In the
United States Court of Appeals
For the Seventh Circuit
No. 11‐3706
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
FUNDS IN THE AMOUNT OF ONE HUN‐
DRED THOUSAND ONE HUNDRED AND
TWENTY DOLLARS ($100,120.00),
Defendant.
APPEAL OF: NICHOLAS P. MARROCCO
and VINCENT J. FALLON
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03‐cv‐03644 — Elaine E. Bucklo, Judge.
ARGUED MAY 31, 2013 — DECIDED SEPTEMBER 19, 2013
Before FLAUM, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. After a Chicago Police Department
drug dog alerted to a briefcase at Chicago’s Union Station,
2 No. 11‐3706
Drug Enforcement Administration agents seized the briefcase
and discovered that it contained $100,120.00 in United States
currency. The federal government initiated a civil forfeiture
proceeding against the currency, and the owners filed a claim
for the currency. Ultimately, the district court granted the
government’s third motion for summary judgment and held
that the undisputed facts proved by a preponderance of the
evidence that the currency was either the proceeds of an illegal
drug transaction, or was intended to facilitate such a transac‐
tion. The claimants appeal, and we reverse.
I. Facts
On December 4, 2002, Vincent Fallon purchased a one‐way
ticket for a train scheduled to travel from Chicago to Seattle on
December 6. This conduct caused Drug Enforcement Adminis‐
tration Agent Eric Romano to suspect that Fallon might be a
drug courier. Romano and Agent Sterling Terry approached
Fallon after he had boarded the train at Chicago’s Union
Station, informed him they were doing a routine check, and
proceeded to question him. Fallon provided the agents with
identification and stated that he was unemployed, the address
on his identification card was not current, and he was going to
visit a friend in Seattle. Fallon refused to provide a current
address, and Romano noticed that Fallon was sweating and
trembling. Romano told Fallon he was looking for travelers
with weapons, drugs, or more than $10,000 in currency, but
Fallon denied carrying any such things. Fallon was traveling
with a duffle bag and a brown briefcase, and he told the agents
that he owned them both and knew what each contained.
Fallon allowed the agents to search his duffle bag, but declined
to permit them to open the briefcase. When Romano picked up
No. 11‐3706 3
the briefcase, he noticed that it was locked. He asked Fallon
why the briefcase was locked, and Fallon responded that it
contained personal effects and that he did not care to have
anyone rummage through it. Fallon also stated that he did not
have a key to open the briefcase (although he continued to
maintain that it belonged to him). When pressed by Romano,
Fallon admitted that the briefcase contained about $50,000 and
stated that he intended to purchase a house in Seattle. Romano
then told Fallon the briefcase would be held for further
investigation, and directed Fallon to exit the train and accom‐
pany the agents.
At the Amtrak police office, Romano contacted the Chicago
Police Department and requested a drug‐detection dog.
Meanwhile, in the presence of Fallon, Romano used a
pocketknife to pry the briefcase open, and observed that it
contained bundles of currency. He then closed the briefcase
and questioned Fallon further. Fallon now claimed that the
currency actually belonged to a third person for whom Fallon
was investing it in glass blowing and glass art.
Thereafter, Chicago Police Officer Richard King arrived.
Terry testified that Romano showed King the briefcase, and
King testified that the agents told him that the briefcase
contained suspected “narcotics transaction money.” Romano
then placed the briefcase in the roll‐call room of the Amtrak
police office while King went to retrieve his drug dog, Deny.1
No illegal drugs or suspected currency had been in the roll‐call
1
As discussed in greater detail below, Romano and King’s testimony
differed regarding the location of the briefcase in the roll‐call room.
4 No. 11‐3706
room that day, although drug sniffs had previously been
conducted in the roll‐call room (including some performed by
Deny). King then brought Deny to the roll‐call room and
ordered him to search for drugs. Deny alerted to the briefcase.2
After Deny’s alert the agents confiscated the briefcase, which
contained $100,120.00 in United States currency (“the Funds”).
The government initiated this civil forfeiture proceeding
against the Funds. Fallon, and the owner of the Funds, Nicho‐
las P. Marrocco, filed a joint claim for the Funds. (It is undis‐
puted that Marrocco is the actual owner of the Funds. Thus, for
simplicity’s sake, we subsequently refer to the claimants as
“Marrocco.”) Marrocco, who was not charged with any crime
connected to the Funds, moved to quash the seizure of the
Funds and argued that they were the fruit of an illegal search
and should be suppressed. The district court granted
Marrocco’s motion because the court thought that although the
agents had reasonable suspicion to temporarily hold the
briefcase, they lacked probable cause to open it prior to Deny’s
alert. After the district court denied the government’s motion
for reconsideration, the government appealed. We reversed
based on the inevitable discovery doctrine and, in the alterna‐
tive, because Romano’s illegal “opening of the briefcase with
a knife had no effect on the subsequent discovery that the
2
The record is ambiguous regarding how Deny performed the search.
King testified that Deny began searching the perimeter of the room by
going along the wall, eventually located the briefcase after a short search,
and began clawing and biting at the briefcase itself. Romano testified that
Deny went straight to the cabinet containing the briefcase, began clawing
and biting on the cabinet door behind which the briefcase was located, and
managed to pull the door open.
No. 11‐3706 5
money was tainted by drugs.” See United States v. Marrocco, 578
F.3d 627, 637–42 (7th Cir. 2009).
On remand, the government filed a motion for summary
judgment. In response, Marrocco filed a motion in limine to
exclude any evidence concerning Deny’s alert to the briefcase.
Relying on evidence that large quantities of United States
currency are contaminated with illegal drugs, Marrocco also
requested a hearing under Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993), and Federal Rule of Evidence 702 to
challenge any evidence offered by the government purporting
to establish that drug‐dog alerts to currency demonstrate that
the currency recently has been in contact with illegal drugs.
The government withdrew its summary judgment motion, and
the district court denied Marrocco’s motion in limine and
request for a Daubert hearing. In rejecting Marrocco’s request
for a Daubert hearing, the district court concluded that our
precedent “puts to rest any argument that dog sniffs are
universally unreliable based on the ‘currency contamination’
theory.”
