by the driver and/or passengers, the state trooper may believe he has reasonable suspicion to detain the driver, or to bring a drug dog to sniff the vehicle. In many instances, the drug dog will arrive, sniff the vehicle, and allegedly indicate the odor of narcotics.

Seizure of Cash

Even in cases where cash is kept in what are known as “scent proof bags,” dogs often alert the officer to the odor of narcotics; however, if the dog is well trained and actually indicates the odor of narcotics on the money, conviction is not guaranteed. Law enforcement often makes a mistake that can help an innocent motorist to either win his case or get his money back: the cops destroy the evidence.

In Nebraska, the state patrol, deputy sheriff officers, and other members of law enforcement who seize cash will generally take it to the bank and deposit that cash and in exchange receive a check for the cash. The problem is, once the cash is returned to the bank it is placed back into the stream of commerce. If the drug dog indicated the scent of narcotics on the money and the money is now in the bank, released into the stream of commerce, the evidence of the cash containing the scent of drugs has been destroyed by law enforcement. This is known as spoliation of evidence.

Generally speaking, when one party destroys evidence that may have helped the opposing party, the court will exclude that evidence and impose other sanctions on the party that destroyed the evidence.

Cash as evidence

At Berry Law, we have contacted laboratories who have indicated that they will test cash for the scent of narcotics. When we attempted to conduct an independent test of the odor of narcotics on cash, we have found that the cash has been returned to commerce and thus, for purposes of testing, has been destroyed.

The government’s failure to preserve the evidence allows us to argue that because we have been denied the opportunity for independent testing, the government should not be allowed to testify about drug dogs indicating the odor of narcotics on the currency.

Sometimes, in cases where drugs are found in the vehicle, this argument is not effective. Even when drugs are found in the vehicle, however, at least one court has denied law enforcement the ability to testify about a free air sniff that was conducted with the dog at the state patrol or deputy sheriff office. The discretionary sniff occurs after the money has been seized. The money is hidden in a room and the dog is allowed to search the room for the money.

Oftentimes, law enforcement will use this discretionary sniff to prove that the dog alerted to the odor on the money. Once again, if that money is taken to the bank and the defendant does not have the opportunity to test that cash for the scent of narcotics by sending it to a laboratory or other expert, the evidence should be excluded from trial.

If the government has taken your cash at an interstate drug stop in Nebraska, claiming it as drug money, please contact Berry Law. Our Lincoln criminal defense attorneys have received top ratings and accolades from numerous institutions on account of our commitment to remarkable legal service. We offer unflinching representation against a variety of charges, and will even represent defendants from out-of-state.

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