Despite State Protections, Nebraska Troopers Seize Cash

Nebraska is one of only three states that holds the government to the highest possible legal standard of proof in civil forfeiture proceedings, requiring law enforcement to prove its case “beyond a reasonable doubt.”  That did not stop state troopers from seizing and ultimately forfeiting $124,700 in cash from Nevada resident Emiliano Gonzolez without so much as charging, let alone convicting, him of a crime.  This was possible through federal equitable sharing, as well as the low federal standards required for a successful forfeiture.

In May 2003, a Nebraska trooper stopped Gonzolez for speeding.  After learning from a dispatcher that Gonzolez had a previous arrest for speeding that he did not disclose, troopers asked to search the car and discovered $124,700 in cash in a cooler in the back seat.[1]  Gonzolez, who was not fluent in English, told police he pooled cash from friends and their relatives in order to buy a refrigerated truck in Chicago.  When he got to Chicago, the truck he intended to buy for a produce business had already been sold.  He was driving home when he was stopped.

Troopers seized the cash pursuant to federal forfeiture and controlled substances laws, in essence alleging that the money was involved in a drug crime.

Gonzolez initially told police that he did not have large amounts of cash.  He later testified that he was scared carrying so much money was illegal, and he had concealed the money in a cooler to avoid having it stolen.  The trial court found that his story was “plausible and consistent” and denied the forfeiture.  The 8th U.S. Circuit Court of Appeals later reversed the trial court’s decision.

In so doing, the court held that the government established by a “preponderance of the evidence” (the federal civil forfeiture standard of proof) a “substantial connection” between the money and a drug trafficking offense.

The 8th Circuit wrote, “[W]hile an innocent traveler might theoretically carry more than $100,000 in cash across the country and seek to conceal funds from would-be thieves on the highway, we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking”—even in the absence of any drugs or drug paraphernalia in the car or any prior drug offenses by Gonzolez or his investors.

Indeed, among the “suspicious circumstances” cited, only one had any relation to evidence of a drug crime—a canine alert of drug residue on the money.  Canine alerts on cash are notoriously unreliable.

Especially as interpreted by the 8th Circuit, the preponderance of the evidence standard the government had to meet to forfeit Gonzolez’s cash is significantly lower than the beyond a reasonable doubt standard required for civil asset forfeiture under Nebraska law.

[1] United States v. $124,700, 458 F.3d 822 (8th Cir. 2006).

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