The government subsequently filed a second motion for
summary judgment. Marrocco’s response relied, in part, upon
expert affidavits averring that Deny’s alert does not establish
that the Funds recently were in contact with illegal drugs
because drug‐dog alerts to currency are generally unreliable,
Deny’s training was inadequate, and Deny’s sniff was con‐
ducted in an unsound manner. The government moved to
strike Marrocco’s expert evidence. The district court denied the
motion to strike, but ruled that the government could subse‐
quently make any appropriate Daubert challenges to
Marrocco’s expert evidence. The district court also denied the
6 No. 11‐3706
government’s motion for summary judgment, but granted
leave to file a renewed motion supported by expert evidence.
Thereafter, the government filed its third motion for
summary judgment and argued that the undisputed evidence
demonstrated that the Funds were either the proceeds of an
illegal drug transaction, or were intended to facilitate such a
transaction, for four reasons. First, Fallon fit a drug courier
profile. Second, Marrocco’s tax returns, W‐2 statements, and
deposition testimony reveal that his expenses from 2000–2003
(approximately $111,625.00) exceeded his income from
1999–2002 ($96,006.90), and consequently Marrocco’s legiti‐
mate sources of income were insufficient to account for the
Funds.3 Third, records and affidavit testimony from King
regarding Deny’s training, certification, and past performance
in the field prove that Deny was a reliable drug dog. And
fourth, testimony from Romano and King establish that the
methodology employed during the sniff of the briefcase was
sound. (Despite the district court’s earlier admonishment, the
government did not provide expert evidence in its motion for
summary judgment, but argued instead that such evidence
was unnecessary to establish that a particular drug dog was
reliable or that a particular sniff was sound.) The government
also challenged Marrocco’s expert evidence under Daubert and
Rule 702.
In response, Marrocco argued that the evidence created
genuine issues of material fact regarding whether Marrocco
3
At his deposition, Marrocco testified that he was unemployed from April
2002 until the seizure of the briefcase on December 6, 2002.
No. 11‐3706 7
had a legitimate source for the Funds and whether Deny’s alert
demonstrated that the Funds recently had been in contact with
illegal drugs.4 On the first issue, Marrocco relied primarily
upon his affidavit testimony that the Funds were savings from
his lawful employment over the course of his life. On the
second issue, Marrocco again offered expert evidence that
drug‐dog alerts to currency are generally unreliable, Deny’s
training was inadequate, and Deny’s sniff was conducted in an
unsound manner.
Concluding that the undisputed evidence shows that Fallon
matched a drug courier profile, the Funds could not be
attributed to a legitimate source, and Deny’s alert demon‐
strated that the Funds recently had been in contact with illegal
drugs, the district court granted the government’s motion for
summary judgment. However, the district court did not
resolve the government’s Daubert and Rule 702 challenges.
Marrocco appeals.
II. Discussion
On appeal, Marrocco reiterates his arguments that genuine
disputes of material fact exist regarding whether the Funds
could have come from a legitimate source and whether Deny’s
alert demonstrates that the Funds recently had been in contact
with illegal drugs. Marrocco also contends that the district
court applied an improper legal standard, and that the Funds
4
Marrocco also argued that the district court had previously found that
Fallon did not fit a drug courier profile. But this argument is without merit
because, in reversing the district court’s decision containing that finding, we
held that Fallon did “fit the profile of a drug courier.” Marrocco, 578 F.3d at
633.
8 No. 11‐3706
should be suppressed because the search and seizure of the
briefcase was unconstitutional.
We review a grant of summary judgment de novo. United
States v. Funds in Amount of Thirty Thousand Six Hundred Seventy
Dollars, 403 F.3d 448, 454 (7th Cir. 2005) (hereinafter, “$30,670”)
(citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). We must
construe the facts in the light most favorable to Marrocco, and
draw all reasonable inferences in his favor. Smith v. Sangamon
Cnty. Sheriff’s Dep’t, 715 F.3d 188, 191 (7th Cir. 2013). Further‐
more, the government carries the burden of proving by a
preponderance of the evidence that the Funds were either the
proceeds of an illegal drug transaction, or were intended to
facilitate such a transaction. 18 U.S.C. § 983(c)(1); 21 U.S.C. §
881(a)(6). Where, as here, “the Government’s theory of forfei‐
ture is that the property was used to commit or facilitate the
commission of a criminal offense, or was involved in the
commission of a criminal offense, the Government [must]
establish that there was a substantial connection between the
property and the offense.”5 18 U.S.C. § 983(c)(3).
5
The Civil Asset Forfeiture Reform Act of 2000 heightened the
government’s burden of proof in civil forfeitures. See Pub. L. No. 106–185,
114 Stat. 202 (2000). Previously, the government only had to establish
probable cause to believe there was a connection between the property to
be forfeited and illegal drug activity. See United States v. 5 S 351 Tuthill Rd.,
Naperville, Ill., 233 F.3d 1017, 1024–25 (7th Cir. 2000). Marrocco contends that
the district court applied the older probable‐cause standard. In support of
this argument, Marrocco relies upon the district court’s remark that the
“totality of the circumstances” showed that the Funds were connected to a
drug offense. Marrocco argues that “totality of the circumstances” is a
concept tied to probable‐cause determinations and has no application in the
(continued...)
No. 11‐3706 9
Marrocco does not challenge the district court’s ruling that
the government could satisfy its burden under Section 983(c)(3)
by proving that Fallon matched a drug courier profile, the
Funds could not be attributed to a legitimate source, and
Deny’s alert demonstrated that the Funds recently had been in
contact with illegal drugs. See $30,670, 403 F.3d at 454–70; see
also United States v. $174,206.00 in U.S. Currency, 320 F.3d 658,
662 (6th Cir. 2003). Rather, Marrocco argues that genuine
disputes of material fact exist with respect to whether he had
legitimately acquired the Funds and whether Deny’s alert
demonstrated that the Funds recently had been in contact with
illegal drugs.
