U.S. Currency In the Amount of $315,900.00, Matter of

• Citation: 902 P.2d 351,183 Ariz. 208
• Decision Date: 22 August 1995
• Docket Number: No. 2,CA-CV,2
• Parties: In the Matter of UNITED STATES CURRENCY IN THE AMOUNT OF $315,900.00. 94-0196.
• Court: Court of Appeals of Arizona

Page 351

902 P.2d 351

183 Ariz. 208

In the Matter of UNITED STATES CURRENCY IN THE AMOUNT OF $315,900.00.

No. 2 CA-CV 94-0196.

Court of Appeals of Arizona,

Division 2, Department A.

Aug. 22, 1995.

Reconsideration Denied Sept. 14, 1995.

[183 Ariz. 210] Gary S. Kneip and James W. Cochran, Tucson, for claimant/appellant.

Stephen D. Neely, Pima County Atty. by Christopher J. Roads, Tucson, for appellee State.

OPINION

PELANDER, Judge.

This is an appeal from the trial court's civil in rem order, entered following a contested evidentiary hearing, forfeiting to the state $313,500 ¹ in currency found within appellant's vehicle in close proximity to illegal drugs. Appellant presents several issues for review, including whether the inference supporting probable cause for forfeiture under A.R.S. § 13-4305(B), ² as applied by the trial court, is unconstitutional or otherwise impermissible under the facts of this case. For the reasons stated below, we reverse and remand on that ground with directions to dismiss the case with prejudice.

FACTS

On the evening of February 3, 1993, Officer Dapser of the Arizona Department of Public Safety stopped appellant's 1992 Toyota 4-Runner after he observed it speeding and being driven erratically. As he approached the vehicle, Dapser smelled an odor of burning marijuana. After exiting the vehicle and being advised of his Miranda ³ rights, appellant admitted he had been smoking marijuana in the vehicle. He also told Dapser that he would find two marijuana "roaches" in the vehicle, but no other drugs. In addition to two roaches in the ashtray, Dapser found between the front seats a bag containing approximately four ounces of marijuana. In a space behind the rear seat, Dapser also found a cardboard box, within which was a shoe box containing bundles of currency totaling $313,500, comprised mostly of $100 bills.

Appellant was indicted on a charge of transportation of marijuana for sale and subsequently pled guilty to unlawful possession of marijuana weighing less than one pound. The trial court suspended sentence, placed appellant on supervised probation for three years and ordered him to pay a fine of $1,050. All other criminal charges were dismissed.

STATUTORY FRAMEWORK OF FORFEITURE AND PROCEDURAL HISTORY

After appellant was convicted, the state declared the money, the vehicle and a cellular phone found in the vehicle forfeited under A.R.S. § 13-4309(3)(b). Appellant filed a verified claim asserting ownership of the cash and contending that it was "the product of monies acquired and saved through various lawful means over a twenty-year period of time," including gambling winnings legally obtained between 1973 and 1993 in various named Nevada casinos.

"Under A.R.S. § 13-4304, property is subject to forfeiture if some other statute provides for such a remedy." In re 1986 Chevrolet Corvette, 183 Ariz. 637, 639, 905 P.2d 1372, 1374 (1994). The state alleged that the currency was money used or intended to be used in a racketeering offense under A.R.S. § 13-2314(F)(3) as well as in a drug or narcotics offense under A.R.S. § 13-3413(A). The predicate criminal conduct alleged in the state's forfeiture complaint was possession of marijuana, transportation of marijuana for sale and money laundering.

In a civil in rem forfeiture proceeding, the state has the initial burden of demonstrating "probable cause for forfeiture," A.R.S. § 13-4311(K), that is, "cause to believe the substantive standard has been satisfied." 1986 Chevrolet Corvette, 183 Ariz. at 640, 905 P.2d at 1375. As our supreme court has noted: "To meet this burden, the state must demonstrate reasonable grounds for its belief that the property is subject to forfeiture, supported by more than a mere suspicion, but less than prima facie proof." Id. To establish the requisite probable cause in this case, the state relied solely on A.R.S. § 13-4305(B) to create a statutory inference that the money was proceeds of contraband, based on the fact that the currency was found in proximity to marijuana. As applicable to this action, former § 13-4305(B) provided as follows:

In determining probable cause for seizure and for forfeiture, the fact that money or any negotiable instrument was found in proximity to contraband or to instrumentalities of an offense gives rise to an inference that the money or instrument was the proceeds of contraband or was used or intended to be used to facilitate commission of the offense.

