United States v. $242,484.00

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR TH E ELEV ENTH C IRCUIT FILED
____________________________ COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
No. 01-16485 November 20, 2003

____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 99-01259 CV-DMM

UNI TED STA TES OF A MER ICA,

Plaintiff- Appe llee,

versus

$242,4 84.00,

Defen dant,
DEBO RAH S TANF ORD, individu ally and as
President, Director, and Stockholder of
Mike's Import & Exports, U.S.A., a
Florida corpor ation,

Claiman t-App ellant.
____________________________
Appe al from th e United States D istrict Cou rt
for the Southern District of Florida
____________________________
(November 20, 2003)

ON PETITION FOR REHEARING

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and POGUE*,
Judge.

*
Honorable Donald C. Pogue, Judge, United States Court of International Trade, sitting
by designation.
EDMO NDSO N, Chief Judge:

This case comes before us on a petition for rehearing by appellee, the United

States of America. We deny the petition, but we substitute this opinion for the

previous opinions which we have already withdrawn.

This ap peal arises out of a c ivil forfeitu re action a pplying 21 U.S .C. §

881(a)(6) (1994) -- the version in effect before the 2000 amendments -- which

provides for the forfeiture of mo ney linked to drug crimes. 1 The district court

ordered the forfeiture of $242,484.00 seized from the claimant, Deborah Stanford.

Stanford argues that the government lacked probable cause to support forfeiture of

the defendant currency. 2 The district court saw probable cau se as “admittedly a

close qu estion.” B ecause w e conclu de the circ umstan ces are ins ufficient to

1
21 U.S.C. § 881(a) (1994) provides:
The following shall be subject to forfeiture to the United States and no property
right shall exist in them: . . . (6) All moneys, negotiable instruments, securities, or
other things of value furnished or intended to be furnished by any person in
exchange for a controlled substance or listed chemical in violation of this
subchapter, all proceeds traceable to such an exchange, and all moneys,
negotiable instruments, and securities used or intended to be used to facilitate any
violation of this subchapter [dealing with control of drugs].
(emphasis added)
2
Because the forfeiture complaint was filed on 30 April 1999, the heightened burden of
proof established by the Civil Asset Forfeiture Reform Act of 2000 does not apply to this case.
See United States v. Cleckler, 270 F.3d 1331, 1334 n.2 (11th Cir. 2001) (“[T]he Civil Asset
Forfeiture Reform Act of 2000 . . . became effective for any forfeiture commenced on or after
120 days from the enactment date of 25 April 2000.”).

2
establish the needed probable cause, we reverse the forfeiture order.3

BACKGROUND

Debo rah Stan ford live s in Op a Lock a, Miam i-Dade Coun ty, Florid a. She is

a shareh older an d presid ent of M ike’s Imp ort & E xport U .S.A., In c. (“Mik e’s”).

In December 1998, Stanford purchased for $93 in cash a round-trip ticket

from Miami to New York City. She says that she was in New York City regarding

a court ca se from a car accid ent she h ad appr oximate ly ten years prior. W hile in

New York, she says that she was contacted by her brother and told to pick up some

money for their b usiness, M ike’s. Th e cash m oney w as deliver ed to her by peop le

whom she says she did not know. One package was wrapped in black plastic and

3
In addition, Stanford argues the district court erred by saying that Mike’s Import &
Export U.S.A., Inc. lacked standing to contest the forfeiture. Because Mike’s filed no claim, the
district court correctly determined that Mike’s lacked standing. Because we conclude that the
government cannot establish probable cause, we decline to address the remaining issues on this
appeal.
Stanford also argues that the stop conducted at the Miami Airport was an unreasonable
seizure in violation of the Fourth Amendment and that, therefore, the fruits of the seizure should
have been suppressed at the forfeiture hearing. “A fundamental and longstanding principle of
judicial restraint requires that courts avoid reaching constitutional questions in advance of the
necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S.Ct.
1319, 1323 (1988). Because we conclude that the government cannot establish probable cause
even with the evidence obtained from the stop, we avoid this Fourth Amendment issue. For the
same reason, we say nothing about whether the drawn-out interrogation (the evidence in the
record suggests the time might have been as long as three hours) of Stanford in the airport’s
DEA office was itself unreasonable and constituted an unconstitutional seizure.

3
the other in a Christmas wrapping. Each package was enclosed in what the district

court de scribed a s “cellophane-type material.”

Stanford was originally scheduled to return to Miami on 12 December; but

after failing to show up on 12 December, she twice changed her return date. Then,

on 14 December, Stanford flew from New York to Miami. Airport personnel at

John F . Kenn edy Inter national A irport (“JF K”) qu estioned her abo ut the pac kages.

After questioning, Stanford boarded her flight, but an airport worker notified the

Drug Enforcement Administration (“DEA”) that a woman carrying a large amount

of cash was traveling to Miami. The airport worker also reported to the DEA that

the wo man ha d becom e “belligere nt” wh en ques tioned ab out the m oney.

Several Miami DEA agents went to the gate where Stanford’s flight was

scheduled to arrive. Agents Kenneth Miles and John Johnson saw Stanford soon

after she came off the plane. The agents approached her and identified themselves

as DE A agen ts.

At Ag ent Mile s’s reque st, Stanfo rd gave him her ticket and identificatio n.

Both the ticket and identification were in her own name: Deborah Stanford. The

agents verified her name and returned the items. Agent Miles asked her if she was

carrying contraband or mo ney, and she said she was carrying about $200,000 cash

in her backpack.

4
 Agent Miles, with Stanford’s permission, looked into the backpack and

found two packages, one wrapped in black plastic and the other in Christmas

wrapping. Each package contained large bundles of cash in various

denominations. The bundles were not of uniform size or amounts and did not bear

the bind ing of a b ank or f inancial in stitution. T he Ag ents aske d Stanf ord to

accompany them to the DEA’s airport office, and she agreed.

At the office, Agent Miles asked Stanford why she was in New York. She

said she was there because of a court case; but Agent Miles stated that, later during

the interrogation,4 Stanfo rd said th at she w as in Ne w Yo rk to pick up the m oney in

question . Stanfo rd could not identify who gave he r the cash other tha n to say th at,

while in New York, she was called by her brother who told her to meet some

people to pick up money for M ike’s. Stan ford also could n ot, or w ould no t,

identify where she stayed in New York. She did not produce documentation

connecting the currency to Mike’s. When asked for the total amount of the cash,

Stanford said that one package contained $79,900 and the other $162,750, a total

of $242,650. But an official count of the money at the bank found the total to be

$242,484.

During the airport interrogation, “Rambo,” a narcotics-detection dog, was

4
The district court said nothing about how long the interrogation lasted.

5
brought into the office. Stanford’s backpack was placed in a hallway with other

packag es of sim ilar size and shape. R ambo a lerted to S tanford ’s backp ack.

Thereafter, Stanford and the DEA supervisor -- who had just arrived -- had a

heated ex change , and Sta nford le ft to conta ct her attor ney.

After the seizure on 14 December 1998, the DEA performed an investigation

into the surrounding circumstances, including a check into Stanford’s trip to New

York and the bu siness history of Mike’s. 5 According to the district court’s order,

no proceedings were brought against Stanford, nor was sh e charge d with a crime in

connection with these events. The 2001 order does not suggest that anyone has

ever been charged with a crime or been the subject of other proceedings arising

from th ese even ts.

DISCUSSION

Stanford argues that the government has made no showing -- that rises above

suspicion -- of a connection betw een the money and con trolled substances.

5
A computer query that was run during the interrogation generated a report not entered
into the record that allegedly showed that Mike’s was a possible alias for “Mike’s Import and
Export, NV,” which the DEA suspected of possible money laundering. The district court did not
find this report credible because the query -- that is, the question underlying the search -- was
unknown, the suspected money laundering corporation did not have the exact name as Mike’s,
and the information entered in the computer files is at times “‘raw intelligence’ information, not
always thoroughly corroborated.”

