United States v. $10700 US Currency , 258 F.3d 215 ( 2001 )

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
7-19-2001
United States v. $10700 US Currency
Precedential or Non-Precedential:
Docket 00-1635
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001
Recommended Citation
"United States v. $10700 US Currency" (2001). 2001 Decisions. Paper 161.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/161
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed July 19, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1635
UNITED STATES OF AMERICA
v.
TEN THOUSAND SEVEN HUNDRED DOLLARS
AND NO CENTS ($10,700.00) IN UNITED STATES
CURRENCY; ALLAN JOHNSON
(Delaware District Court No. 98-cv-00600)
UNITED STATES OF AMERICA
v.
TWENTY ONE THOUSAND FOUR HUNDRED
AND SIXTY DOLLARS AND NO CENTS ($21,460.00)
IN UNITED STATES CURRENCY
(Delaware District Court No. 98-cv-00603)
Allan Johnson; *Jermaine P. Thomas,
Appellants
*(Pursuant to F.R.A.P. 12(a))
On Appeal from the United States District Court
for the District of Delaware
(D.C. Nos. 98-cv-00600, 98-cv-00603)
District Judge: Honorable Sue L. Robinson
Argued March 15, 2001
Before: RENDELL, AMBRO, and BRIGHT,*
Circuit Judges
_________________________________________________________________
* Hon. Myron H. Bright, Senior Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
(Filed: July 19, 2001)
Joseph M. Bernstein, Esq.
[ARGUED]
300 Delaware Avenue
Wilmington, DE 19801
Counsel for Appellants
Allan Johnson
Jermaine P. Thomas
Paulette Nash, Esq. [ARGUED]
Office of United States Attorney
1201 Market Street, Suite 1100
P. O. Box 2046
Wilmington, DE 19899-2046
Counsel for Appellee
United States of America
OPINION OF THE COURT
RENDELL, Circuit Judge.
This civil forfeiture proceeding stems from the
government's seizure of $21,460.00 and $10,700.00 in
United States currency from claimants Allan Johnson and
Jermaine Thomas, respectively, after they were stopped for
a traffic violation while driving on Interstate 295 outside of
Wilmington, Delaware. Claimants appeal the District
Court's determination that the government's seizure of the
currency did not violate the Fourth Amendment, and its
conclusion that the government met its burden of
establishing probable cause to institute forfeiture
proceedings against the currency pursuant to 21 U.S.C.
S 881(a)(6) (1999). Because we agree with the claimants'
position that the government failed to establish that it had
probable cause to commence forfeiture proceedings, we will
reverse the District Court's Decree of Forfeiture entered on
April 28, 2000, and remand the matter with directions that
the District Court enter judgment in favor of the claimants.
Given our disposition, we need not, and will not, address
claimants' Fourth Amendment challenge to the seizure of
the currency.
2
I. FACTS and PROCEEDINGS
A. Factual Background
The outcome of this appeal depends upon the legal
significance we ascribe to the facts surrounding the
forfeiture of the currency, and we are constrained in this
respect by the government's agreement to stipulate to a
bare record of agreed facts, which we fully set forth here. At
10:12 a.m. on April 29, 1998, Officer McManus of the
Delaware River and Bay Authority ("DRBA") stopped a
rented Ford Taurus for traveling 60 miles per hour in a 50
mile per hour zone. The vehicle was occupied by three
individuals: Antonio Whitfield, the driver; claimant
Jermaine Thomas, who was located in the front passenger
seat; and claimant Allan Johnson, who was in the back
seat. All three occupants exited the vehicle and provided
identification indicating that they were from Wilmington,
North Carolina. Whitfield also provided the rental car
agreement which listed the lawful driver as Thomas, despite
the fact that Whitfield was driving when McManus stopped
the car.
McManus's police report indicated that she questioned
each occupant individually concerning the group's travel
plans. Whitfield told McManus that they were going
shopping, but that he was not sure where. McManus also
noted that Whitfield's hands were shaking and that he
avoided making eye contact with her. Thomas and Johnson
told McManus that they were going to northern New Jersey
to visit family. McManus observed that Thomas also
avoided making eye contact with her.
McManus obtained consent to search the vehicle. During
a check of the interior, she noticed a strong odor of air
freshener, but did not find any weapons or contraband.
Upon searching the trunk, McManus found two bags-- a
black duffel and a blue backpack. She also noticed two
cellular telephones and cologne. Johnson claimed
ownership of the blue backpack and consented to
McManus examining its contents. McManus opened the
blue backpack and found clothes at the top; underneath
the clothes she discovered a blue plastic bag, and inside
3
the blue plastic bag was another blue plastic bag tied at the
top. Inside the interior blue plastic bag was an unknown
amount of United States currency rubber-banded together.
Johnson claimed ownership of the money, advised that it
was $21,000, and that the group was en route to buy a car.
Thomas claimed ownership of the black duffel bag and
also consented to McManus examining its contents.
McManus searched the bag and found clothing; under the
plastic liner of the duffel bag, she found a second unknown
quantity of United States currency that was rubber-banded
in a similar fashion as the first amount she found. Thomas
stated that there was $8,000 in the bag. Johnson and
Thomas confirmed that they did not have receipts for the
currency.
After completing the search, at approximately 10:30 a.m.,
McManus decided to transport the currency back to the
DRBA troop for further investigation. She also requested
that the claimants ride with her back to the DRBA troop,
which they did. Upon arrival, Thomas and Johnson were
searched and questioned, but both refused to provide any
information other than personal data. During the search,
DRBA officers found $2,950.00 in cash on Thomas's
person, rubber-banded in a fashion similar to the money
found in the trunk of the car. They also found $430.00 in
cash on Johnson's person. At some point thereafter, Officer
Creighton spoke with Enterprise Rental Car Company and
discovered that the lease agreement under which the
vehicle had been rented provided that the vehicle was not
to be driven north of the Virginia border. Also, at
approximately 12:30 p.m., Officer Penrod spoke with an
officer at the Wilmington, North Carolina Police
Department, who advised him that each of the men lived in
an area known for high drug activity, and that Johnson
had murder charges pending against him. At some point
between 12:05 p.m. and 2:05 p.m., Officer Thompson
conducted a canine detection test. The record indicates that
the test "gave positive indications on the currency" but
offered "negative indications" with respect to the interior
and exterior of the vehicle. Between 2:00 p.m. and 3:00
p.m., officers issued two traffic citations to Whitfield and
transported all three occupants to the Wilmington,
4
Delaware bus station to return home to North Carolina. The
DRBA kept the currency and the cell phones. Claimants
were not charged with any illegal activity other than the
traffic citations.
Between 2:47 p.m. and 3:11 p.m., DRBA Sergeant
Gaworski vacuumed the automobile and the currency, and
subjected both to an ION Scan Analysis. The graphs, which
purportedly show the results of the ION Scan on the items
in the vehicle, are included in the record. Agent David
Allegretto of the Drug Enforcement Agency ("DEA") stated in
an affidavit that the results of this test indicated "that the
monies showed high levels of cocaine residue, an indication
that the monies were involved in drug trafficking," A-12,
but the affidavit does not explain more specifically how he
arrived at that conclusion by reviewing the graphs provided.
