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holding that the bundling of cash, along with other factors, created "the suspicion of a nexus," which would have been insufficient to support a forfeiture if it had not been for other factors, including the proximity of drug paraphernalia
Summary of this case from Commonwealth ex rel. Perry v. Attorney Gen. of Pa.Opinion
2012-08-1
COMMONWEALTH of Pennsylvania v. David Ferdinand BURKE. Commonwealth of Pennsylvania v. $8,240 U.S. Currency. Appeal of: David Ferdinand Burke.
Ernest D. Preate, Jr., Scranton, for appellant. Andrea F. McKenna, Senior Deputy Attorney General, Harrisburg, for appellee.
Ernest D. Preate, Jr., Scranton, for appellant. Andrea F. McKenna, Senior Deputy Attorney General, Harrisburg, for appellee.
BEFORE: COHN JUBELIRER, Judge, and SIMPSON, Judge (P) , and LEAVITT, Judge.
OPINION BY Judge SIMPSON.
This opinion was reassigned to the author on April 12, 2012.
In this statutory appeal, David Ferdinand Burke (Burke) asks whether the Court of Common Pleas of Monroe County (trial court) erred in granting the forfeiture petition of the Commonwealth of Pennsylvania (Commonwealth) under the act commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa.C.S. §§ 6801–6802. Burke contends the trial court erred in determining a nexus existed between the $8,240 in cash discovered in the car he was driving and illegal drug trafficking. Furthermore, Burke claims that even if circumstantial evidence of a nexus existed, he established he lawfully obtained the money, and he did not use or intend to use it for any unlawful purpose. Upon review, we affirm.
I. Background
In January 2010, Pennsylvania State Police (PSP) Trooper Mark Conrad (Trooper Conrad) effectuated a traffic stop of Burke for speeding. At that time, Trooper Conrad discovered Burke and his passenger had drug-related criminal histories. Trooper Conrad asked Burke if he could search the vehicle, and Burke consented.
In the course of the search, Trooper Conrad discovered $8,240 in cash and a digital scale inside the center console. The cash was bundled with rubber bands in $1,000 dollar increments containing $20, $50, and $100 denominations. Burke initially denied having knowledge of the money, but after Trooper Conrad asked him to sign a disclaimer form to that effect, he accepted ownership. Furthermore, Burke admitted to occasionally buying and smoking marijuana and to using the digital scale to weigh the marijuana before purchasing it.
Trooper Conrad called PSP Trooper Gerald Powell (Trooper Powell), a drug sniffing dog handler, for assistance. Trooper Powell's dog alerted to Burke's car's center console as an area that had an odor of a controlled substance. Trooper Powell's dog also smelled the cash at the PSP barracks and detected narcotics on the seized money. No drugs were found in the car.
Ultimately, Trooper Conrad seized the digital scale and the cash and charged Burke with speeding and possession of drug paraphernalia for the digital scale. In time, Burke pled guilty to the possession of drug paraphernalia.
Thereafter, Burke filed a motion for the return of the $8,240 with the trial court. In response, the Commonwealth filed a petition for forfeiture and condemnation. A hearing ensued to address both parties' filings.
At the hearing, Troopers Conrad and Powell testified for the Commonwealth about their observations during the traffic stop and seizure. Additionally, the Commonwealth presented the expert testimony of Sergeant Frank Jost (Sergeant Jost) who conducted an ion scan of the seized cash to measure the microscopic levels of illicit substances contained on the bills. Sergeant Jost testified he scanned all of the cash in one measurement and compared it to the casual contact level for currency circulated within Pennsylvania. In doing so, he determined the $8,240 contained approximately five times more cocaine residue than is characteristic for money circulated in the state. Burke timely objected to Sergeant Jost's testimony, but the trial court overruled his objections.
Burke testified on his own behalf. According to Burke, on the day Trooper Conrad pulled him over, he was travelling from Rochester to Bronx, New York to visit family. Additionally, Burke planned to drive into New Jersey to purchase a new vehicle.
Burke explained that the police recently recovered his current car after he reported it stolen. Additionally, he testified that when the car was recovered it was in damaged condition and his personal property had been taken from the interior. Therefore, after receiving the proceeds of an insurance check for the damage and the stolen property, Burke decided to buy a new car. As such, Burke testified that of the $8,240 found in the car $6,200 was from an insurance check. He claimed the remainder of the money came from three months of savings he made working for the City of Rochester as a truck driver.
As to the scale, Burke admitted he smoked marijuana and used the digital scale to weigh the marijuana he purchased. However, he denied selling marijuana or intending to use the cash to buy narcotics.
After the hearing, the trial court denied Burke's motion and granted the Commonwealth's forfeiture petition. Burke filed an appeal. In his subsequent Rule 1925 specification of issues on appeal, Burke argued the trial court erred in overruling his objection to Sergeant Jost's testimony and in admitting the ion scan results. Burke also claimed the Commonwealth failed to meet its burden to establish a nexus between the cash and illegal conduct, and that he rebutted the evidence tending to establish such a nexus.