6
 In reviewing a determination of probable cause, we engage in a two-part

analysis. Ornelas v. United States, 116 S.Ct. 1657, 1662 (1996). First, we review

the district court’s “findings of historical fact only for clear error.” Id. at 1663 ; see

also Fed. R. Civ. P. 52(a). In reviewing the findings for clear error, we “consider

the evidence, and such reasonable inferences as may be drawn therefrom, in the

light most favorable to the appellees.” Wheeler v. Holland, 218 F .2d 482 , 483 (5 th

Cir. 1955). Second, we review de novo “whether the rule of law as applied to the

established facts is or is not violated.” Id. at 1662 ; see also Sunderland Marine

Mut. Ins. Co. v. Weeks Marine Constr. Co., 338 F .3d 127 6, 1277 (11th C ir. 2003 ).

In determ ining w hether th e district co urt prop erly applie d the law , we con strue all

facts in fav or of the prevailin g party. See, e.g., United States v. Goddard, 312 F.3d

1360, 1362 (11th Cir. 2002).

By facts, we, as an appellate court, mean only the factual findings that the

district cou rt made. T hose fin dings m ay be exp ress or im plied. See Barber v. In t’l

Bhd. o f Boilerm akers, Iro n Ship Builder s, Blacks miths, F orgers & Helper s, Dist.

Lodge No. 57, 778 F.2d 750, 756 (11th Cir. 1985). But we will infer findings of

fact only where the district court distinctly seems to have intended to imply such

facts. See, e.g., Triangle Conduit & Cable Co. v. FTC, 168 F .2d 175 , 179 (7 th Cir.

1948) (inferrin g fact w here no one cou ld doub t that the fac t was im plied).

7
 Although we construe all factual findings in favor of the prevailing party, we

do not go beyond the district court’s findings. Once we have reviewed the findings

for clear error, we consider only whether the findings -- construed in favor of the

prevailin g party -- suppo rt the judg ment. 6

We will not engage in finding new facts to support or to diminish the district

court’s leg al conclu sions. See United States v. B arnette, 10 F.3 d 1553 , 1556 ( 11th

Cir. 199 4) (stating that “an ap pellate cou rt does n ot find fa cts”). In th is case, if

evidence is in the record to support possible additional factual findings by an

appropriate fact finder, we are inclined to think that “[i]t is not within the

6
We do note that in reviewing district court rulings for which no factual findings are
required by the Federal Rules of Civil Procedure we review all evidence in the light most
favorable to the party prevailing below -- but only if no factual findings are made. See, e.g.,
United States v. Franklin, 323 F.3d 1298, 1300 (11th Cir. 2003), petition for cert. filed, (9 June
2003) (No. 02-11200) (construing the evidence in the light most favorable to the prevailing party
where “the district court denied [a motion] without expressly making factual findings”); United
States v. Smith, 543 F.2d 1141, 1145 & n.11 (5th Cir. 1976) (construing the evidence in the light
most favorable to the party prevailing below on a motion to suppress the evidence because the
district court did not enter findings of fact).
Fed. R. Civ. P. 52(a) requires that “a district court’s findings of fact and conclusions of
law be sufficiently detailed that we can ascertain the factual and legal basis for the district
court’s ultimate conclusion.” Johnson v. Hamrick, 196 F.3d 1216, 1219 (11th Cir. 1999)
(internal citations and quotations omitted). If a district court has complied with Rule 52(a), we
adhere to the rule by reviewing the district court’s findings for clear error and considering only
those findings in determining whether the legal conclusion drawn from those facts satisfies the
rule of law. If the district court has failed to comply with Rule 52(a), we may remand for
additional findings, or we may decide the appeal if “a complete understanding of the issues may
be had without the aid of separate findings.” Armstrong v. Collier, 536 F.2d 72, 77 (5th Cir.
1976). In this case, the district court properly complied with Rule 52(a). Therefore, we consider
only the findings made by the district court.

8
compe tence of th is Cour t to make such fin dings.” 7 Deering-Milliken & Co. v.

Modern-Aire of Hollywood, Inc., 231 F .2d 623 , 627 (9 th Cir. 19 55). W e

remem ber that th ere “is no e xcuse fo r the Co urt of A ppeals . . . [to ] engage in

impermissible appellate factfinding.” Amadeo v. Zant, 108 S.Ct. 1771, 1780

(1988 ).

To pre vail in a civ il forfeitur e case, the g overnm ent mus t establish “p robable

cause for belief that a substantial connection exists between the property to be

forfeited and the criminal activity defined by the statute.” United States v.

$4,255,625.39, 762 F.2d 895, 903 (11th Cir. 1985) (quoting United States v.

$364,960.00, 661 F.2d 319, 323 (5th Cir. Unit B 1981) (emphasis omitted)). The

probable-cause standard demands less evidence than the preponderance-of-the-

evidence standard. But the probable-cause standard demands more powerful

evidence than would allow someone to suspect -- even reasonably to suspect -- that

a substan tial conne ction exis ts betwe en the pe rtinent pr operty an d a drug crime.

Proba ble cause exists w hen “the f acts war rant a reas onably c autious p erson” to

7
For example, if in a case the government attempts to establish 24 facts by evidence
(especially oral testimony at a hearing where demeanor can be observed by the district judge)
and the district judge finds 19 of these facts have been established but is silent on the other 5, we
do not believe that an appellate court should simply find for itself the other 5 facts to justify
affirming the district court judgment. In our view, the practice trivializes the fact findings that
were made and shows too low a regard for the district judge as the fact finder and credibility
determiner. We doubt that our case law allows such appellate fact finding, but we are confident
our law does not compel such appellate fact finding.

9
believe that the item to be forfeited is substantially related to drug crime.8 See,

e.g., United States v. Armstrong, 722 F.2d 681, 686 (11th Cir. 1984) (discussing

probab le cause in the conte xt of a seiz ure); United States v. Four Parcels of Real

Prope rty, 941 F.2d 1428, 1440 (11th Cir. 1991) (en banc) (stating that the standard

for probable cause in forfeiture cases is “the same standard used to determine the

legality of arrests, searches, and seizures in criminal law”) (internal quotations and

citations o mitted). In this case, w e stress tha t, because the forfe iture is pu rsuant to

21 U.S.C. § 881(a)(6), not just any criminal activity will support the forfeiture: the

form of criminal wrongdoing must involve “the exchange of a controlled

substance.” Id. at 1440.

“[T]he probable cause inquiry is a flexible one in w hich the court must

consider the ‘totality of the circumstances.’” United States v. $121,100.00, 999

8
In forfeiture cases, we have sometimes used these words: “‘Probable cause’ refers to
‘reasonable ground for belief of guilt, supported by less than prima facie proof but more than
mere suspicion.’” United States v. $4,255,625.39, 762 F.2d 895, 903 (11th Cir. 1985) (quoting
United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir. 1980)). We do not
know what “prima facie proof” means in this context. “Prima facie proof” is that proof
“[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.” Black’s
Law Dictionary 1209 (7th ed. 1999). In a forfeiture case, probable cause is “prima facie proof”
because the statute allows the government to prevail upon an unrebutted showing of probable
cause. As one judge has noted, “[p]resumably, courts stating that the Government need not
present ‘prima facie proof’ to prevail in a forfeiture proceeding mean that the evidence need not
meet the standard of proof known as ‘preponderance of the evidence,’ i.e., that the fact to be
proved is more likely so than not so.” United States v. Banco Cafetero Panama, 797 F.2d 1154,
1160 n.7 (2d Cir. 1986). But such usage of the term “prima facie proof” seems to be an
unfortunate misuse of legal terminology with no significance.

10
F.2d 1503, 1506 (11th Cir. 1993). “In evaluating the evidence of proceeds

traceable to drug transactions, we have eschewed clinical detachment and endorsed

a common sense view to the realities of normal life . . . .” United States v. C arrell,

252 F.3d 1193, 1201 (11th Cir. 2001) (internal quotations and citations omitted).

As we have said, when reviewing a forfeiture order, we accept the district

court’s fa ct finding s unless c learly erro neous. United States v. Land, 221 F.3d

1194, 1199 (11th Cir. 2000). In this case, we see no clear error in the district

court’s factual findings. But in this Circuit one thing is clear: whether the facts as

found by the district court are sufficient to establish probable cause is a question of

law which we review de novo.9 See $121,100.00, 999 F .2d at 15 07.