DRBA officers subsequently performed criminal histories
on all three persons in the vehicle. Whitfield, the driver,
had no criminal history. Claimant Thomas had been
convicted of one drug offense -- conspiracy to traffic in
cocaine on February 7, 1995. Claimant Johnson had been
convicted of several drug offenses, including (1) possession
of controlled substances on August 16, 1989, and August
3, 1992; (2) possession of cocaine on November 12, 1994;
and (3) possession with intent to sell and distribute
narcotics on March 14, 1996.1
B. Proceedings in the District Court
Based on the evidence collected in the field and at the
DRBA troop, the government filed two verified complaints of
forfeiture in rem against the currency pursuant to 21
U.S.C. S 881(a)(6).2 The complaints averred that forfeiture
was justified under the statute because the currency was
"used or intended to be used to facilitate a drug transaction
and/or constitutes proceeds traceable to a drug
transaction." Agent Allegretto of the DEA stated in an
_________________________________________________________________
1. As noted above, Johnson also had murder charges pending against
him.
2. The District Court consolidated the two in rem proceedings by order
dated November 29, 1998.
5
affidavit that, based upon the information learned during
the stop and subsequent investigation, the government's
forfeiture was based on the theory that "the subjects were
on their way to New Jersey to purchase drugs to take back
to Wilmington, North Carolina for sale." A-13.
After Johnson and Thomas filed claims of ownership of
the currency, they filed a motion for summary judgment,
arguing that the currency was seized in violation of their
Fourth Amendment rights, and that consequently, the
evidence collected at the DRBA troop could not be used in
determining if there was probable cause to institute
forfeiture proceedings. They also claimed that even if the
government could utilize the "pre-seizure" and"post-
seizure" evidence, it was insufficient to satisfy its threshold
burden of establishing probable cause to institute forfeiture
proceedings.
The District Court entered an order denying claimants'
motion for summary judgment. First, the Court rejected
claimants' Fourth Amendment challenge to the seizure,
finding that McManus had probable cause to detain the
currency and subject it to further investigation based upon
the information she had gathered up to that point during
the encounter with the claimants. In finding probable
cause, the Court recognized that these facts, "if viewed
through the lens of a scholarly analysis, are consistent with
innocent travel," but went on to conclude "that the degree
of suspicion that attaches to these particular non-criminal
acts via the experience of this law enforcement officer is
sufficient to pass probable cause muster." 3 A-21 to -22.
Second, having found that the seizure was supported by
probable cause, the Court held "that the government
carried its burden of proof " in the forfeiture action, because
the totality of the information was sufficient to establish
probable cause that the currency was subject to forfeiture
pursuant to S 881(a)(6).
_________________________________________________________________
3. Despite the District Court's reliance on McManus's experience, we
were unable to locate evidence anywhere in the record of that experience
or any training that might inform her evaluation of the criminal nature
of this admittedly non-criminal activity.
6
After the Court denied claimants' summary judgment
motion, the parties entered into a "Stipulation for Entry of
a Decree of Forfeiture," in which claimants reserved their
right to appeal. The Court entered the Decree of Forfeiture,
and this appeal followed.
II. JURISDICTION and STANDARD OF REVIEW
The District Court exercised subject matter jurisdiction
over the forfeiture action pursuant to 28 U.S.C.SS 1345
and 1355. United States v. RR # 1, Box 224 , 14 F.3d 864,
868 (3d Cir. 1994). We have appellate jurisdiction pursuant
to 28 U.S.C. S 1291, and we review the District Court's
probable cause determination de novo. E.g., United States v.
Conley, 4 F.3d 1200, 1204 (3d Cir. 1993); United States v.
$191,910.00 in United States Currency, 16 F.3d 1051, 1071
n.43 (9th Cir. 1994); United States v. $250,000 in United
States Currency, 808 F.2d 895, 897-98 (1st Cir. 1987).
III. DISCUSSION
Claimants first contend that the District Court erred in
finding that the seizure of the currency was lawful under
the Fourth Amendment because it was supported by
probable cause. They maintain that the facts within
McManus's knowledge, up to the point at which she
informed claimants that she was seizing the currency for
further investigation, gave rise only to a "reasonable
suspicion," and not probable cause, to detain the currency.
Second, claimants urge us to reverse the District Court's
determination that the government had probable cause to
institute forfeiture proceedings, a necessary prerequisite
under S 881(a)(6), claiming that the facts within the
government's knowledge at the time that it filed the in rem
complaints were insufficient to establish a nexus between
the currency and any predicate drug activity by claimants.
As indicated above, we will decide this appeal on the latter
basis.
In civil forfeiture cases instituted pursuant toS 881(a)(6),
S 881(d) mandates that United States customs procedures
govern the allocation of the parties' burdens of proof. United
States v. RD 1, Box 1, 952 F.2d 53, 56 (3d Cir. 1991).
7
Accordingly, the procedures found in 19 U.S.C. S 1615 for
customs forfeitures apply. Id. Section 1615 provides:
S 1615. Burden of Proof in forfeiture proceedings
In all suits or actions . . . brought for . . . forfeiture
. . ., where the property is claimed by any person, the
burden of proof shall lie upon such claimant; Provided,
That probable cause shall be first shown for the
institution of such suit or action, to be judged . .. by the
court.
Id. (emphasis added). Thus, the government bears the
initial burden of establishing that it had probable cause to
believe that the currency was subject to forfeiture at the
time that it filed the forfeiture complaints in the District
Court. If the District Court determines that the information
relied upon by the government is sufficient to establish
probable cause that the currency may be forfeited, the
procedure set forth in S 1615 shifts the burden to the
claimant to show by a preponderance of the evidence that
he or she has a defense to the forfeiture. E.g. , United States
v. One 1973 Rolls Royce, 43 F.3d 794, 804 (3d Cir. 1994).
However, if the government has failed to satisfy its initial
burden of demonstrating probable cause for the forfeiture
proceeding, the claimants need not come forward with
evidence to rebut the government's proofs. E.g. , United
States v. $506,231 in United States Currency, 125 F.3d 442,
451 (7th Cir. 1997).
Three elements must be present in order to subject a
claimant's property to civil forfeiture pursuant to 21 U.S.C.
S 881(a)(6): (1) the subject property must be moneys,
negotiable instruments, securities, or other things of value;
(2) there must be probable cause to believe that there exists
illicit drug activity that renders the seized property subject
to forfeiture; and (3) there must be probable cause to
believe that a connection, or nexus, exists between the
seized property and the predicate drug activity the
government has identified.4See, e.g., RR # 1, Box 224, 14
_________________________________________________________________
4. In their briefs, claimants contend that the government must establish
probable cause to believe that a "substantial connection" exists between
the seized currency and an illicit drug exchange. However, at oral
8
F.3d at 869; see also United States v. $22,474.00 in United
States Currency, 246 F.3d 1212, 1215-16 (9th Cir. 2001)
(stating that government must have "reasonable grounds to
believe that the [money] was related to an illegal drug
transaction"). Under S 881(a)(6), both the illicit drug activity
that renders the property subject to forfeiture and the
currency's connection or nexus to it can be established by
pointing to credible evidence establishing probable cause to
believe that the property at issue either: (1) was"furnished
or intended to be furnished" in exchange for a controlled
substance; (2) constitutes "proceeds traceable" to a drug
exchange; or (3) was "used or intended to be used to
facilitate" a violation of federal drug laws. 21 U.S.C.