In its well-reasoned Rule 1925(a) opinion, the trial court thoroughly addressed each of Burke's contentions. The trial court determined, based on the totality of the evidence presented by the Commonwealth, a nexus existed between the cash and drug trafficking. Furthermore, after shifting the burden to Burke, the trial court determined he did not rebut the presumption of forfeiture because he failed to present credible evidence that he obtained the cash lawfully. Thus, the trial court concluded forfeiture was justified.
As to Sergeant Jost's testimony and the ion scan results, the trial court, relying on our holding in Commonwealth v. $9,000 U.S. Currency (Collins), 8 A.3d 379 (Pa.Cmwlth.2010) ( en banc ), determined the results were not legally relevant because Sergeant Jost only compared the seized $8,240 to cash circulated in Pennsylvania and Burke was commuting from New York. As such, the trial court determined, despite overruling Burke's original objection, it could not rely on the ion scan results to support its decision. Nonetheless, the trial court held, based on the totality of the circumstances, the Commonwealth established a nexus between the cash and drug trafficking without considering the ion scan results. Burke's appeal is now before this Court for disposition.
Our review of a forfeiture proceeding is limited to whether substantial evidence supports the trial court's findings of fact and whether the trial court abused its discretion or committed an error of law. Commonwealth v. Mitchell, 833 A.2d 1220 (Pa.Cmwlth.2003).
II. Issues
Burke argues the Commonwealth failed to prove the existence of a nexus between the $8,240 and any unlawful activity. Additionally,Burke contends he rebutted the Commonwealth's evidence by establishing he obtained the money lawfully and did not use or intend to use it unlawfully.
In challenging the sufficiently of the Commonwealth's evidence, Burke also contends the Court erred in refusing to allow him to challenge the scientific validity of ion scan testing. Specifically, Burke wishes to challenge the novelty of the tests under Frye v. United States, 293 F. 1013 (D.C.Cir.1923) as adopted by our Supreme Court in Grady v. Frito–Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (2003). Despite the trial court overruling Burke's initial objection to this evidence, Burke's contention is now moot as the trial court did not consider such evidence in reaching its determination. Furthermore, Burke's unsubstantiated argument that such evidence inevitably weighed into the trial court's consideration is rejected. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (a judge is presumed to disregard inadmissible evidence). Thus, Burke's contention is meritless.
III. Discussion
Pursuant to the Forfeiture Act, “[m]oney ... furnished ... in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act [ (Controlled Substances Act) ], and all proceeds traceable to such exchange, [or] ... used or intended to be used to facilitate any violation of [the Controlled Substance Act] is subject to forfeiture. 42 Pa.C.S. § 6801(a)(6)(i)(A),(B).
Act of April 14, 1972, P.L. 233, as amended,35 P.S. §§ 780–101—780–144.
In an action under the Forfeiture Act, the Commonwealth bears the initial burden to establish, by a preponderance of the evidence, a substantial nexus between unlawful activity and the money in question. Commonwealth v. Marshall, 548 Pa. 495, 698 A.2d 576 (1997). Under this standard, the Commonwealth must show that it is more likely than not that the nexus exists; this standard “is often alluded to as a weighing of the evidence and a determination based upon which way the scales are tipped.” Commonwealth v. Fid. Bank Accounts, 158 Pa.Cmwlth. 109, 631 A.2d 710, 718 (1993) (citing Commonwealth v. Doranzo, 365 Pa.Super. 129, 529 A.2d 6, 8 (1987)) (emphasis omitted).
Where money is found in close proximity to illegal controlled substances a rebuttable presumption exists that the money is related to drug trafficking. 42 Pa.C.S. § 6801(a)(6)(ii). In the absence of illegal drugs, circumstantial evidence may be sufficient to establish a nexus. Commonwealth v. $6,425.00 Seized From Esquilin, 583 Pa. 544, 880 A.2d 523 (2003). The proper inquiry requires weighing the totality of the circumstances presented without imposing artificial evidentiary requirements. Id.
If the Commonwealth establishes a nexus between the money and violations of the Controlled Substances Act, the burden shifts to the person opposing the forfeiture to prove he owns the money, acquired it lawfully, and did not use or possess the money for an illegal purpose. Commonwealth v. $16,208.38 U.S. Currency Seized From Holt (Holt), 160 Pa.Cmwlth. 440, 635 A.2d 233 (1993).
It is well accepted that each forfeiture case is sensitive to its own particular facts. Commonwealth v. $310,020 U.S. Currency (Phung), 894 A.2d 154 (Pa.Cmwlth.2006). However, a review of prior cases arising out of similar fact patterns is particularly appropriate. Collins.
We begin with our Supreme Court's analysis in Marshall. In that case, our Supreme Court considered whether cash discovered between the seats of a vehicle during a traffic stop was subject to forfeiture based on the totality of the circumstances. In attempting to prove the existence of a nexus, the Commonwealth established: (1) the cash was divided into $100 bundles; (2) the driver could not give a consistent story about the source of the cash, or why it was bundled in a manner consistent with drug dealing; and, (3) a drug sniffing dog alerted to the cash. Upon review, the Court determined the circumstances were insufficient proof to support forfeiture.
