United States of Ameica v. $182,110.00 (US) et al

Filing 38

OPINION AND ORDER. For the foregoing reasons, Claimant's Motion to Suppress 34 is DENIED. IT IS SO ORDERED. Signed on 07/01/2014 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,

2:12-cv-02267-MA

Plaintiff,

OPINION AND ORDER

v.
$182,110.00 IN UNITED STATES
CURRENCY, PLUS ACCRUED
INTEREST, et al., in rem,
Defendants.
S. AMANDA MARSHALL
United States Attorney
District of Oregon
KATHLEEN LOUISE BICKERS
Assistant United States Attorney
1000 Southwest Third Avenue, Suite 600
Portland, Oregon 97204-2902
Attorneys for Plaintiff
WES WILLIAMS
115 Elm Street
La Grande, Oregon 97850
Attorney for Claimant Kathy Lepper
MARSH, Judge
In this civil forfeiture proceeding, Claimant Kathy Lepper, as
personal

representative of the estate of Thomas Ralph Bobbitt,

1 - OPINION & ORDER

moves to suppress as evidence the defendant $182,110.00 in United
States currency (the defendant currency) because it was discovered
in violation of state law during a search of a safe-deposit box
owned by Mr. Bobbitt.

For the reasons set forth below, Claimant's

Motion is denied.
FACTUAL BACKGROUND

The material facts are undisputed.

1

On May 22, 2008, officers

executed a search warrant on Mr. Bobbitt's home.
officers
records,

discovered
records

over
of

eight

drug

pounds

of

transactions,

accouterments of drug trafficking activity.
records,

officers

located

bank

records

During the search

marijuana,
and

financial

various

other

Among the financial
from

Community

Bank

indicating that Mr. Bobbitt held accounts at that bank, including
a checking account that contained approximately $80,000.
On May 23, 2008, Oregon State Police (OSP) detectives served
Community Bank with a Notice of
accounts.

Intent to Seize Mr.

Bobbitt's

The notice listed some specific account numbers,

but

detectives explained that the notice applied to all accounts in Mr.
Bobbitt's name.

Later that day, Mr. Bobbitt attempted to access

the

a

contents

of

Community Bank.

safe-deposit

box

registered in

his

name

at

Community Bank employees called OSP detectives to

1

Because the facts are undisputed, this motion is
appropriate for resolut~on without an evidentiary hearing.
United States v. Quoc Viet Hoang, 486 F.3d 1156, 1163 (9th Cir.
2007) .

2 - OPINION & ORDER

inquire whether Mr. Bobbitt's safe-deposit box was covered by the
Notice of Intent to Seize.

The OSP detectives responded that the

safe-deposit box was covered by the Notice of Intent to Seize.
On May 29,

2008,

in preparation for applying for a search

warrant for the safe-deposit box, OSP detectives contacted the bank
and asked to be provided with the address of the Community Bank
branch at which the safe-deposit box was located and the number
assigned

to

the

safe-deposit

box.

Community

Bank

employees

provided the information requested, which the detectives used to
describe the safe-deposit box with sufficient

specificity in a

search warrant application.
On May 30,

2008,

OSP detectives received a

authorizing a search of the safe-deposit box.
search of the safe-deposit box,
currency.

detectives

search warrant

During a subsequent
found the defendant

After the detectives seized the defendant currency, a

narcotics detection canine alerted to the odor of narcotics on the
currency found in the safe-deposit box.
During a state criminal proceeding against Bobbitt, the Union
County Circuit Court suppressed the evidence obtained in the search
of the safe-deposit box because the search warrant application
relied

on

information gathered

privacy laws.
Bobbitt,

in violation of

Oregon banking

The Oregon Court of Appeals affirmed.

275 P. 3d 187,

249 Or.

App.

181

(2012).

State v.

