Occasionally, I run across an appellate case where the court’s blind acceptance of the Police account of events surrounding a Marijuana arrest is astounding, even for me. This one comes Carrolton, Texas. (A suburb of Dallas.) In $27,877.00 CURRENT MONEY of the UNITED STATES, v. The STATE of Texas, an asset forfeiture case, the Carrolton Police alleged their dog “Bosko” from under a garage door was able to “sniff” and “alert” on the mere scent of Marijuana on currency concealed in a gym-bag under a bed in a back room of the Defendant’s parent’s home. The trial court accepted this and the appellate court agreed.
According to the appellate opinion: “…In March 2007, Carrollton Police Department Narcotics Officer Mai Tran received information from a confidential informant that Roberts was trafficking marihuana and alprazolam (also known as Xanax) from a house in The Colony, Texas, where Roberts lived with his girlfriend and some friends. Officer Tran obtained a search warrant from a City of Carrollton magistrate (with jurisdiction in Dallas and Denton Counties) and executed the warrant at 4249 Malone Avenue, The Colony, Texas (the Malone address), in Denton County.
At the Malone address, Carrollton police officers found 8.5 tablets of alprazolam, 2 tablets of hydrocodone, 4.48 grams of marihuana, and $4,857 in cash. Roberts was arrested.
After the arrest, Officer Tran received additional information that Roberts, fearing that the police would raid his home, had moved drugs and money to two separate places. Specifically, the information was that Roberts had moved drugs to the house of James Savoldi, a friend and alleged "runner" for Roberts, and had moved money to Roberts's parents' house. Carrollton Police Officer Jeremy Sanchez, a canine handler, and his dog, Bosko, performed a " sniff search" on Savoldi's home at 4601 Freeman Drive, The Colony, Texas (the Freeman address), in Denton County. Bosko " alerted" to an odor at the front door of the house. Based on the information from the informant and the sniff search, Officer Tran obtained a search warrant for the Freeman address.
During the execution of the warrant, Savoldi admitted to the police that he was holding the drugs for Roberts. Savoldi had hidden a black gym bag with approximately two pounds of marihuana at the Freeman address. When he heard from Roberts's girlfriend that the police had searched the Malone address, Savoldi took the bag of marihuana from his house to a hotel in Addison, Texas, where it was later confiscated by Carrollton police officers. Roberts pleaded guilty to the felony offense of possession of more than four ounces but less than five pounds of marihuana for the marihuana that the officers found in the Addison hotel room.
While in jail, Roberts made a phone call and advised an unknown person that "the money" was in a bag under his brother's bed at Roberts's parents' house, 4628 Archer Drive, The Colony, Texas (the Archer address), in Denton County. Officer Sanchez and Bosko conducted a sniff search around the exterior of the Archer address, and Bosko alerted at the bottom of the garage door. Officer Tran obtained a search warrant for the Archer address from the same magistrate in Carrollton as the previous two warrants and executed that warrant. There, the police found $23,020 under the brother's bed, in bills of various denominations, tied with hair bands. In a written statement to the police, Roberts's brother denied any knowledge or ownership of the money. …The money recovered from the Archer address was taken to the Carrollton Police Station, where Officer Sanchez conducted another sniff search. This time, he took three new paper bags and put the money in one of them. Each bag was closed by folding over the top and all three bags were placed in a hallway about six feet apart. Bosko sniffed all three bags and alerted on the sack containing the money.”
The trial court found Bosko’s sniff among other facts was enough to create a nexus between the money seized and the Marijuana to warrant an asset forfeiture where the government gets to keep the money. On appeal, the Fort Worth Court of Appeals held: “At trial, it was the State's burden to establish, by a preponderance of the evidence, a substantial nexus or connection between the property to be forfeited and the statutorily defined criminal activity, which it may do by circumstantial evidence. …That is, the State must show that it must be more reasonable than not that the money was derived from the sale of controlled substances. Considering all the evidence in this case, we cannot say that the foregoing evidence is so weak or the evidence to the contrary is so overwhelming that the judgment should be set aside. See Garza, 395 S.W.2d at 823. …Accordingly, we hold that the evidence is factually sufficient to support the trial court's determination.”
However, the potential of outlandishness of these claims concerning Bosko’s ability did not escape the notice of a couple of the justices in their dissenting opinion. They stated: “After the police seized the money from underneath the bed, it was taken, presumably, in a police unit that had transported drugs and drug users in the past— if police testimony of all the drugs found hidden behind the back seats of police units is to be believed— to the Carrollton police station, where Officer Sanchez put the money in one of three brand new paper bags. Again, one wonders how many drugs and drug users had been brought into the Carrollton police station before the cash in question arrived and how thoroughly either the police station or the police car was cleaned between seizures.
Miraculously, the Amazing Bosko alerted on the sack containing the money. Apparently, Bosko had solved the case and provided Officer Sanchez the provenance of the money. Bosko " proved" to the police that Roberts owned the money and that it was contraband as proceeds from the sale of narcotics.”
This indeed is an amazing dog!
David Sloane is a premier Criminal Defense Trial Attorney in Fort Worth, Texas. David Sloane defends those accused of crimes ranging from petty misdemeanors to very serious felonies. David Sloane represents those in all State and Federal courts in the North Central Texas area including Tarrant, Parker, Denton and Dallas Counties.