The Court noted the circumstantial evidence only established “the possibility or suspicion of a nexus.” Id. at 501, 698 A.2d at 579. Additionally, the Court revealed its apprehension about the use of drug sniffing dogs to determine whether cash had a nexus to drug trafficking. Specifically, it noted that perfectly innocent persons could easily be in possession of cash previously exposed to illicit drugs. Moreover, the Court warned that even bundling money consistent with the manner commonly used in drug trafficking may be done innocently. Therefore, based on the totality of circumstances, including the absence of drugs, drug paraphernalia, or a criminal history, forfeiture was not justified.
Two years later, our Supreme Court again addressed similar circumstances pertaining to a forfeiture. In Commonwealth v. Fontanez, 559 Pa. 92, 739 A.2d 152 (1999), during a traffic stop, a police officer observed bound cash in an open paper bag on the floor of the stopped car. The police seized the money on the basis that: (1) the stop took place in a neighborhood known for drug activity; (2) the officer was familiar with the driver and his family and their involvement in drug trafficking; (3) the driver refused to explain the money's origin; and, (4) a drug sniffing dog alerted to the cash. Again this Court determined the factors amounted to nothing more than a suspicion of a nexus.
Reviewing its holdings in Marshall and Fontanez, the Court later summarized that it denied forfeiture in those cases because each suffered from a similar drug nexus deficiency. Esquilin. Specifically, it explained that because no drugs or drug paraphernalia had been found in proximity to the seized money and the officers did not observe an illegal drug transaction, the Commonwealth could not carry its burden with the limited circumstantial evidence it produced. Id.
The following year, this Court applied the reasoning in Marshall and Fontanez in deciding Commonwealth v. The One Thousand Two Hundred and Twenty Dollars ($1,220.00) Cash (Cook), 749 A.2d 1013 (Pa.Cmwlth.2000). In Cook, the police seized money during a warranted probation violation arrest. The alleged nexus between the money and illegal activity consisted of: (1) the manner the money was bundled; (2) a drug sniffing dog alerting to the money; (3) the claimant's history of drug trafficking; (4) his possession of a pager; and, (5) his association with a known drug dealer. Notably, the police did not discover drugs or paraphernalia on the claimant, nor did they charge him with a drug-related crime at that time. Thus, this Court determined the Commonwealth did not meet its burden to establish a nexus between the money seized and illegal activity. Cf. Commonwealth v. $23,320.00 U.S. Currency (Palmer), 733 A.2d 693 (Pa.Cmwlth.1999) (granting forfeiture of seized money where the money was bundled, a drug-sniffing dog alerted to the odor of the car, and a large amount of powdered laundry detergent was in the car, presumably for masking the odor).
Subsequently, in Commonwealth v. $11,600 Cash (Maracine), 858 A.2d 160 (Pa.Cmwlth.2004), this Court considered whether a sufficient nexus existed where (1) the seized cash was bundled in a manner consistent with drug trafficking, (2) the driver could not credibly explain the source of the cash, and (3) ion scan results indicated the cash was in contact with narcotics. In sum, this Court distinguished Marshall and Fontanez based on the existence of one additional factor—the ion scan results—and upheld the forfeiture. See also Phung.
Thereafter, in Collins, this Court was asked to determine whether a particular method of ion scan testing could support the Commonwealth's burden. This Court held that the ion scan results were irrelevant, because the foundation of the particular test was inadequate. As a result, the facts presented were indistinguishable from the surrounding circumstances in Marshall and Fontanez. Specifically, to establish a nexus, the Commonwealth relied on: (1) the driver's prior drug related conviction; (2) a drug sniffing dog alerting to the money; (3) the driver's inability to cogently explain where the money came from; and, (4) the cash being wrapped and organized consistent with the practices of drug dealers. Thus, we concluded forfeiture was unjustified.
Ion scan results are irrelevant when the Commonwealth does not establish the cash's casual contact level, the base level of narcotics regularly found on circulated money, was obtained from the geographic areas relevant to the factual scenario presented. Commonwealth v. $15,000 U.S. Currency (Williams), 31 A.3d 768 (Pa.Cmwlth.2011).
One year later, this Court decided Commonwealth v. $15,000 U.S. Currency (Williams), 31 A.3d 768 (Pa.Cmwlth.2011). In Williams, the trial court determined the totality of the circumstances supported the existence of a nexus between the seized money and drug trafficking. Like Collins, the Commonwealth presented ion scan results as part of its case-in-chief; however, based on our recent holding, the trial court excluded the results. Therefore, the Commonwealth was left to rely on:
(1) [the driver and passenger's] past criminal histories; (2) [the driver's] involvement in a similar type of seizure in 2007; (3) the money's discrete placement in the vehicle; (4) [the driver and passenger's] convoluted stories ...; and (5) the overwhelming smell of marijuana found on the money ... in conjunction with [6] the canine cash scan, [7] the bundled money, and [8] the inconsistent statements about the origin of the cash [to establish a nexus.]
