GIVE HERRERA'S MONEY BACK

It sounds downright un-American, but the federal Drug Enforcement
Administration says Hector Herrera has to prove $4,000 the agents seized at
Omaha Eppley Airfield is not drug money before they will give him his money
back.

The burden of proof is on Herrera. That's the law, the federal drug seizure
law.

Um, er, well, that was the law until Aug. 23.

Then it changed. Now the federal government bears the burden of proving
seized money was earned in illegal drug transactions.

Federal agents seized the $4,000 from Herrera in June after they saw him
use cash to buy an airline ticket for a vacation in Phoenix. Drug-sniffing
dogs were used to search him. No drugs were found. No charges were filed.
But the dog smelled drugs on the bills in Herrera's pocket. On the basis of
that agents took his cash.

Herrera insists that he earned the money delivering pizza and flowers and
working for a drywall company. He says he has the pay stubs to prove it.
Two months later he is still waiting for his $4,000.

The American Civil Liberties Union has stepped into the case on Herrera's
behalf. Tim Butz, director of ACLU'S Nebraska office, says the case
involves issues of racial profiling and unlawful seizure.

By now the DEA ought to know there is a big problem with relying on
drug-sniffing dogs to prove that cash is drug-related.

Most of the cash in America is tainted with drugs. Thomas Jourdan, chief of
materials and devices for the FBI, says 85 to 90 percent of the bills in
the United States are covered with measurable amounts of cocaine.

"Any time you take a bunch of money and let a dog sniff it, he will find
cocaine on it," said Terry Hall, laboratory director for Toxicology Testing
Service in Miami, who has testified in more than 500 drug cases, usually
for the prosecution. "It doesn't mean you're a drug smuggler. It just means
you have a lot of money in one place."

Judge C Arlen Beam, a former Nebraskan who was appointed a federal judge by
Ronald Reagan in 1987, wrote the decision for a 1996 case in which $77,000
was returned after it was seized from a man at the St. Louis airport. "The
fact of contamination alone is virtually meaningless and gives no hint of
when or how the cash became so contaminated."

Beam went on to describe the case as a cautionary tale, "illustrating the
mischief to which our eagerness to employ forfeitures as a weapon in the
war against drugs can lead."

How many cautionary tales does the DEA need? If the agency has any sense of
fairness and justice it will stop living in the past. Even though the DEA
technically can apply the old law, it ought to live by the new law. If the
DEA can't prove the money was drug-related it should give Herrera's money back.