9
Our probable-cause inquiry, in this case, is limited to the factual findings drawn from
the evidence put forth by the government in support of probable cause. At the hearing, the
government offered its evidence in support of probable cause. When the government rested,
Stanford rested on the issue of probable cause and did not offer evidence. The district court then
tentatively determined that probable cause had been established. Stanford proceeded to offer
evidence on the issues of legitimate source and innocent ownership. “When a claimant presents
no evidence to contradict the government’s evidence of probable cause, the scope of review on
appeal is whether the government’s evidence established probable cause.” United States v. 900
Rio Vista Blvd., 803 F.2d 625, 629-630 (11th Cir. 1986) (emphasis added). Because Stanford
did not testify during the probable-cause portion of the hearing, we do not consider fact findings
based upon Stanford’s forfeiture-hearing testimony when we review whether the government
established probable cause.
Some circuits require the government to establish probable cause only using evidence
obtained before the filing of the forfeiture complaint. United States v. $191,910, 16 F.3d 1051,
1071 (9th Cir. 1994), superseded by statute as stated in United States v. $80,180.00, 303 F.3d
1182 (9th Cir. 2002); United States v. 255 Broadway, 9 F.3d 1000, 1003 (1st Cir. 1993); United
States v. $91,960.00, 897 F.2d 1457, 1462 (8th Cir. 1990). While we today do not limit the
government’s probable-cause case to evidence obtained before the initiation of the forfeiture
proceedings (because the question was not briefed and argued), the government must establish
probable cause before the probable-cause portion of the hearing is concluded. Once the claimant

11
 The district court relied on these circumstances to support its finding of

probable cause: (1) “the quantity of cash . . . and its physical condition”; (2) “the

route and circu mstances sur rounding Ms. Stan ford’s travel”; (3) “Ms. Stanf ord’s

lack of knowledge concerning the circumstances surrounding her trip to New York

and the receipt of this money, including her inability to identify from whom she

received it”; (4) “that Ms. Stanford twice was a ‘no show’ for her scheduled

departure from New York to Miami”; and (5) a narcotics-dog alert on the cash.10

has established standing, if the government cannot establish its statutorily created right to the
property by showing probable cause, the claimant’s ability or inability to prove their right to the
property is immaterial. See United States v. $557,933.89, 287 F.3d 66, 77 (2d Cir. 2002) (“It
must be remembered that what is adjudicated in a judicial civil forfeiture proceeding is the
government’s right to the property, not the claimant’s. . . . [I]f the government fails [to establish
its right to forfeiture], the property is not forfeited -- regardless of whether or not the claimant
turns out to be the actual owner of the property.”).
10
The government also asks us to consider the Narcotics and Dangerous Drug
Information System (NADDIS) report (indicating that a Florida business called Mike’s might be
a front for money laundering) and Stanford’s supposed changing of her story while talking to the
DEA. We can count neither. The district court did not find the NADDIS report to be credible,
but rather found it to be of “negligible value.” We understand negligible to mean “so small,
trifling, or unimportant that it may safely be neglected or disregarded.” Random House
Dictionary of the English Language 1286 (2d ed. 1987). Under Fed. R. Civ. P. 52, we must
abide by this credibility finding because it is not clearly erroneous.
Nor will we count the government’s claim that Stanford changed her story. We
acknowledge that we must accept a district court’s definite (although implicit) finding unless that
finding is clearly erroneous. E.g., Employers Cas. Co. v. Employers Commercial Union Ins.
Co., 632 F.2d 1215, 1219 (5th Cir. 1980). But in this case, we do not believe that the district
court made even an implicit finding that Stanford changed her story. Despite making detailed
findings of fact, the district court never said that Stanford changed her story, never said that
Stanford lied to the Agents, and -- this point is important -- never discussed this allegation of
story changing when making its probable-cause determination. The only thing the district court
said about the alleged changed story was that “[a]t trial, Agent Miles stated that at this point, Ms.
Stanford had changed her story concerning the source of the money.”
In the context of the district court order, this statement by the court is only a finding of
what Agent Miles said at the hearing; it is not a finding of the truthfulness, accuracy, sincerity,

12
None of these th ings stan ding alo ne is suff icient to esta blish the n eeded p robable

cause. Always keeping in mind that probable cause is a totality-of-the-

circumstances test, we will consider each element in turn to determine how much

weigh t, if any, sho uld be as sessed to it as part of the wh ole. See United States v.

$36,634.00, 103 F.3d 1048, 1054 (1st Cir. 1997).11 In conducting this analysis, we

or reliability of what Agent Miles said; put differently, it is not a finding that Stanford changed
her story. Mere recitation of testimony is not a finding of fact on the truthfulness of the
testimony. See United States v. Butler, 41 F.3d 1435, 1447 (11th Cir. 1995) (“A contention . . .
does not constitute a finding.”); Republic Tech. Fund, Inc. v. Lionel Corp., 483 F.2d 540, 548
n.7 (2d Cir. 1973) (“[M]ere repetition of testimony is not a finding.”).
In the order, the district court had no difficulty in saying -- that is, finding as historical
facts -- things like “Ms. Stanford initially refused,” “Ms. Stanford said,” “Ms. Stanford replied,”
“Ms. Stanford consented,” or “Ms. Stanford denied” -- even though the court had only the
testimony of the government witnesses upon which to rely. But in this instance, the court wrote
that Agent Miles “stated” that Stanford changed her story. In the context of the district court’s
order, this observation by the district court is of a different kind altogether. When a district
court, drawing on testimony, consistently and unequivocally writes that a person took action and
then abruptly stops to write that “the witness states” that the person took some other action, we
cannot regard the referenced-to witness’s statement as a finding that the person did indeed take
such other action. And, we repeat, the district court never mentions Stanford’s supposed change
of story when it analyzes the record for probable cause.
The district judge -- foreseeing an appeal -- drafted his order carefully, telling the parties
that “one of the reasons I’m going to . . . put [the order] in writing, is so that the Eleventh Circuit
gets a chance to deal with it.” In the light of that statement and the language of the order, we
believe that if the district judge had truly found that Stanford changed her story, he would have
made that finding clear to this Court.
By the way, the government at the hearing offered no transcript or tape recording of the
agents’ questioning of Stanford at the airport.
Also, even if Stanford did change her story, the change in story does not implicate drugs
particularly.
11
We cannot possibly evaluate the totality of the circumstances without first
understanding those circumstances. Then, we estimate how strongly they each indicate a
connection to drug crime in the case at hand. We accept that in some cases the whole might be
greater than the sum of its parts. But to determine whether the whole exceeds the threshold of
probable cause, we first look at the parts. See United States v. $67,220.00, 957 F.2d 280, 284-86
(6th Cir. 1992) (examining each piece of evidence individually for probative value and then

13
recogn ize that pro bable cau se is a fact-d riven, cas e-by-cas e inquiry . Kinds of facts

that may be suspicious in a particular case may not be su spicious in a different case

involvin g differe nt circum stances.

Carrying a large amount of cash can indicate criminal activity. But it is not

illegal to transport money this way. 12 A large amount of cash does not -- alone --

satisfy the g overnm ent’s bur den to sh ow pr obable c ause. $121,100.00, 999 F.2d at

1507. I n additio n, to sup port a fo rfeiture u nder sec tion 881 , there mu st be a link to

criminal a ctivity wh ich mus t be a narc otics trans action.