Id. at 774.
Based on these factors, we reversed the trial court as the circumstances presented were consistent with those presented in Marshall and Collins. Furthermore, this Court noted that much like Marshall the case “suffered from a drug nexus deficiency because no drugs or paraphernalia were found on or near the claimant.” Id. at 774–75 (citing Esquilin, 583 Pa. at 563, 880 A.2d at 534). Therefore, we determined the Commonwealth failed to establish a sufficient nexus to warrant forfeiture.
Recently, this Court filed its decision in Commonwealth v. $17,182.00 U.S. Currency (King), 42 A.3d 1217 (Pa.Cmwlth.2012). In King, we were asked whether the Commonwealth carried its burden to establish a nexus between cash seized from a car during a traffic stop and violations of the Controlled Substances Act by presenting evidence that: (1) the car was not registered to the driver; (2) the driver used a single key, a fact consistent with drug trafficking; (3) the driver was travelling on a stretch of road know to police as a drug corridor; (4) the driver had a drug-related criminal history; (5) a drug sniffing dog alerted to the smell of narcotics in the vehicle; and, (6) the money was bundled in $1,000 increments. Notably, the police did not discover drugs or paraphernalia in the car and did not issue the driver a criminal citation. Therefore, in considering the totality of the circumstances presented, we determined, although some of the conditions present “clues” of illegal activity, certain evidence was “equally consistent with innocent behavior,” and therefore, forfeiture was not appropriate. Id. at 1222.
The Commonwealth also introduced ion scan results for the money, which the trial court excluded consistent with Collins, and incriminating statements by the driver, which were excluded pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Now, in light of our summation of the relevant case law, we review the Commonwealth's evidence of a nexus between the seized $8,240 and illegal activity under the Controlled Substances Act in the case before us. We will address 10 circumstances:
• Burke's inconsistent and conflicting statements;
• Large amount of money;
• Manner of packaging of money;
• Drug dog alert;
• Presence of drug paraphernalia next to money;
• Burke's conviction for possession of drug paraphernalia;
• Drug related criminal histories of Burke and his passenger;
• Burke's recent arrests for drug distribution and weapons possession;
• Burke's admission to purchase and use of marijuana;
• Discrete location of money and drug paraphernalia.
Here, similar to the seizures in Marshall and Fontanez, four of the circumstances surrounding this seizure appear, at first glance, inconclusive. First, Burke gave inconsistent and conflicting accounts of the origin of the money. Specifically, upon Trooper Burke finding the money, Burke claimed he had no idea where the $8,240 came from. Upon being asked to sign a disclaimer form, Burke explained the money was from insurance proceeds and his savings.
Additionally, Trooper Conrad opined the seized money was bundled in a manner consistent with drug trafficking. To this issue, Trooper Conrad testified that his training in drug interdiction and his experience has taught him that Burke's money, which was a large sum of money bundled with rubberbands in $1,000 units, was organized consistent with “[n]arcotics currency[,] money used to purchase narcotics.” Reproduced Record (R.R.) at 9a. Furthermore, a drug sniffing dog alerted to the odor of narcotics to both the center console where Trooper Conrad discovered the money and scale, and to the money itself. In sum, these four factors create the suspicion of a nexus; yet, alone, they are insufficient to justify forfeiture. See Collins.
The Commonwealth also proffered the results of an ion scan of the seized cash; however, as discussed above, such results were not considered by the trial court pursuant to our holding in Collins.
However, the existence of several additional circumstances preponderates in favor of the Commonwealth. Notably, here, unlike in Fontanez,Marshall,Williams, and Collins, Trooper Conrad observed drug paraphernalia adjacent to the seized cash. See Esquilin. While a digital scale has many legal uses, Burke freely admitted he used this scale for weighing illegal drugs prior to purchasing them. R.R. at 96a–98a. Moreover, Burke was charged and pled guilty to the possession of drug paraphernalia related to the scale. See Fontanez (filing drug related charges in conjunction with a seizure is persuasive evidence of a nexus).
The presence of these two additional circumstances alone likely would remedy the drug nexus deficiency observed in prior cases. See Esquilin. Moreover, the presence of drug paraphernalia, in light of the other circumstances, aligns the factors presented here with the Commonwealth's evidence in Commonwealth v. Nineteen Hundred and Twenty Dollars United States Currency (Jasper), 149 Pa.Cmwlth. 132, 612 A.2d 614 (1992).
In Jasper, this Court upheld the forfeiture of cash seized during a traffic stop where the money was located near drug paraphernalia; the driver attempted to evade a police stop; the driver gave conflicting stories about the money; the money was bound consistent with drug trafficking practices; and, a dog-sniff search yielded positive results for traces of narcotics. Although Jasper also presented the existence of the driver attempting to evade the police, the strongest evidence that linked the money to drug trafficking was the presence of drug paraphernalia. However, as artificial, bright-line standards are inappropriate in our analysis, we continue to assess the totality of the circumstances.
