Posted on 08/21/2006 8:16:54 AM PDT by GeorgiaDawg32
OMAHA, Neb. - Authorities were correct to assume nearly $125,000 they seized from a California man's car during a traffic stop may have been connected to narcotics trafficking, despite finding no drugs in the vehicle, the 8th U.S. Circuit Court of Appeals ruled Thursday.
The ruling from the three-judge panel overturned an earlier decision by U.S. Magistrate Judge Thomas Thalken in Nebraska in the case of Emiliano Gomez Gonzolez. A state trooper stopped Gonzolez for speeding on Interstate 80 on May 28, 2003.
Gonzolez's lawyer, Donald Yates of San Diego, said they would appeal the ruling. He said the government is treating unfairly people who don't have credit or bank accounts and are forced to do business in cash.
(Excerpt) Read more at mercurynews.com ...
And, anyone who's had monetary difficulties before and can't get a debit or credit card is forced to work in cash for a rather long period of time until credit reports begin to clear themselves up..
Be that as it may, simply saying we THINK this is drug related and therefore taking it is just plain wrong..
The judges should be impeached.
There are not many credit problems that cannot be solved with $127,000.
I just want to know if they gave his money back, or did they keep it as police evidence?
Some people want cash. He says he was buying a truck. If I was selling one, I would not want a check from someone that was going to drive off and never be seen again. When this is overruled , who is going to pay this guys legal fees? I'm sure his 124K is spending fast.
It sounds to me that he probably didn't *want* a checking account.If true,I wonder why that might be.....
"...correct to assume..."
That's now the basis of law? WTF? Recall the damned judge!
I think that when a police force seizes cash or property that's deemed to be connected to drugs,that force can keep the money/property.
Read the article, the freakin' cops stole the money and the courts are helping them keep it. This wil go all the way to the SCOTUS and the poor chump will end up owing lawyers another 100,000+.
Do that and throw-down bags of illegal drugs will become standard equipment in police cars.
He probably does have a shady background, but the cops have to PROVE that he was carrying ill-gotten gains. Shouldn't be that hard to do if they put some effort into it.
You like being in other people's business don't you? You can wonder all you want, but it's not (yet) illegal to carry around cash.
help me out here..cops need reasonable cause to search a car do they not? so if I'm stopped and I agree to a search, they do..if I refuse, they take that as "reasonable cause" since they suspect I'm hiding somethin and search anyway..how do you avoid having your car searched??
I support the war on drugs, but not the egreggious Constitutional abuses like this that come with it. A speeding ticket should not open the door to "theft by cop" of $125,000.
There is wrong and there is incredible, jaw-dropping wrong. This story meets the criteria for the latter.
No they don't.
Why does it make a difference?
I'm from your local police deparment. I "deem" all your possessions to be "connected to drugs". Hand it all over.
The inevitable and predictable consequences. You reap what you sow.
The actual opinion follows, for those who care to read it before making uninformed comments. . . .
COLLOTON, Circuit Judge.
The United States initiated civil forfeiture proceedings against $124,700 in United States currency, alleging that the money was subject to forfeiture as the proceeds of a drug transaction or as property used to facilitate the possession, transportation, sale, concealment, receipt, or distribution of a controlled substance. See 21 U.S.C. § 881(a)(6). Three individuals filed claims opposing the forfeiture, and after a bench trial, the district court entered judgment in favor of the claimants. The government appeals, and we reverse and remand for further proceedings.
I.
The defendant currency was seized on May 28, 2003, from one of the claimants, Emiliano Gomez Gonzolez. According to testimony adduced at trial, Gonzolez was driving west on Interstate 80 in a rented Ford Taurus when a Nebraska
State Patrol Trooper, Chris Bigsby, stopped Gonzolez for exceeding the posted speed limit. Trooper Bigsby testified that he asked Gonzolez to sit in the front passenger side of his patrol vehicle during the stop. At Bigsby’s request, Gonzolez presented a Nevada driver’s license and a rental contract for the car, but the rental contract was
not in Gonzolez’s name and did not list Gonzolez as an additional driver.