5
(...continued)
context of the government’s burden under the Act. Marrocco provides no
citation to supporting authority, which is surprising given that our
precedent has continued to use the “totality of the circumstances” concept
in cases to which the Act applies. See $30,670, 403 F.3d at 467–70; but see
Illinois v. Gates, 462 U.S. 213, 233 (1983) (noting that “the totality‐of‐the‐
circumstances analysis … traditionally has guided probable cause determi‐
nations”). The “totality of the circumstances” analysis merely requires the
court to base its decision on all of the evidence. Thus, “totality of the
circumstances” is a concept distinct from burden of proof. Regardless of
whether the government must prove a fair probability (probable cause) or
more likely than not (preponderance of the evidence), the court still looks
to all of the evidence. Of course, one key distinction is that in a probable‐
cause determination, the “totality of the circumstances” is limited to what
the officer knew, but in civil forfeiture proceedings, the “totality of the
circumstances” is the entire body of evidence in the case. Here, the district
court clearly articulated the preponderance‐of‐the‐evidence standard and
repeatedly referenced that standard throughout its analysis. We are
convinced that the district court held the government to the correct
standard of proof under the Act, and will continue to do so on remand.
10 No. 11‐3706
A. Legitimate Source
The government relied upon Marrocco’s tax returns, W‐2
statements, and deposition testimony, which reveal that his
expenses from 2000–2003 exceeded his income from 1999–2002,
to prove that Marrocco could not have accumulated the Funds
legally. In response, Marrocco offered affidavit testimony that
the Funds were savings from his lawful employment over the
course of his life—a claim that he had previously made at his
deposition. Marrocco avers that, upon leaving college, he
moved into his parents’ house and took a position with a
company called WCI Financial, a subsidiary of G.E. Capital
Corporation. At the same time he also worked as a bartender
at a successful sports bar franchise. He then worked as a shift
manager and night bartender at the Naperville Country Club.
While there, he was recruited to work as a controller/sales
manager at a packaging graphics firm. And during his time at
the firm, he also worked as a bartender at the Barn of
Barrington.6 In 1994, he began to work as a general manager at
a local pizza restaurant. The restaurant was named
Bloomingdale Pizza, Inc., and was a Rosati’s franchise.
Marrocco was working towards an ownership interest in the
franchise, and he worked at the restaurant until April 2002.
6
Although the exact dates that Marrocco worked in these various
positions are unclear from his affidavit, he testified at his deposition that he
graduated from high school in 1988 and later spent two and one‐half years
attending Illinois State University as well as some “intermittent time” at
two other colleges. Thus, the job history recounted in Marrocco’s affidavit
likely began sometime in 1991 or 1992.
No. 11‐3706 11
During most of this time period, he lived rent‐free and virtu‐
ally expense‐free with his parents and consequently he claimed
that he was able to save a substantial portion of his earnings.
Furthermore, according to Marrocco’s deposition testimony, he
kept his savings at home because he did not have a bank
account.
Relying on $30,670, the district court held that Marrocco’s
affidavit testimony does not create a dispute of material fact
because it is imprecise, unsubstantiated, and self‐serving. But
“we long ago buried—or at least tried to bury—the misconcep‐
tion that uncorroborated testimony from the non‐movant
cannot prevent summary judgment because it is ‘self‐serving.’”
Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010); see
also Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003) (“We have
routinely found that a nonmoving party’s own affidavit can
constitute affirmative evidence to defeat a summary judgment
motion.”). To reject testimony because it is unsubstantiated
and self‐serving is to weigh the strength of the evidence or
make credibility determinations—tasks belonging to the trier
of fact. See Berry, 618 F.3d at 691 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). At summary judgment,
whether the movant’s evidence is more persuasive than the
evidence of the non‐movant is irrelevant. Id. The only question
is whether the evidence presented, reasonably construed in the
light most favorable to the non‐movant, creates a genuine
dispute regarding any material fact precluding judgment as a
matter of law. See Fed. R. Civ. Proc. 56(a).
$30,670 is not to the contrary. In that case, the government
seized the currency in 2000, and the undisputed evidence
revealed that in 1998 the claimant filed bankruptcy and
12 No. 11‐3706
declared under penalty of perjury that he had no money.
$30,670, 403 F.3d at 465–67. Thus, the claimant could have
legally accrued the currency only from 1998 until the seizure
in 2000. The government offered the claimant’s 1998–2000 tax
returns which showed that his expenditures exceeded his
income for that time period. Id. at 465. The claimant argued
that the currency was his life savings from the mid‐1990s,
which he neglected to mention in his bankruptcy filing, and
from gambling winnings, which he had failed to report on his
tax returns. Id. However, in opposing summary judgment and
on appeal, the claimant did not place into the record any of the
documents that allegedly supported his claims. Id. Nor did he
offer affidavit testimony in support of these claims. Id. at 466.
Consequently, we declined to find that the claimant’s argu‐
ment created a dispute of material fact because a party’s
arguments in his brief are not evidence, and the claimant failed
to provide actual evidence (either through supporting docu‐
ments or affidavit testimony) in support of his argument. Id.
However, in dicta we speculated that summary judgment
would still have been appropriate even if the claimant had
offered an affidavit testimony unsupported by additional
evidence besides the claimant’s “say‐so.” Id. Our observation
was rooted in a well‐known exception to the rule that unsub‐
stantiated, self‐serving affidavit testimony can defeat a motion
for summary judgment. Specifically, we do not allow litigants
to manufacture material fact questions by affidavit testimony
that contradicts prior sworn testimony. Id. And although the
claimant’s bankruptcy filing was not prior sworn testimony,
we saw no reason why the exception should not extend
beyond sworn testimony to documents signed under penalty
No. 11‐3706 13
of perjury. Id. But we certainly did not alter the general rule
that unsubstantiated, self‐serving affidavits may be used to
defeat a motion for summary judgment. Marrocco’s affidavit
testimony—though uncorroborated and self‐serving—does not
contradict any prior sworn statement. Therefore, Marrocco
may rely upon his affidavit to defeat summary judgment.
