United States of America v. $9,230.00 in United States Currency
Filing
26
MEMORANDUM OPINION that considering the evidence in the totality, the Court concludes that the government has failed to meet its burden. The circumstantial evidence does not demonstrate a substantial connection between the defendant property and a controlled substance offense. Accordingly, a separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (ADB)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
v.
)
)
$9,230.00 IN UNITED STATES
)
CURRENCY,
)
)
Defendant.
)
______________________________)
8:13CV254
MEMORANDUM OPINION
This matter is before the Court following a bench trial
held on August 26, 2014.
The plaintiff United States of America
brought this action for forfeiture of $9,230 in United States
Currency (“currency”) (Filing No. 1).
Claimant Timothy Hickman-
Smith filed an answer asserting that the United States cannot
demonstrate that the currency was the product of any criminal
activity (Filing No. 12).
For the reasons set forth below, the
Court finds that the government has failed to meet its burden
under the preponderance standard to show a substantial connection
between the defendant property and a controlled substance
offense.
BACKGROUND
On March 13, 2013, at approximately 6:54 p.m., Omaha
Police Officers Jeffrey Wasmund (“Wasmund”) and Jeff Shelbourn
(“Shelbourn”) conducted a traffic stop of Timothy Hickman-Smith
(“Hickman-Smith”) for changing lanes without signaling his intent
to change lanes within 100 feet.
Hickman-Smith was driving a
black Volkswagen Jetta rental car from Hertz with Minnesota
plates.
No police video or audio was recorded during the traffic
stop.
Officer Wasmund approached the driver’s side of the
vehicle and Officer Shelbourn approached the passenger side.
Officer Wasmund and Officer Shelbourn both testified that upon
approaching the vehicle they smelled a strong odor of marijuana.
Officer Wasmund instructed Hickman-Smith to step out of the
vehicle.
The record is unclear about whether or not Hickman-
Smith was placed in handcuffs.
Officer Wasmund testified that he
placed Hickman-Smith in the police cruiser and began asking
questions.
When asked about the odor of marijuana, Hickman-Smith
responded that there was no marijuana in the vehicle.
The
officers then conducted a search of Hickman-Smith’s person and
the vehicle.
During the search of Hickman-Smith’s person, Officer
Wasmund located two folded bundles of United States currency in
Hickman-Smith’s left front pocket.
the other contained $560.
One bundle contained $670 and
The search of the vehicle produced an
additional $8,000 located in the front armrest storage
compartment.
The currency was taped in plastic wrapping and
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folded into eight separate bundles containing $1,000 each.
The
denominations of the currency included multiple $20, $50, and
$100 bills.
The officers testified that the plastic bag
containing the $8,000 smelled of marijuana.
The officers also
recovered two cell phones from the front seat, a box of one
gallon size freezer bags and one box of plastic sandwich bags
located in the trunk, and multiple rubber bands on the vehicle’s
turn signal lever.
However, the search did not result in finding
any marijuana in the vehicle.
When Hickman-Smith was asked about the currency, he
stated that he recently sold a 1978 Chevrolet Monte Carlo for
$8,000.
Hickman-Smith informed the officers that he sold the
vehicle to an African-American female named “Sydney” and an
African-American male named “Vermont” but that he did not have
their contact information.
He also stated that the money on his
person was his own personal money.
When asked about the cell
phones, Hickman-Smith stated that the black Samsung phone
belonged to his girlfriend, and the white Iphone was his personal
phone.
The officers seized the $9,230 based on the nature of the
traffic stop, the odor of marijuana, the large amount of
currency, and the way the currency was packaged.
Hickman-Smith
was released without a traffic citation and left the scene on
foot.
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LEGAL ANALYSIS
1. Motion to Suppress
This case involved a joint hearing on claimant’s motion
to suppress (Filing No. 16).
The claimant argues that the search
of his vehicle was without any legal justification and in
violation of his constitutional rights.
The government contends
that the search and seizure were lawful.
In a civil forfeiture action, the Fourth Amendment’s
exclusionary rule applies.
See U.S. v. $404,905.00 in U.S.
Currency, 182 F.3d 643, 646 (8th Cir. 1999).
The Fourth
Amendment guarantees that the “right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”
U.S. Const. amend. IV.
“Searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment -- subject only to a few specifically
established and well-delineated exceptions.”
United States v.
Vore, 743 F.3d 1175, 1179 (8th Cir. 2014)(quoting Katz v. United
States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576(1967)).
The automobile exception permits the warrantless search of a
vehicle if police “had probable cause to believe the vehicle
contained contraband or other evidence of a crime before the
search began.”
Vore, 743 F.3d at 1179 (quoting United States v.
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Wells, 347 F.3d 280, 287 (8th Cir. 2003)).
In addition, the
Eighth Circuit has held that the odor of marijuana detected in a
vehicle during a traffic stop gives the officers probable cause
to search the vehicle.
See United States v. Winters, 221 F.3d
1039, 1042 (8th Cir. 2000).
In this case, the Court finds that the officers had
probable cause to both stop and search the vehicle.
The officers
stopped Hickman-Smith’s vehicle due to a traffic violation, an
improper lane change.
The officers testified that as they
approached the vehicle, they detected a strong odor of marijuana.
As a result, the officers had probable cause to search the car
for contraband or other evidence of a crime related to the odor
of marijuana under the automobile exception.
Hickman-Smith’s person and vehicle was lawful.
The search of
Claimant’s motion
to suppress will be denied.
