Com. v. Fontanez

• Decision Date: 28 October 1999
• Citation: 739 A.2d 152,559 Pa. 92
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Efraim FONTANEZ, Appellant.
• Court: Pennsylvania Supreme Court

559 Pa. 92

739 A.2d 152

COMMONWEALTH of Pennsylvania, Appellee, v. Efraim FONTANEZ, Appellant.

Supreme Court of Pennsylvania.

Argued October 21, 1997.

Decided October 28, 1999.

David M. McGlaughlin, Philadelphia, for Efraim Fontanez.

Catherine Marshall, Mary L. Porto, Philadelphia, for Com.

Before FLAHERTY, C.J., and ZAPPPALA, CAPPY, CASTILLE and NIGRO, JJ.

OPINION

ZAPPALA, Justice.

The issue in this case is whether $2,650 that police seized from Efraim Fontanez, Appellant, should be returned to him or should remain in the possession of the government. For the reasons that follow, we find that the money must be returned to Appellant.

Appellant was driving through his Philadelphia neighborhood at 8:30 p.m. when a police officer stopped him for a traffic violation.¹ As Appellant exited his car, the officer noticed an open paper bag containing money lying on the floor. The officer testified to being familiar with Appellant and his family and their involvement in narcotics activity² and that the stop took place in an area known for drug activity. Based upon these facts the officer seized the money in Appellant's vehicle. It is undisputed that the officer did not see any transaction or activity involving Appellant or his vehicle that would have tied the money to illegal activity and no criminal charges were ever filed in relation to the seized cash.

Appellant filed a Petition for Return of Property pursuant to Pa.R.Crim.P. 324. At the hearing, the court denied the petition, and the Commonwealth proceeded to make an oral motion for forfeiture, see 42 Pa.C.S. § 6801, which the court granted.³ Commonwealth Court affirmed and we granted allowance of appeal. Rule 324(a) provides that a person may move for the return of property seized on the ground that he is entitled to lawful possession thereof. The rule goes on to state that a judge shall receive evidence on any issue of fact necessary to the decision thereon and that, if the motion is granted, the property shall be restored unless the court determines that such property is contraband. Pa.R.Crim.P. 324(b). Although is some instances a petitioner may need to introduce evidence of ownership of an item to establish his "entitlement to lawful possession," in cases such as this, where the property at issue is currency and the Commonwealth does not dispute that it was taken from the petitioner's possession, the petitioner need only allege that the money belongs to him. See Commonwealth v. Younge, 446 Pa.Super. 541, 667 A.2d 739, 741 (1995) (stating that "[i]n the few cases in which lawful possession or ownership of seized cash was at issue . . . the petitioner's right to lawful possession or ownership was either presumed, or at best, cursorily discussed"). The Commonwealth then has the burden of proving that the money is contraband if it seeks to prevent the return of the money. For the reasons that follow, we find that the evidence presented by the Commonwealth was insufficient as a matter of law to sustain its burden of proving that the money was contraband.

As previously noted, Appellant was never charged with a crime in relation to the seized money. Although not dispositive, this fact is probative of whether the money was indeed contraband. For example, in Petition of Koenig, 444 Pa.Super. 163, 663 A.2d 725, 727 (1995), a man had made a threat against his wife and child that he would "blow them away." Although he owned a substantial gun collection, he did not have any of the guns in his possession when he made the threat. The Commonwealth seized the gun collection in order to protect the wife and child. Superior Court held that the trial court erred in denying the man's Rule 324 Petition for Return of Property. In doing so, the court reasoned that because the man had not used the guns when making the threat, the Commonwealth had failed to sustain its burden of proving a nexus between the guns and the illegal activity. Therefore, the guns were not considered to be contraband. In the case at bar, there is not even an identifiable crime, such as the threat in Koenig, to which a nexus with the money can be made.

The Commonwealth argues that the circumstances surrounding the seizure of the money support the conclusion that the money is contraband. The Commonwealth points to the late evening hour, the location of the stop, the large amount of cash involved, the officer's familiarity with Appellant and his family, and Appellant's refusal to offer an explanation for why he had the money. Appellee's Brief at 26.

We do not believe that 8:30 p.m. is a notably late hour, and the stop took place in Appellant's own neighborhood. Although the presence of a large amount of cash might have given rise to suspicions in light of the officer's general "knowledge" regarding Appellant and his family, at most these suspicions merited further investigation or surveillance. Finally, a person stopped for a traffic violation has no obligation to respond to questions asked by an officer apart from statutory obligations to produce a driver's license, registration, and proof of insurance. Again, although it might arouse suspicions, failure to give an explanation where none is required cannot be construed as evidence of wrongful conduct. Accordingly, these factors taken individually or in combination, do not establish that the money was contraband.⁴

As noted, the Commonwealth also argues that the money's contraband character is demonstrated by several circumstances that developed after it was seized. The first of these involved the use of a drug-sniffing dog. After taking the money from Appellant, the officer eventually returned to the police station and placed the money in a desk drawer. He then brought a drug dog into the room to see if it would alert to the drawer, which it did. The second development occurred approximately two months after the seizure at issue, wherein Appellant was arrested for allegedly transporting drugs.

These two events add little or nothing in support of the Commonwealth's argument that the money seized in this case is contraband. With respect to the drug-sniffing dog, Officer Stanley Hamlers of the Philadelphia Police Department testified that there was no way of telling whether one dollar or all of the money in the drawer had been exposed to narcotics, and, more importantly, there was no way of telling when the money may have been exposed to narcotics. (R. 48a-49a). Indeed, the trial judge himself recognized the dog's inherent unreliability, and expressly agreed with defense counsel's statement that the drug dog, because of its heightened degree of sensitivity, would alert to almost any money presented to it. (R. 48a-49a, 66a).

The fact that Appellant was subsequently arrested in an unrelated incident for allegedly transporting drugs similarly carries little, if any, weight. Those charges were dismissed at the preliminary hearing. (R. 61a). Unproven allegations that a person transported drugs at a later date shed no light on whether money possessed by that same person, at a time when he undisputedly did not have any narcotics, may be considered contraband.

In sum, ...