The district court also expressed concern that Marrocco’s
affidavit testimony is imprecise. We agree that the affidavit
could contain more details—for example, the dates and hours
he worked in his various positions, the names of all of his
employers, and his pay.7 Nevertheless, Marrocco’s affidavit
testimony is sufficient to create a dispute of material fact.
Marrocco does much more than merely parrot the applicable
legal standard (for example, by testifying simply that the
Funds were legally obtained). See Good Shepherd Manor Found.,
Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (affirm‐
ing district court’s exclusion of proffered testimony that was
“made up solely of legal conclusions”). If believed, Marrocco’s
affidavit testimony provides the trier of fact with a basis for
finding that Marrocco legally accrued (or, at least, could have
legally accrued) the Funds.8 Cf. Kellar v. Summit Seating Inc., 664
7
Although, at his deposition, Marrocco did specify that his annual pay at
the pizza restaurant—the position he held for the longest period of
time—was about $40,000 plus a bonus.
8
Marrocco’s affidavit testimony certainly is not incredible as a matter of
law. See United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir. 1989) (“To be
incredible as a matter of law, a witness’ testimony must be unbelievable on
its face. In other words, it must have been either physically impossible for
(continued...)
14 No. 11‐3706
F.3d 169, 175 (7th Cir. 2011) (finding district court erred in
disregarding as conclusory affidavit testimony that contained
“a fair amount of detail”).
Perhaps the government’s evidence—composed, as it is, of
official tax documents—seemed weightier than Marrocco’s
affidavit testimony. But, as stated above, such determinations
are properly left to the trier of fact. Moreover, the govern‐
ment’s evidence concerning Marrocco’s expenses and income
from 1999–2003 does not directly contradict Marrocco’s
affidavit testimony about his income prior to 1999. There is
nothing inherently contradictory about the idea that a person
may have a positive net income during one part of his life, and
then a negative net income during another part. Indeed,
Marrocco’s affidavit testimony explicitly provides a reason for
the change from a positive net income to a negative net
income—namely, that he no longer lived with his parents rent‐
free and almost expense‐free. Marrocco’s affidavit testimony
and the government’s evidence could both be true. Therefore,
the district court erred in finding as a matter of law that
Marrocco could not have acquired the Funds legally.
B. Deny’s Alert
Marrocco also challenges the district court’s reliance on
Deny’s alert to the briefcase and argues that Deny’s alert does
not establish that the Funds recently had been in contact with
illegal drugs because (1) drug‐dog alerts to currency are
8
(...continued)
the witness to observe that which he or she claims occurred, or impossible
under the laws of nature for the occurrence to have taken place at all.”).
No. 11‐3706 15
generally unreliable, (2) Deny’s training was inadequate, and
(3) Deny’s sniff was conducted in an unsound manner.
1. The Currency Contamination Theory
To counter the government’s claim that Deny’s alert to the
briefcase demonstrates that the Funds recently were in contact
with illegal drugs, Marrocco first invokes the so‐called
“currency contamination” theory. That theory postulates that
drug‐dog alerts to currency are not probative of a connection
between the currency and illegal drug activity because signifi‐
cant amounts of United States currency are innocently contam‐
inated with trace quantities of drugs, usually cocaine (chemi‐
cally, benzoyl‐methyl‐ecgonine).
We have previously relied upon the currency contamina‐
tion theory to hold “that the probative value of dog sniffs is, at
most, minimal.” United States v. $506,231 in U.S. Currency, 125
F.3d 442, 453 (7th Cir. 1997). More recently, however, we held
“that dog alerts to currency should be entitled to probative
weight.” $30,670, 403 F.3d at 460. In $30,670, “the critical
question [was] not whether most currency in general circula‐
tion is tainted with cocaine, but whether the cocaine itself is
what triggers dog alerts to currency.” Id. at 455. In that case,
the government cited research by Dr. Furton and others that
concluded that drug dogs do not sniff cocaine per se, but rather
methyl benzoate (a byproduct of cocaine undergoing hydroly‐
sis due to the presence of moisture in the air). Id. at 457–60
(citing Kenneth G. Furton et al., Odor Signature of Cocaine
Analyzed by GC/MS and Threshold Levels of Detection for Drug
Detection Canines, 14 Current Topics in Forensic Sci. 329, 329
(1997)). Dr. Furton stated that methyl benzoate evaporates
16 No. 11‐3706
quickly from the surface of currency, and consequently that
currency exposed to cocaine could only be detected by a drug
dog shortly after exposure. Id. at 457–58. Thus, Dr. Furton
concluded that drug‐dog alerts to currency are generally
probative evidence that the currency recently was in contact
with cocaine. Id. at 459. In response, the claimant invoked the
currency contamination theory and offered studies tending to
establish that most circulated, paper currency in major United
States cities is contaminated with trace quantities of cocaine. Id.
at 456–57. But those studies did not rebut (or even address) Dr.
Furton’s finding that drug dogs do not sniff cocaine per se, but
rather methyl benzoate, which dissipates quickly. Conse‐
quently, the claimant failed to offer evidence tending to rebut
Dr. Furton’s conclusion that drug‐dog alerts to currency are
probative of illegal drug activity. Without such evidence, the
claimant failed to create a genuine dispute of material fact
regarding whether drug‐dog alerts to currency in general
demonstrate that the currency recently was in contact with
cocaine.
The district court reasoned that $30,670 foreclosed
Marrocco’s attack on the probative value of drug‐dog alerts to
currency in general. The problem with this reasoning is that
our holding in $30,670 was based upon “the empirical informa‐
tion provided in this case.” Id. at 460. Nothing in $30,670
precludes Marrocco from offering expert evidence attacking
Dr. Furton’s research and challenging the conclusion that drug‐
dog alerts to currency are probative of whether “the most
No. 11‐3706 17
recent holder of the currency was involved with illegal
narcotics activity.” Id. at 456.9
That is what Marrocco did in this case. Specifically, he
offered the affidavit testimony of Sanford A. Angelos, a
forensic chemist, as well as various studies referenced in and
attached to Angelos’s affidavit. Angelos challenges Dr.
