People v. $28,500 U.S. Currency

• Decision Date: 03 December 1996
• Docket Number: No. F023105,F023105
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 8762, 96 Daily Journal D.A.R. 14,435 The PEOPLE, Plaintiff and Respondent, v. $28,500 UNITED STATES CURRENCY, Defendant; Ramon Aguilar, Defendant and Appellant.

Page 239

59 Cal.Rptr.2d 239

51 Cal.App.4th 447, 96 Cal. Daily Op. Serv. 8762,

96 Daily Journal D.A.R. 14,435

The PEOPLE, Plaintiff and Respondent, v. $28,500 UNITED STATES CURRENCY, Defendant Ramon Aguilar, Defendant and Appellant.

No. F023105.

Court of Appeal, Fifth District, California.

Dec. 3, 1996.

Review Denied March 12, 1997.

[51 Cal.App.4th 449] Robert J. Beles and Paul McCarthy, Oakland, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, [51 Cal.App.4th 450] Holly D. Wilkens and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARDAIZ, Presiding Justice.

FACTS AND PROCEDURAL HISTORY

Law enforcement officers seized $28,500 from the interior of Edwin Esqueda's truck following his arrest for driving under the influence on August 28, 1992.

On September 4, 1992, Ramon Aguilar filed a Health and Safety Code section 11488.5 claim with the Stanislaus Superior Court challenging the forfeiture of the money confiscated. ¹

On September 30, 1992, the People filed a complaint in the same action seeking forfeiture of the $28,500 pursuant to section 11470, et seq. The complaint listed Aguilar as the real party in interest and alleged that the money was seized from Esqueda following his arrest for driving under the influence. It listed the following factors as indicators that the money seized was related to a violation of possession for sale and/or sale of a controlled substance: the presence of a pager and cellular telephone in the truck; the large amount of money involved and the manner in which it was carried (in a brown paper bag which was inside a brown plastic bag), the small denominations of the bills confiscated; the canine alert to the money; and Esqueda's claimed lack of knowledge as to the owner of the money. The complaint specifically alleged that the money was subject to forfeiture under section 11470, subdivision (f) in that "the defendant property was furnished or intended to be furnished by a person in exchange for a controlled substance...."

On October 16, 1992, Aguilar filed a verified answer to the complaint for forfeiture. In it, he denied that any of the statutory provisions for forfeiture alleged in the complaint applied. He acknowledged that he was not in a position to admit or deny the allegations in the complaint as to how the money was confiscated or its present location. Aguilar denied having provided Esqueda with the money in exchange for a controlled substance and claimed that he did not intend for Esqueda or anyone else to furnish the money to someone in exchange for a controlled substance. Aguilar also asserted that the canine alert and the other indicia of drug trafficking relied on by the prosecution "signif[y] nothing." Aguilar finally asserted that the complaint failed to state a cause of action upon which relief could be granted and that plaintiff lacked probable cause to forfeit the defendant property.

Aguilar also filed a motion pursuant to section 11488.4, subdivision (g)(1) seeking the return of his property following a determination that there was no probable cause to support the forfeiture. In support of his claim, he pointed to his lack of involvement in the drug business and his ability to legally account for Esqueda having such a large sum of money. He also argued that the canine alert evidence was inadmissible since the People could not lay an adequate foundation as to the dog's reliability.

In advancing this latter claim, Aguilar analogized the dog to an intoxilyzer. He then pointed out that before intoxilyzer evidence could be introduced at trial, the proponent of the evidence had to establish that the intoxilyzer was in proper working order; that the test was properly performed; and that the operator was qualified and competent. In contrast, he argued, the canine in question was not certified and no independent tests had been performed to verify his/her rate of accuracy in detecting only controlled substances. He maintained the method used by the drug-sniffing canine, Jon-Jon, bordered on the "esoteric, metaphysical, or spiritual."

In the alternative, Aguilar argued that the canine evidence in this case must satisfy the foundational requirements applicable to dog tracking evidence; namely, that the dog is reliable; that the dog was adequately trained in tracking; the dog's handler is qualified by training and experience to use the dog; the dog was placed on a track where other circumstances indicate the guilty party had been; and that the trail was not stale or contaminated. He insisted that no showing could be made as to the last two requirements.

