955 F.2d 712 (D.C. Cir. 1992), 91-5063, U.S. v. Six Hundred Thirty-Nine Thousand Five Hundred and Fifty-Eight Dollars ($639,558) In U.S. Currency

Docket Nº:91-5063.
Citation:955 F.2d 712
Party Name:UNITED STATES of America, Appellant, v. SIX HUNDRED THIRTY-NINE THOUSAND FIVE HUNDRED AND FIFTY-EIGHT DOLLARS ($639,558) IN UNITED STATES CURRENCY.
Case Date:February 07, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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955 F.2d 712 (D.C. Cir. 1992)

UNITED STATES of America, Appellant,

v.

SIX HUNDRED THIRTY-NINE THOUSAND FIVE HUNDRED AND

FIFTY-EIGHT DOLLARS ($639,558) IN UNITED STATES CURRENCY.

No. 91-5063.

United States Court of Appeals, District of Columbia Circuit.

February 7, 1992

Argued Nov. 4, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 89-02430).

Jock A. Banks, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

Donald F. Samuel, Atlanta, Ga., for appellee.

Before MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge SILBERMAN.

RANDOLPH, Circuit Judge:

The United States appeals from the judgment of the district court, Sporkin, J., dismissing

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the government's civil forfeiture action, brought under 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981(a)(1)(A), against the defendant $639,558. According to the amended complaint, after arresting Christopher Todd Bleichfeld, the government seized $635,000 in cash from his suitcases, and $4,558 from his person. Bleichfeld, asserting an interest in the money, entered the case by filing a verified claim in compliance with the Supplemental Rules for Certain Admiralty and Maritime Claims, and an answer to the government's complaint. All agree that the only question on appeal is whether the district court correctly granted Bleichfeld's motion to suppress the cash and several other items taken from the luggage on the ground that the officers conducting the search and seizure violated the Fourth Amendment to the Constitution. 1

I

Bleichfeld left Fort Lauderdale, Florida, on a train bound for New York City. 751 F.Supp. 6, 7 (D.D.C.1990). An Amtrak officer, checking passenger records, was drawn to Bleichfeld because he made his reservations two days before departure, did not give a "callback" number, purchased his ticket with cash only a few minutes before the train departed, and during the first leg of the journey changed rooms two times, switching from a "roomette" to a "double slumber" and then to a "bedroom," the most expensive compartment on the train.

When the train stopped at Washington's Union Station for a twenty-minute layover, two Amtrak officers, a dog trained to detect drugs, and the dog's handler, Detective Vance Beard of the Metropolitan Police Department, boarded the sleeper car and had the dog do a "sweep" of the corridor by Bleichfeld's compartment. Although the dog exhibited some interest, he did not "alert." 751 F.Supp. at 7. (The dog was trained to signal the presence of drugs aggressively, by biting and tearing at an object, or by scratching at a door with his paws.) Detective Beard and his dog "Axel" then left the train. One of the Amtrak officers, Officer Suave, knocked on Bleichfeld's door, identified himself and engaged Bleichfeld in conversation. Transcript of Motions Hearing Before Hon. Stanley Sporkin, 6/21/90 (Tr. I) at 99. Upon the officer's request, Bleichfeld showed him his ticket, which was in the name of "Chris Todd." When Officer Suave asked for identification, Bleichfeld produced a Florida driver's license in the name of Christopher Todd Bleichfeld. Bleichfeld refused to consent to a search of all his luggage and his compartment. After some prodding, he agreed to allow a dog sniff of his luggage, which consisted of a briefcase, a small suitcase and a large suitcase weighing some eighty pounds. Detective Beard then returned with Axel. Bleichfeld placed the luggage in the corridor outside his room, as the officers requested. The dog alerted to two of the three bags. Bleichfeld refused to consent to a search of the bags, and asked to discuss the matter with the officers inside his room. Officer Suave said he would have to take Bleichfeld off the train and apply for a search warrant. Tr. I at 66. Bleichfeld was then arrested, handcuffed and removed, with his luggage, from the train. 751 F.Supp. at 7.