S 881(a)(6);5 e.g., United States v. One Lot of United States
_________________________________________________________________
argument, claimants' counsel admitted that he was unsure what, if
anything, the adjective "substantial" added to the probable cause
analysis. We recognize that some of our sister circuits have described the
government's initial burden as requiring it to demonstrate a "substantial
connection," while others have used language such as "nexus" or some
"connection." Compare, e.g., United States v. $5,000 in United States
Currency, 40 F.3d 846, 849 (6th Cir. 1994) (noting that government
must establish probable cause to believe there is a"substantial
connection" between the money and a controlled substance exchange),
and United States v. $38,600.00 in United States Currency, 784 F.2d
694, 697 (5th Cir. 1986) (same) with $506,231.00 , 125 F.3d at 451("Probable cause for the forfeiture exists if the government demonstrates
a nexus between the seized property and illegal narcotics activity.")
(emphasis added), and United States v. One Lot of United States Currency
($36,634), 103 F.3d 1048, 1053 (1st Cir. 1997) ("[T]he government must
show that it has probable cause to believe that the property had the
requisite nexus to a specified illegal purpose.") (emphasis added). While
we have previously noted in passing that the distinction between
"substantial connection" and "nexus" or"some connection" "appears to
be semantical," RD 1, Box 1, 952 F.2d at 58 n.5, we need not decide
whether the various tests are substantively different. Assuming that the
government is correct that it need only establish probable cause to
believe that the money bears a connection or nexus to an illicit drug
transaction, rather than a "substantial connection," we find that it has
not met its burden in that regard.
5. The full text of S 881(a)(6) provides:
The following shall be subject to forfeiture to the United States
and
no property right shall exist in them:
9
Currency ($36,634), 103 F.3d 1048, 1053 (1st Cir. 1997);
United States v. $30,060.00 in United States Currency, 39
F.3d 1039, 1041 (9th Cir. 1994). The government may
establish probable cause for the existence of the underlying
drug activities and the currency's nexus to the illicit
conduct by relying on circumstantial evidence. E.g., United
States v. $4,225,000.00 in United States Currency , 762 F.2d
895, 904 (11th Cir. 1985).
In determining whether the government's proofs are
sufficient to pass the probable cause threshold, we point
out initially that the facts of this case do not present the
"typical" forfeiture scenario we have previously addressed
under S 881(a) in which the claimants' property, real or
personal, can be linked to a narcotics violation because the
property was seized as a consequence of a police
investigation, arrest or conviction for an underlying drug
crime.6 Moreover, this case is also unusual because the
_________________________________________________________________
(6) All moneys, negotiable instruments, securities, or other things
of
value furnished or intended to be furnished by any person in
exchange for a controlled substance or listed chemical in violation
of
this subchapter, all proceeds traceable to such an exchange, and
all
moneys, negotiable instruments, and securities used or intended to
be used to facilitate any violation of this subchapter.
6. We recognize, of course, that forfeiture underS 881(a) is not
conditioned upon an arrest or conviction for a drug offense. We merely
point out that the link between an underlying drug crime and the seized
property certainly is more apparent where the forfeiture is the product of
an associated drug arrest, conviction or targeted investigation of the
claimant. E.g., One 1973 Rolls Royce, 43 F.3d at 802-03 (forfeiture
followed conviction for RICO violations predicated on identifiable drug
activities to which car could be linked); RR # 1, Box 224, 14 F.3d at 869(finding that government established probable cause to institute
forfeiture proceedings against real property underS 881(a)(7) where civil
forfeiture followed defendant's conviction for narcotics offenses, and
issue was whether government's evidence sufficiently linked premises to
claimant's cocaine distribution activities); United States v. 717 S.
Woodward St., 2 F.3d 529, 531-32 (3d Cir. 1993) (stating that evidence
of convicted defendant's drug activities on his properties gave rise to
probable cause to institute civil forfeiture proceeding against real
properties under S 881(a)(7); facts concerning defendant's drug activities
10
government has not presented any evidence whatsoever
from which it could be inferred that claimants were
involved in any drug exchange at or around the time that
the government instituted forfeiture proceedings. 7 As a
_________________________________________________________________
on premises were not disputed); RD 1, Box 1, 952 F.2d at 54-55 (stating
that probable cause to forfeit existed where claimant was convicted of
drug offenses and civil forfeiture proceeding followed; only question was
whether real property was sufficiently connected to known drug
violations so as to subject it to forfeiture underS 881(a)(7)); United
States
v. 92 Buena Vista Ave., 937 F.2d 98, 101, 104 (3d Cir. 1991) (stating
that government had probable cause to institute forfeiture proceedings
against real property under S 881(a)(7), as forfeiture arose out of
indictment of defendant for narcotics violations, and government
provided evidence indicating that claimant purchased home with
proceeds from defendant's narcotics activities that were the subject of
the indictment), aff 'd, 507 U.S. 111 (1993); United States v. 6109 Grubb
Rd., 886 F.2d 618, 620 (3d Cir. 1989) (forfeiture proceeding followed
investigation revealing that the defendant had used the property to
further drug trafficking, and defendant was convicted for those offenses;
claimant conceded that government had probable cause to forfeit based
upon her husband's conviction and information gathered in criminal
case); United States v. $55,518.05 in United States Currency, 728 F.2d
192, 196 (3d Cir. 1984) (finding that government had probable cause to
seize currency under S 881(a)(6) on theory that it was intended to be
used to purchase drugs because it had been seized in connection with
claimant's arrest for attempted narcotics purchase); United States v.
Bush, 647 F.2d 357, 361 (3d Cir. 1981) (civil forfeiture of currency and
vehicle followed from claimant's conviction for narcotics violations);
United States v. One 1977 Lincoln Mark V. Coupe, 643 F.2d 154, 156-57
(3d Cir. 1981) (forfeiture proceeding followed claimants' drug arrest;
only
issue was whether car was sufficiently involved in observed drug
transaction to subject it to forfeiture under "facilitation theory").
7. We have not overlooked the fact that the Allegretto affidavit alleges
that, subsequent to the DRBA's seizure of the claimants' currency,
claimant Johnson was arrested twice for narcotics violations in North
Carolina. However, the government has not relied upon these allegations
of subsequent arrests to uphold the District Court's probable cause
determination, the statement remains uncorroborated in the record, and
the record does not reveal the ultimate disposition of the charges.
