U.S. v. $148,840.00 in U.S. Currency

• Decision Date: 04 April 2008
• Docket Number: No. 07-2142.,07-2142.
• Citation: 521 F.3d 1268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. $148,840.00 IN UNITED STATES CURRENCY, Defendant, David D. Austin, Claimant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

521 F.3d 1268

UNITED STATES of America, Plaintiff-Appellee, v. $148,840.00 IN UNITED STATES CURRENCY, Defendant David D. Austin, Claimant-Appellant.

No. 07-2142.

United States Court of Appeals, Tenth Circuit.

April 4, 2008.

Michael McCabe (Richard M. Barnett, with him on the briefs,), San Diego, CA, for Claimant-Appellant.

Stephen R. Kotz, Assistant United States Attorney (Larry Gomez, Acting United States Attorney, with him on the briefs), Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

LUCERO, Circuit Judge.

In this civil in rem action, the United States seeks the forfeiture of $148,840 in United States currency discovered in the trunk of a rental car driven by claimant David Austin after Austin was stopped by police for speeding. The government commenced the action under 21 U.S.C. § 881(a)(6), which authorizes the forfeiture of currency: (1) furnished or intended to be furnished in exchange for a controlled substance, (2) traceable to a controlled substance exchange, or (3) used or intended to be used to facilitate a violation of the Controlled Substances Act ("CSA"). Following a motion for summary judgment by the government, the district court concluded that Austin lacked constitutional standing to challenge the forfeiture. On appeal, we are faced with the sole question of whether a claimant, such as Austin, who has made an unequivocal claim of ownership to currency potentially forfeitable to the United States, and who is found in the exclusive possession and control of that currency, has Article III standing to challenge the forfeiture action. Exercising jurisdiction under 28 U.S.C. § 1291, We conclude that Austin has advanced sufficient jurisdictional facts to support his constitutional standing. We thus REVERSE and REMAND for further proceedings.

I

A

At approximately 10:30 a.m. on June 25, 2005, Bernalillo County Deputy Sheriff Peter Roth stopped Austin for traveling 65 miles per hour in a 45-miles-per-hour construction zone on westbound Interstate 40 near Albuquerque, New Mexico. At Roth's request, Austin produced a driver's license issued by the State of California and a rental contract in Austin's name from a Hertz Rent-A-Car location in Port Newark, New Jersey. Because the documents originated from divergent coasts and places far from Albuquerque, Roth inquired about Austin's travel itinerary. Austin told him that he had flown from California to Philadelphia the day before to visit a friend and that he was now on his way back to California. He also stated that he had driven from Philadelphia to Illinois to visit another friend and that because he was already halfway to California after that visit, he decided to drive the rest of the way home. Finding this explanation suspicious, Roth returned to his patrol car to perform a warrants check on Austin as well as a vehicle check on Austin's rental car to determine whether it was stolen. After both checks came back negative, Roth prepared a traffic citation for speeding and a preprinted consent to search form.

When he returned to Austin's vehicle, the deputy showed Austin the citation, and Austin agreed to pay the associated fine. Roth then gave Austin a copy of the citation and returned Austin's documents. As both he and Austin prepared to leave, however, Roth stopped and asked Austin if he could again speak with him. Austin responded in the affirmative and Roth inquired whether Austin had any illegal contraband or large sums of money in the vehicle. Austin stated that there were no such items, at which point Roth asked Austin whether he would be willing to consent to a search of the vehicle. Austin replied that he would not consent. Roth then advised Austin to remain on the scene while he summoned an officer with a drugsniffing canine.

As Austin and Roth waited for the canine team to arrive, Roth asked Austin about his travel plans again. Austin told the officer that he had traveled to Philadelphia to visit a friend named Lenny with whom he used to play pool in California, but that he did not know Lenny's last name. When asked about his employment, Austin stated that he had recently started a kitchen refurbishing business, and offered to refurbish the deputy's kitchen for approximately $300. Together, these statements made Roth subjectively suspicious that Austin was engaged in some type of illegal activity.

