from the obeying-the-law-cannot-be-considered-suspicious dept
The opportunistic actions of drug warriors has often been encouraged by courts, which have been willing to grant considerable leeway to law enforcement, even when their articulated suspicion is contradictory or could be read to cover nearly 100% of the American public. (And when that fails, there’s always the ever-popular “odor of marijuana” claim which generally can’t be disproven in court.)
For the most part, any way. Some courts have pushed back, pointing out that what officers call “suspicious” is often just humans being human. This memorable decision, written by Texas federal judge Brian Quinn, called bullshit on law enforcement assertions about “reasonable” suspicion.
A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.
A court willing to call bullshit is the reason a man will be getting back more than $13,000 stolen from him by law enforcement. In this case, North Carolina law enforcement officers decided the discovery of legally-owned weapons was evidence of illegal activity. The court [PDF], fortunately, decided to shut that line of reasoning down. (via Volokh Conspiracy)
In August 2018, Rahkim Franklin took $23,000 in cash to his bank, $8,000 of which had been given to him by his significant other (and co-claimant) Shelly Medrano. They were trying to buy a house and hoped to secure a loan by paying off an outstanding car loan and applying the rest to the down payment on the house. Franklin was denied the loan but still paid off the car loan, leaving him with a little more than $13,000 in cash.
He then went to a nearby restaurant to pick up a takeout order. As he exited the restaurant, he was pulled over by sheriff’s deputy who felt the windows on Franklin’s car were “overly tinted.” (This is also a very popular excuse for suspicionless stops and searches.) The deputy stated he “detected a strong odor of marijuana” coming from the vehicle. The car was searched and the deputy asked if Franklin had any weapons on him.
Franklin did not have any weapons on him. But he did have a bunch of cash, approximately $6,000 in one bundle and his wallet. A window tint test was performed and the deputy declared the tint was too dark. A citation was issued. Franklin was apparently not free to go. Instead, another officer arrived and the car was searched, resulting in the discovery of “loose marijuana shake” on the floorboard and under the seat. But this small amount was not enough to warrant a charge of drug possession, so no sample was taken.
The deputies keep searching, though, apparently hoping to discover more cash. And they did. They found another $7,000 in the center console. They kept it all. They also apparently kept $200 in coins found in a plastic container. Then they came across a loaded handgun under the seat. Franklin was ultimately arrested on concealed weapon charges. No drug charges were filed.
The government claimed many things supported its assertion the seized money came from drug sales, including Franklin’s invocation of the Fifth Amendment during cross examination, something Franklin claimed was due to his misunderstanding the questions being asked and misunderstanding what invoking the Fifth actually meant. (He was questioned again in court after sorting this out and answered the same questions without invoking the Fifth.) It also claimed his lack of verifiable income suggested only illegitimate sources of income. And then it claimed the gun deputies found was indicative of drug trafficking.
The court says all of the government’s assertions are wrong. As to the invocation of rights as a sign of guilt, it has this to say:
[T]he Government’s questions, as posed in the written interrogatories and deposition, were so broad as to encompass topics beyond what is relevant to this case—thus obviously raising Mr. Franklin’s suspicion and confusion. As such, the very imprecise questioning by the Government’s counsel caused Mr. Franklin’s invocation of the privilege to carry no appreciable probative value.
Moreover, at trial, Mr. Franklin responded fully to counsel’s questions regarding his illicit drug use and whether he had any involvement in the sale of controlled substances.
For these reasons, the Court declines to draw an adverse inference from Mr. Franklin’s invocation of his Fifth Amendment in the course of discovery.
As for the lack of verifiable income sources, the court says the government is drawing the wrong inferences from what it has presented as evidence, none of which suggests Franklin could only have gotten the money from dealing drugs.
[T]he Government has failed to prove that Mr. Franklin has a history of distributing controlled substances. At most, the Government proved that Mr. Franklin’s brothers are so involved. But the Government’s reliance on such evidence is equivalent to attempting to prove guilt by association or even guilt by blood.
At most, the Government has provided evidence that Mr. Franklin has a history of using controlled substances, primarily marijuana.
Thus, even if the Court were to find that Mr. Franklin does not appear to have legitimate, verifiable sources of income, Mr. Franklin’s apparent lack of involvement in the sale of controlled substances renders the evidence of his income sources to be less than probative on the issue of whether the Defendant Currency is traceable to illicit drug activity.
The court also says the drug dog alert on the seized cash proves nothing.
The cash to which the dog alerted, however, was located inside of a vehicle that smelled strongly of marijuana. Mr. Franklin admitted during the traffic stop that he had been smoking marijuana, and multiple officers on the scene noted the strong odor of marijuana coming from Mr. Franklin as well. In light of these circumstances, it is not surprising (in fact, it would be expected) that the cash located in
the center console of that vehicle would also smell of marijuana. At most, the positive canine alert establishes that the cash was within the vicinity of marijuana—a fact that was already known to the officers by virtue of the shake observed on the floorboard of the car and Mr. Franklin’s admission that he had been smoking marijuana.
Finally, there’s the gun, which the government alleged was evidence Franklin was in the drug trafficking business. Fuck that noise, says the court. Maybe read the Constitution?
In a footnote, the Government points out that Mr. Franklin also owns several firearms, which the Government contends “have long been recognized as being ‘tools of the drug trade.’” It is undisputed, however, that Mr. Franklin owned these firearms legally; he is not a convicted felon or an otherwise prohibited person. Further, none of Mr. Franklin’s firearms were subject to forfeiture by the Government. The Government has not presented any evidence from which this Court could reasonably conclude that these firearms were owned for the purpose of furthering any criminal activity. For the Government to suggest that a citizen’s mere possession of firearms implicates that person in illicit drug trafficking is to strain credulity. The Government’s argument presents some Second Amendment considerations that counsel has apparently not considered.
That ends the government’s litigation against the money it stole. The seizure warrant is vacated and the court declares Franklin and Medrano the rightful owners of the $13,000 law enforcement took from them. And it’s one more ruling that will be useful when combatting bullshit seizures performed by drug warriors who think legal activities are illegal and any amount of cash carried by people they stop could only have been obtained through criminal activity.
Filed Under: 5th amendment, 41st Anniv AUDIO of Night JOHN LENNON died NY City FM Radio Stat, HATCO GR3SDH-33 MERCHANDISE DISPLAY WARMER w/ HEATED GLASS SHELV, shelly medrano