Moreover, the parties' stipulation of facts filed in the District Court
did
not recite the allegation in the Allegretto affidavit on this issue. Given
the
government's apparent disregard of the subsequent arrests, and in the
absence of any information concerning the ultimate disposition of the
11
matter of logic, circumstantial evidence implicating
claimants in recent drug activities, such as, for example,
evidence of claimants' contemporaneous affiliation with
known drug traffickers, or claimants' possession of drugs or
drug paraphernalia at the time of the seizure, would
support the government's theory that the money in
claimants' possession is connected to illegal drug
trafficking. If presented by the government, such evidence
would have provided a strong, albeit inferential, present
link between claimants' currency and the drug trade, and
would have provided a more compelling case for forfeiture
under S 881(a)(6). Here, however, the government does not
dispute that McManus did not find drugs or drug
paraphernalia in claimants' vehicle, and it does not point to
any reliable evidence of a similar nature from which it can
be inferred that claimants were involved in drug activities
at or around the time the government seized the currency
and filed the forfeiture complaint.8
_________________________________________________________________
charges, we attach no significance to Allegretto's statement. Cf., e.g.,
United States v. $215,300 in United States Currency , 882 F.2d 417, 419
(9th Cir. 1989) (holding that claimant's previous arrest for marijuana
trafficking was not probative in forfeiture proceeding because it had been
dismissed).
8. In several cases, other courts of appeals have found that the
government had probable cause to institute forfeiture proceedings
against currency where the government presented reliable direct or
circumstantial evidence of claimants' contemporaneous involvement in
drug activities. E.g., $36,634, 103 F.3d at 1051, 1054-55 (stating that
circumstantial evidence was sufficient to show currency's link to drug
activities where claimant associated with known drug traffickers who
had been recently arrested for importing marijuana, and claimant
planned to take identical route as drug traffickers); United States v.
$149,442.43 in United States Currency, 965 F.2d 868, 876-77 (10th Cir.
1992) (finding that large amount of hidden currency, presence of drug
paraphernalia, including packaging supplies and drug notations
reflecting large drug transactions, established probable cause to forfeit
currency); United States v. $91,960.00 in United States Currency, 897
F.2d 1457, 1462-63 (8th Cir. 1990) (finding probable cause to forfeit
currency because, inter alia, claimant was found with large sum of
money and a notebook that appeared to be a record of drug transactions,
and had been convicted of drug crime one year after forfeiture); United
12
We are aware, of course, that the government need not
link the currency to "a particular identifiable illicit drug
transaction" among several to forfeit the money on the
theory that it constitutes drug proceeds. E.g. , United States
v. 92 Buena Vista Ave., 937 F.2d 98, 104 (3d Cir. 1991),
aff 'd, 507 U.S. 111 (1993); United States v. Carrell, 252
F.3d 1193, 1200 & n.8 (11th Cir. 2001). Also, the
government need not produce direct proof of a narcotics
nexus to meet its burden of establishing probable cause for
the forfeiture. Nevertheless, the quality of the
circumstantial evidence that the government does proffer to
establish probable cause to institute forfeiture proceedings
must be strong enough to support reasonable grounds for
belief that an actual, rather than purely theoretical,
_________________________________________________________________
States v. Padilla, 888 F.2d 642, 645 (9th Cir. 1989) (finding probable
cause to forfeit currency where claimant was under police surveillance at
the time of the forfeiture because he was suspected of engaging in
narcotics transactions, and police searched associates' homes and found
drugs; court found that government presented evidence that claimant
"had recently been involved in a drug transaction"); $215,300, 882 F.2d
at 419 (finding probable cause, relying upon fact that claimant's airline
ticket was issued by Miami travel agency that had issued airline tickets
for 20 to 30 other travelers from whom police had previously seized
narcotics-related currency); United States v. $5,644,540.00 in United
States Currency, 799 F.2d 1357, 1363 (9th Cir. 1986) (finding that
probable cause existed based upon, inter alia , presence of cocaine in
suitcase containing money and circumstantial evidence that claimant
was connected to motel known as site for drug transactions); United
States v. 13,000 in United States Currency, 733 F.2d 581, 585 (8th Cir.
1984) (stating that government had probable cause to forfeit currency
based upon evidence of drug paraphernalia found on claimant's person
at time of seizure and fact that, the day before the seizure, claimant
made phone calls to same apartment in New York that he called just
prior to his 1981 drug distribution arrest); United States v. $93,685.61
in United States Currency, 730 F.2d 571, 572 (9th Cir. 1984) (per
curiam) (finding that government had probable cause to forfeit currency
when claimant was arrested for drug violation and subsequent search of
house found currency, drug paraphernalia and drugs); United States v.
$84,000 in United States Currency, 717 F.2d 1090, 1099-1100 (7th Cir.
1983) (finding probable cause based on claimants' admissions that they
intended to purchase drugs in Florida with currency and additional fact
that police found narcotics with currency).
13
connection exists between the currency in claimants'
possession and the drug trade. See, e.g., RR # 1, Box 224,
14 F.3d at 869 (stating that the government must
"establish some connection between the alleged criminal
[drug] activity and the defendant property the government
seeks to forfeit"); see also $36,634.00, 103 F.3d at 1053(stating that probable cause for forfeiture means
"reasonable grounds" for believing that the currency is
connected to illegal drug activity). In our view, the
government's proofs, even when considered in the
aggregate, simply are not strong enough to establish
probable cause to believe that there had been, or was about
to be, a violation of the drug laws involving this currency.
Probable cause, as a standard of proof, "is defined as a
reasonable ground for belief in guilt." United States v. 6109
Grubb Rd., 886 F.2d 618, 621 (3d Cir. 1989); see also 92
Buena Vista Ave., 937 F.2d at 101. Furthermore,"[t]he
determination of probable cause in a forfeiture proceeding
simply involves the question whether the information relied
on by the government is adequate and sufficiently reliable
to warrant a belief by a reasonable person" that the
currency is connected to illicit narcotics activities. 6109
Grubb Rd., 886 F.2d at 621 (citations omitted); accord RR
#1, Box 224, 14 F.3d at 869 (stating that government can
meet burden if it establishes "probable cause that the
property is connected to criminal activity based upon
information adequate and sufficiently reliable to warrant
the belief that the property was used to further the
trafficking of illegal narcotics") (internal quotation marks
omitted). As stated by the United States Court of Appeals
for the Ninth Circuit, "to pass the point of mere suspicion,
it is necessary to demonstrate by some credible evidence
the probability that the money was in fact connected to
drugs." $30,060.00, 39 F.3d at 1041 (second emphasis
added) (internal quotation marks omitted). We determine
whether probable cause exists by reviewing the aggregate
facts that the government has presented. E.g. , 92 Buena
Vista Ave., 937 F.2d at 104.
As we previously mentioned, the government's in rem
complaint alleged, in a rather conclusory fashion, two
possible connections between claimants' currency and a
14
predicate violation of the drug laws. It claimed that
claimants intended to use the currency to facilitate a drug
exchange, or that the currency constituted proceeds
traceable to such an exchange by claimants at some point
in the past. Allegretto's affidavit provided a more specific
(albeit unsupported) hypothesis, namely that the money
was connected to a drug exchange because the claimants
were most likely traveling to New Jersey to purchase drugs
with the currency.