Trooper Bigsby did not speak fluent Spanish, but he testified that Gonzolez responded to his questions, which were mostly in English, in a combination of English and Spanish. Bigsby asked Gonzolez where he was going, and Gonzolez responded that he had been in Chicago for three days. Gonzolez indicated that a person named “Luis” had rented the car for him, but the name “Luis” did not catch the name on the rental agreement that he presented to Trooper Bigsby. Trooper Bigsby also twice inquired whether Gonzolez had ever been arrested or placed on probation or parole, and Gonzolez said that he had not.
Before Trooper Bigsby had completed the traffic stop, another officer, Jason Brownell, stopped to ask if Bigsby needed any assistance. When Trooper Bigsby found out that Trooper Brownell had some Spanish-speaking ability, Bigsby asked if Brownell would stay and assist. Trooper Bigsby testified that with Brownell’s assistance, he completed a warning citation and returned Gonzolez’s license and paperwork. Having learned through his dispatcher that Gonzolez had been arrested in 2003 for driving while intoxicated, Bigsby then asked, through Trooper Brownell, if he could “ask a few more questions,” and Gonzolez answered yes. Again through Trooper Brownell, Bigsby asked if Gonzolez had ever been arrested for driving while intoxicated, and Gonzolez answered that he had. Bigsby and Brownell also inquired whether any alcohol, guns, marijuana, methamphetamine, heroin, or large amounts of cash were in the car, and Gonzolez answered no. Brownell then asked for, and received, consent to search the car. Trooper Bigsby went directly to the rear passenger side of the vehicle and opened a cooler that was in the back seat, where he found a large plastic bag that contained seven bundles wrapped in rubber bands inside aluminum foil packaging. These bundles contained a total of $124,700 in currency.Gonzolez and the vehicle were then taken to the Nebraska State Patrol office in Lincoln.
In Lincoln, Trooper Bigsby continued his investigation with the help of another trooper, Sean Caradori, and Trooper Caradori’s police canine, Rico. Rico was deployed to sniff the exterior of the car, and the dog alerted to the rear passenger side of the vehicle. Trooper Caradori testified that he conducted a test of the money that was found within the vehicle by hiding both the currency taken from Gonzolez’s car and a separate stack of seven bills borrowed from other troopers in the troopers’ break room. Caradori testified that Rico alerted to the defendant currency but not to the money borrowed from the troopers.
At trial, the government argued that the dog’s alert, along with the large amount of cash that was seized, the circumstances of Gonzolez’s travel, and Gonzolez’s initial false denials that he was carrying cash or that he had a criminal history, showed that the currency was substantially connected to a drug transaction. The claimants, however, argued that the cash was acquired legitimately. Manuel Gomez testified that he had given Gonzolez $65,000 in cash, which was a combination of money that he had borrowed from his father-in-law and his own
personal cash savings, with the expectation that Gonzolez would help him buy a refrigerated truck for the produce business. Gonzolez testified that he gave $40,000 of his own money, plus $20,000 from a friend, Andres Madrigal Morgan, as an investment in Gomez’s truck. Consistent with Gonzolez’s account, Andres Madrigal Morgan testified that he contributed $20,000 in proceeds from a vehicle sale to
Gonzolez’s investment in the truck.
Gonzolez testified that after he had pooled the cash from Madrigal Morgan and Gomez with his own cash, he heard from a friend in Chicago that a truck might be available there from a friend of the friend, and he set out for Chicago by plane, taking the cash with him in a small carry-on bag. Gonzolez said, however, that when he arrived in Chicago and his friend picked him up from the airport, he learned that the truck had been sold. In addition, the unidentified friend alerted Gonzolez that it was “bad” to carry more than $10,000 in cash on your person. Newly fearful of carrying his cash back to California by plane, Gonzolez testified that he decided to rent a car rather than fly, but because neither he nor his friend had a credit card, a third individual rented the car for him.
Gonzolez also testified that he hid the money in a cooler because he was afraid that he might be assaulted or have the money stolen if it was readily observable. He also explained that he was “scared” when the troopers began questioning him about whether he was carrying drugs or currency. He said that he lied about the money and about the names of other parties involved, because he believed that carrying large amounts of cash might be illegal, and he did not want to get his friends in trouble. With respect to Trooper Bigsby’s question about whether he had ever been arrested, Gonzolez testified that Bigsby asked whether he “had any crimes” or “had been a prisoner.” Gonzolez said he answered “no,” despite his arrest for driving under the influence, because he “didn’t think that that was a crime.” (Tr. at 400).
