In re $75,000.00 U.S. Currency , 101 N.E.3d 1209 ( 2017 )

[Cite as In re $75,000.00 U.S. Currency, 2017-Ohio-9158.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105314
IN RE: $75,000.00 U.S. CURRENCY
[Appeal by Brian Katz]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-16-860295
BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 21, 2017
ATTORNEY FOR APPELLANT
James R. Willis
1144 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Jennifer Meyer
Assistant County Prosecutor
1200 Ontario Street
Justice Center, 8th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Claimant-appellant, Brian Katz, appeals the trial court’s judgment, ordering
the forfeiture of the $75,000 seized from him on March 11, 2016. On appeal, he raises
two assignments of error for our review:
1. The court erred when it denied the motion to suppress and for the return
of illegally seized property.
2. Given the state cannot seize money from an individual, with or without
probable cause, and require the person from whom it was seized to prove it
was lawfully acquired, it follows the court erred when it forfeited this
money to the state.
{¶2} Finding no merit to the assignments of error, we affirm.
I. Procedural History and Factual Background
{¶3} On March 11, 2016, the state filed a complaint for civil forfeiture of the
$75,000 found in Katz’s vehicle pursuant to R.C. 2981.05. On May 31, 2016, Katz filed
a motion to suppress the money found during the traffic stop. At the hearing on both the
motion to suppress and forfeiture, the following evidence was presented.
{¶4} In January 2016, Detective Payne with the city of Broadview Heights was
assigned to the Cleveland, Ohio high intensity drug trafficking area (“HIDTA”). Along
with other HIDTA assigned officers, Detective Payne was conducting surveillance on a
number of individuals suspected of drug trafficking who were traveling to and from the
Cleveland Hopkins Airport and leaving and entering multiple hotels and residences
throughout their stays in Cleveland. During his surveillance, Detective Payne conducted
criminal history checks of the observed individuals and even approached them in the
airport and searched their bags after receiving their consent to do so; however, he and the
other officers found nothing of evidentiary value in their bags. Detective Payne and
HIDTA officers also searched one of the hotel rooms where the individuals stayed,
finding drug residue and other materials that Detective Payne testified were commonly
used to package and transport drugs.
{¶5} On February 15, 2016, HIDTA officers observed one of the individuals pick
up two males at the airport, one being Katz. The individual dropped Katz off at a hotel
in Cleveland, where Katz paid cash for a one night’s stay. The next day, HIDTA
officers observed Katz travel to a Cleveland residence with the same males from the day
before. At the residence, Katz entered a 2014 Toyota Camry with California license
plates and drove away.
{¶6} HIDTA officers continued to follow Katz and informed a local Ohio State
Highway Patrol officer, Lieutenant Hughes, that they suspected Katz to be a drug courier
and gave him a description of the vehicle. Lieutenant Hughes subsequently observed
Katz’s vehicle traveling over the speed limit on Interstate 71. Lieutenant Hughes paced
Katz’s vehicle at a speed over the speed limit for a short distance and then activated his
emergency lights and conducted a traffic stop at approximately 1:39 p.m.
{¶7} After approaching the vehicle and asking for Katz’s license and
registration, Lieutenant Hughes requested Katz to accompany him to his vehicle and
conducted a pat down of Katz’s person. While sitting in the police cruiser, Lieutenant
Hughes ran Katz’s information. During this time, Katz asked for a break, but did not
deny that he was speeding. Approximately five minutes after Lieutenant Hughes
stopped Katz and during the time that Lieutenant Hughes was running Katz’s
information, Officer Andrejack of the Cleveland Police Department and his canine
partner arrived at the scene upon request from HIDTA officers. While encircling the
vehicle, the canine positively alerted. Subsequent to that alert, Lieutenant Hughes read
Katz his Miranda warnings and asked him if there were drugs or money in the vehicle.
Katz stated, “Not that I know of.” Katz was then securely placed in the back of a patrol
car.
{¶8} Lieutenant Hughes and other officers began to search the vehicle on the
side of Interstate 71; however, due to weather conditions and safety concerns, the officers
requested a tow, deciding to conduct the search at the Brookpark State Highway Patrol
post instead. Katz was also transported to the post and held in a separate room while the
police conducted their search.
{¶9} A search of the vehicle yielded 13 bundles of U.S. currency, totaling
$75,000, which was hidden in the vehicle’s rear rocker panels.1 The money was vacuum
sealed, covered in brake grease, and then vacuum sealed again.2 Upon finding the
1
At the hearing and during his testimony, Katz contested the amount of money that was in
the vehicle. Katz stated that there was $105,000 in the vehicle in 15 bundles, but that only $75,000
“turned up.”
2
When asked about the packaging of the money at the forfeiture hearing, Katz testified that
he coated the money in brake grease “because it deters any odors” and he was “just protecting [his]
assets.”
money and confirming that he was already Mirandized and understood his rights,
Detective Payne then interviewed Katz. When Detective Payne asked him about the
money, Katz stated that it was “absolutely not” his and denied knowing about the hidden
compartments in the vehicle. Katz provided a signed statement to Detective Payne,
stating, “I never knew about money found in car. It’s not my money. 2014 Camry.”
