Opinion
CRIMINAL ACTION NO. 01-10369-PBS
September 11, 2002
MEMORANDUM AND ORDER
Defendant, Beunaventura Lovos, who is charged with heroin trafficking, has filed a motion to suppress evidence of currency allegedly seized by the government in violation of the Fourth, Fifth and Eighth Amendments, which the government intends to introduce at trial. The government opposes the motion on the grounds that: (1) defendant lacks standing to challenge the seizure of the currency under the Fourth Amendment; (2) a third person consented to the search and inspection of the currency; and (3) defendant failed to state a claim under the Fifth and Eighth Amendment. After a review of the submissions and attachments, and a non-evidentiary hearing, the motion is DENIED.
BACKGROUND
As background, the record contains the following facts which are undisputed unless otherwise stated. On March 1, 2000, New Bedford police searched, pursuant to a warrant, an apartment at 280 Acushnet Avenue, New Bedford. Police found Lovos and co-defendant Edwin Pacheco in the apartment where controlled substances and related packaging material were found. Lovos and Pacheco were arrested and charged in state court with possession with intent to distribute. The state court set bail in the amount of $50,000 cash.
On August 25, 2000, an individual named Richard Armelin, accompanied by codefendant Mark Ramos, came to the jail to post money to procure Lovos's release. Ramos was arrested outside the jail. A bail commissioner informed Armelin that it was unlawful to receive a fee for posting bail. Armelin told the police that Ramos had offered to pay him $5,000 in cash for bailing out Lovos, whom Ramos had allegedly described as a friend. Armelin decided not to post the bail money.
Four days later, on August 29, 2000, Perfecto Rivas, a boyfriend of Lovos's sister, Daisy Barrett, came to the jail to post $50,025 in cash bail at about 8:30 p.m. A police detective asked the assistant clerk to delay processing the bail until the DEA could get there. After finishing the other bail matters in due course, the clerk waited an additional half hour until the DEA showed up with a trained narcotics dog at about 9:15 p.m. When the agents arrived, they saw Ramos and others standing on the sidewalk outside. The agents interviewed Rivas who said the cash was not drug proceeds. At some point, he handed either the corrections officer or the agent the money to count and inspect.
It is disputed whether Rivas consented to hand over the money or was instructed to do so. The agents interviewed Rivas and the three others who accompanied him as to the source of the money. They gave somewhat contradictory accounts. While they told the DEA that they contributed varying amounts of the money and the rest came from a bank, no one stated that the money belonged to Lovos, and Lovos does not assert that the money belongs to him.
The trained narcotics dog twice positively alerted on the money for the presence of narcotics. At that point the Agents inspected the money and ascertained that $400 came from a controlled buy of heroin on August 24, 2000 from codefendant Jaymie Ramos (Mark's sister) and others. The government seized all the money, and Lovos stayed in jail. No Nebbia-type hearing was requested. The DEA instituted administrative forfeiture proceedings pursuant to 21 U.S.C. § 881, which were apparently uncontested.
The Superior Court Judge, concerned because the government made a unilateral seizure of funds, and even more perturbed (understandably) that the federal agent declined to explain why, granted a habeas corpus petition and released Lovos on bail on October 12, 2000.
DISCUSSION
Defendant's argument is that the seizure was unlawful because the government lacked probable cause to seize the money, and failed to seek a hearing before the court regarding the source of the money as required by the procedural due process clause of the Fifth Amendment. Accordingly, due to this unlawful unilateral seizure of bail money, he claims he was detained on excessive bail in violation of the Eighth Amendment. That is, in defendant's view, the $50,000 bail amount effectively became $100,000. Despite the fact that he disclaims ownership or a privacy interest in the money that was seized, defendant nevertheless asserts that his Fourth Amendment rights were violated because he was illegally seized when his detention was continued as a result of the government's improper seizure of the bail money. As a remedy for these purported constitutional violations, defendant seeks suppression of the seized bail money.