The manner in which this currency was bundled indicates that it did not

come directly from a bank; and we suppose it could suggest some kind of illegal

source.13 But, even giving the government the benefit of an inference on illegal

source, the way this currency was bundled does not indicate a connection

specifically to drugs. 14

considering the evidence in aggregation).
12
In saying this, we do not mean to imply that illegal conduct on the part of the claimant
is somehow the standard for forfeiture. We merely observe that this conduct, while possibly
suspicious, is perfectly legal and within Ms. Stanford’s rights. For section 881(a)(6), probable
cause cannot be interpreted so broadly as inherently to penalize legal conduct.
13
The district court did not indicate that the bundling signalled a connection to drugs.
We look to precedent to determine the weight to give to this manner of bundling.
14
Stanford’s money was bundled in non-uniform stacks -- that is, the same sum was not
in each stack. This manner of bundling is atypical from that normally used by couriers of drug
currency. See, e.g., United States v. $321,470.00, 874 F.2d 298, 302 (5th Cir. 1989) (noting

14
 The ev idence p resented in supp ort of pr obable c ause nee d not “po int to

drugs to the exclusion of all other theories.” Id. at 1508. But under section 881,

the probable cause must be probable cause to believe a specific thing. Under

section 881(a)(6), the government must evidence a connection -- beyond proof that

a drug crime may be one of several similarly likely possibilities -- between the

seized money and an illegal narcotics transaction. The way the money here was

bundle d, while possibly creating s ome su ggestion of som e crimina l activity, assis ts

hardly at all in making a more specific connection to drug crime. Based on the

facts, as found, it is about as likely that the money -- if not legitimate -- was the

result of extortion, gun running, bank robbery, illegal gambling, simple tax

evasion, exporting stolen goods, or an y number of other po ssibilities.15 Section

881 do es not au thorize civ il forfeitur e on the b asis of pr obable c ause of ju st any

crime; it only authorizes forfeiture on the basis of a drug crime.

That the currenc y was w rapped to conce al its presen ce adds a lmost no thing.

We acc ept that an yone trav eling w ith a large a moun t of currency wo uld try to

conceal it f or safety r easons. See $36,634.00, 103 F .3d at 10 55 n.8 ( “There is little

government testimony that “[i]n narcotics, money is bundled in $1,000 and $5,000 bundles
primarily”).
15
We must recall that in South Florida there are crimes -- other than drug crimes --
involving substantial amounts of money.

15
significan ce in the fa ct that [claim ant’s mo ney] wa s ‘concea led’ . . . . Few people

carry money, especially large sums, in any way other than ‘concealed.’”). As

Agent Johnson testified, someone identified as having a large amount of currency

could be robbed or killed. Stanford never hid the fact that she was carrying

currency from the law officers; when asked, she told the DEA agents that she was

carrying cash. Had Stanford actively attempted to hide the money from the

authorities, the wrapping might be of more influence. But in this case, we cannot

say that the currency being wrapped to conceal its presence indicates a connection

to narcotics transactions as required by the statute.16 While we recognize that the

16
In a parenthetical to one citation in their Appellee’s brief, the government states that
cellophane is commonly used by drug organizations to hide the smell of drugs on currency.
Never was this argument mentioned at trial or mentioned otherwise on appeal. When Agent
Johnson in district court was asked to explain the significance of how the currency was wrapped,
he only said that it was wrapped to prevent the currency from being readily visually recognized
as currency. Although neither party argued the significance of the wrapping as it relates to the
odor of drugs (and this omission, as a matter of appellate practice, is enough to justify our giving
the matter no importance), we have looked to prior cases to determine if any possible
significance exists.
We know of only two published circuit court forfeiture cases that have said cellophane-
wrapped currency indicates a connection to drug activity: United States v. $129,727.00, 129
F.3d 486, 490 (9th Cir. 1997) (currency wrapped with plastic wrap and fabric-softener sheets to
conceal odor); and United States v. $42,500.00, 283 F.3d 977, 982 (9th Cir. 2002) (currency
wrapped in cellophane). $129,727.00 presents an obviously different circumstance -- with clear
evidence of an attempt to mask the smell (the dryer sheets are not needed to bundle the money) -
- than this case. The $129,727.00 court said, “The nexus between fabric softener and drug
trafficking is recognized to be of great probative value.” $129,727.00, 129 F.3d at 491.
$129,727.00 said nothing about a link between cellophane and drug trafficking when dryer
sheets were not involved. Id. Although $42,500.00 says nothing about dryer sheets, the only
case it cited in support of the position that cellophane was used to conceal drug odor was
$129,727.00, a dryer-sheet case. $42,500.00, 283 F.3d at 982.
In the case before us, the district court did not find that the currency was wrapped in
cellophane and instead described the wrappings as “cellophane–type material,” which was

16
manner of concealment and transportation, taken together, is probative and may

raise suspicion about the source of the cash, we cannot ignore the weakness of the

circums tantial evid ence at issu e here.

Travel f rom N ew Y ork to M iami is an a pprop riate eleme nt to consider.

Miam i is a know n center f or drug smugg ling and money launder ing.

$4,255,625.39, 762 F.2d at 904. New York is a money source city for drug

activity. United States v. $129,727.00, 129 F.3d 486, 490 (9th Cir. 1997). Travel

between source cities is circumstantial evidence of a possible connection between

the money seized and narcotics transactions. 17 Combined with other circumstantial

consistent with some of the testimony in the district court. The government’s photographs
purporting to show how the currency was wrapped do not show cellophane: “a transparent,
paper-like product of viscose, impervious to moisture, germs, etc., used to wrap and package
food, tobacco, etc.” Random House Dictionary of the English Language 334 (2d ed. 1987).
The government here offered no evidence -- and, more important, the district court did not find -
- that this “cellophane-type” wrapping has all the properties of cellophane or is used to mask (or
even is capable of masking) the smell of drugs. Without the use of dryer sheets, or similar
devices, we cannot say that the wrappings here indicated an active attempt to conceal the smell
of drugs.
Even if the wrapping factor had been fairly presented and argued, it would hardly count
for much. Stanford had to carry her currency somehow.
17
At one time, travel between so called “source cities” might have been more
compelling. But, as the number of “source cities” has increased, their value to our probable-
cause analysis has decreased. Agent Johnson testified that, in addition to New York and Miami,
Washington, D.C., Detroit, Chicago, San Antonio, Los Angeles, San Francisco, Seattle, Tacoma,
and Tampa are all considered “source cities.” Our review of other cases adds Boston, Cleveland,
Dallas, El Paso, Phoenix, San Diego, Schenectady, Tucson, Wilmington (North Carolina), the
whole state of California, and the entire “upper Midwest” to the list of locations that the DEA
claims should increase our suspicion of a person’s involvement with drug activity. At least one
federal judge has asked whether all cities with international airports are “source cities.” United
States v. $141,770.00, 157 F.3d 600, 608 (8th Cir. 1998) (Davis, J., concurring in part and
dissenting in part). Another has pointed out that nearly every American city with any significant

17
evidenc e, travel be tween th ese cities m ay be suf ficient to es tablish pr obable c ause.

Id. But when combined with only other weak circumstantial evidence (as here),

the “source city” element fails to draw a substantial connection to an illegal

narcotics transactio n.

We consider that Stanford purchased her ticket with cash. Business

travelers often purchase airline tickets with credit cards or checks while drug

couriers often do not. 18 And this circumstance is an appropriate consideration

when evaluatin g prob able caus e in the tota lity. $121,100.00, 999 F.2d at 1507

(citing United States v. Socolow, 109 S.C t. 1581, 158 6 (1989) ). But Stanfo rd’s

ticket cost only $93; given the low dollar amount of this ticket, it hardly seems

population is considered a source city. United States v. Glover, 957 F.2d 1004, 1017 (2d Cir.
1992) (Oakes, C.J., dissenting) (“As cases too numerous to cite have pointed out, ‘source cities,’
as testified to by law enforcement officers, include virtually every city in the United States of
any size. Any Lexis or Westlaw search would reveal that ‘source cities’ include every city with
a population of over one million, most cities with over 500,000, and numerous cities with only
over 100,000 inhabitants.”). The more “travel between source cities” comes to mean just
“travel,” the less persuasive such travel becomes in the probable-cause analysis.
The persuasiveness of this factor is also somewhat degraded by the fact that Stanford
lives near Miami and was returning home. We hesitate to say that every resident of South
Florida has one strike against them for forfeiture purposes should they choose to travel and then
to return home.
18
We do not mean to imply that the government can obtain forfeiture by showing the
claimant’s acts deviated from some vague reasonable-business-person standard. Our standard is
clear; the government must establish probable cause to believe that a substantial connection
exists between the asset sought to be forfeited and an illegal drug transaction.