{¶10} Before letting Katz — who was not placed under arrest — leave for the
airport, the officers gave Katz a receipt for the money, vehicle, and other property inside
the car.3 As for the speeding violation, Lieutenant Hughes only issued Katz a written
warning.
{¶11} At the forfeiture hearing and contrary to his earlier statements to police,
Katz claimed that the money belonged to him and was his life savings. Specifically, the
following exchange took place at the hearing:
ATTORNEY: [W]ho owned the money?
MR. KATZ: Me.
ATTORNEY: And how long had that money been in that car?
MR. KATZ: In that car for two years.
ATTORNEY: Yes. And what’s the source of that money?
MR. KATZ: It’s been income I’ve been earning for the last 25, 30
years.
3
Although the 2014 Toyota Camry was listed on the receipt, the officers released the vehicle
to the Toyota leasing company, based on the alterations made to the vehicle — specifically, the
hidden compartments — which violated the terms of Katz’s lease agreement.
ATTORNEY: Your life savings?
MR. KATZ: Yes. I lost a lot of money in 2008, in the crash, because
I had most of my funds in the stock market[.] * * * So I
decided to keep my money, to hide it, and I paid taxes
on the money anyway, because it was income. So it
was my hard-earned money for 44 years[.]
Further, when asked why he initially denied knowledge and ownership of the money,
Katz explained that he believed he would be arrested for a hidden-compartments violation
if he claimed the money.
{¶12} In its opinion and judgment entry, the trial court denied Katz’s motion to
suppress, finding that the traffic stop was constitutional because Katz was speeding, the
traffic stop was not unlawfully prolonged, the police had probable cause to search the
vehicle because the canine alerted, and the police’s removal of the vehicle to the patrol
post was lawful.
{¶13} Additionally, the trial court found that Katz failed to establish his
ownership of the funds. Nevertheless, the trial court considered the merits of the
forfeiture action and additionally found that the state proved by a preponderance of the
evidence that the money was subject to forfeiture. Specifically, the court stated that it
was:
more probable than not * * * that $75,000 in currency, wrapped in plastic,
coated with brake grease to avoid scent detection, then vacuum sealed and
placed in [a] hidden compartment in a vehicle, is either proceeds derived
from or acquired through the commission of an offense or an
instrumentality that was used in or intended to be used in the commission or
facilitation of a felony.4
{¶14} It is from this judgment that Katz appeals.
II. Law and Analysis
A. Motion to Suppress
{¶15} In his first assignment of error, Katz argues that the trial court improperly
denied his motion to suppress the money seized from his vehicle during the March 11,
2016 traffic stop because the officers’ claim of a traffic violation was pretext, the drug
dog did not actually alert to drugs, the officers unconstitutionally delayed their search, the
officers lacked a search warrant, and the officers took statements from Katz in violation
of his constitutional rights.
Standard of Review
Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses. Consequently, an
appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. Accepting these facts as true,
the appellate court must then independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.
(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8.
The Exclusionary Rule in Forfeiture Cases
4
We will discuss more specific facts related to the appellant’s assignments of error and the
trial court’s opinion more fully in the body of this opinion.
{¶16} In support of his motion to suppress, Katz argues that the exclusionary rule
applies to civil forfeiture actions, citing One 1958 Plymouth Sedan v. Pennsylvania, 380
U.S. 693, 85 S.Ct.1246, 14 L.Ed.2d 170 (1965). The state argues that the exclusionary
rule does not apply in civil actions, citing State ex rel. Roszmann v. Lions Den, 89 Ohio
App.3d 775, 627 N.E.2d 629 (12th Dist.1993). We agree with Katz.
{¶17} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. The exclusionary rule, which
upholds the rights guaranteed by the Fourth Amendment, applies to forfeiture proceedings
because they are quasi-criminal in nature, penalizing individuals by depriving them of
their property. One 1958 Plymouth Sedan at 701-702; see also State v. Recinos, 5th
Dist. Richland No. 14CA9, 2014-Ohio-3021, ¶ 24, citing State v. Roberts, 102 Ohio
App.3d 514, 657 N.E.2d 547 (9th Dist.1995) (holding that forfeiture actions are
“instituted as a criminal penalty”).
{¶18} The state’s case, Roszmann, is unpersuasive for several reasons. In that
case, the Twelfth District Court of Appeals, reviewing a nuisance action filed by the state
against a local adult arcade, stated, “‘[G]enerally, the exclusionary rule has not been
applied in civil cases; we see no reason to expand the exclusionary rule to the facts of this
case.’” Id. at 786, quoting State ex rel. Rear Door Bookstore v. Tenth Dist. Court of
Appeals, 63 Ohio St.3d 354, 588 N.E.2d 116 (1992). If we were to adopt the state’s
position, that adoption would directly conflict with the United States Supreme Court’s
decision in One 1958 Plymouth Sedan. Further, the Twelfth District’s use of
“generally” shows that the exclusionary rule is sometimes applied in civil cases, such as
forfeiture actions. Roszmann is distinguishable in that it — as well as the case it cites to,
Rear Door — concerned a nuisance action, which, unlike forfeiture actions, is not
recognized as a “quasi-criminal” proceeding in Ohio. See Hamilton v. Ebbing, 12th
Dist. Butler No. CA2011-01-001, 2012-Ohio-2250, ¶ 25 (rejecting the appellant’s
argument that a nuisance abatement action was a “quasi-criminal” action).
