Pubdate: Sat, 16 Sep 2000
Source: Lincoln Journal Star (NE)
Copyright: 2000 Lincoln Journal Star
Contact:  PO Box 81609, Lincoln, NE 68508
Fax: (402) 473-7291
Feedback: http://www.journalstar.com:80/info/about_ljs/letform
Website: http://www.journalstar.com/

GIVE HERRERA'S MONEY BACK

It sounds downright un-American, but the federal Drug Enforcement 
Administration says Hector Herrera has to prove $4,000 the agents seized at 
Omaha Eppley Airfield is not drug money before they will give him his money 
back.

The burden of proof is on Herrera. That's the law, the federal drug seizure 
law.

Um, er, well, that was the law until Aug. 23.

Then it changed. Now the federal government bears the burden of proving 
seized money was earned in illegal drug transactions.

Federal agents seized the $4,000 from Herrera in June after they saw him 
use cash to buy an airline ticket for a vacation in Phoenix. Drug-sniffing 
dogs were used to search him. No drugs were found. No charges were filed. 
But the dog smelled drugs on the bills in Herrera's pocket. On the basis of 
that agents took his cash.

Herrera insists that he earned the money delivering pizza and flowers and 
working for a drywall company. He says he has the pay stubs to prove it. 
Two months later he is still waiting for his $4,000.

The American Civil Liberties Union has stepped into the case on Herrera's 
behalf. Tim Butz, director of ACLU'S Nebraska office, says the case 
involves issues of racial profiling and unlawful seizure.

By now the DEA ought to know there is a big problem with relying on 
drug-sniffing dogs to prove that cash is drug-related.

Most of the cash in America is tainted with drugs. Thomas Jourdan, chief of 
materials and devices for the FBI, says 85 to 90 percent of the bills in 
the United States are covered with measurable amounts of cocaine.

"Any time you take a bunch of money and let a dog sniff it, he will find 
cocaine on it," said Terry Hall, laboratory director for Toxicology Testing 
Service in Miami, who has testified in more than 500 drug cases, usually 
for the prosecution. "It doesn't mean you're a drug smuggler. It just means 
you have a lot of money in one place."

Judge C Arlen Beam, a former Nebraskan who was appointed a federal judge by 
Ronald Reagan in 1987, wrote the decision for a 1996 case in which $77,000 
was returned after it was seized from a man at the St. Louis airport. "The 
fact of contamination alone is virtually meaningless and gives no hint of 
when or how the cash became so contaminated."

Beam went on to describe the case as a cautionary tale, "illustrating the 
mischief to which our eagerness to employ forfeitures as a weapon in the 
war against drugs can lead."

How many cautionary tales does the DEA need? If the agency has any sense of 
fairness and justice it will stop living in the past. Even though the DEA 
technically can apply the old law, it ought to live by the new law. If the 
DEA can't prove the money was drug-related it should give Herrera's money back.
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