United States of America v. $22,600.00 (US)

Filing 25

Amended Opinion and Order denying Claimant's Motion to Suppress [ECF No. 10]. Signed on 5/18/2017 by Judge Malcolm F. Marsh. (ps2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

CaseNo.1:15-cv-01940-MA

Plaintiff,

AMENDED OPINION AND ORDER

v.
$22,600.00 U.S. Currency, in rem,
Defendant.
MARSH, Judge
Plaintiff, the United States of America, brings this civil forfeiture proceeding pursuant to 21
U.S.C. § 881; 28 U.S.C. §§ 1345, 1355, 1356, and 1395; and 19 U.S.C. § 1610. Currently before the
Court is Claimant Andrew Harrison's Motion to Suppress (ECF No. 10). For the reasons set fo1ih
below, this Court denies the Motion.
BACKGROUND

On October 14, 2015, the Government filed its Complaint, alleging that the Defendant in

rem, $22,600.00 in U.S. Currency, "represents proceeds traceable to an exchange for controlled
substances or was used or intended to be used to facilitate such a transaction in violation of 21
U.S.C. § 801, et seq." Comp!. at 2. Attached to the Complaint is a Declaration by United States

1 - AMENDED OPINION AND ORDER

Postal Inspector Brendan Soennecken describing his training, investigation experience and the
circumstances surrounding the seizure of the Defendant, in rem:
4. I know from my training and experience that illegal drug recipients often
use USPS Priority Mail Express and Priority Mail services to ship the cash proceeds
of the illegal sale of controlled substances .... I know from training and discussions
with other law enforcement officers that these ... proceeds of the illegal sale of
controlled substances are often found during parcel investigations and interdictions.

6. Drug traffickers use USPS Priority Mail Express and Priority Mail services
because of the reliability of delive1y, speed of delive1y, low cost, the customer's
ability to track the package's shipment online, as well as the low risk of law
enforcement. . . .
7. I know from my training and experience that USPS Priority Mail Express
service is used primarily for business-related mailings ....

10. I know from my training and experience that controlled substances,
especially marijuana, are mailed from Oregon to other states and that cash payments
are mailed in return. I know from my training and experience that marijuana sales are
substantially more profitable outside the state of Oregon than they are inside the state
of Oregon.

11. On April 24, 2015, I went to the Medford Mail Processing Center ... as
part of my regular investigato1y duties. While at the Mail Processing Center, I
reviewed express mail parcels that were inbound to Southern Oregon from Portland.
While reviewing parcels, I noted U.S. Mail priority express parcel, number
El 836835701 US. The parcel was addressed to "Andrew Harrison Exposure SMI
... with a return address of"Bany Abrams 1078 Kingsley Road, Rydal, PA 19046"
.... I noted the parcel as having been mailed on April 23, 2015, from zip code 19006
which corresponds with Huntingdon Valley, Pennsylvania. The parcel was scheduled
for delive1y on April 25, 2015 .... The waiver of signature upon delivety was clearly
marked and signed by the mailer of the parcel. Additionally, the parcel had been
written on with large letters which read "Hold for Pick-up."
12. Medford Police Officer Rob Havice, a Certified Controlled Substance
Dog Handler, and his certified controlled substance detective dog Narc were at the
Mail Processing Center with me on April 24, 2015. Officer Havice provided me with