{¶19} Further, as the trial court pointed out, since the Supreme Court’s holding in
One 1958 Plymouth Sedan, Ohio courts have held that the exclusionary rule applies to
forfeiture proceedings. See State v. Crumpler, 9th Dist. Summit Nos. 26098 and 26118,
2012-Ohio-2601, ¶ 23; State v. McShepard, 9th Dist. Summit No. 07CA009118,
2007-Ohio-6006, ¶ 13; Ohio Dept. of Liquor Control v. FOE Aerie 0456, 99 Ohio App.3d
380, 386, 650 N.E.2d 940 (10th Dist.1994); State v. Bailey, 64 Ohio App.3d 379, 382,
581 N.E.2d 1104 (6th Dist.1989). Therefore, the state’s position is not well taken, and
we find that Katz’s motion to suppress is properly before this court and review Katz’s
assignment of error concerning his claim involving the exclusionary rule.
The Traffic Stop
{¶20} In his initial argument concerning his first assignment of error, Katz argues
that Lieutenant Hughes’s traffic stop violated his Fourth Amendment protection against
unreasonable seizures.
{¶21} “‘A traffic stop must comply with the Fourth Amendment’s general
reasonableness requirement.’” State v. Fontaine, 8th Dist. Cuyahoga No. 99771,
2013-Ohio-5257, ¶ 13, quoting State v. Aquirre, 4th Dist. Gallia No. 03CA5,
2003-Ohio-4909. “[A] law enforcement officer may briefly stop and detain an
individual for investigative purposes if he has a reasonable suspicion supported by
articulable facts that ‘criminal activity may be afoot.’” Brassfield at ¶ 34, quoting Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A traffic stop is
unreasonable if it is not supported by the requisite suspicion. Dayton v. Erickson, 76
Ohio St.3d 3, 9, 665 N.E.2d 1091 (1996); State v. Caldwell, 5th Dist. Richland No.
2011-CA-0024, 2011-Ohio-5429, ¶ 19.
{¶22} A traffic stop is reasonable if a police officer has probable cause to believe
that a traffic violation occurred or was occurring. Erickson at syllabus, citing United
States v. Ferguson, 8 F.3d 385 (6th Cir.1993). “It is well settled that a traffic stop is
lawful even if the traffic violations are minor, or ‘de minimis[,]’” such as a speeding
violation. State v. White, 8th Dist. Cuyahoga No. 100624, 2014-Ohio-4202, ¶ 14; State
v. Brassfield, 8th Dist. Cuyahoga No. 83331, 2004-Ohio-2412, ¶ 37. An officer’s
ulterior motive for stopping the vehicle does not deprive the traffic stop of its
constitutionality. White at ¶ 15, citing Erickson; see also State v. Mitchell, 8th Dist.
Cuyahoga No. 94917, 2011-Ohio-477, ¶ 8 (holding that “the officers had authority to stop
appellant based on the loud music violation regardless of whether they were using that
violation as a pretext to investigate further.”).
{¶23} Here, Lieutenant Hughes testified that Katz was speeding, a fact that Katz
did not entirely deny during his own testimony. In response to a question of whether he
knew how fast he was driving, Katz testified that he did not believe he was speeding
because he was going with the flow of traffic. While Katz now argues that he never
admitted to speeding, we defer to the trial court’s credibility determinations and, here, the
trial court found Lieutenant Hughes to be credible. State v. Eason, 8th Dist. Cuyahoga
No. 103575, 2016-Ohio-5516, ¶ 47. Therefore, we defer to the trial court’s finding
that a traffic violation did occur and hold that, alone, allowed Lieutenant Hughes to
conduct a traffic stop.
{¶24} Further, even though Katz argues that Lieutenant Hughes’s ultimate purpose
for the stop was to search for money, rather than to enforce the speed limit, that unproven
and ulterior motive has no bearing on the traffic stop’s constitutionality.
Length of the Traffic Stop
{¶25} Next, Katz argues that the police unconstitutionally prolonged the traffic
stop to effectuate a canine sniff of his vehicle. The state argues that the canine sniff
occurred within the time needed to issue a traffic citation, and therefore, did not
unconstitutionally prolong the traffic stop.
{¶26} ‘“When conducting the stop of a motor vehicle for a traffic violation, an
officer may detain the vehicle for a time sufficient to investigate the reason for which the
vehicle was initially stopped.’” White, 8th Dist. Cuyahoga No. 100624,
2014-Ohio-4202, at ¶ 17, quoting State v. Bennett, 8th Cuyahoga No. 86962,
2006-Ohio-4274. An “officer must limit both the scope and duration of the stop to the
matter at hand, namely, writing the citation, and any expanded investigation unrelated to
the traffic violation must be based upon reasonable articulable suspicion.” White at ¶
17, citing State v. Duran, 9th Dist. Lorain No. 11CA009969, 2012-Ohio-2114; see also
Rodriguez v. United States, 575 U.S. ___, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015)
(during a stop for a traffic violation, an officer’s duties typically “involve checking the
driver’s license, determining whether there are outstanding warrants against the driver,
and inspecting the automobile’s registration and proof of insurance.”).