Specifically, when the police attempted to effectuate a stop for a possible DUI, the driver sped away initiating an eight mile car chase. During the chase, the driver drove at excessive speeds, failed to observe traffic signals, and disregarded a roadblock. Additionally, his passenger was observed throwing undefined items out of the vehicle; however, nothing was found after a search of the area.
Furthermore, four more circumstances preponderate in favor of the Commonwealth. These include criminal histories for drug possession of Burke and his passenger, Burke's recent arrests related to narcotics distribution and weapons possession, and Burke's admission that he occasionally bought and smoked marijuana and had done so for a long time. R.R. at 17a, 22a, 106a–107a. Finally, the scale and money were located in a hollow space under the center console. See Williams (discrete placement of the cash further evidences a nexus to drug trafficking). Trooper Conrad explained the hollow area was not a place intended for use by the manufacturer, but was the space created by the car's design. R.R. at 14a–15a.
Therefore, in light of all 10 circumstances discussed, especially the presence of drug paraphernalia secreted next to the money and the conviction for its possession, the Commonwealth met its burden to establish a nexus between the seized money and unlawful activity under the Controlled Substances Act.
As such, the burden shifted to Burke to prove he owned the money, obtained it legally, and did not use or possess it for an illegal purpose. See Holt. The trial court determined based on both his demeanor and the internal inconsistencies in his testimony, Burke did not present credible evidence to meet his burden to rebut the presumption in favor of forfeiture. See id. (a trial court is free to not credit a claimant's explanation for the source of the seized money).
Among his inconsistencies, Burke claimed he needed to purchase a new vehicle because his was damaged, when it was stolen, to the point that repairing it was a bad investment. R.R. at 82a–83a. However, Burke was driving the allegedly damaged vehicle when Officer Conrad pulled him over. R.R. at 86a. Furthermore, Burke conceded he already spent $2,000 repairing the car to make it drivable, an amount that was greater than what his mother received in insurance proceeds related to the vehicle. R.R. 90a–91a. As the trial court aptly noted, although a victim may simply want a new car after his was stolen, Burke's testimony was that he did not want to make an investment in the car due to its damage. As such, his justification, which he had the burden to prove, was entirely inconsistent with his actions.
The remaining amount of the proceeds was largely attributable to: a Breitling watch ($1,300), a gold bracelet ($1,800), a diamond earring ($1,000), a black jacket ($500) and $80 cash which were stolen from inside the vehicle and not recovered. R.R. at 88a.
Additionally, Burke was unable to credibly establish he ever received the $6,200 insurance proceeds from his mother, or that he was fiscally capable of saving the remaining amount of money over a three-month span as he claimed he did. See Jasper (inconsistences in a claimant's statements undermine his claim that the seized money came from insurance settlement proceeds and savings). Burke's proof of legal ownership was especially deficient as he did not call his mother to testify to corroborate that she gave him the cash, or introduce bank records to establish his amount of savings. Moreover, Burke's testimony that he was driving to somewhere in New Jersey, a state with which he was not familiar, to look for and buy a car with over $8,000 cash-in-hand is unconvincing in light of the surrounding circumstances. Thus, as Burke did not rebut the presumption in favor of forfeiture, his argument is meritless.
Accordingly, we affirm.
ORDER
AND NOW, this 1st day of August, 2012, the order of the Court of Common Pleas of Monroe County is AFFIRMED. DISSENTING OPINION BY Judge LEAVITT.
In ordering the forfeiture of $8,240 in cash that was seized from a vehicle stopped for speeding, the trial court concluded that the proximity of the cash to a digital scale established a nexus with illegal drug trafficking. The trial court also cited other evidence, but under our clear precedent that other quantum of evidence was not sufficient to prove a nexus. Adding the presence of a digital scale to otherwise inadequate evidence does not make the Commonwealth's case for forfeiture. Accordingly, I respectfully dissent from the majority's decision to affirm the trial court.
The State Police stopped David Burke on Interstate 380. He was not a suspect in an ongoing criminal investigation for illegal drug trafficking or known in any way to the State Police. He was simply driving, allegedly over the speed limit. Burke agreed to a search of his vehicle, which did not yield the discovery of contraband drugs. However the search did turn up $8,240 in cash alongside a digital scale that was located in the console under the cupholder. Burke explained that he was on his way from his home in Rochester to the Bronx to visit his aunt. The cash was to be used to purchase a new car in New Jersey, where he believed he could get a better deal. Burke was not cited for speeding, but he was issued a citation for possession of drug paraphernalia, i.e., the digital scale. The State Police seized the cash.
Thereafter, before a district magistrate, Burke pled guilty to the summary offense of possession of drug paraphernalia, i.e., the digital scale, and paid a fine of $302. Burke then filed a motion for return of the cash, and the Commonwealth responded with a forfeiture petition.