Furton’s premise that drug dogs only sniff methyl benzoate
when alerting to currency tainted with cocaine. According to
Angelos, another study found that drug dogs can alert to illicit
cocaine samples that contained methyl benzoate concentrations
that were below drug dogs’ detection thresholds. See L. Paul
Waggoner et al., Canine olfactory sensitivity to cocaine hydrochlo‐
ride and methyl benzoate, 2937 Proceedings of SPIE 216, 224
(February 1997). If this is correct, it undermines Dr. Furton’s
conclusion that drug dogs only alert to quickly dissipating
methyl benzoate (rather than cocaine itself or some other
potentially longer lasting byproduct).
9
The parties agree that the Funds are not available for laboratory testing
to measure the quantity of drugs, if any, contained on the Funds. Presum‐
ably the government deposited the Funds into a bank account. Of course,
Deny’s alert would be unnecessary if the government had used laboratory
testing to determine whether the Funds contained amounts of cocaine in
excess of the amounts reported in general‐circulation currency. By failing
to perform such testing (and failing to preserve the Funds until the
conclusion of this proceeding), the government eliminated laboratory
testing as a source of evidence. See United States v. One 1987 Mercedes Benz
Roadster 560 Sec, VIN WDBBA48D3HA064462, No. 89C3084, 1991 WL 33650,
at *1, *3 (N.D. Ill. Mar. 8, 1991) (granting the government’s motion for
summary judgment in a civil forfeiture proceeding in part based on
“[l]aboratory tests conducted by the Drug Enforcement Administration
[that] found cocaine residue on” currency).
18 No. 11‐3706
Additionally, Angelos challenges Dr. Furton’s assertion that
methyl benzoate generated by cocaine residue present on
currency quickly drops below detectable levels because it
evaporates quickly. According to Angelos, this assertion
ignores the fact that, so long as cocaine is present on the
currency, the cocaine will continue to generate methyl benzo‐
ate and thereby replenish the methyl benzoate lost to evapora‐
tion. Relatedly, Angelos avers that cocaine residue can become
trapped in currency and that a number of studies demon‐
strated that innocently tainted, general‐circulation currency
contained significantly greater amounts of cocaine residue than
assumed by Dr. Furton in a 1997 study.10 See Kenneth G.
Furton et al., Novel sample preparation methods and field testing
procedures used to determine the chemical basis of cocaine detection
by canines, 2941 Proceedings of SPIE 56, 57 (February 1997). If
true, this statement undermines the claim that drug dogs will
only alert to currency recently in contact with cocaine because
of methyl benzoate’s quick evaporation rate.11
10
The 1997 Furton study relied upon a study finding that circulated
Canadian currency contained no more than 10 nanograms of cocaine. See
J.C. Hudson, Analysis of Currency for Cocaine Contamination, 22 Can. Soc.
Forensic Sci. J. 203–18 (1989). However, Angelos avers that other studies
have found that significant amounts of circulated United States currency
contain from 1 microgram (100 times as much cocaine as the Hudson study
found) to over 1000 micrograms (100,000 times as much cocaine as the
Hudson study found). (Angelos explained that 1 gram equals 1000
milligrams, 1 milligram equals 1000 micrograms; and 1 microgram equals
1000 nanograms.)
11
One of the studies upon which Angelos relies indicates that the amount
(continued...)
No. 11‐3706 19
Furthermore, Angelos attacks Dr. Furton’s research as
inconsistent regarding the threshold level of methyl benzoate
needed for a drug dog to be able to detect cocaine on currency.
Specifically, the 1997 Furton study posited a threshold of 10
micrograms of methyl benzoate, whereas one of Dr. Furton’s
studies performed two years later posited only a threshold of
1 to 10 micrograms. See Kenneth G. Furton et al., Field and
laboratory comparison of the sensitivity and reliability of cocaine
detection on currency using chemical sensors, humans, K‐9s, and
SPME/GC/MS/MS analysis, 3576 Proceedings of SPIE 41, 41
(February 1999). More importantly, Angelos avers that the 1999
Furton study stated that it takes 500 milligrams (that is, 500,000
micrograms) of cocaine to emit 1 to 10 micrograms of methyl
benzoate, the threshold level necessary to trigger a drug‐dog
alert. According to Angelos, such a large quantity of cocaine on
a banknote would be visible to the naked eye. And the govern‐
11
(...continued)
of methyl benzoate produced will decrease over time. See Lindy E. Dejarme,
et al., Formation of methyl benzoate from cocaine hydrochloride under different
temperatures and humidities, 2937 Proceedings of SPIE 19, 21 (February 1997).
Although we lack the advantage of expert testimony explaining this part of
the study, it appears that the study found that “pure” cocaine only
continues to produce methyl benzoate for about 2880 minutes (that is, 48
hours) depending on the temperature and humidity conditions. If so, it is
difficult to see how the Funds, which Marrocco claims to have saved from
years earlier, could still be producing methyl benzoate based on cocaine
that allegedly tainted the Funds before Marrocco acquired them. Further,
this seems to conflict with Angelos’s claim that cocaine remaining on
currency for extended periods of time “will slowly break down and release
methyl benzoate.” Regardless, the proper interpretation of this study and
the import of its findings can best be developed through expert testi‐
mony—perhaps at a Daubert hearing.
20 No. 11‐3706
ment does not contend that only drug alerts to currency visibly
containing cocaine are probative of illegal drug activity.12
Through its reliance upon $30,670, the government depends
upon Dr. Furton’s research to carry its burden of proving that
drug‐dog alerts to currency are probative of a substantial
connection between the currency and illegal drug activity.
