United States of America v. $40,000.00 in United States Currency

Filing 18

ORDER that the Claimants Motion to Suppress Use of Defendant Property, contained within the Answer of Claimant Elliott David Morris [Doc. 6], and the Claimants Request for Hearing on his Motion to Suppress [Doc. 16] are hereby DENIED; denying 15 Motion for Summary Judgment, or in the Alternative, for Partial Summary Judgment [Doc. 15] is hereby DENIED. Signed by District Judge Martin Reidinger on 11/3/10. (siw)

U n i t e d States of America v. $40,000.00 in United States Currency

D o c . 18

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION C IV IL CASE NO. 1:09cv383

U N IT E D STATES OF AMERICA, P l a i n t if f , vs . $ 4 0 ,0 0 0 in UNITED STATES CURRENCY, D e fen d a n t.

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ORDER

TH IS MATTER is before the Court on the Claimant's Motion to Dismiss, M o tio n to Suppress Use of Defendant Property, and Answer of Claimant Elliott D a vid Morris [Doc. 6]; the Government's Motion for Summary Judgment, or in the Alternative, for Partial Summary Judgment [Doc. 15]; and the Claimant's R e q u e s t for Hearing on his Motion to Suppress [Doc. 16]. P R O C E D U R AL HISTORY In this in rem forfeiture action, the Government seeks to forfeit $40,000 in United States currency seized from the Claimant Elliott Morris (Claimant) d u r in g a traffic stop on May 20, 2009. [Doc. 1]. Claimant has never been p ro s e c u te d for any alleged criminal wrongdoing which would cause the

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p ro p e rty to be subject to forfeiture. After filing a claim to the currency, the Claimant filed an Answer in which h e asserted a "place holder" motion to dismiss. [Doc. 6]; Rule 7.1(C)(1), Rules o f Practice and Procedure of the United States District Court for the Western D is tric t of North Carolina (Local Rules) ("Motions to dismiss contained in a n s we rs to complaints ... are considered by the Court to be preserved."). The C la im a n t later filed a separate motion to dismiss supported by a brief. Id. ("A p a rty wishing to have decided any preserved motion shall file a separate m o tio n and supporting brief."). That motion, which did not address the issue o f illegal search and seizure, was denied on June 7, 2010.1 [Doc. 12]. In the Answer to the Complaint, the Claimant also included a "Motion to S u p p re s s the Use of Defendant Property at Trial." [Doc. 6, at 2]. The Claimant c o n te n d e d that the officers had no reasonable suspicion to stop his vehicle for fo llo w in g too closely. [Id.]. The Claimant at no time made this motion in a s e p a ra te pleading which was supported by memorandum of law, as required b y the Local Rules. Rule 7.1(A) & (C), Local Rules. Asserting the right to

s u p p re s s io n of the subject property in the Answer was not sufficient to p re s e rve the Claimant's right to later have the motion considered. The "place-

Nor would it have been proper to include a motion to suppress within the motion to dismiss. United States v. $78,850.00 in U.S. Currency, 444 F.Supp.2d 630, 636 (D.S.C. 2006) (discussing different standards). 2

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h o ld e r" provision of the Local Rules expressly applies only to motions to d is m is s and not motions to suppress.2 Rule 7.1(C)(1), Local Rules. T h e Pre-Trial Order and Case Management Plan, as amended, provided th a t motions in this matter must have been filed on or before September 7, 2 0 1 0 . [Doc. 8; Doc. 14]. The Claimant did not file a separate motion to s u p p re s s on or before that date. O n September 7, 2010, the Government moved for summary judgment, a n d alternatively, for partial summary judgment. [Doc. 15]. In response to that m o tio n , the Claimant filed a pleading titled "Claimant's Request for Hearing on h is Motion to Suppress and Response to Government's Motion for Summary J u d g m e n t and Partial Summary Judgment." [Doc. 16]. As noted, this was not a timely filed separate motion to suppress and no supporting brief was filed. T h e Local Rules do not allow the filing of motions contained within responsive b rie fs . Rule 7.1(C)(2), Local Rules ("Motions shall not be included in

re s p o n s ive briefs. Each motion should be set forth as a separately filed p le a d in g ." ) . T h e Claimant has never filed a motion to suppress in the form required b y the Local Rules and the time within which to do so has expired. The Court

The assertion of a claim of illegal search and seizure in an answer is not a valid defense because it must be raised in a motion to suppress. United States v. 1866.75 Board Feet, 11 Doors and Casings, etc., 2008 WL 839792 (E.D.Va. 2008). 3

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fin d s that no such motion is pending.