18
unusual that she paid cash.19 Cf. Socolow, 109 S.Ct. at 1586 (paying $ 2,100 cash

for two airline ticke ts from r oll of $2 0 bills is ou t of the or dinary); see also

$36,634.00, 103 F.3d at 1051 & 1055 n.9 (noting that a cash purchase of a $972

ticket has limited probative value). We also consider, but place little weight on,

the fact that Stanford once “no showed” for her return flight and twice changed her

return itinerary. While we accept the government’s contention that large drug

transactions may be delayed, we recognize -- as does the government -- that many

travelers d elay their flig hts for en tirely legitim ate reason s. We k now o f no circu it

court that has said a changed itinerary is probative of a connection to drugs. The

method Stanford used to pay for an inexpensive airline ticket and the alteration of

her travel arrangements does little (if anything) to connect the money to an

exchan ge of co ntrolled s ubstanc es.

When interview ed by the federal ag ents, Stan ford co uld not n ame the p eople

from whom she received the money and could not provide business receipts for the

money . But as a p ractical ma tter, whe n one h as the mo ney, it is the o ther party to

the transaction that would seem to need receipts. Stanford’s inability or

unwillin gness to tell the agen ts precisely where she stayed in New York is

19
In reviewing cases from other circuits, we have noticed that most cases do not indicate
the cost of tickets purchased with cash. Of the cases that do, the costs are far greater then the
cost of Stanford’s ticket. The prices we have seen ranged from $443 to over $1,000.

19
somewhat bothering. We understand, however, that many people may be reluctant

-- for rea sons un connec ted to dru g crime - - to disclo se whe re they sp ent certain

nights in their lives or to surrender their privacy during a “voluntary” questioning

session with the police. Not answering police questions in detail (a kind of

evasiveness) can be circumstantial evidence of possible criminal (but not

necessarily drug-related) activity and will be considered in our pro bable-cause

inquiry. But in th e totality of th e circum stances o f this case, w e canno t say this

circums tantial evid ence can count fo r much toward establishin g prob able caus e to

believe that a substantial connection existed between the seized currency and a

narcotics transactio n.

We ag ree with the district c ourt that “[ t]he narco tics-detectio n dog’s alert to

the currency is also worth noting, although perhaps worth little else.” The

probative value of dog alerts to the smell of narcotics on currency has been called

into question of late: most United States currency is suspected of having traces of

narcotics.20 By the way, even the gov ernment’s own testimony in this case

20
The district court indicated that the narcotics-detection dog’s alert was not very
significant. We look to precedent to determine the weight to give to the dog’s alert. See United
States v. $506,231.00, 125 F.3d 442, 453 (7th Cir. 1997) (refusing to take seriously the results of
a dog alert because at least one-third -- or as much as 96% -- of currency in the United States is
contaminated with cocaine) (citing cases and authorities); Muhammed v. Drug Enforcement
Agency, Asset Forfeiture Unit, 92 F.3d 648, 653 (8th Cir. 1996) (concluding that a dog alert is
“virtually meaningless” because “an extremely high percentage of all cash in circulation in
America today is contaminated with drug-residue”); United States v. $5,000.00, 40 F.3d 846,
849-50 (6th Cir. 1994) (stating that the value of a dog alert is “minimal” because 70% to 97% of

20
indicated that perhaps as much as 80% of money in circulation may carry residue

of narcotics.21 The dis trict court d id not fin d that Ra mbo w ould de cline to aler t to

most circulated currency. 22 Nor did the distr ict court fin d that Ra mbo w ould on ly

alert to currency recently in the proximity of drugs. We accept that Rambo reacted

to the smell of drugs. But when perhaps as much as 80% of currency in circulation

has drug residue on it, we are concerned that Rambo would have the same reaction

to 80% of the circulated currency placed in front of him. If so, the alert, as the

23
district cou rt determ ined, is of little value.

Thus, the dog alert, at best, tells us that this currency (like most circulated

currency) may have been exposed, at some point, to narcotics. When combined

with more compelling evidence of a connection to a narcotics transaction, this kind

currency in the United States is “so thoroughly corrupted” with cocaine contamination) (citing
cases and authorities).
21
As a side note, it seems a bit ironic that, the day after the seizure, the DEA exchanged
this drug-tainted currency for a cashier’s check at SunTrust Bank, where the currency was,
possibly, placed back into circulation for innocent people to possess.
22
We note that what the district court did not find is as important as what the district
court did find. In a forfeiture case, we remember that the government bears the burden of
establishing probable cause. $4,255,625.39, 762 F.2d at 903.
23
For an example of a dog alert that, we believe, is much more probative than the one in
this case, see United States v. $22,474.00, 246 F.3d 1212, 1216 (9th Cir. 2001). In $22,474.00,
the government’s evidence established that “the dog would not alert to cocaine residue found on
currency in general circulation.” Id. The government’s undisputed evidence also established that
“unless the currency . . . had recently been in the proximity of cocaine, the detection dog would
not have alerted to it.” Id.

21
of dog alert may b e proba tive; but it ad ds little in this case.

In addition, we observe some other circumstances of significance. First, the

district court made no finding that Stanford or her brother had ever been charged

with, implicated in, detained or investigated in association with a drug crime.24 Nor

did the district court find evidence of a specific drug transaction with which the

currenc y is associa ted. We are awa re of on ly one fo rfeiture ap peal in this Circuit

that upholds probable cause where no evidence specifically indicated that the

claimant or someone closely associated with the claimant was involved in drug

transactio ns: $4,255,625.39.25 As exp lained later , $4,255,625.39 presents a much

24
The present case is not a criminal case. While the NADDIS report indicated that some
business called Mike’s might be involved in money laundering, the report had so little reliability
that the district court gave it no credence.
25
Although we know that probable cause for a forfeiture can be established even if there
is no direct evidence of some kind of drug activity, we also recognize that this result is rare. We
are aware of only a few published circuit court opinions that conclude probable cause exists
when direct evidence of drug crime is missing: $4,255,625.39, 762 F.2d 895 (11th Cir. 1985)
(discussed infra); United States v. $42,500.00, 283 F.3d 977 (9th Cir. 2002); United States v.
$141,770.00, 157 F.3d 600 (8th Cir. 1998); and $129,727.00, 129 F.3d 486 (9th 1997). We
believe these cases present more compelling facts for forfeiture than this one. In $42,500.00, the
claimant -- who said she was claiming as bailee but refused to provide contact information for
the supposed bailor -- admitted to being a currency courier and told law enforcement officers
that she was just carrying the bag with an amount unknown to her with instructions to deliver it
to “Jose.” 283 F.3d at 980. In $141,770.00, the money was wrapped in dryer sheets, triple
bagged in resealable bags, and hidden in the ceiling panel of a vehicle; and the claimants lied to
law enforcement officers about having money. 157 F.3d at 602-03. In $129,727.00, the
currency was wrapped in dryer sheets and plastic wrap; also, the claimant lied about the amount
of money he was carrying. 129 F.3d at 488.
Despite these cases, the government actually claims that probable cause is supported by
the fact that Stanford has no prior association with drugs: that is, she seems so innocent. They
claim that common sense says drug organizations will select couriers who have no drug history.
A problem with this argument’s strength is that we, and other circuit courts, have repeatedly said

22
more co mpelling case for f orfeiture than is pr esented h ere.

Second, Stanford was traveling under her own name; she stated that she was

carrying currenc y; and sh e told the a gents ho w mu ch curre ncy she w as carryin g.

These circumstances are unusual in drug/currency cases. Couriers commonly travel

under false names. For background, see $121,100.00, 999 F .2d at 15 07; United

States v. $25,000.00, 853 F .2d 150 1, 1507 (9th Cir . 1988) ; United States v.