{¶27} When determining whether there is a Fourth Amendment issue with the
length of a traffic stop, courts examine the totality of the circumstances and must ask “‘at
what point in time did the purpose of the traffic stop end and the detention of the driver
and the vehicle’s occupants begin?’” Fontaine, 8th Dist. Cuyahoga No. 99771,
2013-Ohio-5257, at ¶ 16, quoting United States v. Bonilla, 357 Fed. Appx. 693 (6th
Cir.2009); State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12;
Fontaine at ¶ 18. Ohio courts have held that the longest a traffic stop and citation
issuance should take is approximately 15 minutes. See State v. Armstrong, 8th Dist.
Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 25; White at ¶ 22; State v. Brown, 183 Ohio
App.3d 337, 2009-Ohio-3804, 916 N.E.2d 1138, ¶ 23 (6th Dist.).
{¶28} Police may conduct a canine sniff during the time that it takes to issue a
traffic citation “so long as the duration of the traffic stop is not extended beyond what is
reasonably necessary to resolve the issue that led to the stop and issue a traffic citation.”
State v. Vega, 8th Dist. Cuyahoga No. 104058, 2017-Ohio-651, ¶ 15, quoting State v.
Greene, 2d Dist. Montgomery No. 25577, 2013-Ohio-4516. Police may conduct a
canine sniff during a traffic stop “[e]ven without a reasonable suspicion of drug-related
activity.” State v. Jones, 8th Dist. Cuyahoga No. 100300, 2014-Ohio-2763, ¶ 23, citing
State v. Jones, 4th Dist. Washington No. 03CA61, 2004-Ohio-7280; State v. Neal, 10th
Dist. Franklin No. 15AP-771, 2016-Ohio-1406, ¶ 13. But “a detention justified by
issuing a ticket to the driver can become unlawful if it is prolonged beyond the time
reasonably required to complete that process[,]” such as when police continue to detain
the driver to effectuate a canine sniff of the vehicle. Armstrong at ¶ 25.
{¶29} Here, Lieutenant Hughes testified that approximately five minutes after he
initiated the traffic stop, Officer Andrejack and his canine arrived and sniffed the exterior
of the car. Officer Andrejack completed the canine sniff while Lieutenant Hughes was
still checking Katz’s vehicle registration and license. The timing of the canine sniff was
well within the usual 15-minute timespan typically needed to complete a traffic citation.
Katz has offered no evidence or clear argument refuting the timing of the canine sniff,
and “[i]n the absence of some evidence that the normal procedures were delayed for
reasons unrelated to the investigation of the traffic violation, the only reasonable
conclusion to draw from the evidence is that the length of appellant’s detention was no
longer than necessary.” State v. Neal, 10th Dist. Franklin No. 15AP-771,
2016-Ohio-1406, ¶ 23. Therefore, the evidence shows that Katz’s detention was not
prolonged by the canine sniff and does not require the suppression of the seized money.
The Search of the Vehicle
{¶30} In his brief, Katz argues that the canine “allegedly” alerted and even if the
canine alerted, the officers still needed a warrant to search the vehicle.
{¶31} Contrary to Katz’s argument, it is well established in Ohio and this district
that
[u]nder the “automobile exception,” the police may search an automobile
without a warrant, as long as the police have probable cause to believe the
vehicle contains evidence of criminal activity. The courts, including this
court, have held that once a trained drug dog alerts to the odor of drugs
from a lawfully detained vehicle, * * * there is probable cause to justify a
warrantless search of the vehicle for contraband.
White, 8th Dist. Cuyahoga No. 100624, 2014-Ohio-4202, at ¶ 23, citing State v. Davis,
8th Dist. Cuyahoga No. 87964, 2007-Ohio-408; see also Jones at ¶ 23, citing Davis
(“Once a trained drug dog alerts to the odor of drugs from a lawfully detained vehicle,
there is probable cause to search the vehicle for contraband.”). “If probable cause
justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the search.” United States v.
Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
{¶32} Here, Lieutenant Hughes, Officer Andrejack, and even Katz testified that
the canine alerted during the traffic stop. Therefore, the police had probable cause to
search the vehicle for contraband and did not need a warrant.
Delay in Search
{¶33} Also in support of his first assignment of error, Katz argues that the police
unlawfully delayed the search when they transported both him and his vehicle to the
Brookpark State Highway Patrol post.
{¶34} “The United States Supreme Court has held that there is no prohibition in
moving a car to the station in order to conduct a probable cause search under more
practical, and perhaps safer, conditions.” State v. Brooks, 3d Dist. Hancock No.
5-11-11, 2012-Ohio-5235, ¶ 33, citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975,
26 L.Ed.2d 419 (1970). Relocating a vehicle promotes the safety of officers, stopped
pedestrians, and travelers.5
{¶35} “The test to be applied where the vehicle is moved * * * is whether, under
the circumstances, the act of moving the vehicle to the station house was ‘reasonable.’”
State v. Jones, 1st Dist. Hamilton No. C-75272, 1976 Ohio App. LEXIS 8496, *11 (Apr.
12, 1976), citing Chambers. Therefore, the location to which the vehicle is moved, as
well as the time it takes to move the vehicle to that location, must be reasonable.