The Court will therefore address

wh e th e r the Government is entitled to summary judgment. S TAN D AR D OF REVIEW U n d e r the Federal Rules of Civil Procedure, summary judgment s h a ll be awarded "if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, ... show there is no genuine issue as to any material fact and that th e moving party is entitled to a judgment as a matter of law." F e d .R .C iv.P . 56(c). As the Supreme Court has observed, "this s ta n d a rd provides that the mere existence of some alleged factual d is p u te between the parties will not defeat an otherwise properly s u p p o rte d motion for summary judgment; the requirement is that th e re be no genuine issue of material fact." Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4 th Cir. 2 0 0 3 ), certiorari denied 541 U.S. 1042, 124 S.Ct. 2171, 158 L.Ed.2d 732 ( 2 0 0 4 ) (emphasis in original). A genuine issue of fact exists if a reasonable jury considering the e vid e n c e could return a verdict for the nonmoving party. Shaw v. Stroud, 13 F .3 d 791, 798 (4th Cir. 1994), certiorari denied 513 U.S. 814, 115 S.Ct. 68, 1 3 0 L.Ed.2d 24 (1994), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 8 , 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Regardless of whether h e may ultimately be responsible for proof and persuasion, the party seeking s u m m a ry judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat, 346 F.3d at 522, citing Celotex C o rp . v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265
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(1 9 8 6 ). If this showing is made, the burden then shifts to the non-moving p a rty who must convince the Court that a triable issue does exist. Id. Nonetheless, in considering the facts for the purposes of a summary ju d g m e n t motion, the Court will view the pleadings and material presented in th e light most favorable to the nonmoving party. Matsushita Electric Industrial C o . v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (19 8 6 ). D I S C U S S IO N T h e controlling statute 21 U.S.C. §881(a)(6) provides that currency fu rn is h e d in exchange for illegal drugs or used to facilitate illegal drug tra ffic k in g is subject to forfeiture. The Civil Asset Forfeiture Reform Act of 2 0 0 0 (CAFRA) requires the Government to prove by a preponderance of the e v id e n c e that the currency is subject to forfeiture. 18 U.S.C. §983(c)(1). W h e re "the Government's theory of forfeiture is that the [currency] was used to commit or facilitate the [commission of a drug] offense, or was involved in th e commission [thereof], the Government shall establish that there was a s u b s ta n tia l connection between the [currency] and the offense." 18 U.S.C. § 9 8 3 (c )(3 ). If the Government meets this burden, the claimant may then show b y a preponderance of the evidence that he was an innocent owner. 18 U .S .C . §983(d)(1).
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T h e parties do not dispute the following facts. On May 20, 2009, the C la im a n t was stopped by Henderson County Deputy Sheriff David McMurray. T h e Claimant was driving a white Chevrolet pickup and no one else was with h im . The Claimant did not consent to a search of his vehicle. Thereafter, D e p u ty Sheriff Christi Ellis arrived with her drug-detection dog who walked a ro u n d the pickup. McMurray began a search of the inside of the pickup wh e re he found a brown paper bag in which he found $40,000 in cash. Drug E n fo rc e m e n t Administration (DEA) Agent Fred Westphal next arrived at the s c e n e and advised the Claimant of his Miranda 3 rights. T h e parties do dispute whether the drug dog alerted to the driver's door o f the pickup. [Doc. 15-6; Doc. 16-4, at 12]. Deputy Ellis, who reported that a le rt, claimed that she smelled the odor of marijuana inside a blue bag once it had been removed from the pickup by Deputy McMurray and opened. [Doc. 15-6, at 3]. Agent Westphal claimed that when the Claimant's wallet wa s removed from his pants during a pat down, he smelled the odor of m a riju a n a on the wallet. [Doc. 15-7, at 1]. The Agent stated that the Claimant m a d e a telephone call to an attorney and advised the attorney the that there wa s $20,000 in cash in the vehicle which he was going to use to purchase re n ta l property. [Id., at 2]. The Claimant testified that he did not tell anyone