$5,644,540.00, 799 F .2d 135 7, 1360 (9th Cir . 1986) ; United States v. $13,000.00,

733 F .2d 581 , 585 (8 th Cir. 19 84), superse ded by s tatute on o ther gro unds in United

States v. Trotter, 912 F .2d 964 (8th Cir . 1990) ; see also $67,220.00, 957 F.2d at 285

(traveling under own n ame reduces suspiciousness of trave l). Couriers also

comm only lie ab out the am ount the y are carry ing. See id. at 286; see also United

States v. $10,700.00, 258 F.3d 215, 232 (3d Cir. 2001) (“[I]t is significant that

claimants did not lie about the amount of cash they possessed . . . and they

immed iately claime d own ership o f the mo ney after th ey volun tarily cons ented to

the search of their b ags. Bo th of tho se consid erations w eigh in cla imants’ fa vor in

the probable cause calculus.”). Stanford’s traveling under her own name and her

honesty about h er posse ssion of the curre ncy and its amou nt go a lo ng wa y to

easing any suspiciousness raised by som e evasiveness with the agents.

-- and the government has repeatedly argued in the past -- that a courier’s history of involvement
with drug crimes is a factor that supports a finding of probable cause.

23
 Third, the district court found that Stanford is associated w ith a business,

Mike’s. But the district court did not find Mike’s to be some sort of criminal

enterpris e. From the outse t, Stanfo rd, as a bu siness pe rson, ha d, and h as, a

plausible explanation for honestly having the cash.26 Cf. United States v.

$174,206.00, 320 F.3d 658, 662 (6th Cir. 2003) (affirming forfeiture where the

owne rs had n o legitima te source of incom e equal to the proc eeds seize d); United

States v. C arrell, 252 F.3d 1193, 1201 (11th Cir. 2001) (concluding that

government had shown probable cause for forfeiture where purchaser had no

legitimate s ource o f incom e); United States v. Parcels of Land, 903 F.2d 36, 40 (1 st

Cir. 1990) (affirming forfeiture where purchaser had no “apparent legitimate source

of money to account for [the] magnitude of expenditures”).

Courts exist largely to draw lines. When courts are called on to declare the

legal consequences of a set of facts, the courts are called on to draw lines in which

cases may be near each other bu t, still, on opposite sides.27 In this forfeiture case,

26
The district court found that Stanford is a shareholder and president of Mike’s. The
district court did not find that Mike’s was an illegitimate business. The district court did not find
that Mike’s operations were insufficient to involve the amount of money Stanford carried with
her.
27
The district court thought that, on the facts, it was not obvious that probable cause had
been met. During the hearing, the judge made this observation: “I think all those circumstances
point towards the activity of the drug courier, certainly nowhere close to a reasonable-doubt
standard, and I think it’s frankly a close question, given those cases, as to whether there’s a
probable-cause standard. So that’s why I think you all ought to really consider that case law and
see if you can resolve it, but otherwise I think I’ll try to write the best decision I can, and the

24
we have a business person, with no known criminal record, traveling to her Florida

home under her own name openly on a public carrier, and forthrightly disclosing

that she was carrying a large amount of cash. In support of probable cause for

forfeiture, the government mainly points to some evasiveness with the agents, the

large am ount of currenc y, the fact th at the curr ency w as wrap ped in b lack plastic

and Christmas wrapping, the travel between source cities, the cash ticket, the

changed itinerary, and the dog alert. We accept that collectively the elements relied

upon by the government might point toward a possible connection to crime. But

they only hint at crim e: a sugg estion w ell short o f show ing pro bable cau se that a

“substantial connection” exists between the funds at issue here and a narcotics

transactio n.

While th e gover nment’s evidenc e might in duce so meone to suspe ct that a

“substantial connection” to a crime exists, more than suspicion is necessary; and the

connection must be to drug crime, not to crime in general. For a forfeiture, the

govern ment’s ev idence h ere is insu fficient to c ause a rea sonably cautious person to

believe -- to have some confidence, not just to imagine that it could be possible --

that the currency was substantially connected to a drug crime. Under the law, the

Eleventh Circuit will have to deal with it too.” Then, later in his written order, he says again that
the needed probable cause was “admittedly a close question.”
We respect the district court’s view, but in our judgment, the totality of circumstances is
legally insufficient to support the conclusion of probable cause in this case.

25
totality of the circumstances found by the district court is not enough to justify the

govern ment’s tak ing and keeping the mon ey forev er.

We believe we have looked at every published federal appellate decision

discussing probable cause for forfeiture under section 881, and we are aware of no

case con cluding that the ne eded pr obable c ause exis ted on a r ecord lik e this one : a

record this thin on facts connecting the pertinent property to an illegal drug

transaction. The government seems to know of no such case either. At trial, when

the district court asked for the best Eleventh Circuit case, the government cited

Carrell. When we asked for the best case at oral argument, the government cited

$67,220.00. Both cases present facts significantly more compelling than those

presented here.28

The claimant in $67,200.00, Robert Easterly, lied to the government about

the mon ey he w as carryin g. $67,220.00, 957 F .2d at 28 6. He in itially falsely to ld

28
At one point at the district court hearing, the government lawyer cited United States v.
$91,960.00, 897 F.2d 1457 (8th Cir. 1990), as a case finding probable cause “based on the same
factors, less factors than we presented in this case.” After hearing this representation, the district
court commented “it’s a little reckless to say less facts than are present in this case I think.” In
$91,960.00, the claimant, Luis Rosario, was traveling under a false name, gave three different
stories about the source of the money he was carrying, had a notebook with his currency that the
DEA agents testified appeared to contain notations of drug transactions, had a prior arrest for
heroin possession which he lied to the agents about, and was subsequently arrested and
convicted for marijuana distribution. Id. at 1459-60. Also in $91,960.00, the Eighth Circuit
applied a clearly erroneous standard of review to the district court’s finding of probable cause,
id. at 1462, while our precedent dictates a de novo standard, see $121,100.00, 999 F.2d at 1507.
This case is nothing like $91,960.00.

26
the government that he was carrying “about five thousand dollars,” and he later

falsely said he was carrying “about $20,000.” Id. at 282. He falsely told the

govern ment tha t the mon ey had co me from his busin ess and a sked his boss to lie to

the investigators and “vouch that the seized cash was Budget Gold’s money so that

Easterly could get it back.” Id. at 282-83. Here, the factual findings indicate that

Stanford has not engaged in this kind of deception. She did not deny that she was

carrying cash; and her statements about the amount of cash were a close and

reasonable approximation of the actual dollar amount. No evidence suggests that

she asked anyone to lie for her. This case is not comparable to $67,220.00.

This case is not comparable to Carrell either. In Carrell, the government was

able to trace the forfeited property directly to the proceeds of illegal drug sales.

Carrell, 252 F .3d at 12 01.

[T]he g overnm ent dem onstrated probab le cause th at the first p roperty

titled in Scottie Carrell’s name was purchased with the proceeds of

Homer Carrell’s marijuana and cocaine sales because he had no other

legitimate source of income. Regarding the second property, the

government’s investigation revealed that the sixteen cars that belonged

to Homer Carrell’s mother that were exchanged for the property were

purcha sed with Hom er Carre ll’s drug p roceeds .

27
Id. The court, in Carrell, concluded there was “ample evidence” of a substantial

connection between the forfeited property and the marijuana and cocaine sales of

Hom er Carre ll. Id. at 1202. In th is case, no facts direc tly connect Stan ford’s

money to illegal drug transactions. While this lack of a direct connection does not

necessar ily mean f orfeiture is inappr opriate, it d oes mean that Carrell is not

instructiv e.