{¶36} Ohio courts have held that police do not lose probable cause when they
reasonably move a vehicle to a safer location to conduct a search. State v. Williams, 4th
5
According to the Emergency Responder Safety Institute, a national advisory group of public
safety and transportation experts, an average of 6 to 8 rescue and EMS workers and 10 to 12 police
officers are killed while working in or near moving traffic every year. Emergency Management,
“Move Over” Laws Aim to Save Emergency Responders’ Lives on Highways,
http://www.govtech.com/em/safety/ Move-Over-Laws-Aim-Save-Lives-Highways.html (accessed
Nov. 8, 2017). Further, according to the National Law Enforcement Officers Memorial Fund, in
2015, 11 officers were struck and killed by traffic. National Law Enforcement Officers Memorial
Fund, Preliminary 2015 Law Enforcement Officer Fatalities Report,
http://www.nleomf.org/assets/pdfs/reports/2015-EOY-Officer-Fatalities-Report.pdf (accessed Nov. 8,
2017). See also Washington’s Top News, Highways are Dangerous for Police Officers, Road
Crews, https://wtop.com/maryland/2016/04/ highways-are-dangerous-for-police-officers-road-crews/
(accessed Nov. 8, 2017); Move Over Laws.com, http://www.moveoverlaws.com/ (accessed Nov. 8,
2017) (“According to FBI statistics, law enforcement officers being struck and killed is a major cause
of law enforcement deaths[,]” and “Police put their lives in danger each time they leave their patrol
Dist. Highland No. 12CA7, 2013-Ohio-594, ¶ 27 (finding that the police were allowed to
conduct their search at another location because the conditions alongside the road “were
not optimal”); Brooks at ¶ 34 (finding that moving the vehicle to another location, even
after the officers had been searching for 30 minutes, was permissible for officer safety
concerns and easier accessibility); State v. Bolding, 6th Dist. Erie No. E-97-115, 1999
Ohio App. LEXIS 2383, *22-23 (May 28, 1999) (finding that moving the vehicle was
reasonable because of the better lighting and safer conditions for the troopers); State v.
Carpenter, 9th Dist. Medina No. 2667-M, 1998 Ohio App. LEXIS 1467, *10 (Apr. 8,
1998) (upholding the officers’ decision to move the vehicle to their patrol post to gain
assistance in opening the vehicle’s trunk); Jones at *11 (upholding the relocation of the
vehicle to the station house because of the “hazardous” conditions).
{¶37} Here, the evidence shows that the conditions on Interstate 71 were
dangerous due to the weather and location of the stop. When asked why the officers
moved the vehicle to the trooper post, Officer Payne testified that “[i]t was pretty cold
and snowy, rainy that day, it was on the side of the highway, so I presume they wanted to
take it back there to be able to search it in a little bit safer of a place.” Lieutenant
Hughes testified that one trooper “had flagged a car over to tell it to move over because it
was in the right-hand lane, and in a controlled environment we can conduct a search more
safely and thoroughly as opposed to on the side of the road a few feet from traffic on the
cars parked along a busy freeway.”).
interstate.” The dash cam video from Lieutenant Hughes’s police car confirms the
officers’ testimony citing the hazardous conditions.
{¶38} At oral argument, Katz set forth a “slippery-slope” argument, contending
that should the officer’s removal of his vehicle stand, officers will have free range to
relocate any vehicle that is the subject of a traffic stop. That argument has no merit
based on the cases previously discussed. Once again, the removal of a vehicle from the
side of the road to a safer location must be reasonable, which is a determination that will
be made on a case-by-case basis. For example, in cases where road conditions are safe,
visibility is optimal, and officer safety is not in jeopardy, removal of a vehicle to another
location may not be reasonable. But, as stated above, the conditions in this case
establish that removing the vehicle from the side of the road to conduct a search was
reasonable.
{¶39} Further, the probable cause to search the vehicle established by the canine’s
alert did not dissipate during the time that it took to tow the vehicle to the patrol post.
Therefore, the officers still had probable cause to search Katz’s vehicle. See Texas v.
White, 423 U.S. 67, 68, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (discussing Chambers and
concluding that the probable cause factor still existed when the vehicle was relocated to
the station house); Bolding, 6th Dist. Erie No. E-97-115, 1999 Ohio App. LEXIS 2383, at
*22-23, citing Chambers (“Since the facts of the case support a warrantless search of the
vehicle at the stop, they also support[ed] a search after the vehicle [was] moved to the
patrol station.”). Therefore, Katz’s argument concerning the reasonableness of the
relocation and delay in searching the vehicle is unconvincing.
{¶40} Finally, in his brief, Katz cites to Missouri v. McNeely, 569 U.S. 141, 133
S.Ct. 1552, 185 L.Ed.2d 696 (2013), to support his argument that the police’s delay in
searching the vehicle and obtaining a search warrant was excessive. After a thorough
reading of McNeely, however, we find it uninformative. McNeely concerned the taking
of a blood sample from a suspected intoxicated driver without a warrant, which the state
argued was not needed based on the exigency exception to the warrant requirement. In
that case, the United States Supreme Court stated that “technological developments that
enable police officers to secure warrants more quickly, and do so without undermining
the neutral magistrate judge’s essential role as a check on police discretion, are relevant to
an assessment of exigency.” Id. at 1562. This case, however, concerns the search of a
car after a positive alert by a canine. As already discussed, the officers here did not need
a warrant after establishing probable cause through that canine alert, and they were able
to search the car without a warrant under the automobile exception to the warrant
requirement, not the exigency exception. Moreover, McNeely sets forth no rule of law
concerning the relocation of a stopped vehicle to effectuate a search.
