Some people just have a way with words, and Andrew Fleischman expressed the problem with notable aplomb:

In my experience, an officer will claim to have experienced a lot of things when two hundred grand is on the line. If he had to claim to know the exact taste of uncooked pig rectum to seize the assets, you’d better believe his training would cover it.

This tasteful explanation comes in response to the commonplace justification for a seizure of $201,000 from a safe found in James Leonard’s car during a search conducted with the putative consent of his passenger.

Police pulled James Leonard over at 3 in the morning for speeding and following too closely. For some reason, this led to a discussion of how much money he was carrying with him. He said $800. His passenger said $1000. Police asked the passenger for consent to search the car, and she allegedly gave it, though the encounter doesn’t seem to have been filmed.

Police found a safe in the trunk of the car. Once again, this was unfilmed, but it is possible that officers were briefly blinded as their pupils converted to novelty-sized dollar signs.

Upon finding the safe, and refusal of consent to search, the officer obtained a search warrant.

The officer got a search warrant and found $201,000 and a bill of sale for a Pennsylvania home. You might think that one would explain the other, but the officer was trained in drug trafficking. He knew that this money was especially suspicious and seizable:

In my experience, carrying large amounts of U.S. currency is commonly associated with the illegal narcotics trade. In my experience, [U.S.] Highway 59 is a main thoroughfare for the transport of U.S. currency and narcotics in the illegal drug trade.

The fallback is used pervasively by police to connect vague dots: training and experience, which purportedly allows police to “know” things that mere mortals cannot possibly appreciate. This case ended with a statement by Justice Clarence Thomas questioning (see page 16 of the Supreme Court docket sheet) whether in rem forfeitures can withstand due process scrutiny, a curious epiphany given that he never showed any similar concern in the past, but it’s certainly a welcome change.

But the Pig’s Rectum problem isn’t limited to forfeitures, a huge concern, or even search warrants obtained upon such amorphous allegations. Rather, the problem Andrew raises is that an officer can claim pretty much anything, between training and experience, to rationalize why probable cause exists where it can’t be seen by any eyes other than a cop’s.

What does a person mean when he refers to the “merchandise” in a conversation? Narcotics. How do we know this? Training and experience informs cops that drug dealers often refer to their narcotics as merchandise. As do haberdashers. Is a person a totally lawful merchant or a drug dealer? Let the court sort it out, except when it’s just an in rem seizure, there will be no sorting of criminal conduct as the offense is the property itself.

In Leonard’s case, two of the most pervasively problematic phrases, large (?) amounts of currency and drug highways, came into play. This gives rise to a bit of a problem, as it’s not unlawful to possess sums of currency, despite the government’s efforts to prevent it, and it’s not unlawful to drive on highways claimed to be commonly used for drug and currency trafficking. Indeed, every highway is claimed to be dirty, just as every neighborhood is a “high crime” location when it needs to be.

The dirty little secret here is that the fallback on “training and experience” covers most factual evils. Does it raise questions that Leonard had a lot of cash in his pocket? Sure. And a safe in his car? Absolutely. And over $200 thousand in the safe? Yup. Even though the documents from the sale of a house were in there as well, and certainly seem to explain the cash, there are questions.

But questions aren’t evidence. They’re just questions. And the significance is that these questions are answered by reliance on the “training and experience” mantra. Same with the bit of lily-gilding about the highway being a drug route. Tens of thousands, maybe even hundreds of thousands of vehicles drive on a highway daily. Are they all drug dealers? Money launderers? Are they all presumptively criminals? Of course not.

And the same could be said for any highway. How is a court to know that a route is used by drug dealers to such an extent that it is distinguished from any other interstate? What makes this highway sufficiently special, unique, that a cop can testify, based on his training and experience, that it’s particularly prone to being used by drug dealers?

There is no official list of highways that fit the description. If there was, there would have to be some criteria to make it so, and that would be particularly problematic as it would expose the claim to scrutiny. No cop, or judge, wants to deal with actual scrutiny when they can simply fall back on the training and experience claim.

But none of this addresses the biggest question: what are cops taught in the Academy that they know such things? What is the basis for these lessons? How is it possible they have such miraculously brilliant insight into every aspect, every variation, of every potential crime? This remains the mystery that no one ever gets to, as it’s concealed behind the vagary of training and experience.

And for judge after judge, that’s close enough, and has been forever. Perhaps Justice Thomas has had enough of the training and experience malarkey, though it appears his issues is limited to forfeiture (not a bad thing) rather than the underlying lack of substantive basis for the dot connecting relied upon in claiming probable cause. Maybe, the time will come when judges shut down the facile mantra of “training and experience” to conceal that there is no class at the Academy where they’re taught the pungent flavor of a pig’s rectum.