Benefit of the Doubt for the Briefcase Full of Cash

CHICAGO (CN) - A man trying to reclaim the $100,000 cash he had in a briefcase must be given the chance to show that police were wrong to seize it as drug money, the 7th Circuit ruled.

In December 2002, Vincent Fallon bought a one-way train ticket from Chicago to Seattle, leading the Drug Enforcement Agency (DEA) to suspect he might be a drug courier.

After Fallon boarded the train at Chicago's Union Station, DEA agents approached him, claiming that they were doing a routine check, and asked him some questions.

Fallon told the agents he was unemployed and going to visit a friend in Seattle. He denied carrying more than $10,000 in cash, but when he refused to allow the agents to search his locked briefcase, he admitted that it contained about $50,000.

He claimed that he intended to buy a house in Seattle with the money.

The agents then ordered Fallon to get off the train, and in the station, a police dog named Deny alerted the agents to drugs in the briefcase.

The DEA then confiscated the luggage, and agents found that it contained $100,120 in cash.

A federal judge granted the government's motion to seize the money, holding that the currency was either the proceeds of an illegal drug transaction, or intended to purchase drugs.

But the 7th Circuit reversed the decision last week, on the appeal of the money's true owner, Nicholas Marrocco.

Marrocco did not deny that the government might be able to prove that the funds were drug-related, but claimed that "genuine disputes of material fact exist with respect to whether he had legitimately acquired the funds and whether Deny's alert demonstrated that the funds recently had been in contact with illegal drugs," Judge Daniel Manion said, writing for a three-judge panel.

In his affidavit, Marrocco claimed that the cash constituted his life savings, which he kept in cash at home because he did not have a bank account. During much of the 1990s, he says that he lived at home with his parents and had little to no living expenses, which allowed him to save a substantial amount of money.

"If believed, Marrocco's affidavit testimony provides the trier of fact with a basis for finding that Marrocco legally accrued (or, at least, could have legally accrued) the Funds," the ruling states (emphasis in original).

Marrocco also presented the affidavit testimony of a forensic chemist, Sanford Angelos, who said that cocaine residue can become trapped in currency, and innocent general-circulation currency often contains a level of residue that will alert a drug dog.

"Through this expert evidence, Marrocco has created a dispute of material fact regarding whether the government has proved by a preponderance of the evidence that drug-dog alerts to currency are in general (and, a fortiori, Deny's alert in particular) reliable evidence that the currency recently has been in contact with illegal drugs," the 32-page opinion states (parentheses in original).

Another expert hired by Marrocco, David Kroyer, opined that Deny was not trained to distinguish between the "odor of illicit cocaine and odors such as baking soda, vitamin B-12, and other agents used in creating or 'cutting' the cocaine. Consequently, according to Kroyer, Deny's training likely (if mistakenly) instilled in him the tendency to alert not only to the odor of cocaine but also to odors of agents which are used in creating illegal cocaine (but which are not necessarily connected to illegal drugs)." (Parentheses in original.)

This testimony also raises additional questions of fact that undermine the District Court's ruling, Manion said.

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