SEIZING PROPERTY ON A SUSPICION

Americans have gotten used to the sometimes otherworldly decisions
that come out of the federal 9th Circuit Court of Appeals in
California, which has a reputation as a left-wing hothouse. Yet we
can't recall a decision that the 9th Circuit has recently made that
comes close to the lunacy expressed by the 8th Circuit in the
Midwest.In essence, the court ruled last month that anyone driving
with large quantities of cash must be assumed to be guilty of
something, and that the government can take that cash from its owner.
No evidence of wrongdoing need be found for the police to take the
money and run.

In 2003, Emiliano Gomez Gonzolez was pulled over by a state trooper in
his rental car for speeding along a Nebraska interstate highway.
Gonzolez handed the trooper a Nevada license and the car's rental
contract. However, a different man's name was on the contract. After
Gonzolez told the officer that he had never been arrested, the officer
checked with his dispatcher and found that Gonzolez had indeed been
arrested for a DUI earlier that same year.

Those suspicions led to a search of the car, which led to the
discovery of $124,700 in cash in a cooler. Later, as the court
explained, a drug-sniffing dog named Rico got a scent of drugs on some
of the cash and in the rental cars, but no drugs, drug residue or drug
paraphernalia were found.

The government claimed that "the dog's alert, along with the large
amount of cash that was seized, the circumstances of Gonzolez's
travel, and Gonzolez's initial false denials that he was carrying cash
or that he had a criminal history, showed that the currency was
substantially connected to a drug transaction," according to the court
analysis.

Friends and relatives of Gonzolez testified that they had given him
money from their savings so that he could buy a refrigerated truck for
their produce business, and Gonzolez said he didn't mention the cash
to officers because he was "scared" and he said he had no arrest
record because he didn't think a DUI was considered a crime.

A district court ruled in Gonzolez's favor, stating that his
explanation was plausible and that the government did not provide any
proof that he was involved in the drug trade.

That seems obvious to us. Just because someone is involved in
suspicious activity doesn't mean he has done anything wrong. In this
country, the government is supposed to have proof before denying a
person his liberty or his property. The government could not prosecute
Gonzolez on drug charges, given the lack of evidence, yet it claimed
authority to keep his money, anyway.

The 8th Circuit has now reversed the district court. It argued that
"possession of a large sum of cash is 'strong evidence' of a
connection to drug activity." The court called it a common-sense view
that concealing large amounts of money is more likely to be the result
of drug activity than of Gonzolez's stated reason of hiding money from
would-be thieves. The court found a number of Gonzolez's traveling
arrangements to be suspicious. And that was enough for the court.

But this is absurd. We thought that in this country the government
needed evidence, not just suspicions. Where is the proof that a crime
was commited?

As Judge Donald Lay wrote in his dissent, "Notwithstanding the fact
that claimant's seemingly suspicious activities were reasoned away
with plausible, and thus presumptively trustworthy, explanations which
the government failed to contradict or rebut, I note that no drugs,
drug paraphernalia, or drug records were recovered .... There is no
evidence claimants were ever convicted of any drug-related crime, nor
is there any indication the manner in which the currency was bundled
was indicative of drug use or distribution."

And the dog's scent was meaningless, given that Gonzolez was driving a
car that had been rented by many people, and that the U.S. Supreme
Court acknowledges that "a large percentage of currency presently in
circulation contains trace amounts of narcotics."

This is one of the more foolish, unjust decisions we've seen in a
while. Let's hope the case goes on to the Supreme Court.