Angelos’s affidavit, if admissible, raises questions about the
scientific validity of Dr. Furton’s finding that drug dogs only
alert to methyl benzoate, and that methyl benzoate generated
by cocaine present on currency quickly drops below levels
detectable by drug dogs. Through this expert evidence,
Marrocco has created a dispute of material fact regarding
whether the government has proved by a preponderance of the
evidence that drug‐dog alerts to currency are in general (and,
a fortiori, Deny’s alert in particular) reliable evidence that the
currency recently has been in contact with illegal drugs.13
12
Perhaps the 1999 Furton study envisions a large number of bills upon
which the 500 milligrams of cocaine is spread so as not to be visible. But this
possible explanation is not expressed anywhere in the record.
13
The district court rejected Marrocco’s Daubert and Rule 702 challenge to
any evidence from the government that drug‐dog alerts to currency
demonstrate that the currency recently has been in contact with illegal
drugs. Later, the government challenged Marrocco’s expert evi‐
dence—including Angelos’s attacks on Dr. Furton’s research—under
Daubert and Rule 702. As noted, the district court did not resolve these
challenges. Perhaps the district court thought it unnecessary to resolve
whether Angelos’s affidavit was admissible under Daubert and Rule 702
because the court thought $30,670 precluded Marrocco from offering expert
evidence attacking the reliability of drug‐dog alerts to currency in general.
(continued...)
No. 11‐3706 21
2. Deny’s Training and Performance
Marrocco’s second attack on Deny’s alert focuses on Deny’s
training. Initially, Marrocco points out that although King
states that Deny received 500 hours of pre‐certification training
and was certified by the Chicago Police Department Training
Division as a Police Utility Dog in July 1998, he also admits
that this training covered a wide range of matters, not simply
drug‐detection training. Marrocco also emphasizes that the
vast majority of Deny’s alerts in pre‐certification training
involved actual drugs rather than drug‐tainted currency. And
one of Marrocco’s experts, Dr. Lawrence J. Myers (who holds
degrees in zoology, ethology, neurophysiology, and veterinary
medicine), avers that there is no scientific evidence demon‐
strating that a drug dog’s ability to detect cocaine translates
into the ability to detect cocaine residue on currency.
Further, another one of Marrocco’s experts, David Kroyer
(a certified drug dog training and behavior consultant), states
that the government’s evidence regarding Deny’s training
indicates that Deny was not trained to distinguish between the
13
(...continued)
But we conclude that $30,670 does not preclude such an argument, and that
Angelos’s affidavit, if admissible, creates a dispute of maerial fact regarding
Dr. Furton’s findings. Because the district court did not address the
admissibility of the expert evidence under Daubert and Rule 702, we will not
do so in the first instance on appeal. Rather, on remand the district court
can resolve whether Marrocco’s expert evidence and the government’s
expert evidence (that is, Dr. Furton’s research) are admissible under Daubert
and Rule 702. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir.
2009) (noting that “the district court may consider the admissibility of
expert testimony sua sponte”).
22 No. 11‐3706
odor of illicit cocaine and odors such as baking soda, vitamin
B‐12, and other agents used in creating or “cutting” the
cocaine. Consequently, according to Kroyer, Deny’s training
likely (if mistakenly) instilled in him the tendency to alert not
only to the odor of cocaine but also to odors of agents which
are used in creating illegal cocaine (but which are not necessar‐
ily connected to illegal drugs). Relatedly, Dr. Myers avers that
United States currency generates odors that can be detected by
drug dogs (for example, the odor of the inks used). And both
he and Kroyer state that it is industry standard to “proof” a
drug dog off of uncontaminated currency—that is, to ensure
that the drug dog does not alert to uncontaminated currency.
But, according to both Dr. Myers and Kroyer, the evidence
from King indicates that Deny was not proofed off of uncon‐
taminated currency. In fact, Kroyer read the evidence from
King to indicate that Deny once alerted to uncontaminated
currency.
Dr. Myers and Kroyer further aver that the government’s
evidence regarding Deny’s training contains no discussion of
the standards used by the Chicago Police Department when
training and certifying drug dogs. And Kroyer adds that it is
industry standard to certify drug dogs through an outside
agency, but that Deny was only certified by the Chicago Police
Department Training Division. Dr. Myers also states that there
was no evidence that Deny’s training was performed under
double‐blind testing conditions.14 Dr. Myers explains that
14
Dr. Myers explains that single‐blind testing occurs where the participant
(the handler) does not know of conditions that could skew the result (for
(continued...)
No. 11‐3706 23
failing to use blind testing can result in “cueing”—that is,
unconsciously signaling the drug dog to alert or not alert based
on the handler’s knowledge that the target of the sniff contains
or does not contain drugs. Finally, Marrocco points to King’s
admission that, while he tried to get post‐certification training
for Deny once a month, Deny actually received significantly
less post‐certification training.
Relying upon Deny’s training and performance logs and
King’s affidavit, the district court held as a matter of law that
Deny’s training and field performance prove by a preponder‐
ance of the evidence that he was a reliable drug dog. The
district court’s conclusion rested upon our decision in United
States v. Limares, 269 F.3d 794, 798 (7th Cir. 2001), which the
district court interpreted as holding that a drug dog’s reliabil‐
ity should be determined based solely on his field perfor‐
mance. Thus, while the district court recognized that Marrocco
offered expert evidence raising concerns about Deny’s training,
the court thought this evidence ultimately to be irrelevant
because it suggests “that proof of Deny’s reliability requires
something more than evidence of his performance in the
field.”15 For example, the district court held that Kroyer’s
14
(...continued)
example, whether the item to be searched contains narcotics). Double‐blind
testing occurs where neither the participant nor the person administering
the test knows of such conditions.
15
This statement is somewhat puzzling because the district court
concluded that Deny was reliable based in part upon Deny’s alerts in post‐
certification training, not solely upon Deny’s performance in the field.
(continued...)
24 No. 11‐3706
statements about Deny’s certification and training program did
not discredit Deny’s “actual performance in training and in the
field.” And, as the district court noted, we stated in Limares
that the government “need not describe training methods or
give the dogs’ scores on their final exams.” 269 F.3d at 798. The
district court also rejected Kroyer’s interpretation of Deny’s
training log because Kroyer had no personal knowledge of the
log’s creation. Similarly, the district court rejected Dr. Myers’s
affidavit because it suggests that Deny’s reliability turns on
something more than the evidence of his field performance,
imposes a proofing requirement that conflicted with Limares,
and is based on the currency contamination theory.