Under the Controlled Substance Forfeitures Act (Forfeiture Act), cash can be forfeited if the Commonwealth proves that the seized cash has been
furnished or intended to be furnished ... in exchange for a controlled substance ... [or represents] proceeds traceable to such an exchange ... [or that the cash was] used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act.
42 Pa.C.S. § 6801(a)(6)(i)(A), (B) (emphasis added). To prove that Burke's $8,240 was “traceable” to a drug exchange or was “intended” to be used for such an exchange, the Commonwealth was required to prove a connection, or “nexus,” between unlawful drug activity and Burke's $8,240 in cash. Commonwealth v. $2,523.48 U.S. Currency, 538 Pa. 551, 555, 649 A.2d 658, 660 (1994). A nexus can be demonstrated by evidence that the cash was seized from the “money man” in a witnessed drug exchange, Commonwealth v. $6,425.00 Seized From Esquilin, 583 Pa. 544, 880 A.2d 523 (2005), or obtained under a search warrant issued in the course of an investigation for drug trafficking, Commonwealth v. McJett, 811 A.2d 104 (Pa.Cmwlth.2002). However, proof of a nexus requires far more than a “suspicion” of a nexus. In Commonwealth v. Marshall, 548 Pa. 495, 500, 698 A.2d 576, 579 (1997), our Supreme Court held that only a “suspicion of a possible nexus” was established by evidence showing, inter alia, that the seized cash was bundled in the manner of drug dealers; found secreted between the car seats; and seized from a person who had been unemployed for over a year and could not explain how he came to acquire several thousand dollars.
The Forfeiture Act states in relevant part:
(a) Forfeitures generally.—The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:
A recent decision from this Court, Commonwealth v. $15,000 U.S. Currency, 31 A.3d 768 (Pa.Cmwlth.2011)( Williams ), illustrates the difference between a nexus and a suspicion of a nexus. In Williams, the police seized the cash from under the rear seat of a vehicle that had been stopped for a traffic violation. To support its forfeiture petition, the Commonwealth presented evidence that the driver of the vehicle, Norman Caldwell, had a recent criminal conviction for possession and distribution of drugs and had been involved in a 2007 seizure and forfeiture; Caldwell offered inconsistent stories about his trip and how he came to be operating a rental vehicle for which the lease had expired and for which he was not the lessee, inasmuch as his driver's license was suspended; the cash had been bundled in the manner preferred by those engaged in drug trafficking; a drug dog alerted on the cash; there was an “overwhelming” smell of marijuana in the bag containing the money; the bag had been hidden in the car; and an ion scan showed cocaine residue on the cash. When the $15,000 was seized, the lessee of the vehicle and owner of the cash, Williams, explained to police that the cash was intended to be used to buy a car in New Jersey. The trial court granted forfeiture, and this Court reversed.
In so holding, we agreed with the trial court that the ion scan test results offered by the Commonwealth were irrelevant because the tests had not been conducted in accordance with the exacting standards requiredby our precedent in Commonwealth v. $9,000 U.S. Currency, 8 A.3d 379 (Pa.Cmwlth.2010)( Collins ). The Williams court concluded that the Commonwealth's remaining evidence, as listed above, created “at best, a mere suspicion of illegal drug activity.” Williams, 31 A.3d at 774.
Here, as in Williams, the Commonwealth focused on its ion scan evidence to make its case for forfeiture. As in Williams, the ion evidence was held not to have probative value. Again, the question is whether the remaining evidence was sufficient to support a forfeiture. In many respects, the remaining evidence against Burke is weaker than that presented in Williams. For example, Williams, the putative owner of the $15,000, testified that the cash represented her savings from her job, but she offered no details or supporting documentation to support her claim. Burke, by contrast, offered a story supported by a series of documents.
The Commonwealth's case in chief consisted principally of testimony from Sergeant Frank Jost of the Pennsylvania National Guard who performed an ion scan of Burke's money and opined that it tested positive for cocaine residue. Jost conceded that other than the Pennsylvania National Guard, no other agency, including the CIA, the FBI, the DEA, the Secret Service or the U.S. Treasury Department, establishes casual contact levels of cocaine and uses them for law enforcement purposes. Burke's counsel challenged the scientific validity of Sergeant Jost's ion scan methodology at the hearing. Both parties briefed the admissibility of ion scan evidence. The majority dismisses the issue as moot because the trial court did not base its determination on ion scan evidence. This is not clear.
