USA v. $393,550.00 In United States Currency
ORDER denying 20 Motion to Suppress. By Judge Christine M. Arguello on 08/22/2014. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00933-CMA-BNB
UNITED STATES OF AMERICA,
$393,550.00 IN UNITED STATES CURRENCY,
ORDER DENYING MOTION TO SUPPRESS
This matter is before the Court on Claimant Seung Yu’s Motion to Suppress.
(Doc. # 20.) For the reasons set forth below, the motion is denied.
I. BACKGROUND 1
On December 19, 2012, Aurora Police Department officers responded to
a domestic violence complaint at the Aurora Town Center Mall. The complainant
indicated there had been a fight between a man and woman in the Revolution clothing
store (“Revolution”), and that the two were now in the mall’s parking lot with mall
Officer Aragon observed several red marks and scratches on the woman’s
face, but she declined medical attention. She told that Officer Aragon she worked
at Revolution and that the owner of the store is Claimant, who was also her former
Unless otherwise noted, the following facts are taken from the Verified Complaint. (Doc. # 1.)
boyfriend. She reported that the two got into an argument and when she tried to leave,
Claimant grabbed her by the face and threw her down on the floor. Before she was
able to get up, Claimant grabbed her face three times. Meanwhile, Officer DeLuca
and Sergeants Graham and Shaker interviewed Claimant, who admitted to Sergeant
Graham that he put his hand on his ex-girlfriend’s face and pushed her down. Based
on these statements and her injuries, the officers placed Claimant under arrest.
During a search of Claimant, Officer DeLuca found a plastic baggie containing
1.6 grams of marijuana in Claimant’s front pocket. Claimant also had a black bag,
which he told the officers contained approximately $300,000 to $400,000 in cash.
Claimant explained that the money was from his store safe and was savings from the
last seven years he had been in business. The officers transported Claimant to the
Aurora Detention Center, and he was charged with assault, battery, and harassment
in Aurora Municipal Court.
The black bag containing the money was taken to the Aurora Police Department,
counted, and then turned over to the Drug Enforcement Administration (DEA), where
a drug detection dog positively alerted to it, indicating the presence of a controlled
substance. DEA Task Force Officer Wittenborn spoke with two officers who worked at
the Mall. They reported that on two or three occasions, they smelled “the odor of raw
marijuana” while in the hallway behind Revolution.
Following an investigation, including another interview with Claimant and his
ex-girlfriend, the government instituted the instant case for civil forfeiture of the money
found in the black bag, ultimately determined to be $393,550.00 in currency (“Defendant
Currency” 2). In a Verified Complaint, the government alleges that Defendant Currency
is money furnished or intended to be furnished by any person in exchange for a
controlled substance, proceeds traceable to an exchange of controlled substances,
and money used or intended to be used to facilitate a violation of 21 U.S.C. § 801.
On March 26, 2013, in Aurora Municipal Court, Claimant moved to suppress
statements and evidence obtained during his initial contact with police. The court held
a hearing on the matter, at which the city attorney and defense counsel presented and
examined witnesses and presented argument. The court issued an oral ruling from the
bench, denying the motion. (Doc. # 32-1.) On July 23, 2013, Claimant pleaded guilty
to an amended charge: threats. (Doc. # 22-3.)
On December 18, 2013, Claimant filed the instant motion, asking this Court to
suppress statements and evidence obtained during his contact with police on December
19, 2012. Claimant argues that mall security officers were agents of the government,
Claimant’s stop and detention was not supported by reasonable suspicion or probable
cause, he did not consent to the search of his bag, the warrantless search of his
bag was unreasonable and unsupported by a recognized exception to the warrant
requirement, evidence obtained via his detention and search are fruits of the poisonous
tree, and all of his statements should be suppressed. (Doc. # 20.) The government
responded to the motion, arguing that because Claimant previously moved to suppress
An in rem forfeiture proceeding is brought under the “legal fiction” that property itself is
criminally at fault. United States v. One Hundred Forty–Nine Thousand Four Hundred Forty–
Two & 43/100 Dollars ($149,442.43) in U.S. Currency, 965 F.2d 868, 876 (10th Cir. 1992).
this evidence in municipal court, and that motion was denied, he is collaterally estopped
from relitigating the issue before this Court. (Doc. # 22.)
The Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions (“Supplemental Rules”) are part of the Federal Rules of Civil Procedure and
govern procedures in civil forfeiture actions. United States v. 51 Pieces of Real
Property, Roswell, New Mexico, 17 F.3d 1306, 1308 n. 2 (10th Cir. 1994). Pursuant
to Supplemental Rule G(8)(a), “a party with standing to contest the lawfulness of the
seizure may move to suppress use of the property as evidence.” Forfeiture proceedings
are quasi-criminal in nature and therefore the exclusionary rule applies. One 1958
Plymouth Sedan v. Com. of Pa., 380 U.S. 693, 702 (1965).
As a threshold matter, the Court must determine whether Claimant is collaterally
estopped from relitigating the suppression issues in this proceeding, having already
asserted that the municipal court should suppress statements and evidence gathered at
the time of his arrest. The Tenth Circuit has recognized that in a civil forfeiture action,
the doctrine of collateral estoppel prevents a claimant from raising constitutional issues
that have been litigated in state court. See United States v. One Parcel of Real Prop.
