SUSPICIOUS SHOULD NOT EQUAL GUILTY

Americans have gotten used to the sometimes otherworldly decisions
that come out of the federal 9th Circuit Court of Appeals in San
Francisco, 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 got a scent of drugs on some of the
cash and in the rental car, but no drugs 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 he could buy a refrigerated
truck for their produce business. Gonzolez said he didn't mention the
cash because he was "scared" and said he had no arrest record because
he didn't think 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.

The 8th Circuit has now reversed the district court decision. 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 likely to be the
result of drug activity.

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 parapernalia, 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 Mr. 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.