Because the luggage was heavy, the officers decided not to try to carry it out by themselves. After the train pulled away, they waited on the platform with Bleichfeld for some period of time. Tr. I at 68. No one else was there. "Finally," according to Officer Suave, an Amtrak employee with a radio passed by; the officers asked the employee to call for an electric cart with a driver to come pick them up. Id. The officers waited at least another ten minutes on the platform until the cart appeared. Id. They were then driven to a security office within Union Station. Id. at 113. In the office, Bleichfeld was handcuffed to a chair. Transcript of Evidentiary Hearing Before Hon. Stanley Sporkin, 10/22/90 (Tr. II) at 20-21. Although there was a secure

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storage facility in Union Station, the officers decided to place the luggage in the same room with Bleichfeld. Tr. I at 113. Officer Suave testified that Bleichfeld nevertheless would have been unable to reach his bags. Id.

The officers originally intended to seek a search warrant to open the luggage. 751 F.Supp. at 7. Detective Beard telephoned Robert Andary, an Assistant United States Attorney, to inquire about getting a warrant. Tr. II at 8. The record is not entirely clear about the location from which the call was made. Officer Suave testified that he and Detective Beard "jumped into the car and went over to police headquarters and we thought we were going to have to write up a warrant. But we called the Assistant U.S. Attorney who was on duty at that time." Tr. I at 71. AUSA Andary thought Detective Beard said he was calling from Union Station. Tr. II at 10. Detective Beard was not asked and the district court made no findings regarding where the call originated. At any rate, the AUSA, based on the information he received over the telephone, advised that a warrant was unnecessary. Id. at 11. The officers then searched Bleichfeld's luggage without a warrant. They found no drugs. Instead they discovered $635,000 in cash, keys later traced to safety deposit boxes here and abroad, and ledgers indicating financial transactions. 2 Although Bleichfeld was initially charged in a criminal complaint, he was never indicted.

In this civil forfeiture action, the district court ruled that a warrant was needed to search the luggage and that the exception for searches incident to arrests did not apply because the search here was too remote from the actual arrest in both time and place. 751 F.Supp. at 8-10. Rejecting the government's alternative justification that the cash, keys and ledgers inevitably would have been discovered later because the police would have opened Bleichfeld's luggage to conduct an inventory, the court granted Bleichfeld's motion to suppress. When the government informed the court that it could not proceed without the suppressed evidence, the court entered an order dismissing the case. 3

II

Money furnished "in exchange for a controlled substance" or "traceable to such an

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exchange" is subject to forfeiture. 21 U.S.C. § 881(a)(6). In a civil forfeiture action, the government must introduce evidence showing probable cause to believe the money falls within section 881(a)(6) (or another provision of the forfeiture laws). 21 U.S.C. § 881(d); 19 U.S.C. § 1615. 4 In this case, the government conceded that if the search of the luggage violated the Fourth Amendment, the exclusionary rule would prevent it from introducing the cash, the keys and the ledgers in order to carry its burden of proof. Memorandum of Points and Authorities in Opposition to Claimant's Motion to Suppress, 5/31/90, at 4. The concession rested on One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 697, 85 S.Ct. 1246, 1249, 14 L.Ed.2d 170 (1965), a review of a state civil forfeiture proceeding in which the Court held that the exclusionary rule barred the government from relying on evidence derived from an illegal search "to sustain a forfeiture." Id. at 698, 702, 85 S.Ct. at 1249, 1251. 5

In evaluating the government's claim that no illegal search occurred here, we begin with the "cardinal principle" (Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978)) that warrantless searches "are per se unreasonable" unless the search falls within the "few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). See, e.g., California v. Acevedo, --- U.S. ----, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991); Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The government maintains that two exceptions apply. The first is that the search of the luggage was incident to Bleichfeld's arrest, thus obviating the need for a search warrant. We are in agreement with Judge Sporkin that the search cannot be sustained on that ground.

A

In order to ensure his safety, and prevent the destruction of evidence, an officer may conduct a warrantless search of the arrestee's person and "the area from within which he might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). This exception does not apply when the warrantless search "is remote in time or place from the arrest," Chimel, 395 U.S. at 764, 89 S.Ct. at 2040, quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964), such that "no exigency exists." United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977). New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981)...

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