Out-of-state cars traveling west through the State of Nebraska are often
stopped by law enforcement. Usually, the reason for the stop is following
too closely or some other minor traffic violation that may or may not
have occurred. After the traffic stop, the officer will ask the driver
about the purpose and destination of the travel. During this time the
officer will attempt to establish reasonable suspicion so they can detain
the defendant and search for cash, drugs, or weapons.
Based on the answers provided by the driver and/or passengers, the state
trooper may believe he has reasonable suspicion to detain the driver,
or to bring a
drug dog to sniff the vehicle. In many instances, the drug dog will arrive, sniff
the vehicle, and allegedly indicate the odor of narcotics.
Even in cases where cash is kept in what are known as “scent proof
bags,” dogs often alert the officer to the odor of narcotics; however,
if the dog is well trained and actually indicates the odor of narcotics
on the money, conviction is not guaranteed. Law enforcement often makes
a mistake that can help an innocent motorist to either win his case or
get his money back: the cops destroy the evidence.
In Nebraska, the state patrol, deputy sheriff officers, and other members
of law enforcement who seize cash will generally take it to the bank and
deposit that cash and in exchange receive a check for the cash. The problem
is, once the cash is returned to the bank it is placed back into the stream
of commerce. If the drug dog indicated the scent of narcotics on the money
and the money is now in the bank, released into the stream of commerce,
the evidence of the cash containing the scent of drugs has been destroyed
by law enforcement. This is known as spoliation of evidence.
Generally speaking, when one party destroys evidence that may have helped
the opposing party, the court will exclude that evidence and impose other
sanctions on the party that destroyed the evidence.
At Berry Law Firm, we have contacted laboratories who have indicated that
they will test cash for the scent of narcotics. When we attempted to conduct
an independent test of the odor of narcotics on cash, we have found that
the cash has been returned to commerce and thus, for purposes of testing,
has been destroyed.
The government’s failure to preserve the evidence allows us to argue
that because we have been denied the opportunity for independent testing,
the government should not be allowed to testify about drug dogs indicating
the odor of narcotics on the currency.
Sometimes, in cases where drugs are found in the vehicle, this argument
is not effective. Even when drugs
are found in the vehicle, however, at least one court has denied law enforcement
the ability to testify about a free air sniff that was conducted with
the dog at the state patrol or deputy sheriff office. The discretionary
sniff occurs after the money has been seized. The money is hidden in a
room and the dog is allowed to search the room for the money.
Oftentimes, law enforcement will use this discretionary sniff to prove
that the dog alerted to the odor on the money. Once again, if that money
is taken to the bank and the defendant does not have the opportunity to
test that cash for the scent of narcotics by sending it to a laboratory
or other expert, the evidence should be excluded from trial.
If the government has taken your cash at an
interstate drug stop in Nebraska, claiming it as drug money, please
contact Berry Law Firm. Our Lincoln criminal defense attorneys have received top ratings and
accolades from numerous institutions on account of our commitment to remarkable
legal service. We offer unflinching representation against a variety of
charges, and will even represent defendants from out-of-state.
Contact our legal team today at 402.817.6550 to get started with a
confidential case evaluation!