We suppose that our closest cases finding probable cause are $121,100.00,

and $4,255,625.39. The present case, however, is considerably weaker than either

of those cases. $121,100.00 involved a person with a history of narcotics

convictions, traveling under a false name, who purchased an expensive ($600)

airline ticket with cash, was carrying a large sum of money to which a dog alerted,

and plan ned on ly a single- day trip. $121,100.00, 999 F.2d at 1505, 1507. The

$121,100.00 court ind icated that th e prior n arcotics co nviction s were c ritical to its

probab le-cause d etermina tion. Id. at 1507. Stanford’s case is somewhat similar;

but she did not travel under a false name, she purchased an inexpensive airline

ticket and , very imp ortant, no facts sho w that sh e had a h istory of in volvem ent in

drug transactions.

$4,255,625.39 involved a much greater amount of money, over seven million

dollars, an d had a C olomb ia conne ction. $4,255,625.39, 762 F .2d at 90 2. Prob able

28
cause, in $4,255,625.39, was based in part on an eight-month-long series of

transactions involvin g over $ 242,00 0,000. Id. at 903. In addition to the amount of

money, the $4,255,625.39 court po inted to n ine eleme nts supp orting p robable

cause, only one of which is even arguably present here.29 Id. Of the $4,255,625.39

elements that are not present here, we believe these are significant: (1) the money

was delivered by Colombian couriers; (2) on at least one occasion, the cash was

delivered in the trunk of a car equipped with a secret compartment that was

abando ned w hen the c ouriers w ere follow ed; (3) th e bank c harged an unu sually

high service fee for the claimant’s account; and (4) the claimant had requested an

“unusual” loan from the bank in which the funds were deposited to protect the

funds in the even t they we re subjec t to forfeitu re. Id. In addition, the claimant had

falsely des cribed th e source of the m oney to h is emplo yee. Id. at 900. Furthermore,

the claima nt, befor e the forf eiture pro ceeding s started, h ad -- mo re than o nce -- told

bank o fficials dea ling with the mon ey that “per haps he was de aling w ith peop le

who were . . . involved in the drug business.” Id. at 899-900. In contrast, as far as

the recor d show s, Stanfo rd has n ever sug gested to anyone , at any time , that this

29
The only $4,255,625.39 element that is arguably present here is that “the cash
consisted of small and medium denomination bills.” $4,255,625.39, 762 F.2d at 903. A
significant element that is lacking in Stanford’s case is a connection to Colombia. The money in
$4,255,625.39 was delivered by Colombian couriers, and the claimant was a Colombian citizen.
Colombia is a notorious source of drugs and drug dealers to the United States. Nothing links
either the money or Stanford or anyone else to Colombia in this case. We believe that these
differences are significant.

29
money has any links to illegal drugs. W e acknowledge that the presen t case

involves elements, such as the dog alert, that were absent in $4,255,625.39. But, in

our view , $4,255,625.39 was a m uch stro nger cas e; and w e canno t say that this

precedent supports a finding of probable cause for forfeiture here.

If we were to determine probable cause existed on the facts of the present

case, we would be significantly extending (not just following) the precedents. The

government asks us, in essence, to redraw the probable-cause line for forfeiture

beyond the borders of $121,100.00 and $4,255,625.39 so that the new borders

contain th is case. It ask s us to red raw the line furth er than w e -- or an y other cir cuit

court -- h ave draw n it. We a re mind ful of the precede nt we w ould set if we up held

probable cause for forfeiture on this thin a record. Every resident of Miami-Dade

County traveling with considerable cash back to their home by common carrier on a

cheap ca sh ticket w ould ha ve sever al strikes ag ainst them automa tically, espec ially

conside ring ho w mu ch cash h as traces o f illegal dru gs on it n owad ays. The result

would be to vest the executive branch of the government with tremendous

discretionary power in dealing with people in South Florida when it comes to taking

their pro perty. W e do no t believe th is appro ach wa s Cong ress’s inten t.30 And we

30
In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA) and raised
the government’s burden to establish a forfeiture from probable cause to preponderance of the
evidence. In passing the Act, Congress was concerned that the preexisting civil forfeiture
procedures (the ones which govern this case) inadequately protected private property and

30
see no good reason to extend the precedents in this way. We decline to do so.31

As Justice Holmes noted, “[i]t sometimes is difficult to fix boundary stones

between the private right of property and the police power when, as in the case at

bar, we know of few decisions that are very much in point.” Hudson County W ater

Co. v. McCarter, 28 S.Ct. 529, 531 (1908). But as Justice Holmes also noted,

“[n]either are we troubled by the question where to draw the line. That is the

question in pretty much everything worth arguing in the law.” Irwin v . Gavit, 45

S.Ct. 475, 476 (1925).

In this country, forfeitures are not favored.32 They “sh ould be enforce d only

allowed “numerous controversial seizures of property.” See 146 Cong. Rec. S1759 (daily ed.
Mar. 27, 2000) (statement of Sen. Hatch). We understand, of course, that pre-CAFRA law
governs this appeal. Nevertheless, we are especially reluctant to broaden the case law to enlarge
the circumstances that make property subject to forfeiture under section 881(a)(6) against the
background of a Congress that was attempting to narrow its scope.
31
We are not the only circuit court to decline; we are aware of several cases presenting
similar facts where other circuits have refused to allow a finding of probable cause. See United
States v. $10,700.00, 258 F.3d 215, 232 (3d Cir. 2001) (despite the fact that the claimants had
prior drug convictions); United States v. $5,000.00, 40 F.3d 846, 848-49 (6th Cir. 1994) (despite
one claimant having a prior drug use conviction); United States v. $30,060.00, 39 F.3d 1039,
1040-41 (9th Cir. 1994); United States v. $7,850.00, 7 F.3d 1355, 1358-59 (8th Cir. 1993);
United States v. $53,082.00, 985 F.2d 245, 247-48 (6th Cir. 1993).
For further support for no probable cause in this case, see United States v. Twenty
Cashier’s Checks, 897 F.2d 1567, 1568-70 (11th Cir. 1990), and the discussion of it in United
States v. Four Parcels of Real Property, 941 F.2d 1428, 1442 n.30 (11th Cir. 1991) (en banc).
32
We are talking about the taking of property forever by the government without the
government paying any compensation. We recall the nation’s history. “Liberty, property, and no
stamps! It had been the first slogan of the American Revolution.” C. Bowen, Miracle at
Philadelphia: The Story of the Constitutional Convention May to September 1787 at 70 (1966).

31
when within both the letter and the spirit of the law.” United States v. One 1936

Model Ford V-8 D e Luxe Coach, 59 S.C t. 861, 86 5 (193 9); see also United States

v. $38,000.00, 816 F.2d 1538, 1547 (11th Cir. 1987) (“Forfeitures are not favored

in the law; strict compliance with the letter of the law by those seeking forfeiture

must be required.”). Forfeiture, therefore, should be allowed only when the

circumstances are definitely sufficient to establish probable cause to tie the

pertinent property in a substantial way to an illegal drug transaction. Given the

deficienc ies -- even viewed collectively and w ith a practical eye -- of the eleme nts

presente d, and th e comp lete lack of evidenc e conne cting the s eized mo ney direc tly

to illegal narcotics, the government’s case here falls short of the probable-cause line

for a forfeiture.33

33
We caution against drawing wider conclusions from our limited decision. We stress
what we do not decide today: we do not decide that the circumstances pointed to by the
government would be inadequate to support, for example, a search (with or without a warrant) or
an arrest (with or without a warrant). Other cases are not before us; so, every word we have
written must be read in the context of this forfeiture case.
We have stated before that the standard for probable cause for forfeiture is “the same
standard used to determine the legality of arrests, searches, and seizures in criminal law.”
United States v. Four Parcels of Real Property, 941 F.2d 1428, 1440 (11th Cir. 1991) (en banc)
(internal quotations and citations omitted). And we say that again today. Nevertheless, the
quantum of evidence necessary to meet the probable-cause standard -- even when the probable-
cause test is articulated in basically the same way -- might vary from one kind of case to another
depending on what kind of government act the probable cause is to justify. For example, under
the probable-cause test, the quantum of evidence necessary for the government to search your
home is -- we suspect -- less than the quantum of evidence necessary for the government to take
your home away from you forever.
For further background about the varying quantum of evidence to meet the probable-
cause standard, consider the following cases. For searches generally, see Michigan v. Tyler, 98
S.Ct. 1942, 1948 (1978) (stating that “[t]he showing of probable cause necessary to secure a