In support of these competing forfeiture theories, the
government relies on several pieces of evidence, which, in
its view, demonstrate that it had probable cause to believe
that the currency was connected to a completed, or
intended, drug exchange. It points to the seemingly large
amount of cash found in the claimants' bags and the
manner of storage of the currency (rubber-banded in
bundles and concealed in bag), and also the claimants'
prior drug convictions. It also relies on the canine's positive
reaction to the currency and the results of the ION Scan
Analysis. Finally, it cites the claimants' alleged residence in
a high drug activity area in Wilmington, North Carolina,
claimants' allegedly suspicious conduct during McManus's
questioning, their violation of the rental car agreement,
their possession of cellular phones, cologne and air
freshener in the vehicle, and McManus's statement
characterizing I-295 as having a volume of drug trafficking.
In reviewing the sufficiency of the government's
information, we " `review each piece of evidence only to
determine whether it is probative, not whether it
establishes probable cause standing alone.' " United States
v. 255 Broadway, 9 F.3d 1000, 1004 (1st Cir. 1993)
(quoting United States v. $67,220.00 in United States
Currency, 957 F.2d 280, 285 (6th Cir. 1992)). And because
there are " `many variables in the probable cause
equation,' " each case necessarily turns on its own unique
facts. Id. (quoting United States v. Maguire, 918 F.2d 254,
258 (1st Cir. 1990)).
First, we recognize that the evidence concerning the
claimants' allegedly "suspicious" and nervous behavior
during the traffic stop can be considered in determining
whether the government had probable cause to forfeit
15
claimants' currency. E.g., United States v. $129,727.00 in
United States Currency, 129 F.3d 486, 490 (9th Cir. 1997)
(noting that claimant was "nervous and shaking as he
spoke to officers"). However, claimants' apparent
nervousness is of minimal probative value, given that
many, if not most, individuals can become nervous or
agitated when detained by police officers. E.g., United States
v. One Lot of United States Currency ($14,665), 33 F.
Supp.2d 47, 55 (D. Mass. 1998) (noting that claimant's
nervousness during interaction with law enforcement
officers "is not an unreasonable response, regardless of the
source and intended use of the currency").
Moreover, claimants' allegedly "suspicious" behavior
during the stop and their violation of the rental car
agreement are not particularly probative factors because, at
best, they suggest involvement in some unspecified furtive
activity; they do not indicate, more specifically, that
claimants had engaged, or were about to engage, in a drug
sale with this currency. E.g., United States v. $5,000 in
United States Currency, 40 F.3d 846, 850 (6th Cir. 1994)
(stating that claimant's evasive explanation of purpose of
trip provided, at best, "inchoate and unparticularized
suspicion") (internal quotation marks omitted);
$191,910.00, 16 F.3d at 1072 (observing that discrepancies
in claimant's story raised "a suspicion that[he] was
involved in illegal activities, but not probable cause"). In
this regard, we further point out that claimants'
"suspicious" actions consisted mostly of providing
inconsistent answers concerning the destination and
purpose of their trip, but the discrepancies cited by the
government are not great. For example, claimants Johnson
and Thomas indicated that they were traveling to New
Jersey to visit family, while the driver, Whitfield, stated that
they were going shopping but was not sure of their ultimate
destination. When McManus discovered the currency,
Johnson indicated that they were en route to purchase a
car, but that explanation is not irreconcilable with their
previous response that they were traveling to New Jersey to
visit family, or were going shopping. In any event, to the
extent that the claimants' somewhat inconsistent answers
might be suggestive of possible involvement in some
16
criminal activity, we do not view the inconsistencies as a
strong indication of a narcotics nexus.
Similarly, claimants' travel on Interstate 295, which
Officer McManus's report characterizes as having"some
volume" of drug trafficking, A-77, is a factor to be
considered in evaluating the totality of the circumstances.
See, e.g., $22,474.00, 246 F.3d at 1216 (noting that travel
route to Phoenix, a known drug source city, is probative of
probable cause to forfeit currency). Here, however,
claimants' travel route is a minor consideration in the
overall probable cause analysis, as travel on I-295 through
Delaware is not an occurrence so "out of the ordinary" as
to be even marginally suggestive of claimants' present
involvement in the drug trade.9See, e.g., United States v.
Sokolow, 490 U.S. 1, 9-10 (1989) (noting that innocent
behavior may provide a basis for reasonable suspicion, but
_________________________________________________________________
9. While the government also relied on the presence of cologne, cellular
telephones and air freshener in the vehicle as indicators of a valid
narcotics nexus, we do not view these factors as probative on this issue.
Aside from the general allegation in the Allegretto affidavit that all of
the
facts and circumstances indicated to him that the currency was drug-
related, A-7, the government has not presented any evidence that
addresses the more specific issue of whether the presence of these
objects is indicative of involvement in the drug trade. In the absence of
a record basis for concluding that these factors are indicative of drug-
related activity, we will ascribe no significance to the presence of these
items in evaluating whether the government had probable cause to
institute the forfeiture. See, e.g., 30,060.00, 39 F.3d at 1044 (rejecting
government's argument that drug dealers carry money in wrapped
bundles and its statement that the amount involved was consistent with
the cost of two kilograms of cocaine because "it provide[d] no authority
for these contentions, which are, in any event, speculative"); cf.
$129,727.00, 129 F.3d at 488-89 (finding probable cause to forfeit,
crediting testimony by DEA agent with eight years' experience that many
of claimants' actions were consistent with drug courier profile). In any
event, were we to consider this information, the degree of probative value
we would attach to it is minimal, as the presence of these objects is not
"out of the ordinary" in the sense that few persons would possess these
items while traveling. See, e.g., United States v. Sokolow, 490 U.S. 1, 8
(1989) (stating that defendant's cash purchase of two airline tickets was
probative because that conduct was "out of the ordinary, and it [was]
even more out of the ordinary to pay that sum from a roll of $20 bills
containing nearly twice that amount of cash").
17
that it depends on the degree of suspicion that attaches to
particular noncriminal acts); Reid v. Georgia , 448 U.S. 438,
441 (1980) ("The other circumstances describe a very large
category of presumably innocent travelers, who would be
subject to virtually random seizures were the Court to
conclude that as little foundation as there was in this case
could justify a seizure."); see also $30,060.00, 39 F.3d at
1045 (distinguishing previous cases upholding forfeiture of
currency where claimants had traveled on an airplane to or
from a drug source city, stating that claimant was merely
"driving a car when he ran a stop sign").