Generally speaking, a brief investigatory detention of personal effects may be justified by reasonable suspicion alone. United States v. 557,933.89, 287 F.3d 66, 86 (2d Cir. 2002). In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637 (1983), the
Supreme Court held that
When an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.422 U.S. at 706, 103 S.Ct. 2644. See also United States v. LaFrance, 879 F.2d 1, 4 (1st Cir. 1989) (upholding seizure of a Federal Express package "on reasonable suspicion that it contained contraband. . . . [D]espite the absence of probable cause at that point, the seizure was lawful."); United States v. West, 731 F.2d 90, 91-92 (1st Cir. 1984) (applying Terry-stop standards in determining that it was permissible upon reasonable suspicion for law enforcement officials to seize luggage for the purpose of subjecting it to canine sniffing for narcotics), cert. denied, 469 U.S. 1188, 105 S.Ct. 956 (1985); United States v. Hooper, 935 F.2d 484, 492-98 (2d Cir. 1991) (upholding brief investigatory detention of luggage in an airport on reasonable suspicion that the luggage contained narcotics).
The police did not improperly detain the money because they had reasonable suspicion as to its source based on the statements made by Armelin four days earlier that Ramos, a codefendant in the heroin trafficking case, was paying him to bail out Ramos's friend Lovos, and the fact that Ramos appeared again at the jail with Rivas when the latter came to bail out Lovos. The delay was only about half an hour before the dog arrived. While the fact that the dog alerted twice is not dispositive, see United States v. Dickerson, 873 F.2d 1181, 1184 (9th Cir. 1988), it provided an additional basis for inspecting the money. Once it was ascertained that $400 of the $50,025 was the drug money used by the DEA in the controlled buy, there was probable cause to seize that money (at least the $400) both as evidence and as the proceeds of a drug transaction.
Defendant presses the point that the inspection of the currency was non-consensual. However, once there was reasonable suspicion to detain the money, there was a reasonable basis for looking at it. Its numbers were in plain view. Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 2304 (1990) (holding that seizure of evidence in plain view is valid without a warrant even when discovery of that evidence is not inadvertent). Moreover, once the money was handed over to the clerk as bail money, the DEA would have been free to inspect it and seize it as evidence. Thus, the evidence falls under the inevitable discovery rule. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2401, 2509 (1984) (announcing an exception to the exclusionary rule for evidence that would inevitably have been properly discovered by law enforcement authorities without the unconstitutional seizure); United States v. Silvestri, 787 F.2d 736, 744-45 (1st Cir. 1986) (discussing principles of deterrence underlying the exclusionary rule and the inevitable discovery exception to it).
The mistake the agents made was in not going to court to seek a hearing as soon as possible to challenge the source of the bail money. A Nebbia hearing is an inquiry by the Court into those who provided the defendant's bail and their motives for the purpose of assessing the likelihood of flight, and would have been the required course of action in federal court. See United States v. 250,000 in Currency, 808 F.2d 895, 898 n. 7 (1st Cir. 1987); United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966) (holding the district court has the discretion to hold a hearing when cash bail is posted).
However, this is not the kind of reprehensible government conduct which would justify suppression of the evidence on due process grounds or under the supervisory authority of the court. See United States v. Payner, 447 U.S. 727, 735, 100 S.Ct. 2439, 2446 (1980) (holding that even where government officials orchestrated an elaborate plot to seize a briefcase, photocopy 400 pages of documents within it, and return it as if nothing had happened, "the supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court."); United States v. Santana, 6 F.3d 1, 8, 11 (1st Cir. 1993) (refusing, absent "cognizable prejudice" to the defendant, to dismiss charges on grounds of outrageous conduct either under a due process or supervisory powers theory where government agents introduced 13.3 grams of nearly pure heroin, enough for 2,500 street doses, into stream of commerce as part of effort to gain confidence of suspected drug traffickers).
The defendant argues that he was improperly detained as a result of the seizure of evidence in which disclaims any privacy interest, not that evidence belonging to him was improperly obtained as a result of the government unconstitutionally seizing him. The defendant thus has no standing to challenge the admissibility of the bail money on Fourth Amendment grounds. See Rakas v. Illinois, 439 U.S. 128, 138-148, 99 S.Ct. 421, 427-433 (1978) (holding that defendant must have privacy interest in improperly seized evidence to benefit from the exclusionary rule). While the improper seizure of bail money without the procedural due process protections of the Nebbia hearing is troublesome, the harm here is additional time in pretrial detention, not the poisoned evidentiary fruit of that detention. The evidence would have been discovered anyway.
ORDER
The motion to suppress is DENIED