Known as 16614 Cayuga Rd., 69 F. App’x 915, 918 (10th Cir. 2003) (order and
judgment) (district court properly denied claimant’s motion to suppress where he
previously raised Fourth Amendment claims in state criminal prosecution). Although
the government argued that Claimant is collaterally estopped from relitigating these
issues, Claimant did not file a reply brief or otherwise assert his position on this issue.
The preclusive effect of a state court judgment is governed by state law. United
States v. U.S. Currency in the Amount of $228,536.00, 895 F.2d 908, 917-18 (2d Cir.
1990) (citing 28 U.S.C. § 1738 (1982); Marrese v. American Academy of Orthopedic
Surgeons, 470 U.S. 373, 380–81 (1985); Cullen v. Margiotta, 811 F.2d 698, 732 (2d
Cir.), cert. denied, 483 U.S. 1021 (1987)). Under Colorado law, the doctrine of issue
preclusion, also known as collateral estoppel, bars relitigation of an issue when:
(1) The issue precluded is identical to an issue actually litigated and
necessarily adjudicated in the prior proceeding, (2) The party against
whom estoppel was sought was a party to or was in privity with a party to
the prior proceeding, (3) There was a final judgment on the merits in the
prior proceeding, and (4) The party against whom the doctrine is asserted
had a full and fair opportunity to litigate the issues in the prior proceeding.
In re Water Rights of Elk Dance Colorado, LLC, 139 P.3d 660, 667 (Colo. 2006) (citing
Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001) (internal citation
In municipal court, Claimant moved to suppress “[a]ny and all statements or
confessions attributed to [him]; [a]ny and all items seized from [him] at the time of his
detention and arrest; and [a]ny information or mental observations gained as a result of
his detention and arrest.” (Doc. # 22-2 at 1.) In so doing, Claimant argued that the
search and seizure of his person and property were made without a valid search
warrant and without probable cause. Specifically, Claimant argued that the officers
Similarly, under federal law, issue preclusion requires that “(1) the issue previously decided is
identical with the one presented with the action in question, (2) the prior action has been finally
adjudicated on the merits, (3) the party against whom the doctrine is involved was a party, or
in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is
raised had a full and fair opportunity to litigate the issue in the prior action.” Dodge v. Cotter
Corp., 203 F.3d 1190, 1198 (10th Cir. 2000).
“lacked probable cause to seize [his] closed bag”; that even if officers had “probable
cause to seize the bag, they lacked any exigent circumstances which would relieve
them of the requirement to obtain a warrant before opening the bag and searching
within it”; and that officers did not have “probable cause to believe [the bag] contained
contraband or evidence of a crime.” (Doc. # 22-2 at 2.) Claimant also moved to
suppress his statements because he gave no voluntary waiver of his Fifth and Sixth
Amendment rights, and that even if there was no Fifth or Sixth Amendment violation,
his statements should be excluded as fruit of the poisonous tree due to the Fourth
Amendment violations. (Doc. # 22-2 at 1-4.) Likewise, in this proceeding, Claimant
advances similar arguments pursuant to the same constitutional standards.
The only two issues raised in this proceeding that were not specifically briefed
by Claimant in municipal court are whether the security guards were instruments of the
state for the purpose of the Fourth Amendment and whether Claimant consented to the
search of his bag. However, the record makes clear that Claimant’s attorney argued
during the suppression hearing that the security guards were acting as agents of the
police officers and the municipal court rejected that argument. (Doc. # 32-1 at 33-35.)
To the extent Claimant did not specifically brief whether he consented to the search of
his bag, he had the opportunity to challenge the search on that basis, but did not. 4 See
United States v. Mustek Paragon 600 Pro Flat-Bed Scanner S#B14009467, 162 F.3d
1175 (10th Cir. 1998) (order and judgment) (claimant collaterally estopped where he
Even if Claimant was not collaterally estopped from raising this argument, the Court would
likely find that the search of the bag was reasonable as a search incident to lawful arrest or
under the inevitable discovery doctrine.
failed to challenge the validity of search warrant in underlying criminal case) (citing
United States v. Real Property Known & Numbered as 415 East Mitchell Ave., 149 F.3d
472, 475-76 (6th Cir.1998) (in forfeiture action appellant who pleads guilty is collaterally
estopped from asserting unlawfulness of search warrant)). Therefore, the Court finds
that the first prong is met.
The Court has no trouble concluding that the remaining prongs are also met.
Claimant was the defendant in the underlying municipal action and, therefore, was a
party in that proceeding. There was a final judgment on the merits—Claimant pleaded
guilty and was sentenced by the municipal court. Claimant had a full and fair
opportunity to litigate the issues—he filed a motion to suppress, the municipal court held
a hearing on the motion, at which, Claimant’s counsel presented witnesses and
argument to the court, and the court rendered a decision. Under these circumstances,
Claimant is collaterally estopped from relitigating the admissibility of his statements and
the evidence seized during his interaction with police on December 19, 2012.
Accordingly, it is ORDERED that Claimant Seung Yu’s Motion to Suppress (Doc.
# 20) is DENIED. Although the parties have called chambers to set a hearing, no order
has issued, and the Court deems a hearing on this matter unnecessary.
22 , 2014
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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