Jacobson v. $55,900 in U.S. Currency

• Citation: 728 N.W.2d 510
• Decision Date: 15 March 2007
• Docket Number: No. A05-60.,A05-60.
• Parties: Richard J. JACOBSON, Appellant, v. $55,900 in U.S. CURRENCY, Respondent.
• Court: Supreme Court of Minnesota (US)

728 N.W.2d 510

Richard J. JACOBSON, Appellant, v. $55,900 in U.S. CURRENCY, Respondent.

No. A05-60.

Supreme Court of Minnesota.

March 15, 2007.

Randall D.B. Tigue, Minneapolis, for appellant.

James C. Backstrom, Dakota County Atty., Margaret M. Horsch, Asst. County Atty., Kathryn M. Keene, Asst. County Atty., Dakota County Judicial Center, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, PAUL H., Justice.

Following the arrest of Jeffrey Carlisle, an admitted drug dealer, Dakota County notified Richard Jacobson that the county intended to forfeit $55,900 in cash seized from a safe located in the apartment Jacobson rented to Carlisle. Jacobson disputed the county's decision and demanded a judicial determination of the forfeiture. At the subsequent trial, the county presented evidence that a certified drug detection dog had identified drug odor on the cash. Both Jacobson and Carlisle testified that Jacobson was not involved in Carlisle's drug dealing and that the $55,900 did not belong to Carlisle. The district court issued a forfeiture order after finding that Jacobson had failed to rebut a statutory presumption that cash found in proximity to drugs is subject to forfeiture. Jacobson moved for amended findings, arguing that Carlisle's testimony constituted sufficient evidence to rebut the presumption and that the court improperly considered the dog sniff evidence. The court denied the motion. Jacobson appealed to the Minnesota Court of Appeals, which affirmed the district court. Jacobson then petitioned our court for review of two issues: (1) whether a district court may consider witness credibility when it decides whether a claimant has rebutted the statutory presumption; and (2) whether dog sniff evidence is admissible to prove a connection between cash and drug trafficking. We reverse and remand for further proceedings consistent with this opinion.

In January 2003, Dakota County Drug Task Force agents executed a search warrant at the home of Jeffrey Carlisle and seized approximately two pounds of marijuana and other contraband. They also seized approximately $28,000 of Carlisle's cash from a dryer at the home of his girlfriend. In August 2003, task force agents again executed a search warrant against Carlisle, but at this time Carlisle was living in an apartment he rented from appellant Richard Jacobson. The apartment is located above Jake's Bar, a business Jacobson had owned and operated until it closed in October 2002. The August search yielded approximately eight pounds of marijuana and other contraband. Agents also found $14,880 in a microwave in the kitchen and $55,900 in a locked safe in the bedroom.

Five months after the search, Dakota County notified Jacobson that it intended to forfeit the $55,900 found in the safe. Jacobson demanded a judicial determination of the forfeiture. At trial, the county called two witnesses: task force agent John Grant and state trooper Robert Frisby. Both officers participated in the search and seizure operation at Carlisle's apartment.

Grant testified that task force agents found the eight pounds of marijuana on shelves just inside the entrance to the apartment. He also stated that in the safe in Carlisle's bedroom, agents found $55,900 in bills of varying denominations and an expired Arizona driver's license in Jacobson's name. Some of the bills were of the older, symmetrical design, while other bills were of the newer, asymmetrical design.¹ One was a $1,000 note wrapped in a plastic cover. With the exception of this $1,000 note, the bills the agents seized were not available at trial because the county deposited them in the bank. No testing was conducted on the bills before they were deposited to determine whether they contained drug residue.

Before the task force agents opened the safe, they called Officer Frisby to bring his certified drug detection dog Nikki to help locate any money and drugs the agents might have missed. Frisby testified that Nikki has been trained to detect the base odors and derivatives of five different drugs — marijuana, methamphetamine, cocaine, heroin, and psilocybin mushrooms.² He described Nikki's original training and certification, as well as the annual certification and monthly "maintenance training" she has received since Frisby and Nikki began working together in 1999. He explained that the training process essentially consists of teaching a dog to associate the odors of controlled substances with rewards.