Burke testified that he is 29 years old and lives with his mother, Maria Sanchez, in Rochester and that he planned to use the cash to buy a vehicle in New Jersey, where prices were lower; Burke also believed that paying in cash would produce a better price. Burke testified that the car he was driving, registered to his mother, had been stolen in October 2009 and when recovered, it was damaged. Burke presented a copy of the Rochester Police Report showing that the car, including certain valuables inside, had been stolen on October 17, 2009. Because the theft had damaged the car and caused a loss of personal items, the insurer paid a claim of $6,379.24 to Sanchez. In support, Burke presented a copy of the insurance claim form that, inter alia, listed a payment of $6,379.24 made on December 27, 2009, and identified both Sanchez and Burke as the insured operators. Burke testified that his mother deposited the insurance check in her account with Citizens Bank. On January 17, 2010, four days before Burke was stopped in Pennsylvania, Sanchez withdrew $6,200 in cash and gave it to Burke. In support, Burke produced a Citizens Bank receipt dated January 17, 2010, showing the withdrawal of $6,200 from an account at Citizen's Bank. Burke testified that the remainder of the seized cash, approximately $2,000, represented his savings from his work as a truck driver for the City of Rochester. In support, Burke offered a copy of his pay stub into evidence, which showed a gross weekly wage of $947.52, including overtime, and net wage, after withholding, of $807.87.
Burke testified that he spent approximately $2,000 to make the car drivable, but he wanted a replacement vehicle that would be more reliable.
Notably, Burke was not driving under a suspended license or driving a rental car for which the lease had expired, unlike the owner of the cash seized in Williams. The nature and details of Burke's “drug history” were left opaque; the Commonwealth did not establish whether this “history” consisted of arrests or convictions. Nor was Burke the subject of a prior seizure and forfeiture. Burke's explanation of how he came into possession of the cash was supported by documentary evidence and not rebutted. In sum, leaving aside the digital scale, the case against Burke was weaker than that offered in Williams, which was found too weak to support a forfeiture.
The officer who stopped Burke testified he ran a check on Burke and his passenger. He discovered they had “criminal histories for narcotics possession. Mr. Burke had a recent history for narcotics distribution as well as weapons possession.” Reproduced Record at 17a. The Commonwealth did not offer a certified criminal history record on Burke or his passenger.
This Court's decision in McJett, 811 A.2d 104, addresses the quantum of evidence needed where the respondent to a forfeiture action is the subject of an ongoing police investigation. In McJett, the police found $60,000 in cash in McJett's bedroom while executing a search warrant issued after a probable cause determination by a court of law. Four months before the search, McJett, who had a 15–year police history, had been arrested for possession of large quantities of cocaine. Further, an informant had advised the police of a drug buy he made from McJett only days before the search, which advice exposed the informant to criminal liability. Along with the $60,000 in cash, the police found a digital scale next to gallon-sized bags typically used to package drugs, according to police. McJett's defense consisted of a challenge to the validity of the search warrant. This Court held that “the chronology of events and their proximity in time to the 1998 seizure of McJett's property leads to a conclusion that McJett was, more likely than not, involved in the drug trade at the time.” Id. at 111.
Where cash is seized serendipitously, and not in the context of a police investigation or witnessed drug buy, the evidence must be compelling to support a forfeiture where contraband drugs are not present. In a chance seizure, evidence of a drug history by the person in possession of the cash; inconsistent statements about the provenance of the cash; bundling the cash in the manner typical of drug dealers; hiding cash in the vehicle; and a drug dog's alert on cash prove only a suspicion. Marshall, 548 Pa. 495, 698 A.2d 576. Otherwise, as explained by our Supreme Court, individuals would not be able to carry large amounts of cash, a perfectly legal act, “without risking having it seized by the police and never returned, regardless of whether the police witnessed any suspicious activity.” Commonwealth v. Fontanez, 559 Pa. 92, 96 n. 4, 739 A.2d 152, 155 n. 4 (emphasis added).
Under the standard of Williams, the Commonwealth's evidence proved only a suspicion that the $8,240 seized, by chance, from Burke was traceable to drug trafficking. The question is whether Burke's digital scale is enough to tip that balance, so to speak, in favor of the Commonwealth.
Burke acknowledged ownership of the digital scale and admitted that he used it when he had made marijuana purchases in the past for his personal use. However, he denied that he had done so recently or that the seized cash had anything to do with future or past drug activity. He produced documentary evidence to support his claim that the cash was derived from an insurance claim settlement and his earnings as a truck driver for the City of Rochester. The Commonwealth offered no contrary evidence. Simply, there was no evidence that Burke had bought or sold any narcotics just prior to the seizure or that the $8,240 was intended for the purchase of narcotics.
Section 6801(a)(6)(ii) of the Forfeiture Act creates a rebuttable presumption that cash found “in close proximity” to drugs was derived from illegal drug activity. However, the Forfeiture Act does not create a presumption for cash found “in close proximity” to drug paraphernalia, as was the case here. Adding the presence of drug paraphernalia to otherwise inadequate evidence cannot be sufficient to make the Commonwealth's prima facie case. To do so would effectively create a presumption for drug paraphernalia and give a digital scale the same evidentiary significance as illegal drugs. It is for the legislature, not the courts, to create this presumption.
It states, in relevant part, as follows:
Such money and negotiable instruments found in close proximity to controlled substances possessed in violation of The Controlled Substance, Drug, Device and Cosmetic Act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act.