2. Forfeiture
The United States claims that the currency is subject
to forfeiture under 21 U.S.C. § 881(a)(6), which states,
All monies . . . furnished or
intended to be furnished by any
person in exchange for controlled
substance . . . all proceeds
traceable to such an exchange, and
all monies . . . used or intended
to be used to facilitate any
violation of [controlled substances
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used in violation of Title 21].
U.S.C. § 881(a)(6).
21
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 permitted under 21 U.S.C.
§ 881 when the government establishes a “substantial connection
between the property” and a controlled substance offense.
U.S.C. § 983(c)(3).
burden of proof.
18
Circumstantial evidence can establish that
United States v. $84,615 in U.S. Currency, 379
F.3d 469, 501 (8th Cir. 2004).
The Eighth Circuit has “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.”
United States v.
124,700 in U.S. Currency, 458 F.3d 822, 826 (8th Cir. 2006).
The
Circuit has found suspicious circumstances to include currency
wrapped in rubber bands, concealment of the money, strange travel
patterns, a canine alert, and possession of illegal drugs at the
time the currency in discovered.
See, e.g., United States v.
$12,390 in U.S. Currency, 956 F.2d 801 (8th Cir. 1992) (noting
that currency wrapped in rubber bands is a characteristic of the
way drug money is stored); United States v. $117,920 in U.S.
Currency, 413 F.3d 826 (8th Cir. 2005)(money found in the trunk
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of a car, enclosed within a plastic sack, and hidden under
clothes in a duffle bag); U.S. v. $124,700 in U.S. Currency, 458
F.3d 822 (8th Cir. 2006) (the claimant purchased a one-way ticket
to Chicago to purchase a truck that was later sold to another and
elected to drive back in a rental car not registered in his
name); U.S. v. $84,615 in U.S. Currency, 379 F.3d 496, 502 (8th
Cir. 2004) (concluding that a dogs alert to currency provides
“some-albeit slight-indication” that money is connected to drug
trafficking and that possession of illegal drugs is also
consistent with drug trafficking).
However, the Circuit has also
previously noted that “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.”
$124,700,
458 F.3d at 826.
In this case, the government alleges that the currency
recovered from Hickman-Smith’s person and the rental car was used
to commit or facilitate the commission of a criminal offense.
At
trial, the government only presented circumstantial evidence to
establish a connection between the currency and any criminal
offense.
The government relied on the amount of currency seized,
the packaging of the currency, the concealment of the currency,
the presence of rubber bands, plastic bags, two cell phones, and
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the officers’ report that the vehicle and the bag containing the
currency strongly smelled of marijuana.
Possessing large amounts of currency may be evidence of
connecting the currency to illegal drug activities.
See U.S. v.
Thirty-Nine Thousand Eight Hundred Seventy-Three and No/100
Dollars ($39,873), 80 F.3d 317, 319 (8th Cir. 1996).
However,
this case involves $9,230, which is substantially less than other
forfeiture cases that found for the government.
See e.g.,
United States v. 124,700 in U.S. Currency, 458 F.3d 822, 826 (8th
Cir. 2006); United States v. $117,920 in U.S. Currency, 413 F.3d
826 (8th Cir. 2005); U.S. v. $84,615 in U.S. Currency, 379 F.3d
496, 502 (8th Cir. 2004).
Officer Wasmund testified that, based on his training
and experience, the packaging and concealment of the $8,000 was
indicative of narcotic activity.
testimony is not dispositive.
However, the officer’s
The Eighth Circuit has stated
that, “If one were to travel with a large sum in currency, common
sense would support having a method of keeping it organized while
carrying and concealing it from would-be thieves.”
U.S. Currency, 756 F.3d at 654.
$48,100 in
Hickman-Smith claims that the
currency was derived from legitimate sources.
Evidence was
offered at trial that Hickman-Smith did own a 1978 Chevrolet
Monte Carlo.
In addition, Hickman-Smith’s girlfriend testified
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that he sold a Monte Carlo and that she had also loaned him
$4,500 around the time of the traffic stop.
Moreover, the presence of rubber bands, plastics bags,
and multiple cell phones is suspicious, but not dispositive.
The
currency found in Hickman-Smith’s vehicle was not wrapped in
rubber bands, but rather rubber bands were found on the turn
signal lever.
Hickman-Smith’s girlfriend testified that the
rubber bands were hers from her employment at Convergys.
Both
Officer Wasmund and Officer Shelbourn testified that the black
Samsung cell phone seized from Hickman-Smith’s rental vehicle did
not produce any incriminating evidence.
The white Iphone was
passcode protected and could not be searched.
During the search the officers reported a strong odor
of marijuana coming from the vehicle and the bag containing the
$8,000 in currency.
However, no marijuana was ever found in the
vehicle or on Hickman-Smith’s person.
Both officers testified
that a drug dog was called to the scene but was not deployed on
the car or the bag containing the currency.
Officer Wasmund
stated that they were informed that a drug dog cannot be deployed
after a search because it would “taint” the search.
The government’s case falls short in proving that more
likely than not that the currency was connected to a controlled
substance offense.
Even though the officers testified that they
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smelled an strong odor of fresh marijuana, no marijuana was found
in the vehicle.
Evidence was presented at trial that the
currency was derived from a legitimate source:
Chevrolet Monte Carlo.
the sale of the
The government’s case relies more on mere
speculation rather than circumstantial evidence.
Considering the evidence in the totality, the Court
concludes that the government has failed to meet its burden.
The
circumstantial evidence does not demonstrate a substantial
connection between the defendant property and a controlled
substance offense.
Accordingly, a separate order will be entered
in accordance with this memorandum opinion.
DATED this 1st day of October, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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