The Sheriff Seizes What He Wants…The Doubtful Science of Methyl Benzoate | Cop Block

This was first posted by Scott Meiner on July 12, 2012, at Americans for Forfeiture Reform:

Last week, North Carolina’s Sampson County Sheriff’s Office reported another bulk currency seizure incident to a traffic stop-despite an apparent lack of evidence of criminality. Press reports indicate purported probable cause for the seizure consists of officer suspicion, a positive K9 alert, and an alleged lane violation-which seems consistent with the Sampson County Sheriff’s Office broad understanding of police power. Remarking on a 2006 bulk cash seizure, Sheriff Jimmy Thornton claimed, “[a]ny amount of money that’s over $8,000 or $9,000 can be seized or investigated…A hearing will be set up and the individual will be able to contest why the money belonged to him or was legit.

Of course, anyone can seize another’s possessions if afforded meaningful opportunity. However, we properly call that theft in the absence of legally recognized authority. Sheriff Thornton was presumably making more than the assertion that his officers could steal something if they so desired but rather (1) his department claims legally recognized authority to seize and/or investigate cash in “[a]ny amount of money that’s over $8,000 or $9,000″ if department actors have probable cause to seize the cash and (2) in the case of bulk cash, agents have probable cause. In North Carolina, bulk cash seizures, without other indicia of criminal activity, are likely controlled by two things: (1) the property seizure satisfies the US Department of Justice’s Equitable Sharing minimum threshold guidelines as defined by the adopting federal agency and (2) the cash is alerted to by a K9 unit.

Assuming that the deputies have no plans to requisition the cash for personal use (and that is not unheard of in Sampson County), currency seizures which are not run through the DOJ’s Equitable Sharing program are of limited utility to North Carolina law enforcement. North Carolina is one of several states that constitutionally direct forfeiture proceeds to education. Additionally, North Carolina severely restricts state administered civil asset forfeiture. North Carolina law enforcement frequently ask federal agencies to adopt their seizures and prosecute their cases. Federal agencies reward local law enforcement with up to 80% of the proceeds on successful forfeitures.

However, federal prosecutors still need to show probable cause to win a contested forfeiture attempt (if the claimant survives an Article III standing challenge). Until recently, a number of judges were persuaded by the Currency Contamination Theory: In a country where somewhere in excess of 75% of circulated currency is contaminated with cocaine residue, a canine sniff identifying that currency has drug residue is meaningless. That has been countered by the Methyl Benzoate Theory associated with Dr. Kenneth Furton, theInternational Forensic Research Institute, the US Court of Appeals for the Seventh Circuit, and their ruling in Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars ($30,670), 403 F.3d. The Supreme Court of  Mississippi summarized (in adopting the Seventh Circuit’s view of the Currency Contamination Theory):

“Instead of focusing on whether most U.S. currency is tainted with cocaine, the court turned its attention to whether the dog alerts are triggered by cocaine, or from a cocaine by-product, known as methyl benzoate. Id. The court found that based on experts’ extensive research on the scientific aspects of dog sniffs, the studies established to a reasonable scientific certainty that methyl benzoate, as opposed to the cocaine itself, triggers dog alerts to currency. Id. at 457-58. Moreover, the court found “methyl benzoate is highly volatile and evaporates at an exponential rate from tainted currency, so currency recently exposed to cocaine and returned to general circulation will quickly lose any detectable odor of methyl benzoate, even if the particles of cocaine remain.” Id. at 458. As such, the court found that narcotic dogs will alert to currency “only if it has been exposed to large amounts of illicit cocaine within the very recent past,” thus making properly trained narcotic dog alerts to currency entitled to probative weight. Id. at 459.” Evans v. City of Aberdeen, 926 So. 2d 181, 185 (Miss. 2006)