Katz’s Statements
{¶41} Finally, Katz vaguely argues that his statements denying ownership of the
seized money should be suppressed because they were taken in violation of his right to
counsel.
{¶42} Here, the trial court found that “[t]he only evidence of [the] request [for
counsel] is Katz’s testimony, which is controverted by two taped interactions where Katz
was advised of his rights, acknowledged understanding his rights, and proceeded to talk
with law enforcement officers without mentioning an attorney.” Once again, because
the trial court is the trier of fact and weighs the credibility of the evidence, we must defer
to its factual and credibility findings if supported by competent, credible evidence. State
v. Robinson, 8th Dist. Cuyahoga No. 90731, 2008-Ohio-5580, ¶ 44, citing State v.
DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988), and State v. Polk, 8th Dist. Cuyahoga
No. 84361, 2005-Ohio-774. Therefore, in light of the trial court’s determination
concerning Katz’s credibility and a review of the supporting evidence, we find that the
statements were not taken in violation of Katz’s right to counsel and were properly
admitted.
{¶43} In sum, the trial court’s denial of Katz’s motion to suppress was proper as to
both the seized money and Katz’s statements to police. Accordingly, Katz’s first
assignment of error is overruled.
B. Forfeiture
{¶44} In his second assignment of error, Katz argues that the trial court erred in
ordering the forfeiture of the seized money because the state failed to show that it was
related to a criminal offense. In response, the state argues that it proved, by a
preponderance of the evidence, that the money was subject to forfeiture, and the trial
court’s ruling was proper.
Standing
{¶45} Before addressing the merits of his second assignment of error, we must
first determine if Katz has standing to challenge the forfeiture action. Even though the
issue was not clearly raised or addressed in either party’s appellate briefs, “the issue of
standing is jurisdictional and may be raised by the court sua sponte.” State v. Langston,
6th Dist. Lucas No. L-12-1014, 2012-Ohio-6249, ¶ 7, citing In re Foreclosure of Parcel
of Land Encumbered with Delinquent Tax Liens, 11th Dist. Lake No. 2007-L-002,
2007-Ohio-4377, and In re Forfeiture of John Deere Tractor, 4th Dist. Athens No.
05CA26, 2006-Ohio-388. Standing is a question of law for us to review de novo.
State v. Jamison, 2d Dist. Montgomery No. 23211, 2010-Ohio-965, ¶ 10.
{¶46} Under the forfeiture statutes, only “a person with an interest in the property
subject to forfeiture” has standing to challenge an action by the state. In re $449 United
States Currency, 1st Dist. Hamilton No. C-110176, 2012-Ohio-1701, ¶ 21, citing R.C.
2981.05(C). Therefore, a party with no interest in the seized property lacks the
standing required to appeal the forfeiture. Id.{¶47} In its opinion and judgment entry, the trial court stated:
Mr. Katz consistently disclaimed that he owned or even knew of the money
at the time of the traffic stop and the subsequent seizure. While he now
maintains the currency is his, he did not know where the money was or how
much money was seized at the time of the search. His testimony in Court
offered no competent or credible evidence establishing his ownership of the
money. As set forth above, his explanation for how and why the money was
found sealed in hidden compartments in his vehicle lacked credibility. Mr.
Katz failed to present any corroborating evidence to establish his ownership
of the funds.
While it is not entirely clear if the trial court found that Katz lacked standing, especially
considering that it decided the case on the merits, we find that, based on case law, Katz’s
in-court assertion of an ownership interest is enough to establish standing. In Langston,
the court found that the appellant lacked standing to challenge the state’s forfeiture action
because he did not claim “an interest in any of the seized currency; nor did he claim such
an interest during the proceedings in the trial court.” Id. at ¶ 10. In Crumpler, 9th Dist.
Summit Nos. 26098 and 26118, 2012-Ohio-2601, the court found that the claimant lacked
standing to demand the return of jewelry because “she testified at the hearing that she did
not own that jewelry.” Id. at ¶ 20. Further, in Jamison, the court found that the
claimant lacked standing because he failed to make his claim of ownership “in the trial
court.” Id. at ¶ 32.
{¶48} Based on the above case law, testimony alleging an ownership interest is
enough to establish standing. Here, Katz initially denied that he knew about or owned
the money; however, unlike the parties in the above-cited cases, Katz testified at the
hearing that the money was actually his life savings. Incredible or not, that testimony is
enough to establish an interest in the money according to the above case law. Therefore,
we find that Katz had standing to challenge the civil forfeiture action.
Forfeiture
{¶49} We now turn to the merits of Katz’s second assignment of error.
