U.S. v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two and 43/100 Dollars ($149,442.43) in U.S. Currency

• Citation: 965 F.2d 868
• Decision Date: 27 May 1992
• Docket Number: No. 90-5261,FORTY-NINE,FORTY-TWO,90-5261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE HUNDREDTHOUSAND FOUR HUNDREDAND 43/100 DOLLARS ($149,442.43) IN UNITED STATES CURRENCY; and One 1988 Chevrolet Suburban Classic, VIN 1GBER16K5JF136752; and One 1989 Chevrolet Silverado Pickup, VIN 1GCGC24K1KE122725, Defendants, Thomas Ray Fisher and Janetta June Fisher, Claimants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 868

965 F.2d 868

UNITED STATES of America, Plaintiff-Appellee, v. ONE HUNDRED FORTY-NINE THOUSAND FOUR HUNDRED FORTY-TWO AND 43/100 DOLLARS ($149,442.43) IN UNITED STATES CURRENCY; and One 1988 Chevrolet Suburban Classic, VIN 1GBER16K5JF136752; and One 1989 Chevrolet Silverado Pickup, VIN

1GCGC24K1KE122725, Defendants,

Thomas Ray Fisher and Janetta June Fisher, Claimants-Appellants.

No. 90-5261.

United States Court of Appeals, Tenth Circuit.

May 27, 1992.

W. Creekmore Wallace, II, Sapulpa, Okl., for claimants-appellants.

Tony M. Graham, U.S. Atty., and Catherine J. Depew, Asst. U.S. Atty., Tulsa, Okl., for plaintiff-appellee.

Before ANDERSON and SETH, Circuit Judges, and SAFFELS, District Judge ^*.

SAFFELS, District Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Claimants, Tom and June Fisher, appeal from a judgement of the District Court ordering the forfeiture of $149,442.43 in United States currency; one 1988 Chevrolet Suburban Classic VIN 1GBER16K5JF136752; and one 1989 Chevrolet Silverado Pickup VIN 1GCGC24K1KE122725 in accordance with 21 U.S.C. § 881(a)(4) and (a)(6) ¹ and 26 U.S.C. §§ 7301(a) and 7302.

In this case, the United States sought forfeiture of the defendant currency and various vehicles which were seized during the execution of a search warrant of the claimants' residence. The search warrant covered financial records of drug transactions, monies derived from or produced for the procurement of illicit drugs and other items evidencing claimant Tom Fisher's ("claimant Fisher's") involvement in drug trafficking. During the execution of the search warrant, a total of $149,442.43 in United States currency was found in claimant Fisher's home, most of which was discovered in a plastic ammunition box in a cupboard in the laundry room. Also seized were financial records, drug notation records, a small quantity of marijuana, triple beam scales, a digital scale and 14 various firearms. The district court upheld the validity of the search warrant and its execution, and denied claimant's motion to suppress.

Thereafter, the district court conducted a four day bench trial. After receiving and considering the evidence, the district court ruled that all of the items seized, except five vehicles, were properly seized under 21 U.S.C. § 881(b)(1), ² because they were discovered incident to the execution of a valid search warrant and were subject to forfeiture due to the existence of a sufficient nexus to criminal activity, namely drug trafficking and tax evasion. In reaching this conclusion, the district court found that the claimants had failed to establish by a preponderance of the evidence that the property and currency were derived from legitimate income or that the defendant property was not used to facilitate drug trafficking. The court further ruled that the government had failed to establish a nexus between the goods and illegal gambling pursuant to 18 U.S.C. § 1955. The court ordered the return of five vehicles.

I. Motion to Suppress

Claimants first contend on appeal that the district court erred in denying their motion to suppress because the issuance of the search warrant and its execution were improper. Specifically, appellants contend that the warrant was not supported by probable cause because the information relied upon was stale, was based upon hearsay, mere opinion of the affiant officer, and failed to establish a nexus between the claimants' residence and evidence of illegal activity. Appellants further contend that the affiant had deliberately omitted salient facts. Last, appellants contend that the trial court erred in denying their motion to suppress because the execution of the search warrant was overbroad, and thus, it was turned into an impermissible general search in violation of the fourth amendment.