"Once the state establishes probable cause, the claimant has the burden of showing by a preponderance of the evidence that the property is not subject to forfeiture, § 13-4311(K), either because it is exempt, or because the substantive standard has not been met." 1986 Chevrolet Corvette, 183 Ariz. at 639, 905 P.2d at 1374 Appellant did not testify at the hearing, nor did he present any documentary evidence, such as income tax returns or records from the Nevada casinos. He merely cross-examined Officer Dapser and called as a witness William McCabe, a long-time friend who was a passenger in appellant's vehicle at the time of the stop. The trial court disregarded much of McCabe's testimony, finding it insufficient to rebut the statutory inference. This appeal followed the court's forfeiture order. ⁴

DISCUSSION

1. Standard of Review

Ordinarily a trial court's determination of probable cause will not be disturbed if it is supported by substantial evidence. English-Clark v. City of Tucson, 142 Ariz. 522, 525, 690 P.2d 1235, 1238 (App.1984); State v. Marquez, 135 Ariz. 316, 318, 660 P.2d 1243, 1245 (App.1983). In forfeiture cases, however, a trial court's finding of probable cause is subject to plenary, de novo review because it involves a question of law. United States v. Padilla, 888 F.2d 642, 643 (9th Cir.1989); United States v. $250,000.00 in United States Currency, 808 F.2d 895, 897-98 (1st Cir.1987). The probable cause determination in this case was based on the statutory inference in § 13-4305(B). Interpretation and application of statutes present questions of law and are subject to de novo review. Turf Paradise, Inc. v. Maricopa County, 179 Ariz. 337, 340, 878 P.2d 1375, 1378 (App.1994). In addition, constitutional questions, even mixed questions of law and fact, are reviewed de novo. United States v. McConney, 728 F.2d 1195 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). On the other hand, the trial court's factual findings will not be disturbed unless they are clearly erroneous. Federoff v. Pioneer Title & Trust Co., 166 Ariz. 383, 388, 803 P.2d 104, 109 (1990). Such determinations inherently involve the weighing of evidence and the assessment of witness credibility, matters clearly within the province of the trier of fact. Nutter v. Bechtel, 6 Ariz.App. 501, 505, 433 P.2d 993, 997 (1967).

Courts should decide cases on nonconstitutional grounds if possible, avoiding resolution of constitutional issues, when other principles of law are controlling and the case can be decided without ruling on the constitutional questions. See, e.g., Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993); Petolicchio v. Santa Cruz County Fair & Rodeo Ass'n, 177 Ariz. 256, 866 P.2d 1342 (1994). However, the substance of this appeal clearly implicates various constitutional issues, and we therefore address them to the extent necessary. ⁵

2. Probable Cause and the Statutory Inference of A.R.S. § 13-4305(B)

Appellant first contends that the trial court's reliance on the statutory inference of § 13-4305(B) was without any rational basis and therefore unconstitutional under the facts of this case. ⁶ While we disagree with appellant's limited construction of the statute, which he claims permits an inference only in the case of a proven offense and only as to that specific offense, we believe the statutory inference alone was insufficient to establish probable cause for forfeiture under the particular facts of this case.

First, in our view, there must be some rational basis for drawing the statutory inference under § 13-4305(B); in this case, we simply can find none. In State v. Cole, 153 Ariz. 86, 734 P.2d 1042 (App.1987), in discussing the constitutionality of permissive inferences, Division One of this court noted that "[a]n inference is irrational, and therefore unconstitutional, if it cannot at least be said with substantial assurance that the inferred fact is more likely than not to flow from the proved fact on which it depends." Id. at 89, 734 P.2d at 1045 (citing Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969)). The court further noted that "even a permissive inference may violate due process if, under the facts of the case, there is no rational way that the trier of fact could make the connection permitted by the inference." Id.

The state attempts to distinguish this language in Cole on the basis that that case involved a criminal prosecution, while this case involves a civil in rem forfeiture. We find that argument unpersuasive. While denominated civil in nature, forfeiture actions have properly been characterized as quasi-criminal, Fitzgerald v. Superior Court, 173 Ariz. 539, 545, 845 P.2d 465, 471 (App.1992); therefore, we believe the court's observations in Cole about the limits of permissive inferences are equally applicable in this context. ⁷

It is undisputed here that the box containing currency was found in proximity to contraband, four ounces of marijuana. That was enough, under § 13-4305(B), to give rise to an inference that the money was proceeds of contraband. There was no clear error in the trial court's finding that much of McCabe's testimony was "conclusory and lacking in foundation," or in the ruling that appellant failed to carry his burden of rebutting the statutory inference by a preponderance of the evidence.

Unless and until probable cause is established, however, the burden of proof does not shift to a...