The district court concluded that the government had not established, by a preponderance of the evidence, that there was a substantial connection between the money and a drug trafficking offense. The court noted that large sums of unexplained currency can be evidence of drug trafficking, and that in this case the money was bundled in an unusual manner. The court also concluded, however, that the claimants had given a “plausible and consistent explanation for [the money’s] origin and intended use,” (Add. at 12), and that “the bundling is consistent with an attempt to sort the currency by contributor and conceal the currency from would-be thieves,” and not just to evade law enforcement. (Id. at 13). In addition, the court observed that the government had not presented any expert testimony about “whether the manner the bundles were wrapped either increased or decreased the likelihood of the currency’s use or connection with a drug trafficking offense.” (Id.).
With respect to the canine alert, the court agreed that the alert provided some, but only slight, evidence that the money was connected to drug trafficking. The court
also considered the circumstances and route of Gonzolez’s travel, and the fact that Gonzolez had lied about the names of his friends and other details, but did not believe
that this evidence taken together with the other circumstances, including all the claimants’ lack of significant criminal history, established a substantial connection to drug activity. Because the court determined that the money was not subject to forfeiture, it did not reach the question whether the claimants were innocent owners.
II.
Since the enactment of the Civil Asset Forfeiture Reform Act of 2000, the burden is on the government to establish, by a preponderance of the evidence, that seized property is subject to forfeiture. 18 U.S.C. § 983(c)(1). Forfeiture is warranted under 21 U.S.C. § 881 when the government establishes a “‘substantial connection’ between the property” and a controlled substance offense. 18 U.S.C.
§ 983(c)(3). We review any predicate factual findings for clear error, but the ultimate conclusion as to whether those facts establish a “substantial connection” between
seized currency and a narcotics transaction is a mixed question of law and fact that we review de novo. See United States v. Dodge Caravan Grand SE/Sport Van, 387
F.3d 758, 761 (8th Cir. 2004); United States v. $84,615 in U.S. Currency, 379 F.3d 496, 501 (8th Cir. 2004); see also United States v. $117,920.00 in U.S. Currency, 413
F.3d 826, 829 (8th Cir. 2005).
The district court’s opinion includes no finding as to the credibility of Gonzolez and the other two claimants. The court did observe that the explanations of the claimants were “plausible and consistent,” but this is different from a finding that the court actually believed the testimony. “Plausible” means “apparently acceptable or trustworthy (sometimes with the implication of mere appearance),” see Shorter Oxford English Dictionary 2238 (5th ed. 2002), and we thus read the district court’s opinion to hold that given a “plausible and consistent” explanation from the claimants on one side of the balance, the government’s countervailing proof was not strong enough to meet its burden of showing a substantial connection by a preponderance of the evidence.
On de novo review, we respectfully disagree and reach a different conclusion. We believe that the evidence as a whole demonstrates by a preponderance of the evidence that there was a substantial connection between the currency and a drug trafficking offense. Possession of a large sum of cash is “strong evidence” of a connection to drug activity, $84,615 in U.S. Currency, 379 F.3d at 501-02, and
Gonzolez was carrying the very large sum of $124,700. The currency was concealed in aluminum foil inside a cooler, and while an innocent traveler might theoretically carry more than $100,000 in cash across country and seek to conceal funds from would-be thieves on the highway, we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking. $117,920.00 in U.S. Currency, 413 F.3d at 829. The canine alert also supports the connection. Id.1
1The government argues that the district court erred by according only “slight” probative value to the canine alert. That precise language, however, was drawn from
one of our decisions, see $84,615 in U.S. Currency, 379 F.3d at 502, and the government in this case presented no expert testimony or other scientific evidence that might warrant a stronger inference. Cf. United States v. Funds in the Amount of $30,670, 403 F.3d 448, 457-59 (7th Cir. 2005). The significance of canine alerts is largely a scientific question, and absent a developed record, we decline to expand on our previous pronouncements in this area.