Part of the theory makes sense. Cocaine hydrolyzes in humidity. Byproduct yields benzoic acid and methanol which esterifies to form methyl benzoate. Methyl benzoate is a strongly fragrant volatile organic compound. Dr Furton’s research strongly indicates that K9 drug dogs detect the scent of methyl benzoate as opposed to the scent of cocaine (the research implies that detector dogs will seldom identify cocaine but more likely cocaine byproduct and cocaine adulterant byproduct). Research also demonstrated that the surface of currency spiked with methyl benzoate lost nearly 90% of the spiked methyl benzoate after 2 hours if in an unbundled state. The bundling of currency would be expected to slow the dissipation-preserving the methyl benzoate for later identification. Thus, positive identification of methyl benzoate on bundled currency implies contact with something that gave a byproduct of methyl benzoate (while bundled or closely preceding the bundling).

Of course, we cannot-barring the emergence of conversant canines-infer whether the alerting dog responds to methyl benzoate or something else unless a chemical test is performed identifying detectable presence of methyl benzoate (ideally a chemical capture of the field environment). Most lab tests appear to be geared towards confirming that the currency contains cocaine (which is of little value here due to compelling evidence that nearly all of our circulated currency is contaminated).

If a lab test for methyl benzoate is performed and confirms methyl benzoate presence, we still don’t know much. Methyl benzoate is pervasive in our environment. Hundreds of plant species emit detectable levels of methyl benzoate. Methyl benzoate appears in numerous products with which the average person encounters and contaminates currency, including (but certainly not limited to) fungi, pesticides, solvents, flowers, food and drink flavorers, butter, fruits, oils, perfumes, cheeses, tobacco, liquors, petroleum, and cosmetics.

A 1997 study by Paul Waggoner indicated that properly trained sniffer dogs detect headspace vapor concentrations of methyl benzoate above 50 parts per billion (ppb) with a 90% accuracy rate. The reported average canine threshold sensitivity was 16 ppb. Interestingly, a 2004 Health and Human Services occupational health study indicated that general air concentrations of methyl benzoate in the Canine Enforcement Training Center (later renamed Canine Center – Front Royal) ”ranged from 0.0034 to 0.43 ppm, with an average of 0.21 ppm [parts per million].” In other words, studied drug dogs reliably detect the scent of methyl benzoate at levels as precise as 50 parts per billion and can detect in the neighborhood of 16 ppb while the 2004 general air concentration of methyl benzoate in one of the nation’s premier drug dog training facilities ranged from 3.4 parts per billion to 430 parts per billion, with an average of 210 parts per billion.

The Canine Center’s air was probably contaminated with drugs. Mold might be a good culprit too. A Canadian study of mold in educational facilities found

A variety of solid and indoor air grab samples were taken from the selected locations and were immediately analyzed by solid phase microextraction and gas chromatography/mass spectrometry. By this rapid method, methyl benzoate concentrations in solid samples were found to range: 5—69 and 6—22 ppb for schoolrooms and university rooms, respectively. For air samples, methyl benzoate (quantitation limit 2 ppb) was not detected in the schools, however at the universities; concentrations were as high as 25 ppb. This study supports that methyl benzoate may have use, as an indicator of mold growth, in indoor air research. Investigation of Mold Growth in Indoor School Buildings by Monitoring Outgassed Methyl Benzoate as a MVOC Biomarker Don-Roger Parkinson, Tonia J. Churchill, Loay Wady, and Janusz Pawliszyn Indoor and Built Environment, June 2009; vol. 18, 3: pp. 257-264.

Similar studies have led researchers to advance using methyl benzoate as a biomarker for mold detection. Studies have isolated 118 different fungal isolates in a small sampling of circulated currency. Thirty-four of which were not recognized.

We also know that methyl benzoate was detected in a prominent 2003 study of presumably ‘clean’ US and Canadian money conducted for the FBI by US Customs and Border Protection Senior Research Chemist Dr Doan-Trang Vu. Currency was collected from the Federal Reserve, local banks, Canada Customs, and Dr Vu’s personal cash. It was stored in a variety of fashions.