2 - AMENDED OPINION AND ORDER

a copy of a document outlining his qualifications and Narc' s qualifications .... U.S.
priority express parcel number El 836835701 US was placed in a deployment line
with five other similar control parcels for examination by Narc .... Officer Havice
told me Narc aletted on the parcel ... in the manner that he has been trained to alett
when he detects the odor of a controlled substance ....
13. On April 24, 2015, I reviewed law-enforcement database information
related to the sender and recipient of U.S. priority express parcel number
El 836835701 US. I learned both Andrew Harrison and Barry Abrams had given their
correct addresses on the package. I also called a phone number I located for Andrew
Harrison's business, Exposure SMI .... When I called the number it went to
voicemail ... which gave as its greeting the option to leave a message for either
"Exposure SMI" or "420 Farms," 420 being a term used within the marijuana subculture.
14. On April 25, 2015, Medford Police Officer Rob Havice and I spoke with
Andrew Harrison at his residence . . .. As I approached the locked gate of Mr.
Harrison's property, I viewed the neighboring farm with Officer Havice. We could
see extremely large (+8 feet) marijuana plants growing in one of two large green
houses on the neighbor's property ....
15. At 9:32 a.m. on April 25, 2015, I called the number for Mr. Harrison
given on the parcel .... Mr. Harrison answered and I told him I needed to speak to
him about his parcel. He came to the gate for his driveway and spoke with Officer
Havice and me. I introduced myself as a law enforcement officer and asked Mr.
Harrison ifhe was expecting a parcel. He told me he was expecting a phone charger
in the mail. I told Mr. Harrison I had a parcel for him and SMI Exposure, but I had
some concerns about his parcel. I asked if his property was also called 420 Farms. He
told me it was, but he also has a coconut water business which is part of Exposure
SMI.
16. I told Mr. Harrison the parcel was from Pennsylvania and I believed it
might be related to his business 420 Farms. He told me it had nothing to do with
drugs and was related to his business SMI Exposure. I asked him what was in it and
he told me it was probably about $20,000.00 and was probably for his impott
business. I asked Mr. Harrison what the money was for and he explained it was
investment money and that he has a coconut water deal and needs money to pay for
a container of coconut water/milk and he has to pay half down in order to buy the
container of coconut water/milk.
17. I asked Mr. Harrison for consent to open the parcel. Andrew Harrison
gave me consent to open the parcel and I did. Inside I found pmt of a cardboard box
wrapped around a shoe box. Inside the shoe box were some receipts, a plastic bag,
and a paper bag which had in it four individually-marked stacks ofU.S. currency and

3 - AMENDED OPINION AND ORDER

a letter-size marked envelope of U.S. currency. The five groupings were marked as
$5,000, $5,000, $5,000, $5,600 and $2000, totaling $22,600.
18. I asked Mr. Harrison who the money was from and he told me his family
wanted to invest in his coconut water business. I told him the parcel came from a
Barry Abrams. Mr. Harrison told me Barty was a friend of the family. Mr. Harrison
explained Barty Abrams is involved with a group of doctors in Pennsylvania who
want to invest. I asked why Mr. Abrams did not send a check and Mr. Harrison told
me when he asked Mr. Abrams for help Abrams told him he could send cash.
19. Officer Havice asked Mr. Harrison about his marijuana growing
operation. Mr. Harrison told him he grows for several people, but was not growing
at the moment and only had enough marijuana for himself. Officer Havice and I
could observe a large greenhouse on Harrison's property, a greenhouse which
appeared to have a heating and ventilation unit attached to it. Officer Havice asked
Mr. Harrison about the greenhouse and Mr. Harrison explained he had recently
purchased the greenhouse and it was newly built. He added nothing was growing in
it yet. I told Mr. Harrison I believed the money in the parcel was from the illegal sale
of marijuana by mail. Mr. Harrision told me it was not for the sale of marijuana and
he did not sell marijuana illegally, Harrison added it was not for an investment in
marijuana growing operations either. Officer Havice asked Mr. Harrison how many
people he was growing marijuana for. Mr. Harrison told us he was growing for I 0
Oregon Medical Marijuana Program (0.M.M.P.) patients, and was soon to be
growing for 18 patients.

Id, Ex. A (Deel. of Brendan Soennecken) at 4-8.
In his subsequent deposition, Soennecken testified that the express package had a guaranteed
delivetytime of3:00 p.m. on April 25, 2015, but was marked "Hold for Pickup" which was unusual.
Deel. of Amy E. Potter (ECFNo. 13), Ex.Bat 37-38, 49-51;see also Ex. A(Dep. ofOfficerRobeti
Havice) at 43, 58. Soennecken testified that he placed the package in a deployment line for the
reasons set forth in his answer to Claimant's Interrogatoty Number 2, which provides as follows:
I noted the parcel was Priority Express Mail sent using an expedited service sealed
from inspection. I noted the parcel was coming from Pennsylvania to Oregon. I noted
the parcel was large, heavy and expensive to mail for Priority Express. I noted the
signature requirement was waived which indicates the recipient couldn't or wouldn't
personally be guaranteed to receive the parcel. I noted a twice handwritten message
on the parcel requesting the parcel held for pick-up, which is unusual, and which I
do not recall ever seeing before.

