United States v. $242,484.00

ANDERSON, 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 currency was substantially related to a drug crime.

The cumulative effect of the evidence, including the following evidence, persuades me that the currency was substantially related to illegal activity:

• Stanford was either unable or unwilling to disclose to the agents, during their extended discussion at the DEA office at the airport, the identity of the persons from whom she received more than $242,000 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 espe-dally true in the circumstance of receiving more than $242,000 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 currency was not only concealed, which is not unusual 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.
• Although traveling with large quantities of cash is not 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 bundled in the manner that banks use, is unusual in legitimate business practices, but commonplace in illegal activities, especially drug activities.
*518• Although the probative value of the dog alert is diminished for the reasons indicated by the majority, the dog alert nevertheless retains probative value as evidence of illegal drug activity.
• The agents interrogating Stanford perceived a change in her story as to the reason for her visit to New York. Initially, she told them that she was involved in a court case that caused her to go to New York. 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, Stanford paid cash for her airline ticket, scheduled a short trip between New York and Miami, and delayed her return several times. Although I agree with the majority that these facts are consistent with perfectly legitimate activity, and therefore have diminished value, nevertheless these facts are consistent with well known patterns of drug activity, and retain some probative value.

While the foregoing evidence persuades me that the government adduced evidence satisfying the probable cause standard that the currency was related to illegal activities, I agree that it is a closer question as to whether the necessary 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 nexus:

• 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 small 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 cellophane wrapping.

• The dog alert.

In order to establish the requisite probable cause, the government is not required to prove that the nexus to illegal drug activity is more likely than not. All 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 arrest, in light of Stanford’s consent and the evidence of illegal activity.

For the foregoing reasons, I respectfully dissent.

. 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.