U.S. v. $129,727.00 U.S. Currency

• Decision Date: 03 November 1997
• Docket Number: No. 96-55606,96-55606
• Citation: 129 F.3d 486
• Parties: 97 Cal. Daily Op. Serv. 8418, 97 Daily Journal D.A.R. 13,591 UNITED STATES of America, Plaintiff-Appellee, v. $129,727.00 U.S. CURRENCY, Defendant. Daniel Trujillo, Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 486

129 F.3d 486

97 Cal. Daily Op. Serv. 8418, 97 Daily Journal

D.A.R. 13,591

UNITED STATES of America, Plaintiff-Appellee, v. $129,727.00 U.S. CURRENCY, Defendant Daniel Trujillo, Claimant-Appellant.

No. 96-55606.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 7, 1997.

Decided Nov. 3, 1997.

Janet Sherman, Sherman & Sherman, Santa Monica, CA, for Claimant-Appellant.

Michele C. Marchand and Mariam A. Krinsky, Assistant United States Attorneys, Los Angeles, CA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Central District of California; George H. King, District Judge, Presiding. D.C. No. CV-95-04287-GHK.

Before: HALL and T.G. NELSON, Circuit Judges, and WINMILL, ^* District Judge.

T.G. NELSON, Circuit Judge:

Daniel Trujillo appeals the district court's judgment of forfeiture of $128,740 in drug-trafficking proceeds under 21 U.S.C. § 881(a)(6). Trujillo argues the Government failed to show probable cause for the forfeiture. In addition, he contends that the civil forfeiture statute violates due process by requiring the Government to merely show probable cause in quasi-criminal proceedings. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 4, 1994, a Los Angeles County sheriff's deputy on the narcotics detail at Los Angeles International Airport received a tip from a citizen informant. Two men, Apolonio Portillo and Daniel Piujillo, had When Flight 33 arrived, the DEA agent went to the tarmac to locate and identify the checked luggage with the baggage tag number given by the informant. He found a relatively new suitcase, with an identification tag bearing the name of Daniel Trujillo. Meanwhile, two deputies went to the gate to watch passengers deplane. They noticed Trujillo, one of the last passengers to deplane, who perused the gate area. The deputies followed Trujillo to the baggage claim area, where they rejoined the DEA agent and pointed out Trujillo as a possible subject of the tip. Two women joined Trujillo. Trujillo scanned the baggage claim area while the suitcase that the DEA agent had previously identified circled the carousel five times. Then Trujillo picked up the bag, looked around again, and headed for the exit.

purchased one-way tickets with cash late the previous evening for American Airlines Flight 33 between New York and Los Angeles. The informant gave no physical description of either man, but provided a tag number for Piujillo's checked baggage. The deputy passed the information to the three other persons on the narcotics detail that day, including a Drug Enforcement Administration ("DEA") agent and a Los Angeles Police Department ("LAPD") detective.

The DEA agent and one deputy followed Trujillo. At the arrival curb, the agent approached Trujillo and identified himself as a DEA agent. The deputy stood behind Trujillo. The agent specifically told Trujillo that he was not under arrest and he was free to leave. Trujillo indicated his willingness to speak. Upon request, Trujillo produced his airline ticket which bore the name of Daniel Piujillo, and his California identification with the name of Trujillo, explaining the discrepancy as due to the ticketing agent's error. The DEA agent noticed that Trujillo's ticket envelope also held a one-way ticket for Apolonio Portillo from New York to Los Angeles.

The DEA agent announced he was on the airport's narcotics detail and asked Trujillo if he was carrying narcotics or large amounts of currency. Trujillo said he was a shoe salesman and had $40,000 in his suitcase from the sale of two cars in New York the previous day. The agent asked for and received permission to open the suitcase. Inside were bundles of currency, wrapped first in fabric softener sheets and then tightly in plastic wrap.

Meanwhile, about ten feet away, the LAPD detective had been speaking to Maria Ramos, one of the woman who had met Trujillo. Ramos told the detective the carry-on bag she carried belonged to Trujillo, who had given it to her in the baggage claim area. When the carry-on bag was brought to Trujillo, he stated that the clothes inside the bag were his, but the bag actually belonged to Portillo. A deputy asked for and received consent to open the carry-on bag. Inside were two bundles of U.S. currency, one marked $50,000 and the other marked $25,000. The currency in the carry-on bag was wrapped in fabric softener sheets and plastic wrap in the same manner as that in the suitcase.