Moreover, the record contains no evidence in support of
McManus's bald assertion that I-295 has "some volume" of
drug activity and no proffer of her experience or training
that might lend credibility to that assertion. Lacking a basis
for this proposition, such as some recitation of her
experience or training and how that experience or training
supports her conclusion, we cannot credit the fact that the
claimants were using a major interstate to be probative of
drug trafficking. See Rivera v. Murphy, 979 F.2d 259, 264
(1st Cir. 1992) (noting that conclusions drawn from the
experience and training of a police officer must be
"sufficiently conveyed" so as to be understood by the
average reasonably prudent person before they can support
probable cause). We also point out that claimants' travel
route was consistent with what they told McManus they
intended to do -- travel from North Carolina to northern
New Jersey to visit family and/or purchase a car-- which
further mitigates the probative value of their travel on I-
295. See, e.g., $36,634, 103 F.3d at 1055 (stating that
claimant's assertion that he was traveling to Las Vegas to
gamble and look for a pizza shop to purchase "made no
sense in light of the fact that his ticket provided only a
brief, middle-of-the-night layover in that Nevada city").
The government also points to the fact that the DRBA
officer received information from the Wilmington, North
Carolina Police Department that claimants resided in a
section of Wilmington characterized as a "high drug area."
However, this statement is not probative of whether the
money in claimants' possession was drug-related because,
unlike evidence linking claimants' actual place of residence
18
to known previous narcotics activities, e.g., United States v.
$5,644,540.00 in United States Currency, 799 F.2d 1357,
1363 (9th Cir. 1986) (suspect's address was motel known
as a site for drug transactions), or information concerning
claimants' known association with accused drug traffickers,
e.g., $36,634, 103 F.3d at 1054 (claimant associated with
recently arrested, known drug traffickers), the fact that
claimants reside in a neighborhood that local law
enforcement officers identified as a high drug activity area
does not "meaningfully relate" to any specific conduct by
these claimants that could be viewed as indicative of a
narcotics nexus, id. at 1055 n.9. Rather, the officer's
statement is a general observation that could apply equally
to many other innocent individuals who have engaged in no
criminal wrongdoing, let alone a violation of the drug laws.
We also think it is significant that the police officer's
hearsay statement concerning claimants' neighborhood
lacked any further explication and remains uncorroborated
in the record, both of which weigh against a finding that
the statement is probative of the currency's connection to
narcotics. See, e.g., $506,231, 125 F.3d at 452 & n.7
(discounting hearsay statement in IRS agent's affidavit
concerning a narcotics delivery to claimants' premises
because, although it is permissible to rely on hearsay to
establish probable cause to forfeit, it did not"believe that
this hearsay [was] particularly reliable"); $67,220.00, 957
F.2d at 286 (discounting DEA agent's statement that he
had "reason to believe that [claimant] sold cocaine" because
agent "refused to offer any basis for his belief that
[claimant] had sold drugs").
The government relies heavily on the remaining factors --
the positive dog sniff, the results of the ION Scan Analysis,
the claimants' previous convictions, and the large amount
of currency and manner of packaging (rubber-banded in
large bundles) -- as establishing probable cause to believe
that the money is linked to a consummated or
contemplated drug transaction. Its substantial reliance on
these pieces of circumstantial evidence is understandable
given that they are the factors that point most directly to a
contemporaneous connection between the currency and
potential illegal narcotics activities by claimants. However,
upon closer examination, these factors do not carry the
19
evidentiary significance that the government ascribes to
them.
First, we attach no significance to the evidence derived
from the post-seizure dog sniff. While we recognize that we
have previously, on occasion, accepted proof of a positive
canine alert as probative in other contexts,10 we have not
_________________________________________________________________
10. For example, in United States v. Massac , 867 F.2d 174, 176 (3d Cir.
1989), we upheld the defendant's warrantless arrest, concluding that the
government had probable cause to arrest based upon an informant's tip
that the defendant and her companion acted suspiciously in booking the
trip from Florida, the companion's suspicious conduct upon arrival in
Wilmington, Delaware, and the trained dog's positive reaction to the
defendant's luggage at the train station. We found the dog sniff evidence
was probative because "of the fact that trained dogs can detect the
presence of concealed narcotics with almost unerring accuracy and the
finding of the district court that this particular dog met the training
and
reliability requirements." Id. Subsequently, in United States v. Carr, 25
F.3d 1194 (3d Cir. 1994), we affirmed the defendant's conviction for
conspiracy to launder money from a specified unlawful activity -- the
felonious sale and distribution of drugs -- based in part on evidence that
a trained dog alerted to the money at issue. Id. at 1202-03. Over Chief
Judge Becker's dissent, we found that the positive alert to the money
found in the defendant's residence was but "only one piece of evidence"
tending to prove the defendant's guilt and involvement in the conspiracy,
and that the cumulative weight of all of the evidence was sufficient to
support the conviction. In a footnote, we specifically rejected the
argument that the dog sniff evidence had no probative value because of
the circumstance that a large portion of the nation's currency is tainted
with drugs. Id. at 1202 n.3. This position, however, is not without its
detractors. E.g., id. at 1216-17 (Becker J., concurring in part and
dissenting in part) ("I am inclined to the view that the information now
available establishes a strong presumption against the admissibility of
evidence of a canine's alert to currency, and that the government can
rebut that presumption only if it first clearly and convincingly
establishes outside the presence of the jury, the relevance and non-
prejudicial character of the offered evidence."); United States v. Frost,
999 F.2d 737, 745 (3d Cir. 1993) (Pollak, J., concurring) (noting that
defendant's contention that probable cause to search could not be based
upon result of a positive canine alert was "not .. . frivolous," but that
he waived the argument by not making it in the district court). In any
event, our analysis in Carr is consistent with the result we reach here
because in Carr, we specifically referred to the fact that it was the
results
of a "trained" dog alert that were admitted in the district court. Carr,
25
F.3d at 1203.
20
yet considered the extent to which a positive canine alert on
a bundle of money is probative in assessing the
653government's probable cause to forfeit that currency
pursuant to S 881(a)(6) based on its connection to drug
trafficking. We note, however, that several of our sister
circuits recently have called into question the evidentiary
significance of a positive reaction to currency in
determining whether there is probable cause to forfeit the
money in light of studies indicating that a large percentage
of United States currency is contaminated with sufficient
traces of drug residue to cause a canine to "alert" to it. E.g.,
$506,231, 125 F.3d at 453 ("[W]e are unwilling to take
seriously the evidence of the post-seizure dog sniff. . . .
Even the government admits that no one can place much
stock in the results of dog sniffs . . . ."); $5,000, 40 F.3d at
849 ("We likewise find the evidentiary value of the . . . dog
sniff minimal."); $30,060.00, 39 F.3d at 1043 (finding that
probative value of a dog's positive alert in Los Angeles "is
significantly diminished" because of the evidence of
widespread contamination in that geographical area, and
stating that reliance on such evidence to separate
"legitimate currency from drug-connected currency is
logically indefensible") (internal quotation marks omitted).
