$ 45,480 U.S. Currency v. State
| Decision Date | 04 April 2013 |
| Docket Number | No. 06-12-00090-CV,06-12-00090-CV |
| Parties | FORTY-FIVE THOUSAND FOUR HUNDRED EIGHTY DOLLARS U. S. CURRENCY, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Before Morriss, C.J., Carter and Moseley, JJ.
Laron Wren, the driver of an automobile from which the State confiscated $45,480.00, appeals from a judgment ordering the cash to be forfeited to the State as contraband. Wren bases his argument on two points: (1) that the money was discovered in the automobile he was driving as the result of an unlawful search and (2) that the State entirely failed to prove any substantial connection between the cash which was found and any illicit activities.
The evidence shows that Wren (an Illinois resident) was driving west on Interstate Highway 30 (I-30) through Titus County when the automobile was observed by Trooper Chuck Cannon of the Texas Department of Public Safety. Cannon testified that the conduct which drew his attention to the car was that although the automobile was traveling at highway speeds, it was maintaining a distance within only a car length between it and the automobile it was following, a distance which Cannon believed violated safety concerns.
Cannon (who had noticed that the car driven by Wren bore Indiana license plates) pulled the car over and had Wren come sit in the front seat of the patrol car as Wren was questioned. Cannon indicated that at that time, it was his intention to simply write Wren a warning ticket. However, as Cannon conversed with Wren while preparing the warning ticket, his suspicions became aroused and he asked Wren for permission to search the car Wren was driving. When Wren refused that permission, Cannon requested a drug dog to be brought to sniff the car. The dog and handler arrived an undisclosed length of time later,1 and the dog handler testified that the dog alerted on the seams of the car doors. (From the video recording, it appears that thisoccurred in a moment of silence during the drug dog's barking contest with the dog in the car.) Using the drug dog's alert as probable cause, a detailed search of the entire car was made, but the search did not result in the discovery of any drugs. Rather, the officers located a small cardboard box in the trunk of the car that contained the $45,480.00 which is the subject of this suit.2 Because Wren was not found in possession of any illicit drugs (either on his person or in the car), no charges were filed against him. However, the officers characterized the money as contraband, TEX. CODE CRIM. PROC. ANN. art. 59.01 (West Supp. 2012), and seized it, TEX. CODE CRIM. PROC. ANN. art. 59.02 (West Supp. 2012).
Although there was some speculation at trial that the dog may have detected the scent of drugs on the money, there was no proof given to support that position. No test was conducted to determine if the dog would alert on the money, and the area of the car where the dog alerted was in the middle of the car, not in the trunk where the money was discovered.
The fact that the alert by the drug dog was concentrated on the center of the passenger compartment of the car but the search was extended to the trunk might give rise to some concern about extension of the search area from the cabin of the car to its trunk. The United States Supreme Court has held, "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 (1982); Blaylock v. State, 125 S.W.3d 702, 705 (Tex. App.—Texarkana 2003, pet. ref'd). At one time, the Texas Court of Criminal Appealsmade a distinction between the existence of probable cause to search the passenger compartment and probable cause to search the trunk. See Gill v. State, 625 S.W.2d 307, 310 (Tex. Crim. App. [Panel Op.] 1980), overruled by Osban v. State, 726 S.W.2d 107, 110 (Tex. Crim. App. 1986) (), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 685 (Tex. Crim. App. 1991) (). Texas courts no longer recognize this distinction. Osban, 726 S.W.2d at 110; Parks v. State, 858 S.W.2d 623 (Tex. App.—Fort Worth 1993, pet. ref'd) ().
The evidence also shows that before the drug dog was called in, the officer saw on the rental agreement that it had been rented by a third party (according to Wren, his girlfriend) and that even though the car was overdue to be returned in Indiana, its direction was toward Dallas and not toward the specified return site.
Further, when Wren was asked about past criminal charges, he mentioned that he had been convicted of murder but made no mention of subsequent drug-related charges. Cannon repeatedly recited the "totality of the circumstances" as giving rise to his suspicions.