Bobbitt passed

away while a petition for review was pending before the Oregon

3 - OPINION & ORDER

Supreme Court, however, and the Oregon Supreme Court vacated the
opinion of the Court of Appeals and remanded the case to the trial
court with instructions to dismiss the case.

State v. Bobbitt, 287

P. 3d 1078, 352 Or. 563 (2012).
DISCUSSION

Claimant argues that suppression is necessary because the OSP
detectives violated Oregon banking privacy laws when they obtained
the location and number assigned to Mr. Bobbitt's safe-deposit box
by contacting Community Bank employees.

Because the information

about the safe-deposit box was used to obtain the warrant that
justified the search of the safe-deposit box in which the defendant
currency was discovered, Claimant submits the defendant currency
must be suppressed as evidence in this civil forfeiture proceeding.
Notably, however, Claimant does not argue that any information or
evidence was obtained in violation of federal law.
Plaintiff does not dispute that the detectives' solicitation
and receipt of the safe-deposit box location and number violated
the financial-record privacy provisions of Oregon law, but rather
maintains

that

suppression

is

inappropriate

because

evidence

obtained in violation of state law is admissible in federal court
as long as no violation of federal law requires exclusion of the
evidence.
As

relevant here,

Oregon law provides

that

"[a]

financial

institution may not provide financial records of a customer to a

4 - OPINION & ORDER

state or local agency."

Or.

Rev.

Stat.

§

192.586(1) (a).

That

provision, however, "does not preclude a financial institution, in
the

discretion

contact with,

of

the

financial

institution,

initiating

and thereafter corrnnunicating with and disclosing

customer financial records to
agencies concerning a
192.586(2)

from

[a)ppropriate state or local

suspected violation of the

(emphasis added)

law."

Id.

§

In addition, subject to conditions,

financial institutions may disclose financial records if served
with a surrnnons, subpoena, or search warrant.
192.596, 192.598.

See Or. Rev. Stat.

§§

Finally, under Oregon law, evidence obtained in

violation of these provisions is "inadmissible in any proceeding."
Or. Rev. Stat.

§

192.606(5).

"[T) he admissibility of evidence obtained in

violation of

state law turns on whether a federal right has been infringed."
United States v.
198 7) .

2000) .

844

See also Virginia v. Moore,

United States v.
2005);

Chavez-Vernaza,

Becerra-Garcia,

United States v.

Cormier,

"The general rule

F.2d 1368,

553 U.S.

397

1373

(9th Cir.

164, 168-76 (2008);

F.3d 1167,

1173

(9th Cir.

220 F.3d 1103,

1111

(9th Cir.

is that evidence will only be

excluded in federal court when it violates federal protections,
such as those contained in the Fourth Amendment, and not in cases
where it is tainted solely under state law."
1111.

Cormier, 220 F.3d at

This rule applies without regard to whether the evidence was

5 - OPINION & ORDER

gathered by state or federal officials.

Chavez-Vernaza, 844 F.2d

at 1373-74.
As the parties do not dispute, the OSP detectives obtained the
location and number of the safe-deposit box in violation of the
financial-record
detectives,

privacy provisions

not the bank,

however,

obtained the

law

because

the

See Or. Rev. Stat.

§

192.586(2).

Claimant does not argue that the detectives

safe-deposit

federal right.

Oregon

initiated the contact that led to the

disclosure of the information.
As noted,

of

box

information

in violation

of

any

Therefore, because the safe-deposit box information

"is tainted solely under state lawn and the detectives did not
obtain

it

suppression

in
of

any

way

the

that

defendant

violated
currency

any
is

federal

protections,

inappropriate.

See

Cormier, 220 F.3d at 1111.
CONCLUSION

For the foregoing reasons, Claimant's Motion to Suppress (#34)
is DENIED.
IT IS SO ORDERED.
DATED this

_j__

day of July, 2014.

~w~-??zr~
Malcolm F. Marsh
United States District Judge

6 - OPINION & ORDER