Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State

• Decision Date: 20 May 1987
• Docket Number: No. C-5446,FIFTY-SIX,C-5446
• Citation: 730 S.W.2d 659
• Parties: THOUSAND SEVEN HUNDRED DOLLARS IN U.S. CURRENCY, Petitioner, v. The STATE of Texas, Respondent.
• Court: Texas Supreme Court

Page 659

730 S.W.2d 659

FIFTY-SIX THOUSAND SEVEN HUNDRED DOLLARS IN U.S. CURRENCY, Petitioner, v. The STATE of Texas, Respondent.

No. C-5446.

Supreme Court of Texas.

May 20, 1987.

Rehearing Denied June 24, 1987.

Joseph Abraham, Jr. and Charles Louis Roberts, El Paso, for petitioner.

Steve W. Simmons, Dist. Atty., and Stephen G. Jurecky, Asst. Dist. Atty., El Paso, for respondent.

MAUZY, Justice.

This cause presents the question of whether money, which was seized along with illicit drugs and paraphernalia during the search of a residence, is subject to civil forfeiture pursuant to the Controlled Substances Act, TEX.REV.CIV.STAT.ANN. art. 4476-15, § 5.03(a)(6) (Vernon's Supp.1987).

The State brought this action to obtain an order of forfeiture of $56,700 in U.S. currency recovered by police officers during the seizure of cocaine at the condominium of Harry Farah. The trial court found that Mr. Farah, the defendant-in-interest, had derived the money from the sale and/or distribution of illegal drugs and ordered forfeiture of the $56,700. The court of appeals, with one justice dissenting, affirmed. 710 S.W.2d 65. We reverse the judgments of those courts and render judgment that the money seized is not subject to forfeiture under the Act.

The forfeiture provision of the Controlled Substances Act provides that:

[A]ll money, certificates of deposit, negotiable instruments, securities, stocks, bonds, businesses or business investments, contractual rights, real estate, personal property, or other things of value used or intended for use in violation of Section 4.052 of this Act or derived from the sale, manufacture, distribution, dispensation, delivery, or other commercial undertaking violative of this Act ...

are subject to forfeiture by the State. TEX.REV.CIV.STAT.ANN. art. 4476-15, § 5.03(a)(6) (Vernon's Supp.1987) (emphasis added). Further, section 4.052 provides that an offense is committed if a person knowingly or intentionally expends funds he knows are derived from the commission of an offense, or finances or invests funds he knows or believes are intended to further the commission of an offense. Controlled Substances Act, art. 4476-15, § 4.052(a)(1), (2) (emphasis added). To "derive" currency from the sale or distribution of illicit drugs under the Act means "to trace the origin, descent or derivation from" such sale or distribution, or "to have or take origin" in the sale or distribution. WEBSTER'S NEW INTERNATIONAL DICTIONARY 608 (3rd ed. 1960).

The State contends that because the currency was found in proximity to cocaine and paraphernalia, the money is derived from the sale and distribution of a controlled substance. Mr. Farah asserts there is no evidence that the currency seized was derived from an enumerated offense; ¹ that the trial court erred in admitting the fruits of the search and seizure by failing to rule on Mr. Farah's constitutionally-based objections; and that the State lacked probable cause for the search and seizure in violation of the U.S. and Texas Constitutions.

In forfeiture proceedings, the burden is on the State to show probable cause for seizing a person's property. TEX. CONST. art. I, § 9 (1876). Probable cause in the context of forfeiture statutes is a reasonable belief that "a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute." United States v. $364,960.00 in U.S. Currency, 661 F.2d 319, 323 (5th Cir.1981). It is that link, or nexus, between the property to be forfeited and the statutorily defined criminal activity that establishes probable cause, without which the State lacks authority to seize a person's property. TEX. CONST. art I, § 9. Further, in One 1980 Pontiac v. State, 707 S.W.2d 881 (Tex.1986), this court noted that the intent of the legislature in passing and amending the Controlled Substances Act was "to facilitate forfeitures of assets used by drug dealers." One 1980 Pontiac, 707 S.W.2d at 882-883 (emphasis added).

On June 29, 1984, undercover police officers executed a search warrant on Mr. Farah's three-level condominium in El Paso. Entry to the residence was gained through Mr. Farah's sister; Mr. Farah was not present. Upon learning of Mr. Farah's whereabouts, police officers were dispatched to a local restaurant and returned to the condominium with Mr. Farah in custody. In the third-floor loft, which was the master bedroom, police officers pried open a steel door that led to a walk-in closet and a large bathroom area. A safe in the bathroom contained approximately three grams of cocaine and a zippered bank bag, which contained $56,700 in banded $100 bills. Other small amounts of cocaine were located in the vaulted bathroom area and in a desk drawer on the first level of the condominium. An array of paraphernalia, including hundreds of vials, most of which were unused, pills, two funnels, a grinder, non-narcotic white powder, two sets of scales, snorting tubes, and photographs depicting homosexual activity and drug use also were found. In total, 22 grams, or less than an ounce, of cocaine and 30 grams, which is slightly more than an ounce, of marijuana were seized.

We first consider Mr. Farah's no evidence point of error. In deciding whether there is evidence of probative force to support a finding, this court must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). The State's evidence in support of the proposition that the $56,700 was "derived from" the sale or distribution of the drugs is slight. A detective testified that Anositol, which is Vitamin B in powder form, and a quantity of which was seized, is the most common agent used to "cut" cocaine; that scales are used to measure precise amounts of cocaine; that once cut, cocaine is placed in vials for distribution; and that the street price of a one-gram vial of cocaine ranges from $100 to $150. A detective further testified that cocaine also is sold in "diamond folds," i.e.; paper folded in such a way as to be a container for cocaine. Two "diamond folds" with cocaine residue also were seized during the search of Mr. Farah's condominium. Although the State's chief witness testified that Mr. Farah's residence was under surveillance for the month preceding the search, there was no testimony of any suspicious activity during that time.

Mr. Farah, an architect, offered direct evidence that he was involved in the construction and renovation of a hotel and restaurant in Mexico, and further, that U.S. suppliers required up-front cash payments for purchases intended for projects in Mexico. Sub-contractors and suppliers testified that because of the devaluation of the peso they required cash payments and were awaiting payment from Mr. Farah for labor performed, supplies installed and merchandise which had been ordered and now is stored in warehouses. A courier testified that during an approximate two-week period just prior to the search he picked up large amounts of cash from the project owner in Mexico and delivered the money to Mr. Farah in El Paso.

Any presumption which may have arisen that the currency was derived from the sale or distribution of illicit drugs was rebutted by the foregoing testimony. Scott v. Millers Mutual Fire Insurance Company of Texas, 524 S.W.2d 285, 288 (Tex.1975). We have in this cause meager circumstantial evidence giving rise to inferences which are equally consistent with the proposition that Mr. Farah was a purchaser/user of drugs. Litton Industrial Products, Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984). When circumstances are consistent with either of two facts and nothing shows that one is more probable than...