The district court erred in holding that, where the
government offers evidence of a drug dog’s performance in the
field to establish that drug dog’s reliability, a party cannot
create a dispute of fact regarding the drug dog’s reliability by
offering evidence that the drug dog was inadequately trained.
In Limares, we considered a challenge to a warrant that was
issued, in part, based upon a drug‐dog alert and evidence of
the drug dog’s field performance. We held that “[a]n affidavit
for a search warrant thus need not describe training methods
or give the dogs’ scores on their final exams. It is enough if a
dog is reliable in the field.” 269 F.3d at 798. But Limares is
procedurally very different from this case because an applica‐
tion for a warrant is an ex parte proceeding. As such, Limares
was concerned only with what (necessarily unrebutted)
15
(...continued)
Indeed, the district court even entertained the possibility that Deny’s alerts
to currency in the field were all false positives.
No. 11‐3706 25
evidence was sufficient to allow a court to rely upon a drug‐dog
alert in determining whether there was probable cause to
believe that a crime had been committed. As precedent, Limares
does not address whether, in an adversarial proceeding, a
party may point to evidence of a drug dog’s inadequate
training to create a dispute of fact regarding the dog’s reliabil‐
ity.
However, Limares does suggest that a drug dog’s reliability
is based “on how dogs perform in practice, not, as [the defen‐
dant] believes, how they were trained and ‘proofed off’
currency.” Id. at 798. This language supports the district court’s
conclusion that evidence of faulty training cannot be used to
rebut evidence of a drug dog’s field performance. But the
Supreme Court recently rejected the notion that courts should
treat “a dog’s field performance as the gold standard in
evidence.” Florida v. Harris, 133 S. Ct. 1050, 1056–57 (2013).16
Observing that a drug dog’s field performance has “relatively
limited import,” the Supreme Court stated that “evidence of a
dog’s satisfactory performance in a certification or training
program” is the more probative evidence. Id. Most impor‐
tantly, the Supreme Court held that the opposing party “must
have an opportunity to challenge [the] evidence of a dog’s
reliability, whether by cross‐examining the testifying officer or
by introducing his own fact or expert witnesses.” Id. The
Supreme Court specifically envisioned attacks on the drug
dog’s training. Id. (“The [party], for example, may contest the
adequacy of a certification or training program, perhaps
16
The Supreme Court issued Harris after the district court ruled on the
government’s third summary judgment motion.
26 No. 11‐3706
asserting that its standards are too lax or its methods faulty. So
too, the [party] may examine how the dog (or handler)
performed in the assessments made in those settings.”).
Although Harris was decided in the context of a motion to
suppress (like Limares), the underlying questions about the
reliability of drug dogs are similar. (Although, of course, the
burden of proof is greater on the government in a civil forfei‐
ture proceeding than when it is only seeking a warrant.)
Therefore, we hold that a claimant like Marrocco may offer
evidence of a drug dog’s inadequate training to challenge
evidence of the drug dog’s field or training performance and
thereby create a dispute of fact regarding the drug dog’s
reliability.17
In light of Harris, we must reverse the district court’s grant
of summary judgment because Marrocco has come forward
with some evidence that, if true, calls into question the ade‐
quacy of Deny’s training. For example, Dr. Myers and Kroyer
both state that a drug dog must be tested against untainted
currency to ensure that he is not merely reacting to the odors
associated with the currency itself. Here, there is evidence that
Deny was proofed off of untainted currency. Specifically, King
avers that in three separate training exercises (two of which
occurred during pre‐certification training) Deny was ordered
to sniff locations containing both contaminated and uncontam‐
inated currency, and that Deny only alerted to the contami‐
nated currency (and not to the uncontaminated currency).
17
Harris did recognize that “evidence of the dog’s (or handler’s) history in
the field, although susceptible to the kind of misinterpretation we have
discussed, may sometimes be relevant.” 133 S. Ct. at 1057.
No. 11‐3706 27
However, Kroyer states that he reviewed Deny’s training log
and he interpreted it to say that one of the times Deny was
tested against untainted currency he alerted to the untainted
currency. The entry in question contains the mark “pos”
(which King states meant that Deny had alerted to the object of
the search under the “Result” column), and the words
“numerous unscented money locations” and “cocaine scented
money” in the “Location of Search and Indications” column.
The district court rejected Kroyer’s assertions on the
grounds that he lacked personal knowledge of the training log
(which we take to mean the events described in the log or the
creation of the log). However, Marrocco rightly points out that
expert witnesses often lack personal knowledge of the events
described in materials they review. See Fed. R. Evid. 703. And
Kroyer’s interpretation of the training log entry creates a
factual dispute regarding whether Deny alerted to untainted
currency.18 If Deny did alert to untainted currency during one
of the three times he was tested, then that fact (along with the
others discussed below) could cause a trier of fact to doubt
Deny’s reliability.
Similarly, Kroyer avers that a drug dog trained on illicit
street cocaine rather than pure pseudo‐cocaine must be
proofed off of the odors of the agents used in creating or
“cutting” cocaine (for example, baking soda or vitamin B‐12)
18
The government cites authority for the proposition that we should
ignore expert testimony that contradicts the underlying evidence upon
which it is based. But taking the training log entry in the light most
favorable to Marrocco, we think it is sufficiently ambiguous to allow for
Kroyer’s interpretation.
28 No. 11‐3706
to ensure that the dog can distinguish cocaine from these other
odors. King states that Deny was trained with currency tainted
by illegal drugs. And the training log indicates that Deny was
not proofed off of the odors of the agents commonly used in
“cutting” cocaine (but which are common household products)
because the log contains all of Deny’s pre‐certification training
searches and none of the entries involve testing Deny against
any of the agents used in “cutting” the cocaine. Thus, Kroyer’s
averments on this issue provide an additional reason to think
that Deny’s training was inadequate.