The route and circumstances of Gonzolez’s travel were highly suspicious. Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture, see United States v. U.S. Currency in the Amount of $150,660.00, 980 F.2d 1200, 1206 (8th Cir. 1992), and he gave a vague explanation, attributed to advice from an unidentified third person, about why he
elected to return by car. Gonzolez purportedly carried $125,000 in cash with him on his flight, for the purpose of buying a truck that he had never seen, from a third party whom he had never met, with the help of a friend whose name he could not recall at trial. This testimony does not inspire confidence in the innocence of the conduct. When he was stopped by the Nebraska State Patrol, Gonzolez was driving a rental car that was leased in the name of another person who was not present, another
circumstance that gives rise to suspicion. Then, when Gonzolez was questioned by officers, he lied about having money in the car and about the names of his friends,
thus giving further reason to question the legitimacy of the currency’s presence. See $117,920.00 in U.S. Currency, 413 F.3d at 829. The totality of these circumstances
– the large amount of concealed currency, the strange travel pattern, the inability to identify a key party in the purported innocent transaction, the unusual rental car
papers, the canine alert, and the false statements to law enforcement officers – leads most naturally to the inference that Gonzolez was involved in illegal drug activity, and that the currency was substantially connected to it.
While the claimants’ explanation for these circumstances may be “plausible,” we think it is unlikely. We therefore conclude that the government proved by a preponderance of the evidence that the defendant currency was substantially connected to a narcotics offense. Accordingly, we reverse the judgment of the district court and remand for further proceedings.
LAY, Circuit Judge, dissenting.
I respectfully dissent. Although the circumstantial evidence offered by thegovernment provides some indication that the money seized in this case may be related to criminal activity, I cannot agree that the government has proven, by a preponderance of the evidence, the requisite substantial connection between the currency and a controlled substance offense.
Notwithstanding the fact that claimants seemingly suspicious activities were reasoned away with plausible, and thus presumptively trustworthy, explanations which the government failed to contradict or rebut, I note that no drugs, drug paraphernalia, or drug records were recovered in connection with the seized money. There is no evidence claimants were ever convicted of any drug-related crime, nor is there any indication the manner in which the currency was bundled was indicative of drug use or distribution. At most, the evidence presented suggests the money seized may have been involved in some illegal activity – activity that is incapable of being ascertained on the record before us. See United States v. U.S. Currency, $30,060.00, 39 F.3d 1039, 1044 (9th Cir. 1994) (“[A] mere suspicion of illegal activity is not enough to establish . . . that the money was connected to drugs.”).
The law of our circuit makes clear that the possession of a large amount of cash provides strong evidence of a connection between the res and illegal drug activity. Yet this fact is not dispositive. A faithful reading of the cases cited by the majority from our court reveal that we have required some additional nexus between the property seized and drug activity to support forfeiture. In United States v. U.S. Currency, in the Amount of $150,660.00, 980 F.2d 1200 (8th Cir. 1992), we recognized such a nexus where the investigating officer immediately smelled marijuana upon inspecting the currency.2
2Unlike our decision in U.S. Currency, in the Amount of $150,660.00, the odor of narcotics on the currency seized in this case was not apparent upon inspection, and thus there was no immediate relationship between drugs and the currency which would suggest the currency had recently been involved in a controlled substance offense.
Id. at 1203, 1206. In United States v. $84,615 in U.S. Currency, 379 F.3d 496 (8th Cir. 2004), we concluded forfeiture was proper where the owner of the seized currency “undisputedly possessed illegal drugs at the time” the currency was discovered. Id. at 502. Most recently, in United States v. $117,920.00 in United States Currency, 413 F.3d 826 (8th Cir. 2005), we determined that forfeiture was warranted where materials known to be used to package and conceal drugs were recovered in close physical proximity to the seized currency, and where the investigating officer detected the smell of marijuana on some of these materials. Id. at 829.
Here, the only evidence linking the seized money to illegal drug activity is a canine sniff that alerted officers to the presence of narcotics on the currency itself and the exterior of the rear passenger side of the rental car where the currency was discovered. However, as Justice Souter recently recognized, a large percentage of
currency presently in circulation contains trace amounts of narcotics. See Illinois v. Caballes, 543 U.S. 405, 410-12 (2005) (Souter, J. dissenting). As a result, this fact
is virtually “meaningless and likely quite prejudicial.” United States v. Carr, 25 F.3d 1194, 1216 (3d Cir. 1994) (Becker, J., concurring). Our decision in $84,615 in U.S.