{¶50} “On review, an appellate court may not reverse the trial court’s [forfeiture
order] where there is ‘some competent, credible evidence going to all the essential
elements of the case.’” State v. Fort, 8th Dist. Cuyahoga No. 100346, 2014-Ohio-3412, ¶
17, quoting State v. Watkins, 7th Dist. Mahoning No. 07 JE 54, 2008-Ohio-6634; see also
Watkins at ¶ 34, quoting State v. Balwanz, 7th Dist. Belmont No. 02-BE-37,
2004-Ohio-1534 (“When reviewing a judgment based on a preponderance of the
evidence, an appellate court should not reverse the judgment if there is ‘some competent,
credible evidence going to all the essential elements of the case.’”). “The scope of our
review in this case is limited to an examination of the evidence presented to see if the
evidence supports the finding that the items seized were an instrumentality or proceeds of
a conduct that would constitute a felony drug offense.” State v. $765.00 in United States
Currency, 181 Ohio App.3d 162, 2009-Ohio-711, 908 N.E.2d 486, ¶ 26 (5th Dist.).
Further, “we defer to the trial court’s determination of witness credibility in a civil
forfeiture action.” State v. Baas, 10th Dist. Franklin No. 13AP-644, 2014-Ohio-1191, ¶
29; see also Marmet Drug Task Force v. Paz, 3d Dist. Marion No. 9-11-60,
2012-Ohio-4882, ¶ 25, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461
N.E.2d 1273 (1984) (“Mere disagreement over the credibility of witnesses or evidence is
not sufficient reason to reverse a judgment.”).
{¶51} “In general, forfeiture is disfavored in Ohio.” Fort at ¶ 17. “As a
consequence, such statutes must be strictly construed against the state.” State v.
Golston, 66 Ohio App.3d 423, 429, 584 N.E.2d 1336 (8th Dist.1990). The procedures
that the state must follow when seeking forfeiture of an individual’s property are codified
in Chapter 2981 of the Ohio Revised Code. R.C. 2981.05 allows the state to seek
forfeiture through civil actions. To succeed, the state must establish that the seized
property is subject to forfeiture under R.C. 2981.02 by a preponderance of the evidence.6
R.C. 2981.05(D); see Fort at ¶ 17.
{¶52} “Proceeds derived from or acquired through the commission of an offense”
and instrumentalities “used in or intended to be used in the commission or facilitation of”
a felony are subject to forfeiture. R.C. 2981.02. R.C. 2981.01(B) defines “proceeds”
as “any property derived directly or indirectly from an offense,” which “may include * * *
money or any other means of exchange[.]”
6
In 2016, the General Assembly amended R.C. 2981.05, changing the burden of proof
required in civil forfeiture proceedings to clear and convincing evidence. The statute now reads:
[T]he state may file a civil forfeiture action, in the form of a civil action, against any
person who is alleged to have received, retained, possessed, or disposed of proceeds,
in an amount exceeding fifteen thousand dollars, knowing or having reasonable cause
to believe that the proceeds were allegedly derived from the commission of an offense
subject to forfeiture proceedings in violation of section 2927.21 of the Revised Code.
* * * The court shall issue a civil forfeiture order if it determines that the prosecutor
has proved by clear and convincing evidence that the property is subject to forfeiture
under section 2981.02 of the Revised Code, and, after a proportionality review under
section 2981.09 of the Revised Code when relevant, the trier of fact specifically
describes the extent of the property to be forfeited.
{¶53} Further, R.C. 2981.01(B)(10) defines “offense” as “any act or omission that
could be charged as a criminal offense * * * whether or not a formal criminal prosecution
* * * began at the time the forfeiture is initiated” and “an offense for which property may
be forfeited includes any felony and any misdemeanor.” In other words, “it is
immaterial to civil forfeiture proceedings whether the defendant is also charged or
convicted of an underlying criminal offense.” Marmet at ¶ 23, citing R.C.
2981.01(B)(10). “[T]rial courts are not limited to considering only the underlying
criminal offense when deciding a forfeiture action, and may pursue property derived from
any act that would constitute a felony drug offense, regardless of a defendant’s conviction
or acquittal on such an offense.” State v. Brownridge, 3d Dist. Marion No. 9-09-24,
2010-Ohio-104, ¶ 25, citing Watkins, 7th Dist. Mahoning No. 07 JE 54, 2008-Ohio-6634;
see also Dayton Police Dept. v. Thompson, 2d Dist. Montgomery No. 24790,
2012-Ohio-2660, ¶ 12 (“Contrary to Thompson’s argument, the government was required
to prove that the money in his pocket constituted proceeds of ‘an offense,’ not necessarily
proceeds of the offense at issue in his criminal case.”); State v. Parks, 8th Dist. Cuyahoga
No. 90368, 2008-Ohio-4245, ¶ 26 (holding that an “acquittal does not mean that
forfeiture of items cannot be ordered.”). “A conviction is not required.” Thompson at
¶ 23.
{¶54} The state’s burden in civil forfeiture actions, a preponderance of the
evidence, is “relatively low.” State v. Bustamante, 3d Dist. Seneca Nos. 13-12-26 and
13-13-04, 2013-Ohio-4975, ¶ 40. Nevertheless, because the “‘[m]ere possession of cash
is not unlawful[,]’” the state must point to other factors demonstrating that it “‘is more
probable than not, from all the[] circumstances, that the defendant used the money in the
commission of a criminal offense.’” Parks at ¶ 29, quoting State v. Blackshaw, 8th Dist.