4 - AMENDED OPINION AND ORDER

Claimant's Memo. in Supp. at 14-15; see also Deel. of Amy E. Potter (ECFNo. 13), Ex.Bat 37-39.
Claimant moves the Comt to suppress "all evidence related to and contained in the package
carrying the defendant currency," because (1) the seizure of the package was without probable cause
under the reasoning in State v. Barnthouse, 350 P.3d 536, 550-53 (Or. App. 2015), ajj"d, 380 P.3d
952 (Or. 2016); (2) the dog sniff is of no consequence to the probable cause determination "because
there is no particularity;" (3) the seizure of the contents of the package was without probable cause;
and (4) due to spoliation of the evidence "there is not a basis to have probable cause to seize any or
all of the currency." Claimant's Mot. to Suppress at 1-2.

DISCUSSION

I.

Standards
Because civil forfeiture proceedings are quasi-criminal in nature, the exclusionaiy rule

applies, barring the admission of evidence obtained in violation of the Fourth Amendment. United
States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1165 (9th Cir. 2008); United States v. One
1977 Mercedes Benz, 450 SEL, VIN I 1603302064538, 708 F.2d 444, 448 (9th Cir. 1983); see also
Rule G(8)(a) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions. Federal law governs the determination of whether a claimant's Fourth Amendment rights
were violated. One 1977 Mercedes Benz, 708 F.2d at 448. Claimant, as the proponent of the Motion
to Suppress, has the burden to prove that the evidence was seized in violation of the Fomth
Amendment. Id.
An addressee on a mailed package has a possessory interest in its timely delivery, and a
privacy interest in its contents. United States v. Jefferson, 566 F.3d 928, 933 (9th Cir. 2009); United
States v. Hoang, 486 F.3d 1156, 1159-60 (9th Cir. 2007); United States v. Hernandez, 313 F.3d
1206, 1209 (9th Cir. 2002). However, "a package addressee does not have a Fourth Amendment

5 - AMENDED OPINION AND ORDER

possessoty interest in a package that has a guaranteed delive1y time until the guaranteed delivety
time has passed." Jefferson, 566 F.3d at 935 (emphasis added). Hence, the "temporary diversion of
a package that does not affect its regularly scheduled delivety does not violate the Fourth
Amendment." Hoang, 566 F.3d at 1158, 1162; Jefferson, 566 F.3d at 933-35. Because federal law
is controlling (see One 1977 Mercedes Benz, 708 F.2d at 448), this Comt declines to adopt the
Oregon Comt of Appeals reasoning in State v. Barnthouse, 350 P .3d 536 (Or. App. 2015), aff'd, 380
P.3d 952 (Or. 2016), holding that the temporary removal of a package from the mail stream
constitutes a seizure under the Oregon Constitution.
"The determination of probable cause is based on the aggregate of facts, including
circumstantial facts." United States v. Currency, U.S. $42,500. 00, 283 F.3d 977, 980 (9th Cir. 2002);

see United States v. $17,980,00 in U.S. Currency, No. 14-36052, 2017 WL 1960408, at *1 (May 11,
2017) (considering aggregate facts to conclude probable cause existed for seizure). "The government
must show that it had reasonable grounds to believe a connection existed between the propetty and
drug activities, supported by more than mere suspicion but less than prima facie proof." Currency,

U.S. $42,500.00, 283 F.3d at 980.
Fourth Amendment privacy interests are "not implicated when only the external features of
a package, like the address label are examined [because] there is no reasonable expectation that the
outside of a package given to a mail-carrier will be kept private." Hoang, 566 F.3d at 1159-60;

Jefferson, 566 F.3d at 933; Hernandez, 313 F.3d at 1209-10. Similarly, "the Foutth Amendment is
not implicated by the use of a dog sniff by a trained dog to detect contraband in a package." Hoang,
566 F.3d at 1160; Jefferson, 566 F.3d at 933.

Ill
Ill
6 - AMENDED OPINION AND ORDER

II.