“To determine the effect of storage on odor levels, bulk U.S. currency samples were analyzed after being stored for a week under various conditions: (1) loosely in a drawer (Fig. 1b), (2) tightly packed in a glass container covered with Al foil (Fig. 1c), or (3) tightly packed in an uncovered glass container. Ink samples were analyzed after being stored tightly capped or uncapped to determine the effect of storage on their headspace profiles. Likewise, cotton balls were analyzed either immediately after removal from the incubating ink jars or after sitting in open jars for up to 1 h to simulate setup time in a canine training session.” Doan-Trang T. Vu, Characterization and Aging Study of Currency Ink and Currency Canine Training Aids Using Headspace SPME / GC-MS, Journal of Forensic Sciences, Vol 48.

Dr Doan-Trang Vu identified the presence of “ 2,2-diethyl-1,1-biphenyl, methyl benzoate and salicylate, menthol, limonene, dimethyl and diethyl phthalate, and ionol.”

There are doubts about cuing errors too.

 ”But even with conscientious cops, a dog without the proper training may pick up on its handler’s body language and alert whenever it detects its handler is suspicious.

In one study published last year in the journal Animal Cognition, researchers rigged some tests designed to fool dogs into falsely alerting and others designed to trick handlers into thinking a package contained narcotics (it didn’t). Of the 144 total searches performed, the dogs falsely alerted 123 times. More interesting, the dogs were twice as likely to falsely alert to packages designed to trick their handlers than those designed to trick the dogs.

In 2011, the Chicago Tribune published a review of drug dog searches conducted over three years by police departments in the Chicago suburbs. The paper found that just 44 percent of dog “alerts” led to the discovery of actual contraband. Interestingly, for Hispanic drivers the success rate dipped to 27 percent, again supporting the theory that drug dogs tend to confirm the suspicions (and, consequently, the biases) of their handlers.

A 2006 statistical analysis (PDF) of police dog tests by University of North Carolina law professor Richard Myers concluded that the dogs aren’t reliable enough to provide probable cause for a search.

HuffPost obtained the records for one Illinois state police K-9 unit for an 11-month period in 2007 and 2008. Of the 136 times this particular dog alerted to the presence of drugs during a traffic stop over that period, 35 of the subsequent hand searches found measurable quantities of illegal drugs.

See accompanying article for a more thorough analysis of the K-9 records: An analysis of the K9 records shows that only 25.7 percent of the drug dog’s “alerts” resulted in police finding a measurable quantity of illicit drugs. Just 13 percent resulted in the recovery of more than 10 grams of marijuana, generally considered an amount for personal use, and 10.4 percent turned up enough drugs to charge the motorists or their passengers with at least one felony. Read more here.” Balko, Radley. ”Illinois Traffic Stop Of Star Trek Fans Raises Concerns About Drug Searches, Police Dogs, Bad Cops.” The Huffington Post, March 31, 2012.

All of this ought to convince the rational thinker to reject a mere K9 alert on currency as sufficient to give probable cause for a currency forfeiture. That cocaine might have been the cause of methyl benzoate presence which might have been the reason for an alert is meaningless without considerable proof of elusive propositions. We don’t know that only cocaine could produce methyl benzoate levels sufficient for a dog to detect. We do not know that the dog is detecting methyl benzoate. We do not know that handling errors are miniscule and rare. It is capricious and fatuous to order forfeitures without that information. Legislators should amend the law to block arbitrary use of the K9 forfeiture loophole. And the courts, who handle the fact intensive arbitration of probable cause, need to come to their collective senses.

Unfortunately, that is not the case, yet. Sheriff Thornton would seem accurate in claiming that they can seize and/or investigate ”[a]ny amount of money that’s over $8,000 or $9,000″ because that is exactly what they (like so many other law enforcement departments) are doing.