Finally, Kroyer states that it is an industry standard to
certify drug dogs through an outside agency. But Deny was
only certified by the Chicago Police Department Training
Division. Additionally, King concedes that Deny received
significantly less continuing training than he should have.
Although likely insufficient on its own to dispute the
government’s evidence of Deny’s reliability, this evidence
provides additional reasons to doubt the adequacy of Deny’s
training.
We do not mean to suggest that all of Marrocco’s argu‐
ments are meritorious. For example, the district court was
correct to reject those arguments that rely upon mere specula‐
tion and conjecture. However, there is evidence that, when
taken in the light most favorable to Marrocco, creates a dispute
of material fact regarding whether Deny’s training was
adequate.
3. The Search of the Briefcase
Marrocco’s final attack on Deny’s alert concerns whether
the search of the briefcase was conducted in a sound manner.
No. 11‐3706 29
Assuming Deny was an otherwise reliable drug dog, Marrocco
argues that Deny’s alert nevertheless does not prove that the
currency in the briefcase was connected to illegal drug activity
because Deny may have been cued to alert to the briefcase or
the briefcase may have become contaminated at the train
station.
The district court rightly rejected Marrocco’s argument that
the briefcase could have been contaminated at the train station.
Marrocco relies upon affidavit testimony from Angelos that the
briefcase could have become contaminated by leftover drug
particles either in the air where Romano opened the briefcase
prior to the sniff or, given that the roll‐call room was regularly
used for drug sniffs, in the location where the briefcase was
placed by Romano for the sniff. However, Marrocco points to
no evidence that the part of the roll‐call room where the
briefcase was located (or the air surrounding the briefcase
when Romano initially opened it) was actually contaminated
with a sufficient quantity of cocaine to trigger a drug‐dog alert.
Speculation or conjecture about the mere possibility of cross‐
contamination cannot defeat summary judgment. See McCoy v.
Harrison, 341 F.3d 600, 604 (7th Cir. 2003); $30,670, 403 F.3d at
464 (“[T]he mere possibility of cross‐contamination does not
deprive [the dog’s] alert of probative weight.”).
Marrocco’s cueing argument presents a closer question. Dr.
Myers avers that, based on the evidence that King knew that
the briefcase was the object of the search and apparently could
see the briefcase during the search, there is a significant
probability (85% according to the one study) that King unin‐
tentionally cued Deny to alert to the briefcase even if Deny did
not detect drugs. See Lisa Lit et al., Handler beliefs affect scent
30 No. 11‐3706
detection dog outcomes, 14 Animal Cognition 387 (May 2011).19
The district court rejected this evidence because Romano
testified that he hid the briefcase out of the presence of King.
However, although Romano testified that he hid the
briefcase behind a closed cabinet door, King testified that, after
a short search, Deny began biting and pulling at the briefcase.20
King testified further that Deny pulled the briefcase from its
“hiding place.” When asked whether the briefcase was “in a
cabinet” when Deny bit at it, King responded “No, I don’t
believe it was. I think it was in an accessible area.” Marrocco
argues that this testimony suggests that the briefcase was
visible to King during the search (which, coupled with Dr.
Myers’s affidavit testimony regarding cueing, provides a basis
to mistrust Deny’s alert). We think Marrocco’s argument rather
thin. King’s deposition testimony states that the briefcase was
secreted away in a “hiding place.” And in his affidavit, King
explicitly states that he did not know where the currency had
been placed in the roll‐call room. Furthermore, King’s state‐
ment that the briefcase was accessible was made in response to
19
Dr. Myers’s affidavit and the Lit study are also the kind of scientific
evidence subject to review at a Daubert hearing.
20
The government contends that we should ignore this part of King’s
testimony because Marrocco did not include it in his opposition to
summary judgment. In support of its argument, the government relies upon
Henn v. Nat’l Geographic Soc., 819 F.2d 824 (7th Cir. 1987). Henn, however,
only stands for the proposition that a party cannot cite materials that were
not furnished to the district court. Id. at 831 (citing Fed. R. App. Proc. 10 and
Circuit R. 10). Here, King’s testimony was offered during a hearing before
the district court and thus necessarily was before the court.
No. 11‐3706 31
a question about Deny biting and pulling at the briefcase. But
that the briefcase was accessible to Deny does not mean that
the briefcase was visible to King. In light of King’s testimony
that the briefcase was hidden, we doubt that a trier of fact
could reasonably infer that the briefcase was visible to King
during the search. Still, because we reverse anyway, the
question of whether King could see the briefcase during the
sniff can be explored more thoroughly on remand.
C. Suppression of the Funds
Finally, Marrocco renews his argument that the Funds
should be suppressed because the agents unconstitutionally
searched and seized the briefcase. Marrocco concedes that we
already rejected this argument in the government’s prior
appeal, and he identifies no extraordinary circumstances that
would serve as a basis for us to reconsider our earlier ruling.
See Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012) (noting
that courts generally “refrain from reopening issues decided in
earlier stages of the case absent extraordinary circumstances”).
Rather, Marrocco states that he merely wishes to preserve his
claim of error in the event he decides to seek review by the
Supreme Court. Our remand on the grounds stated above
likely obviates Marrocco’s concern about preserving this issue
for the Supreme Court. Regardless, we decline to reconsider
our earlier decision.
III. Conclusion
Marrocco’s affidavit testimony recounting his employment
history and relatively expense‐free living arrangements for
much of the 1990s creates a dispute of material fact regarding
whether the Funds could have been Marrocco’s legally
32 No. 11‐3706
acquired life savings. Additionally, Marrocco’s expert
evidence—which we accept as true because the district court
did not resolve the government’s challenges under Daubert and
Federal Rule of Evidence 702—also creates disputes of material
fact impacting the question of whether Deny’s alert demon‐
strates that the Funds recently were in contact with illegal
drugs. Therefore, we REVERSE the judgment of the district
court, and REMAND this case for further proceedings consis‐
tent with this opinion.