32
 REV ERS ED w ith instruc tions to en ter judgm ent for C laimant.

warrant may vary with the object and intrusiveness of the search”); Camara v. Municipal Court,
87 S.Ct. 1727, 1735 (1967) (stating that “there can be no ready test for determining
reasonableness other than by balancing the need to search [or seize] against the invasion which
the search [or seizure] entails”); Berger v. New York, 87 S.Ct. 1873, 1888 (1967) (Stewart, J.,
concurring) (stating that “[t]he standard of reasonableness embodied in the Fourth Amendment
demands that the showing of justification match the degree of intrusion”); Gooding v. United
States, 94 S.Ct. 1780, 1797-98 (1974) (Marshall, J., dissenting) (“It is by now established Fourth
Amendment doctrine that increasingly severe standards of probable cause are necessary to
justify increasingly intrusive searches. . . . In some situations . . . this principle requires a
showing of additional justification for a search over and above the ordinary showing of probable
cause.”) (citations omitted); United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984) (stating
that “[t]he usual way in which judges interpreting the Fourth Amendment take account of the
fact that searches vary in the degree to which they invade personal privacy is by requiring a
higher degree of probable cause (to believe that the search will yield incriminating evidence)”);
West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 958 (11th Cir. 1982) (finding that a lesser
quantum of evidence for probable cause is required for administrative searches than for criminal
searches).
For seizures generally, see Mason v. Godinez, 47 F.3d 852, 856 (7th Cir. 1995) (stating
that “the amount of information the police are required to gather before establishing probable
cause for an arrest is in inverse proportion to the gravity of the crime and the threat of its
imminent repetition”); State v. Klinker, 537 P.2d 268, 277 (Wash. 1975) (noting, in a seizure
case, that probable cause is “a measure of constitutional sufficiency which varies with the
situation presented”).
For with-warrant versus without-warrant searches and seizures, see United States v.
Ventresca, 85 S.Ct. 741, 744 (1965) (stating that courts will accept a lesser quantum of evidence
to support probable cause for a with-warrant search than for a without-warrant search); Aguilar
v. Texas, 84 S.Ct. 1509, 1512 (1964), abrogated on other grounds, Illinois v. Gates, 103 S.Ct.
2317 (1983) (same); United States v. Anderson, 500 F.2d 1311, 1315 n.8 (5th Cir. 1974) (stating
that “the standards applicable to the factual basis supporting probable cause for a warrantless
arrest and search . . . may even be more stringent” than those applied to a search warrant);
United States v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986) (same); State v. Fletcher, 288 A.2d
92, 97 (Me. 1972) (noting that “more evidence is needed to justify an officer in making a search
without a warrant than is required for finding probable cause for issuance of a search warrant”);
People v. Madden, 471 P.2d 971, 974 (Ca. 1970) (same).
For preliminary hearings, see Williams v. Kobel, 789 F.2d 463, 469 (7th Cir. 1986)
(stating that “the probable cause determination at the preliminary hearing is far more stringent . .
. than the probable cause determination made [at an arrest]”); Goldsmith v. United States, 277
F.2d 335, 343 (D.C. Cir. 1960) (written by future Chief Justice Burger) (stating that “[t]he
quantum of evidence necessary to sustain an arrest is not, in all circumstances, the same quantum
necessary to make out probable cause for charging a person with a crime”); Wisconsin v.
DeSmidt, 454 N.W. 2d 780, 785 (Wis. 1990) (noting that greater quantum of evidence is
required to find probable cause for a bindover than for a warrant); Myers v. Commonwealth, 298
N.E.2d 819, 823 (Mass. 1973) (same).

33
ANDERS ON, Circuit Judge, dissenting:

Respectfully, I dissent. I conclude that the government did adduce sufficient

evidence to satisfy the requisite probable cause standard, a reasonable ground for

believing that the cu rrency w as substa ntially related to a drug crime.

The cumulative effect of the evidence, including the following evidence,

persuades me that the currency w as substantially related to illegal activity:

• Stanford was either unab le or unwilling to disclose to the agents,
during their extended discussion at the DEA office at the airport, the
identity of the perso ns from whom she receiv ed mor e than $2 42,000 in
cash. One would ordinarily expect the president and owner of a
legitimate business to know more about the persons with whom she
was doing business than simply that they were “some people” from her
home country; this is especially true in the circumstance of receiving
more th an $24 2,000 in cash.

• Stanford was either unable or unwilling to identify where she stayed
during her visit of several days in New York, or with whom she stayed.

• The cu rrency w as not on ly concea led, wh ich is not u nusual if one is
going to carry large quantities of cash on public transportation, but was
also wrapped in a plastic cellophane-like material, giving rise to a
reasonable inference that there was an effort to conceal any odor of
drugs.

• Althou gh trave ling with large qu antities of c ash is no t illegal, it is
unusual as part of a legitimate business practice, but, on the other hand,
is commonplace in illegal activities, especially drug activities.

• Similarly, large quantities of cash in small denominations, and not

34
 bundled in the manner that ban ks use, is unusual in legitimate business
practices, but commonplace in illegal activities, especially drug
activities.

• Although the probative value of the dog alert is diminished for the
reasons indicated by the majority, the dog alert nevertheless retains
probativ e value as evidenc e of illegal d rug activ ity.

• The ag ents interr ogating Stanfo rd perce ived a ch ange in h er story as to
the reason for her visit to New York. Initially, she told them that she
was inv olved in a court ca se that cau sed her to go to N ew Y ork.
However, when the agents asked about the case, Agent Myles testified
that she changed her story and said that she had gone to pick up the
money for the business. 1

• Finally, S tanford paid cash for her a irline ticket, s chedule d a shor t trip
betwee n New York and M iami, and delayed h er return several tim es.
Althou gh I agr ee with th e majority that these f acts are co nsistent w ith
perfectly legitimate activity, and therefore have diminished value,
nevertheless these facts are consistent with well known patterns of
drug ac tivity, and r etain som e proba tive value .

While the foregoing evidence persuades me that the government adduced

evidenc e satisfying the prob able caus e standar d that the c urrency was rela ted to

illegal activities, I agree that it is a closer question as to whether the necessary

1
The majority suggests that, as an appellate court, we cannot consider that factor
because the district court made no explicit finding with respect to the truth thereof. I doubt the
validity of the majority’s suggestion that an appellate court can consider only explicit findings of
the district court. Moreover, the relevant fact for the probable cause determination is not the
truth of the fact (i.e., whether Stanford in fact changed her story), but rather the reasonable
perception of the agent. The perception of the agent was not disputed, and was noted by the
district court. Finally, this factor has only marginal significance, and its absence would not alter
my persuasion that the government established the requisite probable cause.

35
nexus to drug activity was established. Ultimately, however, I am persuaded that

the government’s evidence does establish a reasonable ground for believing that the

currency was related to illegal drug activity. In my judgment, the cumulative effect

of the following evidence is sufficient to satisfy that standard with respect to the

drug n exus:

• The reasonable inference of an effort to mask a drug odor arising from
the way in which the currency was wrapped in a cellophane-type
material.

• Of course, the large quantity of cash in sm all denominations is a
possibility in other illegal activities, but much more likely is evidence
of illegal drug activity, especially in view of other circumstances,
including the brief visit by a Miami resident to New York and the
cellopha ne wra pping.

• The do g alert.

In order to establish the requisite probable cause, the government is not

required to prov e that the n exus to ille gal drug activity is m ore likely th an not. A ll

that the government is required to prove is that there is a reasonable ground for

believing that there is such a nexus to drugs. I believe that the government has

satisfied the requisite standard.

Finally, I do not believe that the length of the consensual discussion in the

DEA office at the airport converted the confrontation at any point into an illegal

36
arrest, in light of Stanford’s consent and the evidence o f illegal activity.

For the forego ing reaso ns, I resp ectfully dis sent.

37