Finally, he argued that, even if the dog's response was introduced into evidence, it was not entitled to any weight since, according to one study, nearly 96 percent of random bills tested in various cities throughout the United States tested positive for cocaine. Aguilar identified another study where money was obtained from banks and "other legal sources" by scientists in Pennsylvania who found cocaine on more than 80 percent of the bills tested. Aguilar claimed that, based on these findings, many courts have concluded that a dog alert, even if accompanied by evidence that the suspect matched a drug courier profile, was insufficient to establish probable cause to forfeit the money. In support of this last contention, Aguilar cited a number of federal district court cases.

The People filed a memorandum of points and authorities in support of a probable cause finding. They urged the trial court to apply the same standard employed in federal forfeiture proceedings since the state laws were fashioned after the federal laws. The People represented that the federal standard requires the governmental entity to show there is probable cause (less than a preponderance of the evidence but more than a reasonable suspicion) to forfeit the subject property. According to the People, if the government meets this burden, the claimant must then show by a preponderance of the evidence that the property is not subject to forfeiture. Relying on federal case authority, the People advised the trial court that it could consider hearsay evidence in making this determination. They then cited three federal cases which found the seized property subject to forfeiture under circumstances not unlike those of the case before us--U.S. v. Padilla (9th Cir.1989) 888 F.2d 642; U.S. v. U.S. Currency $83,310.78 (9th Cir.1988) 851 F.2d 1231; United States v. $2,500 in United States Currency (2nd Cir.1982) 689 F.2d 10.

In responding to Aguilar's claims regarding admissibility of the canine search evidence, the People noted that there was no case authority for subjecting such evidence to what amounted to a Kelly-Frye analysis. The People also argued that the drug scent in this case was not stale in that the search was conducted within three hours of the traffic stop and that Aguilar has simply tried to distort the staleness issue by trying to link it to the time when the drugs came into contact with the contaminated money rather than the time at which the search was conducted. The People pointed out that one of the cases cited by Aguilar, U.S. v. $87,375 in U.S. Currency (D.N.J.1989) 727 F.Supp. 155, not only acknowledged that probable cause could be supported by alerts and identifications of narcotic detection dogs but also rejected the contamination theory Aguilar advanced.

Declarations from the three law enforcement officers involved in this case were also offered in support of the People's position that probable cause existed. Those declarations revealed the following facts.

On August 28, 1992, at approximately 4 a.m., Stanislaus County Sheriff's Deputy Green watched as a blue step-side Chevrolet Silverado and a green Chevrolet Corvette traveled side by side on southbound Highway 99 at a high rate of speed. The officer drove his patrol car at speeds up to 115 miles per hour in his initially unsuccessful pursuit of these vehicles.

Another sheriff's deputy was able to stop the Corvette. As Deputy Green arrived at the scene of the stop, he noticed the Chevrolet truck parked alongside Highway 99 with its lights off. The driver of the Corvette was identified as Francisco Fontana Montana (AKA Francisco Martin) with a date of birth of January 4, 1967. As Deputy Green spoke with the deputy who effectuated the stop, the lights of the pickup truck came on, the vehicle pulled out, passed the officers, and resumed traveling southbound on Highway 99.

Deputy Green got into his patrol car and stopped the pickup truck. The deputy contacted the driver of the vehicle, Edwin Esqueda, and observed him to be under the influence of alcohol. A California Highway Patrol officer was summoned and arrived on the scene a short time later.

Esqueda was ultimately arrested for driving under the influence. An inventory search of his 1991 truck conducted at the scene revealed a bag full of money. Taking care not to touch the money, the officer removed the bag from behind the driver's seat. When asked about it, Esqueda said the money did not belong to him. The truck and money were turned over to the sheriff's department.

The truck was towed to a yard. The money was then returned to its original location so that a drug detection canine search could be performed on the vehicle.

Agent Matt had worked the narcotics detail for the Stanislaus County Sheriff's Department since 1972 and had acted as a supervisor in the Stanislaus Drug Enforcement Agency since 1975. During that time, he participated in more than 1,000 cases involving narcotics trafficking; qualified numerous times as an expert witness in various fields related to narcotics identification, detection, trafficking, etc., and became certified as an instructor in narcotic detection.

He and his canine, Jon-Jon, have worked together since 1990. Jon-Jon was originally...