The DEA agent then asked Trujillo to accompany him to the DEA office at the airport, where Trujillo gave further information. Because Trujillo had not been advised of his Miranda rights and the district court found that he had been under de facto arrest, the court suppressed all statements and evidence arising solely from the detention at the DEA office. A trained narcotics dog alerted the agents to the presence of narcotics on the currency. Trujillo was arrested and the Government seized a total of $129,727 in U.S. currency: $128,740 from the two bags and $987 from Trujillo's person.

Nine months after the arrest and seizure, the Government filed a complaint for civil forfeiture of the $129,727. After filing a claim for restitution, Trujillo moved to suppress essentially all the Government's evidence, alleging violations of the Fourth and Fifth Amendments.

At the district court hearing on Trujillo's motion to suppress, the DEA agent was the sole Government witness. The agent, who had eight years' experience as a DEA special agent, testified that many of Trujillo's actions were consistent with a drug courier profile. These included Trujillo's late-night cash purchase of a one-way ticket, travel between New York and Los Angeles, use of a relatively At the court's suggestion, the parties stipulated that the district court could base its judgment in the forfeiture action solely on the evidence presented at the suppression hearing instead of holding a trial. The parties stipulated to the motions that would be offered if a trial were held. Trujillo moved the court for an order declaring that the forfeiture statute violated due process by requiring the Government to prove only probable cause for seizure. In addition, the parties stipulated that the Government would not rely on the canine sniff to establish probable cause.

new suitcase, dissociation from his travelling companion, being among the last to deplane, looking around the gate and bag claim areas, and allowing his baggage to circle the baggage carousel multiple times before picking it up. The agent also testified that many couriers wrap drugs or drug moneys in fabric softener sheets in an apparent attempt to avoid detection of even traces of narcotics by narcotics-sniffing dogs. The agent stated that Trujillo had voluntarily given permission to open the suitcase and the carry-on bag. The district court specifically found the agent's testimony credible. Most significantly, the court found that the curbside events did not amount to a detention and that Trujillo voluntarily gave consent for both bags to be searched. Based on the totality of the circumstances at the time the second bag was opened, the district court found probable cause for the seizure of the currency found in the suitcase and carry-on bag. The court found no probable cause for the seizure of the $987 later found on Trujillo's person because the money had an insufficient nexus to drug transactions.

The district court denied Trujillo's motion and issued a judgment granting forfeiture of $128,740 to the United States. This timely appeal followed.

DETERMINATION OF PROBABLE CAUSE

A. Standard of Review

We review the district court's determination of probable cause de novo. See United States v. Jones, 84 F.3d 1206, 1210 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996). We review the district court's findings of fact for clear error, giving due weight to the inferences drawn from those facts by the court and law enforcement officers. Ornelas v. United States, 517 U.S. 690, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

B. Discussion

Currency associated with drug trafficking is subject to forfeiture to the Government. No property right exists in:

All moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this title, all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of this title....

21 U.S.C. § 881(a)(6). The Government must show probable cause that the currency seized from Trujillo was specifically associated with drug trafficking, not just with illegal activity in general. See 19 U.S.C. § 1615; see also United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1071 (9th Cir.1994).

Determination of probable cause for forfeiture is based upon a "totality of the circumstances" or "aggregate of facts" test. See United States v. U.S. Currency, $30,060.00, 39 F.3d 1039, 1042 (9th Cir.1994). While the Government need not have prima facie proof, its belief that the currency Trujillo carried was linked to drug trafficking must rise above a mere suspicion. See id. at 1044; see also United States v. One 1978 Piper Cherokee Aircraft, 91 F.3d 1204, 1208 (9th Cir.1996). A finding of probable cause may be premised on the collective knowledge of all the officers working on the airport narcotics detail. See United States v. Del Vizo, 918 F.2d 821, 826 (9th Cir.1990); see also United States v. Bernard, 623 F.2d 551, 560 (9th Cir.1979). Moreover, because otherwise innocent-looking conduct may convey different messages to a trained observer, the experience and knowledge of the detail members can be taken into account when determining probable cause. See Bernard, 623 F.2d at 560. "The fact that some of these acts, if reviewed separately, might be consistent The district court found probable cause for the seizure of the currency...