The State may pursue the forfeiture of funds that constitute proceeds from illegal drug trafficking. See TEX. CODE CRIM. PROC. ANN. arts. 59.01-.14 (West 2006 & Supp. 2012). To entitle itself to the forfeiture of the cash, the State must prove by a preponderance of the evidencethat the cash is contraband. Contraband is defined as property used or intended to be used in the commission of certain felonies or proceeds derived from those felonies. TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(A)-(D); State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004) (per curiam). As relevant to this case, contraband is money that is derived from or intended for use in manufacturing, delivering, selling, or possessing a controlled substance. TEX. CODE CRIM. PROC. ANN. arts. 59.01-.02; $24,156.00 in U.S. Currency v. State, 247 S.W.3d 739, 743 (Tex. App.—Texarkana 2008, no pet.); $27,920.00 in U.S. Currency v. State, 37 S.W.3d 533, 535 (Tex. App.—Texarkana 2001, pet. denied).
Although courts reason that defenses and explanations provided by the defendant are useful tools for analysis, the burden of proof remains on the State to prove the funds were contraband. It is not a burden placed on the owner to prove the source or purpose of the funds.
We assume, as do both parties, that the exclusionary rule common in criminal cases applies to civil forfeiture proceedings.3 The Texas Supreme Court has yet to decide this issue.See State v. $217,590.00 in United States Currency, 18 S.W.3d 631, 632 (Tex. 2000).4 Traditionally, the exclusionary rule has applied to civil forfeiture proceedings in which an item is forfeited because of its use in carrying out criminal activity, see One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699-702 (1965), and this Court has assumed, without deciding, that the rule applies. Four Thousand One Hundred Eighty-Two Dollars in United States Currency v. State, 944 S.W.2d 24, 27 (Tex. App.—Texarkana 1997, no writ); see also Fifty-Six Thousand, Seven Hundred Dollars in United States Currency v. State, 710 S.W.2d 65, 70 (Tex. App.—El Paso 1986) (), rev'd on other grounds, 730 S.W.2d 659 (Tex. 1987); State v. Five Thousand Five Hundred Dollars in United States Currency, 296 S.W.3d 696, 701 n.2 (Tex. App.—El Paso 2009, no pet.).
Wren first contends that the State failed in its burden to prove that it had a proper basis for the stop and search. He correctly acknowledges that an observed violation of traffic laws justifies a stop. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); Williams v. State, 356 S.W.3d 508, 524-55 (Tex. App.—Texarkana 2011, pet. ref'd). The officer testified that Wren was driving at freeway speed within a car length of the automobile in front of him. There is no evidence to the contrary. That fact is sufficient to justify the initial stop.
The question then becomes whether police had sufficient reasonable suspicion to justify a continued detention of Wren after the reason for that stop (a warning ticket for following too closely) had been completed. A search which is reasonable at its inception may violate theFourth Amendment by virtue of its intolerable intensity and scope. Terry v. Ohio, 392 U.S. 1, 9 (1968). An investigative detention must also be temporary and last no longer than is necessary to effectuate the initial purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983); Cisneros v. State, 165 S.W.3d 853, 859 (Tex. App.—Texarkana 2005, no pet.). In a traffic stop, the police may ask for identification, a valid driver's license, proof of insurance, and may check for outstanding warrants. Cisneros, 165 S.W.3d at 859.
Once the purpose of the initial detention has been investigated, any continued detention must be based on specific, articulable facts which, taken together with rational inferences from those facts, "would warrant a person of reasonable caution in the belief that a continued detention was justified, i.e., the detainee was or would soon be engaged in criminal activity." Herrera v. State, 80 S.W.3d 283, 288 (Tex. App.—Texarkana 2002, pet. ref'd); Simpson v. State, 29 S.W.3d 324, 327 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). Officer Cannon testified to the following matters observed or discovered during the initial stop as justification for the continued detention, set out below in approximately the order of importance the officer attached to the information: (...
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