Currency to afford this evidence only “slight” weight is thus well-founded, and this factor, taken in conjunction with the large amount of currency seized, does not favor
forfeiture. Finally, the mere fact that the canine alerted officers to the presence of drug residue in a rental car, no doubt driven by dozens, perhaps scores, of patrons
during the course of a given year, coupled with the fact that the alert came from the same location where the currency was discovered, does little to connect the money
to a controlled substance offense. Therefore, I respectfully dissent.
______________________________
Money and Gambling, Sports Book Maker, Prostitution, Bootlegging, Robbery, Lotto, Keno, Real Estate, Stocks, Au Pair, Basket Weaving, Archeology, Civil War Momento Trader, Etc.
This site is rife with people who are authoritarians masquerading as conservatives.
Failure to give consent is not in and of itself probable cause. If they have reason to search, they will. If they don't, they will ask... and imply... and coerce... but if they don't have any real probable cause, they can't.
Just say 'no.' Nothing good can come of a police officer searching your car.
"This site is rife with people who are authoritarians masquerading as conservatives."
Most of them don't even bother with a mask.
No, the government filed a lawsuit against the cash and won.
The case was known as the "United States v. $127,500". Or some such.
This is the knd of crap that the founders had in mins when they said that no one should be deprived of ... property... without due process of law.
They certainly never had an inkling that in the late 20th century some bright light would come up with the idea of applying admiralty law of piracy to non-maritime situations.
To say that this sucks is only to scratch the surface. This has been going on for some time, and hardly anyone gets excited about it. Cars, homes, cash - all consfiscaed outright and with little or no recourse.
"This site is rife with people who are authoritarians masquerading as conservatives."
You betcha. They never saw an abuse of authority they didn't like.
No, they don't. That's the whole point of the cops suing the money and not the owner of the money.
Trooper Bigsby went directly to the rear passenger side of the vehicle and opened a cooler that was in the back seat, where he found a large plastic bag that contained seven bundles wrapped in rubber bands inside aluminum foil packaging.
Hmm. Money wrapped in foil in a cooler...
Sounds to me like what we have here is an innocent constituent of Rep. William Jefferson.
I'm glad I live in a "socialist" country where it is still necessary for the cops to charge you with and convict you of a crime, and prove that your possessions are the proceeds of crime, before they can seize those possessions, including cash.
Actually, it is largely a fascist country. It does however have some socialist institutions.
where it is still necessary for the cops to charge you with and convict you of a crime, and prove that your possessions are the proceeds of crime, before they can seize those possessions, including cash.
That, unfortunately, is no longer the case in some places.
"Brownell then asked for, and received, consent to search the car."
He consented to the search so no probable cause was required. They probably just wanted to search him because he was Hispanic and in a rental car heading to California. And if you are looking for money to seize your chances are better if you search Hispanics heading west. The drugs come in from Mexico and then are shipped out east. The money comes back in the opposite direction. This probably was drug money, but the government sure as heck didn't prove that.
From that point forward, it's your word against theirs.
They outnumber the conservatives on here.
Unless you get a subpoena immediately for the traffic stop video.
Are you suggesting that someone who has been pulled over just roll over and grant permission because they'll supposedly invent probable cause?
Screw 'em. Let them invent, I'm not going to make their job any easier. If you're going to have your stuff strewn all over the side of the road, you might as well not endorse it!
I'm just saying that if a cop wants to search your vehicle, it's a fait accompli.
When I was a teen I had a cop tell me he wanted to search my car.
I asked him if I had to say yes.
He answered, no, I could just watch the tow truck take it away and impound it while they waited for a warrant. He said it wouldn't take more than a week or two.
I let him.
He lied.
They can only hold you as long as the typical wait for a traffic stop. There is a gray area, but if you get stopped for a broken taillight, you're not going to be sitting for an hour.
In fact, they made it pretty miserable even though I did cooperate.
It is a rebuttal for the lame reasons advanced for having the cash.
I grew up around salvage yards and car dealers. I saw lots of vehicles change hands, often for cash. You could frequently get a better deal if you had cash, and I suspect there were times when all of it didn't get reported to the IRS, but it certainly didn't have anything to do with drug dealing.
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