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Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 6

h o w much money was in the vehicle. [Doc. 16-4, at 13-14]. The DEA agent a ls o stated that drug dealers carry large amounts of cash and that Atlanta, wh e re the Claimant lived, is a known drug market. [Doc. 15-7, at 3]. The C la im a n t testified that he owns a significant amount of rental real estate in A tla n ta , frequently collects his rent in cash and uses that cash to pay day la b o re rs , especially illegal aliens. [Doc. 16-4]. He also testified that he had s a ve d a lot of cash in a safe at home due to concerns about Y2K and had n e ve r returned it to a bank. [Id.]. The Claimant's brother, Brian Morris, testified that on the date in q u e s tio n , he knew that his brother was coming to Asheville with $40,000 to u s e for a purchase of rental property. [Doc. 16-5, at 2-4]. They had a

p a rtic u la r parcel in mind which they had previously considered. [Id.]. He d e s c rib e d his brother's business consistently with the Claimant's testimony. [Id ., at 4-6]. T h e Court has carefully considered the motion for summary judgment a n d the Claimant's response thereto. The pleadings raise issues related to th e foundation for admissibility and weight to be accorded evidence, including e vid e n c e of dog and human "sniffs" to detect the smell of marijuana. The G o ve rn m e n t's argument in support of summary judgment cites the Claimant's "s e rie s of amended and bolstered explanations" for the possession of a large
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s u m of cash in his vehicle. [Doc. 15, at 17]. The Claimant's brother, however, c o rro b o ra te d his testimony concerning his work and the use of cash. The G o ve rn m e n t argues that the Claimant's defense is based entirely on credibility d e te rm in a tio n s which, it contends, may not be found in his favor. [Id., at 172 0 ]. But the credibility determinations posed in this case, which the

G o ve rn m e n t admits are extant, are for a jury, not the Court. See, e.g., United S ta te s v. $864,400.00 in U.S. Currency, 2009 WL 2171249 (M.D.N.C. 2009) (a lle g a tio n of highly unlikely source of income without corroboration will not d e fe a t summary judgment); United States v. $50,720.00 in U.S. Currency, 589 F .S u p p .2 d 582 (E.D.N.C. 2008) (claimant's wife contradicted his story of how h e came to have the cash); United States v. $433,980 in U.S. Currency, 473 F .S u p p .2 d 685, 692 (E.D.N.C. 2007) (noting claimant stated he earned the m o n e y over a period of years but then refused to answer further questions, in vo k in g Fifth Amendment). The Government makes an alternative motion for partial summary ju d g m e n t on the issue of whether the currency "was used to commit or fa c ilita te [the commission of a drug] offense, or was involved in the c o m m is s io n [thereof]." 18 U.S.C. §983(c)(3). The burden on this issue is on th e Government. The standard for summary judgment is whether a

re a s o n a b le jury could return a verdict on the issue for the non-moving party.
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A n d e rs o n , 477 U.S. at 248. The evidence on this point is conflicting, and the c re d ib ility of neither side's evidence is manifest. The Government seems to c o n fu s e its having presented a forecast of evidence that makes a prima facie c a s e with its being entitled to judgment on the issue. This issue is for the jury.

ORDER IT IS, THEREFORE, ORDERED that the Claimant's Motion to Suppress U s e of Defendant Property, contained within the Answer of Claimant Elliott D a vid Morris [Doc. 6], and the Claimant's Request for Hearing on his Motion to Suppress [Doc. 16] are hereby DENIED. IT IS FURTHER ORDERED that the Government's Motion for Summary J u d g m e n t, or in the Alternative, for Partial Summary Judgment [Doc. 15] is h e re b y DENIED.
Signed: November 3, 2010

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