Cuyahoga No. 70829, 1997 Ohio App. LEXIS 2362 (May 29, 1997). Some of those
factors include whether the money was in small denominations, whether drugs or drug
paraphernalia were found with the money, where the money was found, the amount of
money found, how the money was packaged, the possessor’s employment status, the
owner’s explanation for the cash, and if the money was marked and given to the possessor
by an informant. See Fort, 8th Dist. Cuyahoga No. 100346, 2014-Ohio-3412, at ¶ 23;
State v. Crumpler, 9th Dist. Summit No. 26763, 2014-Ohio-3211, ¶ 8; Bustamante at ¶
40; Marmet at ¶ 28-34; Harris v. Mayfield Hts., 8th Dist. Cuyahoga No. 95601,
2011-Ohio-1943, ¶ 19-22; Brownridge at ¶ 27; Watkins at ¶ 36-41; Parks at ¶ 29;
State v. Harris, 12th Dist. Butler No. CA2007-04-089, 2008-Ohio-3380, ¶ 28.
{¶55} While some Ohio courts have also looked to whether a drug dog alerted to
the money, we have found that factor as “insufficient to support an inference of criminal
activity.” Compare State v. Harris at ¶ 28 with Harris v. Mayfield Hts. at ¶ 19. In
Harris v. Mayfield Hts., we discussed two federal circuit court of appeals cases:
United States v. $5,000 in U.S. Currency, 40 F.3d 846 (6th Cir.1994), and United States v.
$639,558.00 in United States Currency, 955 F.2d 712 (D.C.Cir.1992). In those cases,
the courts relied on evidence showing that most U.S. currency is tainted with traces of
drugs. In $639,558.00, “the court cited the testimony of an expert, * * * who testified
that 90% of all cash in the United States contains sufficient quantities of cocaine to alert a
trained dog.” Harris at ¶ 20. Based on that case law, we refused to consider a drug
dog’s alert as an indication that money is connected to drug trafficking activity.
{¶56} Here, in its opinion and judgment entry, the trial court stated:
The evidence before the Court demonstrates that this was not merely cash in
the passenger compartment or even in the vehicle’s trunk. Nor was the
amount of cash such that it could be reasonably explained under ordinary
circumstances. Rather, it was $75,000 in 1-3 packets, (wrapped in plastic,
coated with brake grease to mask its odor, and wrapped again in plastic)
secreted within two hidden compartments in the vehicle.
The amount of currency, its manner of packaging, and the efforts at
deception in both packaging and storage are compelling evidence that the
money was used for or derived from illegal activities.
The attendant circumstances of Mr. Katz’s activities bolster this conclusion.
As Det. Payne recounted, substantial activity associated with drug
trafficking was occurring around Mr. Katz [sic] disclaimed all knowledge
of the compartments or the currency at the time of the search.
Standing alone, this pattern of conduct strongly indicates drug trafficking.
The Court cannot hypothesize a reasonable explanation for creating hidden
compartments in a vehicle to store cash or to package the cash to avoid
detection by law enforcement. Additionally, the creation of hidden
compartments in a leased vehicle is even more suspect since such material
alteration voids the terms of the lease.
If there were a reasonable explanation for hiding substantial sums of money
in hidden compartments in one’s car, Mr. Katz had ample opportunity to
establish it as well as to establish his claim to the money. He did neither.
Mr. Katz offered conflicting versions of why he was in Cleveland and how
he arrived here. First, he told officers he drove here frequently, then he told
them he flew in to pick up his car to drive to an auto-auction, and finally it
was to retrieve his car that had been damaged during his last visit to a friend
in Amherst even though he frequently disclaimed that any body work had
been done on the car.
Additionally, the explanation that the vehicle was used as a “car-bank” is
incredible. No reasonable person, living in the State with one of the
highest theft rates
(https://vvww.nicb.org/newsroom/news-releases/20l5-hot~spots-vehicle-the
ft-report), driving one of the most frequently stolen vehicles (NICB’s Hot
Wheels: America’s 10 Most Stolen Vehicles,
https://www.nicb.org/newsroom/news-releases), would seal his life savings
in an easily destructible object, much less leave that vehicle with a stranger
to perform body work for a period of weeks.
In concluding its opinion, the trial court found “that it is more probable than not, * * *
that $75,000 in currency, wrapped in plastic, coated with brake grease to avoid scent
detection, then vacuum sealed and placed in hidden compartment [sic] in a vehicle, is
either proceeds * * * or an instrumentality * * * intended to facilitate drug trafficking.”
{¶57} To summarize, the trial court found that the state met its burden based on (1)
the amount of the money found, (2) the way the money was wrapped and hidden, (3) the
prior activity of Katz’s acquaintances observed by HIDTA officers, (4) Katz’s
inconsistent explanations for being in Cleveland, and (5) Katz’s lack of a credible
explanation for the money.
{¶58} Here, the trial court’s conclusion is supported by evidence presented at the
forfeiture hearing and delineated in its judgment entry and opinion. The significant
amount, location, and packaging of the money found in Katz’s vehicle was more
indicative of drug trafficking than that in Marmet. While no drugs were ultimately
found on Katz or in his vehicle, the surrounding circumstances and observations made by
HIDTA officers also strongly indicate a nexus between the money and drug trafficking
activity. Accordingly, we find that the trial court’s order for forfeiture is supported by
competent, credible evidence.
{¶59} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR