Jones v. United States Drug Enforcement Admin., 819 F. Supp. 698, 720 (M.D.Tenn. 1993); see $ 53,082.00, 985 F.2d at 250, n.5; United States v. $ 639,558.00 in United States Currency, 293 U.S. App. D.C. 384, 955 F.2d 712, 714, n.2 (D.C.Cir. 1992); $ 80,760.00, 781 F. Supp. at 475-77 (N.D.Tex. 1991). Although the studies which have been conducted disagree with respect to the percentage of bills contaminated, it cannot be doubted that contaminated currency is widespread. Jones, 819 F. Supp. at 720. There is some indication that "residue from narcotics contaminates as much as 96% of the currency currently in circulation." $ 80,760.00, 781 F. Supp. at 475 & n.32. "Given these facts, the continued reliance of courts and law enforcement officers on dog sniffs to separate "legitimate" currency from "drug-connected" currency is logically indefensible. 819 F. Supp. at 721. Further, a string of court decisions indicates that probable cause for forfeiture requires the government to do more than merely subject currency to a drug dog search. See $ 80,760.00, 781 F. Supp. at 476; United States v. $ 53,082.00 in United States Currency, 773 F. Supp. 26, 33-34 (E.D.Mich. 1991); United States v. $ 13,000 in United States Currency, 747 F. Supp. 430, 433 (S.D.Ohio 1990); In re Forfeiture of $ 18,000, 189 Mich. App. 1, 471 N.W.2d 628 (Mich.Ct.App. 1991). Therefore, the government's allegation that a narcotics detection dog alerted to the seized funds does not suffice to state a cause of action for forfeiture.
It is true that the aggregation of facts, each one insufficient standing alone, may suffice to meet the government's burden. United States v. United States Currency, $ 83,310.78, 851 F.2d 1231, 1235 (9th Cir. 1988). However, not only are each of the factual predicates for the government's seizure feeble when looked at singularly, we also find that the government's complaint is insufficient under a totality of the circumstances test. Gates, 462 U.S. at 230-31. Using this test, we find that the government's case is much weaker than other cases where courts have denied motions to dismiss forfeiture claims which arose in factually similar contexts.
For example, the court in $ 176,400.00, 1991 U.S. Dist. LEXIS 271, 1991 WL 3931, at *3, denied the claimant's motion to dismiss where the government seized $ 176,400.00 from two men at Chicago O'Hare International Airport who arrived after a one-day trip to Buffalo, New York. The airline records indicated that the men had purchased first class tickets at the last minute with cash. The police officers conducted a consensual search of the claimant's luggage and discovered several bundles of $ 100 dollar bills totaling $ 176,400.00. The men gave conflicting accounts of where they obtained the money and neither claimed to be employed. The currency was later tested by a narcotic detector dog, and the dog reacted positively. The court cited the lack of controlling caselaw and the disagreement among other courts in denying the motion to dismiss.
While there are some parallels with this case, we find that 176,400.00 is distinguishable for the following reasons. Sanchez purchased a round-trip ticket in his own name to El Paso for a 10-day stay. In contrast, the claimants in $ 176,400.00 arrived at O'Hare from Los Angeles, changed from dirty clothes to business suits, and then purchased first-class tickets to Buffalo, returning to O'Hare that same day. Id. at *1. Also, Sanchez volunteered that he was in possession of $ 9,800 which he earned working at a jewelry store. The claimants in $ 176,400.00 gave conflicting amounts of who owned the exceedingly large amount of money they had stashed in their luggage and neither could explain the source of the money. Id. One of the men suggested they found the money in the airport restroom. Id. Thus, the claimants in $ 176,400.00 engaged in unusual conduct by travelling from Los Angeles to Buffalo and back to O'Hare all in the same day and then lying to police about who owned the money. Sanchez's behavior cannot be equated with the highly suspicious $ 176,400.00 claimants, where he merely purchased a round-trip ticket for a 10-day stay in El Paso with cash.
Similarly, Sanchez's behavior did not exhibit the same indicia of drug activity which warranted the court in $ 15,100, 1994 U.S. Dist. LEXIS 7157, 1994 WL 240516, to deny the claimant's motion to dismiss. There, the claimant, Martin Tite, was stopped at Chicago Midway Airport by Drug Enforcement Administration Task Force Agents (TFA) and forced to hand over $ 15,100 in cash, which was stashed in his pockets and socks. The court found that the following circumstances surrounding the seizure supported a reasonable belief that the government could establish probable cause at trial:
(1) Tite's airplane ticket was purchased with cash, for a flight departing only two hours after Tite's arrival, and the ticket was issued in the name of Raymond White, (2) Tite told TFA agents that he planned to stay in Chicago for a few days but he did not bring any luggage, (3) Tite claimed that he intended to use the $ 15,100 to purchase a neon sports sign, but he did not know the full name of the man from whom he intended to purchase the sign, (4) Tite stated that a portion of the money he was carrying belonged to "Tom's Signs," a business located in Alton, Illinois, but a check with Ameritech information operators revealed that there was no business with the name of "Tom's Signs" in Alton, Illinois, and finally, (5) a narcotics detection dog alerted to the presence of narcotics on the currency.
Id. at *3. Again, Sanchez did not engage in such a pattern of unusual conduct. Sanchez did not fly under an assumed name, a factor which other courts have emphasized in evaluating forfeiture claims. See $ 8,120.00, 1994 WL 445080, at *5. Whereas the government in $ 15,100 showed that the claimant lied about the source of the money, the government here has offered no claim that Sanchez lied about his employment situation, relying on the vagueness of Sanchez's description of the jewelry store where he claimed to work as the only evidence of dissembling. The government has presented a tenuous case for forfeiture based upon the simple existence of a significant sum of money, aspects of the drug courier profile, and the response of a drug detection dog. We find that claimant has successfully shown that, based on allegations in this complaint, the government can prove no set of facts demonstrating a reasonable basis for believing that the defendant funds are subject to forfeiture under § 881(b)(6). Neither do these allegations, taken together, give rise to a reasonable inference that the defendant funds were connected to illicit narcotics transactions. United States v. 6238 Beaver Dam Road, Mateson, Ill., 1991 U.S. Dist. LEXIS 12390, No. 91- C-2305, 1991 WL 177693, *3 (N.D.Ill. Sept. 5, 1991). Therefore, this court grants claimant's motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). We do so without prejudice. The government's verified allegations stated with the particularity required by Supplemental Rule (E)(2)(a) provide a basis for a healthy suspicion but not a basis for a reasonable belief that the government can establish probable cause at trial. Perhaps there is more, but what we have now is not enough to justify going forward.
III. Due Process Clause
Finally, claimant asks this court to find that the federal forfeiture statute violates the federal due process clause by authorizing the deprivation of property on the basis of a probable-cause showing. However, since we find that claimant's motion to dismiss should be granted on other grounds, we find no need to address this constitutional question.
For the foregoing reasons, claimant's motion to dismiss is granted.
JAMES B. MORAN,
Senior Judge, U.S. District Court
December 16th, 1996.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that claimant's motion to dismiss is granted without prejudice.
December 16, 1996