Although forfeiture proceedings are inherently civil in nature, they are not to be effectuated in derogation of one's constitutional rights. United States v. $3,799.00 in United States Currency, 684 F.2d 674, 677 (10th Cir.1982) (citing One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965)). Thus, any defects in process used to secure the possession of defendant property may defeat the government's right to possession, inasmuch as the government will be barred from introducing evidence illegally seized in violation of the fourth amendment to prove a claim of forfeiture. Id. (citing Bramble v. Richardson, 498 F.2d 968 (10th Cir.1974), cert. denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974)).

In determining whether the district court properly denied claimants' motion to suppress, this court must accept the trial court's findings of fact unless they are clearly erroneous. United States v. Lopez, 777 F.2d 543, 548 (10th Cir.1985) (citing United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984)). Furthermore, the evidence must be considered in the light most favorable to the government. United States v. Short, 947 F.2d 1445, 1449 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990).

A. Probable Cause

In assessing whether a search warrant is supported by probable cause, a magistrate's determination of probable cause must be given considerable deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). However, reviewing courts will not defer to a magistrate's determination if the affidavit provides no substantial basis for determining the existence of probable cause. United States v. Leon, 468 U.S. 897, 915, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984).

Upon consideration of the search warrant and supporting affidavit, we conclude that a substantial basis exists to find probable cause for the issuance of the search warrant. A review of the supporting affidavit, reveals that the affiant, Officer Larry Fugate ("Officer Fugate" or "affiant officer") was employed as a Cook County Deputy Sheriff and had been assigned to the drug division for two years at the time of the affidavit. The affidavit further reveals that Officer Fugate worked as a police officer for 11 years. During his employment, Officer Fugate received specialized training while working with seasoned narcotics investigators. This training included his participation in several undercover drug investigations. (Appendix to Corrected Brief of Appellants, at 54.)

His supporting affidavit further states that he had received information from a reliable confidential informant ("informant number one"), who had previously given his department reliable information on four separate occasions resulting in four arrests and convictions. This same confidential informant stated that claimant Fisher was dealing in narcotics of various types including: cocaine, methamphetamine and marijuana, and that on one of several occasions during the last two years, informant number one had seen claimant Fisher in the possession of one pound of methamphetamine, ten pounds of marijuana and two ounces of cocaine. According to informant number one, Fisher was the largest supplier of narcotics on the west side of Creek County, Oklahoma. Informant number one further stated that claimant Fisher, who previously had been in the bricklaying business, had not done any bricklaying for the last two years, and that claimant Fisher now engaged in fighting gamecocks as a cover while he traveled out of state to buy or sell narcotics. Informant number one drove Officer Fugate by the claimant's house and showed him where claimant Fisher lived. (Appendix to Corrected Brief of Appellants, at 54.)

The affiant officer further swore that he investigated the background of claimant Fisher, and this investigation revealed that claimant Fisher had been arrested three times on narcotics-related charges. Further, claimant Fisher had been arrested on one occasion for DUI. At the time of his arrest for DUI, he had $12,888.64 in cash. Affiant's investigation also revealed that claimant Fisher had purchased a parcel of real estate and had paid in excess of $45,000 in cash. During recent years, claimant Fisher had made other large cash purchases of both real estate and personalty. In Officer Fugate's opinion, large cash transactions are unusual for law abiding citizens. (Appendix to Corrected Brief of Appellants, at 55.)

Affiant also received information from a second confidential informant ("informant number two") who had advised him that an individual by the name of "Chris" was dealing claimant Fisher's narcotics at Chris's home. Informant number two had previously provided information to Officer Fugate on three different occasions resulting in the arrests and convictions of four different individuals. Informant number two drove affiant by Chris's home to show the affiant where Chris was allegedly selling claimant Fisher's narcotics. (Appendix to Corrected Brief of Appellants, at 55.)

Affiant then conducted a controlled buy from "Chris" through informant number two. During the controlled buy, "Chris" allegedly told informant number two that he had access to an unlimited supply of cocaine through claimant Fisher. (Appendix to Corrected Brief of Appellants, at 57.)

Pursuant to the above affidavit, the magistrate judge issued a warrant for:

Financial records of drug sales and purchases, records of customers and sources of drug sales, packaging and processing supplies used for drug sales, monies derived from the sale of or for the purchase of drugs, identification documents from this and other defendants, correspondence, notes, ledgers, titles, vehicle registrations, telephone and address books,...