42 Pa.C.S. § 6801(a)(6)(ii) (emphasis added).
The nexus test is simply a shorthand expression of the statutory requirement that the property to be forfeited is “traceable” to a drug exchange or is “intended” to facilitate a drug exchange. 42 Pa.C.S. § 6801(a)(6)(i)(A), (B). Our Supreme Court has explained that a person's “conduct and the surrounding circumstances” determine intent. Commonwealth v. Falana, 548 Pa. 156, 162, 696 A.2d 126, 129 (1997).
It is easier to prove that cash is “traceable” to a drug exchange than to prove it is “intended” to facilitate a drug exchange because it is more difficult to prove intent. As the Pennsylvania Superior Court has aptly observed:
[A] person's mind cannot be opened so that his or her intent can be observed. In the absence of a declaration disclosing a person's intent, therefore, one “can only look to the conduct and the circumstances surrounding it to determine the mental state which occasioned it.”
Commonwealth v. Wright, 289 Pa.Super. 399, 433 A.2d 511, 513 (1981) (quoting Commonwealth v. O'Searo, 466 Pa. 224, 238, 352 A.2d 30, 37 (1976)).
For all we know, Burke may have placed his cash and scale in the center console of his car with the inchoate desire of using the cash to purchase marijuana, should the opportunity present itself. That is not enough to prove intent under the Forfeiture Act. Burke might never have been presented with the opportunity; had a conversion experience; or simply changed his mind. Thoughts and desires are not themselves illegal, let alone punishable by forfeiture of cash. To prove intent, the Commonwealth would have had to present evidence that Burke was on his way to a scheduled drug transaction so imminent that there was little or no time to back out.
Speeding is not “conduct” or a “circumstance” that proves an intent to engage in drug trafficking, akin to a witnessed attempted sale or buy of narcotics close in time to the seizure of the cash. See, e.g., Esquilin, 583 Pa. 544, 880 A.2d 523. Proof of intent requires more than an officer's negative and subjective interpretation of an individual's actions, such as “hiding” cash in a vehicle's console; there are many reasons not to leave cash, a wallet or purse in plain view. Likewise, there are only so many ways to bundle cash. Indeed, such an “arrangement [of cash] is equally consistent with an innocent person's attempt to ... promote precision in the counting of lawfully obtained funds.” Marshall, 548 Pa. at 500, 698 A.2d at 579. Trace amounts of cocaine are found on cash in general circulation, as the Commonwealth's own witness explained in Burke's trial, so a dog alert is meaningless. Id. Police are not authorized to seize property and never return it “regardless of whether [they have] witnessed any suspicious activity.” Fontanez, 559 Pa. at 96 n. 4, 739 A.2d at 155 n. 4 (emphasis added). Further, “[i]t is not against the law to carry cash, and a citizen has no obligation to speak to the police.” Collins, 8 A.3d at 388.
See also Commonwealth v. One Thousand Two Hundred And Twenty Dollars ($1,220.00) Cash, U.S. Currency Seized From Eric Cook, 749 A.2d 1013, 1017 (Pa.Cmwlth.2000) (reversing grant of forfeiture and finding insufficient nexus where cash was seized from Cook, a passenger in a car, and a drug dog alerted on the cash; the money was bundled consistent with drug dealing; the police officer was familiar with Cook's involvement with drug dealing; Cook had a pager, was under investigation for drugs and had previously sold drugs to an undercover officer; Cook was not charged with a crime in relation to the money; and police “ never observed him engaged in drug-related activity on the day in question.”) (emphasis added).
Here, no one witnessed suspicious drug activity; the police were not aware of any controlled drug buys involving Burke; and the police had no information that Burke was about to purchase drugs or had recently sold drugs before being stopped at 10:00 a.m. on an interstate highway. The Commonwealth simply did not meet its burden of proving that Burke intended, within the meaning of the statute, to use the $8,240 to engage in illegal drug trafficking. The Commonwealth's evidence, with or without the digital scale, established no more than a suspicion that Burke's cash was traceable to illegal drug activity or intended to facilitate the same.
The majority relies upon Commonwealth v. Nineteen Hundred and Twenty Dollars United States Currency, 149 Pa.Cmwlth. 132, 612 A.2d 614 (1992)( Jasper ), which is distinguishable. Jasper concerned a police chase in the middle of the night during which the pursued threw items believed to be contraband drugs from the vehicle. In addition to cash, the police found a pager and drug paraphernalia, which were the subject of the forfeiture. Burke, by contrast, did not attempt to discard contraband and did not attempt to elude arrest by initiating a car chase. Further, the Jasper decision pre-dates our Supreme Court's landmark decisions in Marshall and Fontanez.
Because the Commonwealth did not carry its burden for a forfeiture, I would reverse the order of the trial court.
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(6)(i) All of the following:
(A) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange.
(B) Money, negotiable instruments, securities or other things of value used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act.
42 Pa.C.S. § 6801(a)(6)(i)(A), (B) (emphasis added).