June 2012: “A routine traffic stop on I-40 Tuesday afternoon uncovered close to $40,000, wrapped in seven bundles. The cash was confiscated but no arrests have been made. According to reports from the Sampson County Sheriff’s Office’s Criminal Interdiction Team was working in the Suttontown and Faison communities Tuesday around 12:30 p.m. when they conducted a routine traffic stop on a black Chevrolet Tahoe for a lane violation on I-4,0 near mile marker 353, in the east bound lane. During the traffic stop, deputies become suspicious of criminal activity and had a K-9 officer conduct a search of the outside of the suspect vehicle. The K-9 reportedly alerted to several locations. A search of each of the locations inside the vehicle yielded several bundles of U.S. currency. In all, seven large bundles of cash was seized, totaling $39,000.” Clark, Doug. “Close to $40,000 in cash seized on I-40 Tuesday.” Sampson Independent. June 2012.

April 2012: ”Someone is out close to $10,000 following an I-40 traffic stop by sheriff’s investigators. Members of the Criminal Interdiction Team discovered two bundles of cash hidden under a seat after a routine traffic stop Tuesday morning. According to reports, the team stopped a Mercury Grand Marquis after they witnessed it make a minor traffic lane violation. Upon further investigation of the driver because of how nervous he appeared, officers asked if they could search the vehicle, and the driver gave his consent. During the search, investigators discovered two bundles of cash, totalling $8,160, and a Sanyo mobile phone under the front passenger seat of the vehicle. Federal asset and forfeiture laws allow investigators to seize the cash and the phone, which they did. No arrests were made in the case.” Clark, Doug. “Traffic stop leads to seizure of close to $10,000.” Sampson Independent. April 2012

February 2011: Investigators with the Sampson County Sheriff’s Office are investigating how $12,000 in cash wound up in the hands of passengers who were stopped in a Chrysler PT Cruiser Thursday afternoon. According to reports, the vehicle was stopped on north McCullen Road near Goshen Church Road, just west of the Duplin County line, for a traffic violation by deputies from the Sampson County Sheriff’s Office Criminal Interdiction Team. A subsequent search of the vehicle revealed a $12,000 in U.S. currency concealed in the door. A K-9, was requested and the dog alerted on the vehicle, however no drugs were located in the vehicle. Since the occupants of the vehicle were unable to account for the cash it was seized in accordance with federal laws regarding forfeiture. The names of the occupants are being withheld since they were not arrested on criminal charges. It was not clear at press time if charges will be filed against the occupants of the car. Clark, Doug. “Officers question money found during stop.” Sampson Independent. February 2011.

February 2011: “Over $10,000 in cash has been seized by deputies with the county’s Special Investigation’s division, the second such find in two days. A day after deputies seized $12,000 during a traffic stop on North McCullen Road, another stop in Sampson County uncovered $10,600.  According to reports released Tuesday morning, the second traffic stop occurred Friday night, Feb. 7, on U.S. 701 near King Road. That stop was for a motor vehicle violation. The cash was discovered in a door pocket of the vehicle. Neither the driver or the passenger claimed the money. Since the occupants of the vehicle were unable to account for the cash, it was seized in accordance with federal laws regarding forfeiture. The names of the occupants are being withheld since they were not arrested on criminal charges. No arrests have been made in Thursday’s stop either. Investigators said Tuesday that both incidents are still under investigation.” Clark, Doug. “More money seized following routine stop.” Sampson Independent. February 2011.

August 2010: “Deputies with the Sampson County Sheriff’s Criminal Interdiction Unit uncovered more than $6,000 during a traffic stop in Garland last Friday night. According to reports, the traffic stop, for a speeding violation, was made around 8:05 p.m. on Long View Lake Road in Garland. Upon approach the driver, identified as Raeford Fennell of Garland, notified deputies that he had a concealed handgun under the seat of his vehicle. Fennell was removed from the vehicle at which point the investigating deputy located a large sum of assorted currency in his pocket. The deputy became suspicious about the possession of the currency due to conflicting statements made by Fennell. The currency and gun were seized in accordance with Federal Asset Forfeiture Laws. During the traffic stop, a sum more than $6,000 was seized. Fennell was cited for the weapon violation, given a receipt for the seized currency and released.” Clark, Doug. “Sheriff’s deputies seize $6,000 at traffic stop.” Sampson Independent. August 2010.