Probable Cause to Search and Seize the Package
This Court concludes that Claimant's Fomih Amendment rights were not implicated by the

visual inspection of the package, its brief placement in a deployment line, and the use of a dog sniff
which all occurred prior to the express delivery date of the package. Fmiher, probable cause existed
to seize the package on April 24, 2015, based on the aggregated facts known to Inspector
Soennecken and Officer Havice at that time, including the positive dog ale1i, the exterior
characteristics of the package considered to be suspicious by Postal Inspector Soennecken (based on
his experience and training), and the fact that the phone number associated with Claimant had a
voicemail message permitting the caller to leave a message for "420 Farms." See Hoang, 566 F.3d
at 1160, n.1 (holding that dog alert provided probable cause to seize package); Floridav. Harris, 133
S.Ct. 1050, 1057 (2013) ("If a bona fide organization has ce1iified a dog after testing his reliability
in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the
dog's ale1i provides probable cause to search.").
Claimant has proffered no evidence disputing the reliability of the dog or the drug alert at
issue in this proceeding. See Harris, 133 S.Ct. at 1058 (opining that a defendant may challenge dog
alert on these grounds). In this regard, the Court rejects Claimant's assertion that the dog alert is of
"no consequence" because it "occurred on what turned out to be a 'currency only' package." See
Claimant's Mem. in Supp. of Mot. to Suppress at 10-11. The relevant inquiry is "whether all the
facts surrounding a dog's ale1i, viewed through the lens of common sense, would make a reasonably
prudent person think that a search would reveal contraband or evidence of a crime." Harris, 133
S.Ct. at 1058. The fact that, when the package was searched, the officers discovered currency rather
than drugs is of no consequence to the existence of probable cause to seize and open the package.

7 - AMENDED OPINION AND ORDER

Comis "do not evaluate probable cause in hindsight, based on what a search does or does not turn
up." Id. at 1059.
Fmiher, this Comi rejects Claimant's assetiion that there was no probable cause to seize the
package because it lacked any of the suspicious "cues" specifically outlined in paragraphs eight and
nine of Soennecken's Declaration in suppoti of the Complaint. See Claimant's Mem. in Supp. of
Mot. to Suppress at 14-15. 1 The fact that Soennecken identified factors supporting the seizure of the
package, which differed from the general indicators of drug trafficking summarized in two
paragraphs of his Declaration, is irrelevant to the probable cause inquity.
With regard to Claimant's consent to search the package, this Comi notes that Claimant
offers no argument or evidence to suppott the conclusion that, based on the totality of the
circumstances, his consent to search the package was involuntary. See United States v. Basher, 629
F .3d 1161, 1168 (9th Cir. 2011) (listing five factors used to determine voluntariness of consent to
warrantless search).
Finally, this Comt rejects Petitioner's assetiion that the seizure of the package after it was
opened violated the Fomih Amendment for lack of probable cause. On the contrary, the following
facts, known to the officers at the time of the seizure, provided probable cause to believe there was
a connection between the currency and illegal drug activities: (I) the positive dog alert, (2) the
package had exterior characteristics considered to be suspicious by an experienced postal inspector;
(3) Claimant's acknowledgment that his property was called "420 Farms;" (4) the presence ofa large
greenhouse on Claimant's property which appeared to have a heating and ventilation unit attached
1

In paragraphs eight and nine of his Declaration, Soennecken states that he knows from
training and experience that drug traffickers often use false or incomplete information in labeling
their parcels, and wrap the parcels and their content in a manner to disguise their odor. Comp!.,
Ex. A at iii! 8, 9.

8 - AMENDED OPINION AND ORDER

to it; (5) Claimant's statement that he grows medical marijuana for ten patients and was soon to be
growing for eighteen patients; (6) the seized package contained a cardboard box wrapped around a
shoe box which contained a paper bag which had in it five groupings of money marked as $5,000,
$5,000, $5,000, $5,600 and $2,000; and (7) Claimant's explanation that the money was for an
investment in a coconut water deal but was unable to explain why an investor would send cash rather
than a check. The existence of probable cause was not defeated by the fact that the officers could not
definitively determine whether all of the currency seized had an odor of a controlled substance, or
that the sender is the one who placed the odor on the currency. Finally, this Court rejects Claimant's
asse1tion that "spoilation" of the evidence, i.e., depositing the currency into a bank, undermines this
Court's finding of probable cause.

CONCLUSION
Based on the foregoing, Claimant's Motion to Suppress (ECF No. 10) is DENIED.
IT IS SO ORDERED.
DATED this _i_l day of May, 2017.

flt~??'??~
Malcolm F. Marsh
United States District Judge

9 - AMENDED OPINION AND ORDER