Officer Arcenio Chavez soon arrived with a drug-sniffing canine, and asked Austin for permission to have the dog inspect the interior and exterior of the rental vehicle. Austin agreed and unlocked the trunk for the officers. Chavez then escorted the dog around the exterior of Austin's rental car. When the dog approached the rear of the car, it jumped into the open trunk. Once inside the trunk, the dog alerted to the odor of a controlled substance within the trunk area and then attempted to open a cooler in the trunk with her nose.¹

Upon observing the dog alert, the officers asked Austin to remove the cooler as well as an adjacent hard-sided suitcase. Austin complied, setting the items down on the pavement behind the vehicle. Chavez then redirected the dog toward these items and she again tried to open the cooler with her nose. She also bit into the suitcase and dragged it along the pavement area. At that point, the officers proceeded to search the suitcase and cooler. Although they found nothing of interest in the suitcase Chavez noticed several plastic bags containing bundles wrapped in aluminum foil under the ice in the cooler. Roth removed the plastic bags and the aluminum foil covering, and discovered $148,840 in cold hard cash.

Suspecting that the currency was related to drug trafficking, Roth handcuffed Austin and read him his Miranda rights, but did not place him under arrest. He then proceeded to search the remainder of the vehicle, a venture which ultimately yielded no additional cash or contraband. When questioned by Roth about the origins of the currency, Austin refused to reveal the source of the cash, but told the deputy that the money belonged to him and said that he knew the amount of the money that had been discovered. Austin then refused to discuss the matter further without the advice of an attorney. Without any reason to continue detaining Austin, Roth took possession of the currency, handed Austin a receipt for it, and allowed him to continue on his travels.

B

On December 2, 2005, the United States filed a verified complaint in rem seeking the forfeiture of the $148,840 recovered from Austin's vehicle. The government alleged that the currency was subject to forfeiture under 21 U.S.C. § 881(a)(6) because the currency was furnished, or intended to be furnished, in exchange for a controlled substance, constituted proceeds traceable to such an exchange, or was otherwise used or intended to be used to facilitate a violation of the CSA.² Following the filing of the complaint, Austin submitted a verified claim opposing the forfeiture and an answer to the government's complaint, asserting that he was the owner of the currency.

The government thereafter deposed Austin on May 24, 2006. At that deposition, Austin repeatedly claimed that he was the owner of the currency seized, but in response to specific questions about the cash, he invoked his Fifth Amendment privilege against self-incrimination. Specifically, he refused to describe the source of the currency, explain why it was packaged in plastic and foil, or reveal why he was carrying such a large amount of cash. He also declined to answer, again on Fifth Amendment grounds, any questions relating to his sources of income, his employment history, his previous residences, and his travel itinerary in the days leading up to the traffic stop.

On September 28, 2006, the United States filed a "Motion to Dismiss/Strike Claim and Answer for Lack of Article III Standing or Motion for Summary Judgment." The government argued that Austin's claim was based solely on his "naked, unexplained possession" of the currency, and that he therefore lacked the requisite injury in fact that would allow him standing under Article III of the Constitution to challenge the forfeiture action. According to the government, because Austin had invoked the Fifth Amendment when prompted to explain his possession of the seized funds, he should be barred from contesting the forfeiture action on the ground that he failed to carry his burden of establishing constitutional standing. The district court agreed, and granted summary judgment in favor of the United States. United States v. $148,840.00 in U.S. Currency, 485 F.Supp.2d 1254, 1259 (D.N.M.2007). It concluded that Austin had not shown that he had Article III standing because he had failed to provide "any evidence in support of his claim of ... an ownership interest in the currency." Id. This timely appeal followed.

II

We review a district court's grant of summary judgment de novo, and apply the same legal standard as the district court. MediaNews Group, Inc. v. McCarthey, 494 F.3d 1254, 1260 (10th Cir. 2007). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We consider the factual record, together with all reasonable inferences derived therefrom, in the light most favorable to the non-moving party. Jones v. Barnhart, 349 F.3d 1260, 1265 (10th Cir.2003). Accordingly, at this stage of the proceedings, we do not weigh the evidence or make credibility determinations, as it is not our office to do so; these are functions properly reserved for the ultimate finder of fact. Id.

Whether a claimant has constitutional standing is a threshold jurisdictional question that we review de novo.³ See United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir.2001). As the party seeking to intervene...