Nevertheless, for our purposes, we need not determine,
as a general matter, the evidentiary weight that should be
given to a positive dog reaction to seized currency. We agree
with claimants' position that, on the facts of this case, the
government's evidence of the dog's positive alert to the
currency is not probative of whether the money can be
connected to a drug exchange, because the government has
not presented any evidence concerning this particular dog's
past training and its degree of accuracy in detecting
narcotics on currency. Therefore, we have no record basis
for concluding that this evidence bolsters the government's
case. See United States v. Carr, 25 F.3d 1194, 1203 (3d Cir.
1994) (accepting proof of positive alert by "trained" canine
as evidence tending to support conviction); United States v.
Massac, 867 F.2d 174, 176 (3d Cir. 1989) (concluding that
the positive canine alert on defendant's luggage gave police
probable cause to arrest, relying in part on District Court's
conclusion that canine "met the training and reliability
requirements"); $67,220.00, 957 F.2d at 285-86 (stating
21
that, as a general principle, a positive dog reaction is
"strong evidence" of drugs, but that, on the record, it was
probative but "weak" consideration because there was "no
indication in the record as to the trustworthiness of this
particular dog"; court ultimately upheld forfeiture based on
strength of other evidence); see also $22,474.00 , 246 F.3d
at 1216 (accepting evidence of positive dog sniff as
probative of whether money was connected to illicit drug
trafficking where evidence confirmed that dog would not
alert to cocaine residue found on currency in general
circulation); United States v. $215,300 in United States
Currency, 882 F.2d 417, 419 (9th Cir. 1989) (finding that
government had probable cause to forfeit where government
relied on, inter alia, "uncontradicted trial testimony
establish[ing] that the particular police dog had an
unblemished record for detecting narcotics"). Thus, even
were we to assume that, on a sufficiently developed record,
a dog sniff could carry some probative value in determining
whether the currency is connected to a drug crime, the
positive alert in this case does not rise to the level of
credible evidence tending to link this currency to narcotics
activities by claimants.
We reach the same conclusion with respect to the
evidentiary significance of the results from the ION Scan
Analysis on the currency and the car. The government
simply has not produced evidence concerning the reliability
of this particular testing process or the training and
qualifications of the tester, two factors which, of course,
bear on the reliability and accuracy of the results. Instead,
the parties' stipulation of facts merely incorporates the test
results without providing any explanation of how the test
measures the levels of narcotics on the currency, what the
test results showed with respect to the levels and types of
narcotics detected, and why those results were scientifically
significant when compared to the results on other parts of
the vehicle, or for that matter, when compared to"the
norm."11 Also, the parties' stipulation does not provide any
_________________________________________________________________
11. Our review of the test results indicates that for each area of the
vehicle that was vacuumed and subject to analysis, the test results were
plotted on a separate graph. The two graphs that reported the testing on
22
indication that the test itself was administered properly so
as to ensure reliability of the results. The only evidence we
do have in the record are the actual test results plotted on
graphs, A-28 to A-33, a report from the individual who
administered the scan explaining the logistics of how he
conducted the test, i.e., testing each item separately, A-81
to -82, and a cursory explanation in the Allegretto affidavit
that the test "showed high levels of cocaine residue" on the
currency. A-6. But the documents the government has
provided in the record do not provide sufficient information
to guide us in evaluating the evidentiary significance of the
test results, even though it is the government that bears
the initial burden of establishing that it had probable cause
to initiate the forfeiture proceeding.
Thus, the government has left us to our own devices to
decipher the meaning of the test results and evaluate their
evidentiary significance in establishing probable cause to
forfeit the currency. Given the circumstances, we simply
cannot accept the government's conclusory statement that
the test results show claimants' involvement in"significant
drug activity." We conclude that the lack of credible
information in the record concerning the ION Scan Analysis
compels the conclusion that the results cannot be
considered a factor weighing in the government's favor in
the overall probable cause analysis. Cf., e.g. , Rivera, 979
F.2d at 264 (noting that officer's training and experience
are factors to consider in determining probable cause, but
observing that the "relevance [of such experience and
training] in a particular case must be sufficiently conveyed
so that . . . it can be understood by the average reasonably
prudent person") (internal quotation marks omitted);
_________________________________________________________________
the currency and the trunk are marked "ALARM," and there appears to
be a higher level of cocaine indicated on each graph as compared to
other substances indicated. However, we also note that on these graphs,
the test recorded an increased (but less significant) presence of a
substance marked "Cal," but we have no explanation as to what "Cal"
represents. The government has given us little context in which to
evaluate the test results; we simply do not know from the record what
the peaks mean, how the test works, and why we should accord the
results any evidentiary significance.
23
$67,220.00, 957 F.2d at 286 (stating that positive dog
reaction was "weak evidence" in the probable cause
equation because the government failed to establish
reliability of the dog; court noted that it had to consider
"the relative strengths and weaknesses of the evidence"); 2
Wayne R. LaFave, Search and Seizure S 3.2(c) (3d ed. 1996)
(noting that "[u]nder the probable cause standard, it must
`be possible to explain and justify [the seizure] to an
objective third party,' and this is not accomplished by a
general claim of expertise").
Finally, and perhaps most importantly, the government
points to the large amount of cash, the manner in which
the currency was transported, and claimants' prior
convictions as the strongest evidence in its favor. It
contends that the presence of a large sum of cash in a
vehicle occupied by individuals previously convicted of drug
offenses provides the requisite connection between
claimants' currency and illegal drug activities.
While these factors admittedly might cause one to
suspect that claimants may have been involved, or about to
engage, in drug activities with this money, are they enough,
when considered with the other suspicious circumstances,
to give rise to the reasonable belief that such was the case?
We think not. We recognize that the amount of money in
claimants' possession and the method of packaging
constitute probative circumstantial evidence that the
currency itself is connected to illicit narcotics transactions.
E.g., United States v. $149,442.43 in United States
Currency, 965 F.2d 868, 877 (10th Cir. 1992); $67,220.00,
957 F.2d at 285. However, given the circumstances
presented here, we do not view these factors as particularly
probative of a narcotics nexus. For one thing, the amount
of money in claimants' possession is consistent on its face
with their statement that they intended to purchase a car,
a factor that weighs in their favor in evaluating the totality
of the circumstances. See $22,474.00, 246 F.3d at 1214(affirming probable cause determination where, inter alia,
claimant indicated that he was en route to purchasing two
vehicles but the amount of money he possessed was
insufficient to cover both transactions). Also, it is
significant that claimants did not lie about the amount of
24
cash they possessed when Officer McManus questioned
them, and they immediately claimed ownership of the
money after they voluntarily consented to the search of
their bags. Both of those considerations weigh in claimants'
favor in the probable cause calculus. See, e.g. , $67,220.00,
957 F.2d at 286 (holding that government had probable
cause to forfeit based upon fact that claimant twice
understated amount of cash he was carrying); $215,300,
882 F.2d at 418-19 (finding probable cause to forfeit where,
inter alia, claimant lied about amount of money he
possessed, stating he had only $15,000, where search
revealed additional $201,000 in his socks and apron);
$83,310.78, 851 F.2d at 1235 (probable cause found where
police found $125,410 in cash in claimant's home,
individual attempted to hide cash, and everyone present
consistently denied ownership of money); United States v.
