CHARLES B.

“BRAD” FRYE
ATTORNEY AND COUNSELOR AT LAW
808 Travis, Suite 1101
Houston, Texas 77002
(713) 236-8700
Fax: (713) 229- 8031
www.charlesbfrye.com

Tainted Currency and Asset Seizure and Forfeiture Issues

“I’m Not a Drug Dealer – Why Did the Police Seize My Money?”

Your college-age son calls from the airport in Austin. He had been attending school in Chicago
and had flown to Austin to see a young lady he met on the Internet. All he carried on the plane
was a backpack, and, because he didn’t know when he might return to school – or visit you in
Houston – he bought a one-way ticket. When he decided to return to Chicago, he approached the
airline counter and, using his driver’s license with his “permanent” Houston address (your house,
where he grew up), he asked for a one way ticket. He didn’t have a credit card (not after the stunt
he pulled as a freshman, when you thought he could handle his own finances), so he paid in cash.
All he carried was his backpack for the return trip.

Before September 11th, he would have breezed through ticketing and security and would have
been home in a few hours. But, this time, the airline ticket agent alerted the airport police and
your son was approached by them as he waited in the gate area.

Your son had been profiled – single young male, address on identification didn’t match either
departure or arrival city, paid for the ticket in cash, and had no luggage, only a backpack. So,
whether he’s a suspected terrorist or drug dealer, the police wanted to “eyeball” him and ask him
a few supposedly innocuous questions.

After those questions, the police asked if he would mind if they searched his backpack. He’s a
good kid, you taught him to respect law enforcement, and, he wasn’t a terrorist or a drug dealer.
So, he said “yes.”

The police found three thousand dollars in currency in his backpack. (Yes, he’s a saver all right.
And, since he distrusted “plastic,” he carried his cash around with him, never letting the
backpack out of his sight.

When the police asked him about the cash, he simply said it was his. He had saved it. He
thought it best to be simple and direct and just tell them what it was.

The police, however, asked your son to accompany them to an interview room, “for just a few
more questions.” He did, staring to feel increasing uncomfortable as he did so.

In the interview room, the senior officer unpacked the backpack’s contents, including the
currency, on the table. In a few moments, another officer, this one with a K-9 unit (which is “cop
speak” for “dog”), came into the room and the dog sniffed the property, including the currency,
spread out on the table. After a few moments, the officer with the dog said “that’s it – them
money.”

The senior officer then asked your son more pointed questions – Did he deal drugs? Did he
know anyone he did? When was the last time he bought cocaine or marijuana? Your son
became increasingly nervous, which only made the officer press harder with the questions. After
a few moments, your son asked, “Do I need a lawyer?” To which the officer replied, “I don’t
know. Do you think you need a lawyer? Have you done something wrong?”

After a few more minutes, the officer gathered up the currency, placed it into another plastic bag
with a tag, and, after copying your son’s identification, told him he was free to go.

Your son was free to go. But his money was staying. The officers had seized the currency and
would be forwarding their seizure affidavit to the district attorney’s office and a Notice of
Seizure and a Petition would be filed in which the State would allege that the currency was
“contraband” and subject to forfeiture under Chapter 59 of the Code of Criminal Procedure.

A significant percentage of paper currency contains high traces of cocaine, and it is not necessary
for the money to come into direct contact with the drug.

One study found that paper currency in the United States contained an average of between 2.9
and 28.8 micrograms of cocaine depending on the year and city, with a maximum of more than
1,300 micrograms found on some 1996 bills. A gram of cocaine would fill about half a tea bag.
A microgram is one-millionth of that amount.

And, besides traces of narcotics, paper money is contaminated with other things, such as disease
causing bacteria. One past study revealed ninety four percent (94%) of one dollar bills collected
from a community in western Ohio contained disease-causing or potentially disease-causing
bacteria. The study, published in 2002 in the Southern Medical Journal, was led by Peter Ender,
chief of infectious diseases at Wright-Patterson Medical Center in Ohio.

Whether it’s contamination by narcotics or deadly bacteria, it’s not surprising since dollar bills in
the United States stay in circulation for an average of 21 months, according to the U.S. Bureau of
Engraving and Printing, during which time they get handled by plenty of people. For larger bills,
the life span is even longer, with twenty dollar bills lasting about 24 months and fifties staying in
circulation for 55 months.

So, during those time periods, who else has handled your money besides you and the bank
cashier? If it was a drug dealer or user, then traces of narcotics will most likely remain on the
currency. And, that could cause you a problem when the police call for the “drug sniffing” dog
after they find a large amount of currency in your vehicle, in your baggage, or in your pocket.

Thankfully, appeals courts have held that possession of a large sum of money is not illegal in and
of itself.
In many cases where currency is seized, the State relies on a “drug dog' s” alert as to the presence
of narcotics or traces of narcotics on paper money. But, it is important to remember that, under
the law, a drug dog' s alert is just probable cause to continue investigating, not conclusive proof
the money has been exposed to a controlled substance. Even if the dog had actually alerted on
the money itself, rather than on a vehicle and on a location where wrappings from the money had
been placed.

“Drug dogs,” though widely used by law enforcement, are not infallible and, in fact, are often
susceptible to false-positive alerts. When evaluating a drug dog’s “alert” to contraband, one
must consider a number of factors, including the subjectivity of interpreting the drug dog' s alert,
the subjectivity of the dog, and the inability to cross-examine the dog to challenge his “findings.”