February 2009: “A routine traffic stop in Roseboro has netted over $8,000 and left a South Carolina man with a lot of questions to answer. On Wednesday afternoon, around 5:30 p.m., Sampson County Sheriff’s Office Highway Enforcement Awareness Team deputies stopped a Ford F-250 truck on N.C. 24 near Mitchell Loop Road for a routine traffic violation. During the stop a Sheriff’s Office K-9 “alerted” on the vehicle for possible drug detection and upon inspection, deputies discovered $8,411 hidden in the vehicle. According to reports, the driver of the vehicle, Jesus Martinez Villa, of Columbia, S.C., was unable to account for the large amount of cash that was hidden. The money was seized according to Federal forfeiture guidelines and the case was adopted by the U.S. Drug Enforcement Administration. Villa’s truck was not confiscated, and no drugs were seized, according to Capt. Eric Pope of the Sampson County Sheriff’s Office. Villa was cited and released for the traffic violation.” Clark, Doug. “Sheriff’s office nets $8,000 from traffic stop.” Sampson Independent. Clintonnc.com. February 2009.

November 2007: “According to reports, the vehicle was stopped at around 4 p.m. Thursday on U.S. 701, south of Newton Grove. The stop was conducted by officers with the Sheriff’s Highway Enforcement Awareness Team, who were working motor vehicle enforcement and interdiction in the area when they observed an Accord with a window tint violation, reports state. The officers stopped the vehicle and a Sheriff’s Office K-9 gave a positive “alert” on the vehicle regarding the presence of narcotics. As officers interviewed the driver, Rivera, the suspect reportedly attempted to escape. Following a short foot pursuit, officers took Rivera into custody. During a search of the vehicle, HEAT officers discovered $140,000 in cash, which authorities said was concealed in different locations. According to sheriff’s officials, neither Rivera nor his passenger, claimed ownership of the cash. Rivera was charged with resist, delay and obstruction of an investigation and taunting a police K-9. He was placed in the Sampson County Detention Center under $3,000 secured bond. The passenger, who authorities said was cooperative, was released. Sheriff’s officials said the cash was seized according to Federal forfeiture guidelines and the case has been adopted by the U.S. Drug Enforcement Administration.” Berendt, Chris. “$140,000 Seized.” Sampson Independent. Clintonnc.com. November 2007.

October 2006: “Sampson County deputies hit the lottery Thursday, seizing $47,580 in U.S.  cash hidden in a black Cadillac.  No one’s been charged with any crime but the Sampson Sheriff’s Office has confiscated the large amount of cash, suspecting it was used for drug deals. The money was found after a traffic stop by the Highway Enforcement Awareness Team on Interstate 40 near Faison.  A K-9 “alerted” there may have been drugs in the vehicle, which allowed deputies to perform a non-consensual search. The searching officers found the cash in a manilla envelope in the trunk of the car.
“Any amount of money that’s over $8,000 or $9,000 can be seized or investigated,” Sheriff Jimmy Thornton said.  “A hearing will be set up and the individual will be able to contest why the money belonged to him or was legit.” The sheriff said it is about a six-month process to set up a hearing and determine why the man had the large amount of money. He said since the dog sniffed out the cash, there is a good possibility it could have been used in drug transactions. ”The dog hit on it, alerted on the money, which would indicate there are drugs involved,” Sheriff Thornton said. The driver of the vehicle, who could give no account for having the cash, was given a receipt for the money and was allowed to leave the scene with no criminal charges.  The stack of bills was turned over to the United States Marshal’s Service.” -Beck, Jason. “DEPUTIES NET $47,580 IN TRAFFIC STOP.” The Dunn Daily Record.

 


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