$40,000 in United States Currency, 999 F. Supp. 234, 237
(D.P.R. 1998) (finding that government failed to establish
probable cause based upon, inter alia , the fact that
claimant informed police officer of the quantity of cash that
he was carrying and made no attempt to lie about the
amount). Thus, while the possession of a large sum of
money can, in some cases, be viewed as indicative of
claimants' involvement in drug transactions, given the
totality of circumstances concerning the currency, we do
not find their possession of the cash at issue here as
strongly suggestive of a narcotics nexus. In fact, on
balance, this factor appears rather neutral.
As for the manner of packaging--rubber-banded in large
bundles and concealed in baggage--the government has not
presented evidence that this method of storage is unique to
the drug trade.12 See, e.g. , $30,060.00, 39 F.3d at 1044(rejecting government's contention that drug dealers carry
their money in wrapped bundles and that the amount of
money was consistent with the cost of two kilograms of
cocaine, stating that the government "provides no authority
for these contentions which are, in any case, speculative");
see also $129,727.00, 129 F.3d at 491 (finding probable
_________________________________________________________________
12. The government also points out that the money found in Johnson's
bag was double-bagged in plastic, but there is no evidence in the record
that narcotics-related currency is generally transported in this fashion.
25
cause to forfeit where government received informer's tip
that led DEA to claimant, claimant fit drug courier profile,
and carried $115,000 in cash; court stated that key factor
was DEA agent's testimony that many drug couriers wrap
drugs or drug money in fabric softener sheets and plastic
wrap in an attempt to avoid detection of traces of narcotics
by drug sniffing dogs). Moreover, we agree with the
observation by the United States Court of Appeals for the
First Circuit that "[t]here is little significance in the fact
that [claimants' money] was concealed," as"[f]ew people
carry money, especially large sums, in any way other than
`concealed.' " $36,634, 103 F.3d at 1055 n.8. Thus, the
government has failed to provide evidence in the record that
would support the conclusion that the manner in which the
currency was packaged weighs in the government's favor.
Finally, the government points to the prior convictions as
supplying the requisite proof that claimants' currency could
be linked to drug activity. We recognize, of course, that
evidence of a prior drug conviction is probative of probable
cause to forfeit currency in the claimant's possession under
S 881(a)(6), e.g., $22,474.00, 246 F.3d at 1217; $83,310.78,
851 F.2d at 1236, just as a defendant's criminal record
may be considered a probative factor in evaluating probable
cause in the Fourth Amendment context, e.g., Conley, 4
F.3d at 1207; United States v. Frost, 999 F.2d 737, 744 (3d
Cir. 1993). However, here, the prior convictions do not
provide an adequate link between claimants' currency and
illicit narcotics activities so as to establish probable cause
for the forfeiture.
To be sure, claimants' prior convictions demonstrate that
claimants could be linked to the narcotics trade in the past,
and in that sense, their criminal record is probative
because it might give rise to a reasonable suspicion or
"hunch" that the currency in their possession was drug-
related. But in our view, without additional credible
evidence linking claimants, and thus, their currency, to
drugs, claimants' prior convictions do not provide a
sufficient temporal link to the drug trade to support the
forfeiture of claimants' currency. This result is appropriate
where, as here, claimants were not charged with narcotics
violations based on the events that led to the forfeiture,
26
there is no credible evidence in the record that links
claimants to any current drug activities,13 and the
remaining evidence is not specific enough to the drug trade
to provide the requisite connection or "hook" to narcotics.
E.g., $5,000, 40 F.3d at 849-50 (finding that government
lacked probable cause to forfeit currency, and discounting
claimant's prior drug conviction, stating "the fact that
[claimant] pleaded guilty to state drug charges more than
six years earlier is of little import here: a man's debt to
society cannot be of infinite duration").
In sum, we have considered the probative force of the
credible evidence in its totality, and we cannot agree that
the government has satisfied its burden of establishing that
it had reasonable grounds to believe that the claimants had
committed, or were about to commit, a predicate violation
of the drug laws, and that the currency was "connected" to
that drug activity. While some of the factors upon which the
government relies arguably are suspicious and suggestive of
involvement in some illicit activity, and might even support
a "hunch" that the money somehow was connected to the
drug trade, they do not rise to the level of establishing
probable cause to institute forfeiture proceedings under
S 881(a)(6). Rather, to establish probable cause in this
context, the evidence must be sufficient to link the
currency, via the claimants' actions, to the illegal drug
trade in a manner that would support a reasonable belief
that the money is, in essence, "drug money." See, e.g.,
$30,060.00, 39 F.3d at 1044 (finding that"suspicions of
general criminality are not enough" and observing that
there was no credible evidence connecting claimant's money
to drugs; court noted that claimant " `could just as easily
have been a distributor of street money in a political
campaign, an embezzler, a jewel smuggler, an art thief, or
an S&L crook as a drug conspirator' ") (quoting $191,910,
16 F.3d at 1072) (internal quotation marks omitted). Here,
the credible evidence the government relies upon simply is
too weak, both qualitatively and quantitatively, to support
the District Court's determination that the money was, in
_________________________________________________________________
13. See generally note 8, supra (listing cases in which government
presented circumstantial evidence of recent connection to or involvement
with drugs to establish probable cause to forfeit currency).
27
fact, drug-related. See Alabama v. White, 496 U.S. 325, 330
(1990) ("Reasonable suspicion, like probable cause, is
dependent upon both the content of information possessed
by the police and its degree of reliability. Both factors --
quantity and quality -- are considered in the`totality of the
circumstances . . . .' "); $30,060.00, 39 F.3d at 1041(relevant inquiry is whether credible evidence establishes
the probability that money was "in fact" connected to drugs)
(internal quotation marks omitted). In such circumstances,
we agree with the following observation by the United
States Court of Appeals for the Seventh Circuit:
Nothing ties this money to any narcotics activities that
the government knew about or charged, or to any
crime that was occurring when the government
attempted to seize the money. . . . We reiterate that the
government may not seize money, even a half a million
dollars, based on its bare assumption that most people
do not have huge sums of money lying about, and if
they do, they must be involved in narcotics trafficking
or some other sinister activity. Moreover, the
government may not require explanations for the
existence of large quantities of money absent its ability
to establish a valid narcotics nexus.
$506,231, 125 F.3d at 453-54 (emphasis added).
Under S 881(a)(6), the government must present sufficient
facts to warrant a reasonable belief that the seized property
was connected to illicit drug activities. We conclude that
the government has failed to meet its burden in this case.
IV. CONCLUSION
For the foregoing reasons, we will REVERSE the District
Court's Decree of Forfeiture entered on April 28, 2000, and
will REMAND the matter with directions that the District
Court enter judgment in favor of the claimants.
28
BRIGHT, Circuit Judge, concurring.
I write separately to add emphasis that, in this case, this
court calls a halt to a government's attempt under the
forfeiture statute to take someone else's money based on
chimerical or flimsy evidence or even pretext. I
wholeheartedly join in Judge Rendell's opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
29