$29,000.00 in U.S. Currency, In re

• Decision Date: 16 October 1984
• Docket Number: No. WD,WD
• Citation: 682 S.W.2d 68
• Parties: In re $29,000.00 IN U.S. CURRENCY. STATE of Missouri, Respondent, v. Michael A. GOTH, Appellant. 35308.
• Court: Missouri Court of Appeals

Page 68

682 S.W.2d 68

In re $29,000.00 IN U.S. CURRENCY STATE of Missouri, Respondent, v.Michael A. GOTH, Appellant.

No. WD 35308.

Missouri Court of Appeals Western District.

October 16, 1984.

As Modified Nov. 27, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled

and Denied Nov. 27, 1984.

Application to Transfer Denied Jan. 15, 1985.

Andrew J. Gelbach, Warrensburg, for appellant.

Mary Ann Young, Asst. Pros.Atty., Warrensburg, for respondent.

Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Michael A. Goth(hereinafter Goth) appeals from a judgment declaring $29,000.00 in U.S. currency, $727.00 in U.S. currency, and a "handgun" forfeited to the State of Missouri(hereinafter State) pursuant to § 195.140.2, RSMoSupp.1983.Forfeiture of the "handgun" is not an issue on appeal as Goth disavowed ownership of same.He does, however, claim ownership of the U.S. currency and vigorously contests the legality of its forfeiture on appeal.

Underlying events which the forfeiture proceeding ultimately relate back to commenced at approximately 1:15 P.M., September 5, 1982, at Goth's residence in Holden, Missouri.At that time, a neighbor of Goth's called the Holden Police Department and reported that three men, later identified as Corum, Elmer and McGuire, had forced their way into Goth's residence.A member of the Holden Police Department immediately responded to the neighbor's call.Shortly thereafter, another member of the Holden Police Department, along with a deputy sheriff of Johnson County, arrived at the scene as "backups".Noises coming from Goth's residence indicated that a violent argument was taking place inside.The deputy sheriff, by means of a portable "P.A. System", ordered the persons inside the residence to come outside.Goth came out first, followed by Corum, Elmer and McGuire.Goth was covered with blood on and about his head, arms and back, indicating that he had been severely beaten.He was removed from the scene by ambulance and taken to the hospital.Corum, Elmer and McGuire were placed under arrest, taken to the Johnson County jail, and charged with felonious assault.

Immediately after Goth and his assailants left the scene, the officers made a cursory search of the residence to ascertain whether any other persons were still inside.No other persons were found inside the residence, nor was any currency or controlled substances found or seized, on the occasion just mentioned.The officers did observe that the residence had been ransacked and appearances indicated that a violent altercation had occurred.The officers then exited the residence and cordoned it off to "preserve evidence".

The deputy sheriff then left the scene and went to the hospital where Goth had been taken.While en route to the hospital, the deputy sheriff radioed the officers at the scene to stay out of the residence and "not proceed".One of the officers at the scene, prior to receipt of instructions by radio from the deputy sheriff, reentered the residence a second time and photographed each room.Upon receipt of instructions from the deputy sheriff via radio, the officer just mentioned exited the premises absent seeing or seizing any currency, controlled substances, or evidentiary items.Upon arrival at the hospital, the deputy sheriff asked Goth if he would give the officers permission to enter and search his residence.Goth was not under arrest, under suspicion, or in custody of any law enforcement officers at the time.At first, Goth was reluctant to give the deputy sheriff permission for officers to enter and search his residence.However, when the deputy sheriff indicated that a search warrant would be obtained to enter and search his residence, Goth told the deputy sheriff "that he was free to go in and look at anything he pleased."During the course of the conversation just mentioned, Goth also told the deputy sheriff that his assailants beat him with a "handgun".

The deputy sheriff returned to the scene and Goth's residence was entered a third time by officers to search for the "handgun" mentioned by Goth.During the course of their search the officers found and seized, in the following order, a bag containing hashish and $727.00 in currency, a vial containing traces of cocaine, a pitcher containing 38.2 grams of cocaine, and a "handgun".Shortly thereafter, Goth, who had been released from the hospital, returned to his residence at which time he was arrested for possession of a controlled substance.Goth, while being transported to the Johnson County jail by another deputy, was given a "Miranda warning".After engaging in general conversation with the deputy sheriff following the "Miranda warning", Goth stated that he did not want to "talk any more" until he contacted an attorney.