Frisby explained that when Nikki detects drug odors, she gives an "alert" — a visible physical response that includes a change in her breathing. She then "indicates" the source of the odor by biting and scratching at it. The source can be either the actual drugs or items that have drug odor on them, such as cash. Frisby stated that since 1999, Nikki had been involved in approximately 2,700 searches and alerted to drugs at approximately 680 of these searches.

Frisby next described Nikki's training to detect drug odors on cash. He stated that during a training session the previous month, neither Nikki nor any of the other dogs alerted to $100,000 in circulated cash until handlers "odored" it by placing it in close proximity to drugs for less than 15 minutes. Frisby explained that once handlers odored the cash,

the dogs would alert and indicate on odor and you could tell after a period of time that the scent would dissipate. The longer the currency had been away from the drug, the harder it became for the dogs to alert and indicate on it.

He stated that from his observation of Nikki in training sessions over the past five to six years, drug odor "dissipates rather quickly from currency once it is removed from the close proximity of the drugs." Frisby said that in training sessions, Nikki never alerted or indicated on cash that did not have drug odor.

Frisby further testified that when he first led Nikki through Carlisle's bedroom, she alerted and indicated at several locations, including the safe next to the bed. But she did not alert on the surface of the bed when Frisby led her over it. Frisby then informed the task force agents about Nikki's reactions, and the agents opened the safe. Frisby stated that the agents took the cash from the safe and placed it in several bundles on the bed. After ascertaining that none of the agents who touched the cash had contaminated it by previously touching the drugs in the apartment, Frisby called Nikki to the top of the bed.

At this point in the trial, Jacobson interrupted Frisby's testimony in order to ask some questions to lay a foundation for an objection to the dog sniff testimony. In response to Jacobson's questions about Nikki's error rate, Frisby explained that the focus of Nikki's ongoing training is to determine whether she fails to alert when drugs are present and alerts when no drugs are present. He stated that a record had been made to document each of Nikki's 2,100 "training sniffs," and he "guesstimated" her error rate to be one to two percent "at the most." After the county resumed its questioning, Jacobson started to object to Frisby's testimony for lack of foundation, but then apparently changed his mind, saying "Well, I'll let [the county] ask the question and I'll raise the objection [then]."

The county then resumed its questioning. Frisby stated that after he called Nikki to the top of the bed, she indicated on the bundles of cash that agents had placed there. Jacobson objected on the ground that there was "insufficient foundation laid as to the reliability of the dog." The court overruled the objection, stating:

I think it goes to the weight that I g[i]ve to [the dog sniff evidence]. I agree it would have been a stronger basis [for identifying drugs on the cash] if they would have tested the currency itself, but I think based on [Frisby's] testimony over 2,700 street sniffs, 2,100 tests and one to two percent false positive ratios, I think he's got enough foundation to testify and it goes to weight.

Shortly thereafter, the county asked Frisby whether Nikki would have alerted to the cash if it had not come in contact with narcotics for several years. This time Jacobson objected on the ground that no foundation had been laid for Frisby's opinion. The district court sustained this objection, stating that the county would have to lay additional foundation before it could elicit Frisby's testimony in response to this question. After a brief exchange between the county and Frisby, the court asked Frisby what specific training he had completed regarding the amount of time it takes for odors to dissipate or how odors are absorbed. Frisby acknowledged that he had not completed any coursework on the chemical makeup of odors or how long odors could remain on various items. He repeated that in his experience at training with Nikki, the longer an item remains in proximity to drugs and the closer the proximity, the longer the item retains the odor. After several more questions from the county about the nature of Nikki's training and what Frisby had observed regarding the dissipation of odors, the court told the county, "I don't think you're ever going to get to the point where you're going to make an expert out of him. * * * [H]e can testify to his observations." After a brief cross-examination, redirect examination, and recross-examination, Frisby's testimony ended.

Jacobson called four witnesses, the first of whom was Carlisle. Carlisle testified that he and Jacobson were friends, and that he had purchased a business from Jacobson two years before he moved into the apartment above Jake's Bar. Carlisle admitted he sold marijuana out of the apartment and that he had pleaded guilty to a charge of selling marijuana. He also testified that he kept his drug proceeds in the microwave. When asked if he ever used the bedroom safe from which task force agents seized the $55,900, Carlisle replied, "Uh, no. * * * [Y]ou know, $14,000 * * *...