EVIDENCE
There are two categories of evidence;
evidence that is admissible,
and evidence that is not.
The understanding of evidence is vitally important to maintaining the rule of law.
It is a matter of life and death; of liberty or slavery; of moral integrity, or descent into chaos. Therefore it is an endeavor that cannot go neglected without peril.
You know, I love dogs. Nonetheless, our legal concept of probable cause assumes that a reasonable person is considering particular statements that might lead them to conclude a crime has been committed. In the context of this discussion, I consider facts as being reduced to statements. This is analogous to what a Judge would find in an affidavit for a search or arrest warrant.
In other words, you may not know with certainty that a crime has been committed at a given point in time, however it seems to be at least probable or very likely. That’s a deduction.
Lawyers often refer to yardsticks or rules like this one as a “reasonable person standard.”
Probable cause requires a reasonable person to look at the totality of the circumstances and make a decision.
It is not and should never be, reduced to a “reasonable dog” standard.
A dog’s alert is a reaction. A reaction is really the antithesis of a deduction. The holding in Harris wants to allow a deduction to follow from a reaction; in this instance, the observed reaction of an animal. Considering that this is not a valid deduction in the proper sense of the term, it should never, standing alone, be considered probable cause.
Sun Tzu and the Art of Trial
Every case whether criminal or civil involves evaluating the case for trial and either going to trial, or negotiating a settlement. The oracle I seem to consult most frequently in this endeavor is not a legal treatise or collection of advice from legendary lawyers. It is the Art of War, written by the legendary Chinese general Sun Tzu, over 2000 years ago.
Sun Tzu has been studied and written about by military leaders, executives and politicians. The insights found in the Art of War are equally applicable to the strategy and conflict in criminal cases.
“So it is said that if you know others and know yourself, you will not be imperiled in a
hundred battles; if you do not know others, but know yourself, you will win one and lose one; if you
do not know others and do not know yourself, you will be imperiled in every single battle.”
(Thomas Cleary translation, Shambala Publications, 1988)
The criminal charge that inspired last September’s post about the TARP (Truck, Air, Rail and Port) task force was dismissed this week. The case had been set for trial at the end of January.The charge was felony money laundering.
Yes, someone traveling with cash and waiting at a bus station was arrested and charged with money laundering.
That leaves the status of the seized currency unchanged however. At this time that cash is still the subject of a civil forfeiture proceeding in State District Court. Updates will follow. Stay tuned.
Wishing everyone a happy, prosperous and peaceful new year. 
This TARP is not the “Troubled Asset Relief Program” of the recent economic crisis although it may indicate that someone in Federal law enforcement has a wicked sense of humor. This TARP is an acronym for “Truck, Air, Rail and Port.” It is a drug interdiction task force that operates in Houston and part of their mission appears to be relieving travelers of their assets and by that I mean cash. The rationale is that travelers carrying cash are likely to be involved in either money laundering, drug trafficking or both.
While it still is not illegal in the U.S.of A. to carry and travel with cash, if a traveler falls under the scrutiny of this TARP and a dog trained in detecting narcotics alerts on their cash, that cash is probably going to be seized and the traveler is likely to be arrested.
This led me to begin research into something I had heard years ago: that most of the cash in circulation in this country will cause a narcotics K-9 to alert for the presence of…narcotics.
An interesting short article can be found at the website of the American Society of Canine Trainers, http://www.asctk9.org/id54.html
The actual extent to which currency in circulation is contaminated with narcotics is a contentious issue. What follows are short excerpts from some of the cases cited in the article by expert canine handler Terry Fleck.
“Conclusions of a DEA report found that one-third of bills in random sample were contaminated with cocaine.” United States v Saccoccia, 58 F. 3d 754 (1995) First Circuit.
“Even the government admits that no one can place much stock in the results of dog sniffs on currency because at least one-third of the currency in the United States is contaminated with cocaine. Therefore, the court is unwilling to take seriously the evidence of the post-seizure dog sniff.” United States v $506,231 U.S. Currency, 125 F. 3d 442 (1997) Seventh Circuit.
“The suspect presented evidence that over 75% of the currency in the area was contaminated with the residue of cocaine and the government presented no other evidence connecting the money to drugs.” United States v $30,060 U.S. Currency , 39 F. 3d 1039 (1994) Ninth Circuit,
Stay tuned. This investigation continues.
Those will be the topics of most of the writing I plan to publish here. And a few good stories worth sharing from time to time. Thanks for stopping by. If you would like to contact me to discuss a case involving you, or someone you care about, go to the “Contact our Office” link above. .