### In the



# United States Court of Appeals

For the Seventh Circuit

No. 11

‐ 3706

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

F UNDS IN THE AMOUNT OF O NE H UN

‐

DRED T HOUSAND O NE H UNDRED AND

T WENTY D OLLARS ($100,120.00),

Defendant.

A PPEAL OF : N ICHOLAS P. M ARROCCO

and V INCENT J. F ALLON

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 03

‐ cv

‐ 03644

— Elaine E. Bucklo

, Judge.

A RGUED M AY 31, 2013

— D ECIDED S EPTEMBER 19, 2013

Before F LAUM

, M ANION

, and R OVNER

, Circuit Judges.

M ANION

, 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 upNo. 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 the6 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 and12 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 penaltyNo. 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 evaporates16 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 mostNo. 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 scent30 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 legally32 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.