Following the above sequence of events, Goth on either the evening of September 5, 1982, or the morning of September 6, 1982, contacted an attorney.On the morning of September 6, 1982, Goth's attorney got in touch with the assistant prosecuting attorney of Johnson County¹ and an "agreement" was reached between the two--in essence, no criminal charges would be filed against Goth for possession of controlled substances and, in return, Goth would testify on behalf of the State at the trials of his assailants, and would talk to law enforcement officials and give them information regarding "trafficking" in drugs and other "criminal activities."Whether or not the State, as part of the "agreement", was to return to Goth any property, e.g. currency found and seized in his residence, is in controversy and will subsequently be dealt with in more detail.

After the "agreement" was entered into, and after being given a second "Miranda warning", Goth told one of the Holden police officers that he had a large sum of currency at his residence in envelopes hidden on a ledge under a dishwasher.The police officer, accompanied by a deputy sheriff, went to Goth's residence during the afternoon of September 6, 1982, and found and seized $29,000.00 in currency at the location described by Goth.Thereafter, the $29,000.00 in currency just mentioned was turned over to an official of the Federal Drug Enforcement Administration.The Federal Drug Enforcement Administration eventually returned the $29,000.00 in currency to the Prosecuting Attorney of Johnson County.

Goth, pursuant to the "agreement" previously mentioned, freely talked with various law enforcement officials about "trafficking" in drugs and other criminal activities of which he claimed to have knowledge, e.g., he obtained drugs in Florida and transported them to Missouri for sale, the currency found in his residence and seized by the officers resulted from his illicit drug activities, and he gave the names of several persons who he claimed were implicated in various criminal activities.Additionally, Goth cooperated, as agreed, regarding prosecution of his assailants, and the State did not file any criminal charges against Goth.

On January 7, 1983, Goth filed a petition for replevin in Division I of the Circuit Court of Johnson County, naming the Sheriff of Johnson County and one of his deputies as defendants, for return of the currency.While the replevin action was pending, the State initiated the forfeiture proceeding from which Goth's appeal lies.

In order to attain a better semblance of dispositional continuity, the points relied on by Goth on appeal, seven ² in number, have been rearranged in the following order: (1)Section 195.140, RSMoSupp.1983, is "unconstitutional in that it violates due process" because it shifts the "burden of proof" to "claimants" to rebut the presumption that moneys, coins and currency "found in close proximity to forfeitable controlled substances ... are presumed to be forfeitable ..."³; (2)the trial court erred in hearing and rendering judgment in the forfeiture proceeding because "exclusive" jurisdiction was vested in another division of the Circuit Court of Johnson County by virtue of Goth's previously filed and pending replevin action; (3)the trial court"abused its discretion" in denying Goth's application "for a change of judge for cause"; (4)the trial court erred in denying Goth's motion for a "continuance"; (5) the U.S. currency in question, along with other items of evidence, offered by the State and admitted into evidence, were inadmissible because obtained by warrantless searches in violation of Goth's rights under the Fourth Amendment to the Constitution of the United States; (6)the trial court erred in overruling Goth's objections to the admission of certain statements made by Goth tracing the sums of currency to illicit drug activities engaged in by Goth because they were obtained in violation of Goth's rights under the Fifth and Sixth Amendments to the Constitution of the United States; and (7) the judgment of forfeiture was "not supported by competent and substantial evidence" because under the "agreement" entered into between Goth and the "prosecuting attorney's office", Goth would not be prosecuted for "possession" of any controlled substances and his "personal belongings and money" would be returned to him if (a)he would testify on behalf of the State at the trials of his assailants, and (b) furnish "intelligence information" to "law enforcement personnel" concerning "drug trafficking" and "criminal activities".

Goth's first point attacks the validity of § 195.140, RSMoSupp.1983, on purported constitutional grounds.If the validity of this statute was properly raised at the trial court level so as to be preserved for appellate review, jurisdiction of this case lies in the supreme court under Mo.Const. Art. V, § 3(as amended 1982), and this court lacks jurisdiction to entertain Goth's appeal.In the landmark case of City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376(banc 1949), procedural requirements for raising and preserving constitutional issues in...