People v. $497,590 U.S. Currency
| Decision Date | 06 October 1997 |
| Docket Number | No. B097410,B097410 |
| Citation | 68 Cal.Rptr.2d 185,58 Cal.App.4th 145 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 97 Cal. Daily Op. Serv. 7892, 97 Daily Journal D.A.R. 12,663 The PEOPLE, Plaintiff and Respondent, v. $497,590 UNITED STATES CURRENCY, Defendant, Javier Girardo, Defendant and Appellant. |
Daniel Lungren, Attorney General, George Williamson, Chief Assistant Attorney, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
In this forfeiture action we are asked to decide whether substantial evidence demonstrates a nexus between the funds seized at a private home and narcotics transactions in order to justify forfeiture of the funds. We conclude several circumstances in combination are more than enough to establish the required nexus and thus affirm.
The trial court heard this case on the following stipulated facts. As the result of a large-scale drug trafficking and money laundering investigation that began in August of 1992 and continued through January of 1994, and involving both federal and local police agencies, police determined a local Los Angeles business, Sam's Travel & Telecommunications, was being used to send huge amounts of illegal drug trafficking proceeds to Colombia, South America. As a result of that investigation, two owners of the business were indicted in August of 1994 and thereafter pleaded guilty to drug money laundering charges in the United States District Court for the Central District of California.
During the course of this investigation, officers on June 30, 1993, observed two Hispanic persons, a male and female, conducting some sort of business from Sam's Travel & Telecommunications. The officers followed the two people to the Chinatown area of Los Angeles. There officers observed them make numerous pay phone and pager phone telephone calls. These are activities commonly used by drug traffickers to prevent police from using telephone records to assist them in their investigation. The Hispanic couple then drove their pickup truck to 36622 Santalina, in the City of Palmdale, where they loaded a laundry dryer onto the truck. From there the two drove to a Monterey Hills address, utilizing what narcotics detectives described as "counter-surveillance" driving. This is a common practice used by drug traffickers to expose and elude following police officers. Such driving tactics typically include driving slowly at less than the flow of traffic, making sudden and unsignaled changes in velocity and direction, as well as "running" red traffic lights. Each of these tactics is designed to make unobserved surveillance very difficult.
On July 12, 1993, members of the Orange County Regional Narcotics Suppression Program (RNSP), a multi-agency police organization involved in the overall investigation, conducted a surveillance of the residence in Palmdale. The only activity the officers observed was the comings and goings of a woman and two small children.
On July 13, 1993, RNSP officers again watched this residence. At about 10:00 a.m., officers approached the Palmdale house and Officers then searched the residence. In the attic area of the house, they found two large trash bags, each containing a large amount of U.S. currency. The money was bundled in various denominations. A later count of the money revealed it totaled $497,590. 1
contacted the female they observed there earlier. The woman said her name was Anita Rivera, and that she lived there with her two small children and her boyfriend, Ismael Santos. The officers explained they were involved in a narcotics investigation and requested permission to search the premises. Ms. Rivera orally consented and, in addition, executed a written consent to search form.
Ismael Santos told police officers the money had been brought to the house by his friend, Javier Girardo (the claimant in this action), who paid him $1,000 to take care of it. He stated Girardo once before had brought over some $200,000, and paid him $1,000 to watch it for a few days, then later returned and picked it up.
In addition to a washer and dryer located in the laundry room area of the residence, officers found another dryer in the garage, with most of its inner parts removed. According to experienced narcotics detectives, large appliances are commonly used to smuggle drug-trafficking proceeds out of the country. Most of the internal parts are removed and replaced with stacks of paper bills.
In the office and/or bedroom of the house, the officers found numerous one-gallon empty plastic bags with different dollar amounts written on them. For example, one bag had $30,000 written on it. Officers found an additional sum of approximately $2,000 in the master bedroom along with assorted papers with the name Ismael Santos on them.
Santos denied he owned the money and executed a currency disclaimer form to that effect. Santos was not arrested, and no criminal charges were filed against Santos or claimant Girardo as a result of the seizure of the money.
Detective Terry N. Todd is an Orange County Deputy Sheriff. For the last seven-and a-half years, he has been with "Sonny," his canine partner, a Labrador retriever trained to detect illicit drugs. Periodically, Detective Todd has obtained both uncirculated and circulated moneys from various banks, to test Sonny's ability to differentiate between drug-contaminated money and "clean" money. The dog has never "alerted" to "clean" money. However, Sonny alerted to claimant's money, indicating the dog smelled illicit drugs. Based on the dog's reaction, his knowledge of the facts of this case, as well as his training and experience, Detective Todd testified it was his expert opinion claimant's money was contaminated with drug residue and is the proceeds of illicit drug trafficking.
Jay E. Williams runs an independent toxicology laboratory, with an emphasis on the analysis of suspected alcohol and drug items as well as the subject of the influence of commonly used drugs and alcohol on human beings. Mr. Williams has conducted his own tests of cocaine contamination of circulating money. Based upon a number of such tests involving samples of money acquired from many different locations, the results of which varied from 10 percent to 90 percent contamination, it was his expert opinion a substantial portion of U.S. currency currently in circulation is to a measurable extent contaminated by cocaine residue.
Mr. Williams opined
The officers found the $497,590 in two 32-gallon trash bags in the attic of the house. The reports state the money was in various denominations. The parties stipulated that given the minimum detection figures for cocaine contamination of currency found throughout the country, and a canine's capabilities On July 19, 1993, the Los Angeles County District Attorney filed a complaint for forfeiture of claimant's $497,590. The complaint alleged that within five years of its date of seizure, the property was furnished or intended to be furnished by a person in exchange for a controlled substance, or was proceeds traceable to such an exchange, or was used or intended to be used to facilitate a violation of law described in Health and Safety Code section 11470, subdivision (f). Claimant Girardo filed a claim opposing forfeiture on October 4, 1993.
of drug detection, a trained dog would be expected to alert to the general drug contamination found on the circulated U.S. currency at issue in this case.
On August 23, 1995, after a bench trial, the trial court found claimant had proven by a preponderance of the evidence he had standing to contest forfeiture of the money. The court also found the People had proven to a preponderance of the evidence claimant's money was subject to forfeiture under Health and Safety Code section 11470, subdivision (f). Claimant appeals from the judgment of forfeiture.
Under Health and Safety Code section 11494, "... [for] any property seized or forfeiture proceeding initiated before January 1, 1994, the proceeding to forfeit the property and the distribution of any forfeited property shall be subject to the provisions of this chapter in effect on December 31, 1993, as if those sections had not been repealed, replaced or amended." Accordingly, the Health and Safety Code provisions regarding seizure or forfeiture proceedings in effect on December 31, 1993, control this action. (People v. Thirty-One Thousand Five Hundred in U.S. Currency (1995) 32 Cal.App.4th 1442, 1452, 38 Cal.Rptr.2d 836.)
Health and Safety Code section 11470, subdivision (f) provides: "All moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange ..." are subject to forfeiture.
If a claimant moves for return of the property, the People must make a minimum prima facie showing of probable cause to believe the property is subject to forfeiture. (Former Health & Saf.Code, § 11488.4, subd. (g).) According to the law in effect at the time of the seizure the People have the ultimate burden of "proving by a preponderance of the evidence that the property is subject to forfeiture as described in Section 11470." (Former Health & Saf.Code, § 11488.4, subd. (i).) 2
Proof by a preponderance of the evidence is a less stringent standard than either proof by clear and convincing evidence or proof beyond a reasonable doubt. (See, 1 Witkin, Cal. Evidence (3d ed.1986) §§ 516...
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