U.S. v. $7,850.00 in U.S. Currency

• Decision Date: 12 October 1993
• Docket Number: No. 92-2893,92-2893
• Parties: UNITED STATES of America, Appellee, v. $7,850.00 IN U.S. CURRENCY, Defendant, James S. Goodwin, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1355

7 F.3d 1355

UNITED STATES of America, Appellee, v. $7,850.00 IN U.S. CURRENCY, Defendant James S. Goodwin, Appellant.

No. 92-2893.

United States Court of Appeals Eighth Circuit.

Submitted May 11, 1993.

Decided Oct. 12, 1993.

Toni Rodgers, Atlanta, GA, for appellant.

Lonnie F. Bryan, Asst. U.S. Atty., Minneapolis, MN, argued (Mary Jo Madigan, Asst. U.S. Atty., on the brief), for appellee.

Before FAGG, Circuit Judge, LAY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

LAY, Senior Circuit Judge.

This is a civil forfeiture action brought by the United States pursuant to 21 U.S.C. § 881(a)(6) (1982) against $7,850.00 in United States currency. ¹ The money was seized from the claimant, James S. Goodwin. The parties filed cross motions for summary judgment; the district court granted the government's motion, finding the government had shown probable cause to forfeit, and entered judgment against the claimant. ² We vacate the grant of summary judgment in favor of the government, and vacate as well the denial of summary judgment filed by the claimant. We remand for further proceedings.

In a forfeiture proceeding, the government bears the initial burden of establishing probable cause to connect the property to be forfeited with some form of criminal wrongdoing. United States v. $91,960.00, 897 F.2d 1457, 1462 (8th Cir.1990). Once probable cause is established, the burden shifts to the claimant to show by a preponderance of evidence that the property is not subject to forfeiture or that a defense to forfeiture applies. One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759, 761 (8th Cir.1986). Goodwin argues that the district court erred in concluding that the government met its burden of showing probable cause to support the forfeiture. Goodwin initially argues that the currency was illegally seized and that under the facts of the case probable cause to forfeit the monies does not exist.

Because forfeiture proceedings are quasi-criminal in character, the exclusionary rule applies barring evidence obtained in violation of the Fourth Amendment. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 85 S.Ct. 1246, 1248, 14 L.Ed.2d 170 (1965). The fact that the monies may have been illegally seized does not immunize them from forfeiture. United States v. $88,500.00, 671 F.2d 293, 297 (8th Cir.1982); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40, 104 S.Ct. 3479, 3483-84, 82 L.Ed.2d 778 (1984) (the "identity" of defendant is not itself suppressible as fruit of unlawful arrest). However, the government must show with untainted evidence that probable cause to forfeit exists. United States v. $31,828.00, 760 F.2d 228, 230 (8th Cir.1985).

Facts

On February 26, 1991, Goodwin purchased a one-way ticket to Omaha, Nebraska from Northwest Airlines at the Minneapolis/St. Paul International Airport. He did not have a reservation, did not carry any luggage, and paid for the ticket with cash. He was not carrying any identification. After Goodwin left, the ticket agent contacted the Airport Detail Police, explained the circumstances of the sale, and advised the officers that Goodwin was carrying a large "wad" of money. Based on the ticket agent's description of Goodwin's appearance, the officers ran a Narcotics and Dangerous Drugs Information System (NADDIS) query on Goodwin, which found a match on his physical description. NADDIS report # 13370 indicated that Goodwin had a supplier of cocaine in Omaha, Nebraska.

According to an affidavit submitted by the government, the officers proceeded to the departure gate from which Goodwin's flight was scheduled to depart and located Goodwin. One of the officers (Officer Moss) recognized Goodwin from surveillance conducted at the airport the previous day. The officers advised Goodwin that he was not under arrest. They asked him why he was in town; Goodwin replied that it was none of their business and that he had been in town for one or two days. Officer Moss then asked Goodwin if he had been at the airport the previous day. Goodwin initially stated he had not, but recanted when Officer Moss told him that he had been seen. When asked if he was carrying a large sum of cash, Goodwin initially replied "no," then stated he had a few hundred dollars, then around $1,800.00, and finally that he had less than $10,000.00.

The government states that after this discussion, Goodwin voluntarily removed from his pocket a bundle of money totalling approximately $2,900.00, counted it, and then returned it to his pocket. At this point, a DEA officer reached into Goodwin's pocket and took the currency. (Government's response to claimant's request for admission no. 6 dated 11/22/91.) According to the investigatory report appended to the affidavit of Jerry Kramer, a Drug Enforcement Administrative Task Force Officer, Officer Moss "demanded" to see the rest of the money. Goodwin then removed from his left front jacket pocket an envelope containing a bundle of money totalling $4,950.00. The officers told Goodwin that they were going to subject the money to a dog sniff. After giving Goodwin a receipt, the officers wrapped the money in newspaper and hid it in the men's restroom. While Goodwin was present, the detection dog located and bit at the money, indicating the currency had recently been in contact with controlled substances. Goodwin was allowed to depart on his flight to Omaha, Nebraska, but without the money.

The Involuntary Seizure

Our initial discussion must be focused on the question of whether or not the currency was illegally seized. In granting summary judgment, the district court found that Goodwin voluntarily gave the currency to the officers. In support of this conclusion, the court cites the claimant's response to the government's request for admission number 23. This is clear error. Admission number 23 requested that Goodwin admit that the officers gave him a DEA 12 receipt for money in the amount of $7,850.00. We have examined all of Goodwin's responses to the government's request for admissions and find no admission by claimant that he voluntarily gave the officers the initial $2,900.00 or the subsequent $4,950.00 contained in an envelope.

In fact, the record establishes the contrary. The government admitted that after Goodwin showed the initial $2,900.00 to the agents, Goodwin returned it to his pocket. Thereafter, the agent "reached" into Goodwin's pocket and seized it. ³ As to the seizure of the $4,950.00 contained in the envelope, the government's own investigatory report appended to the affidavit of DEA Agent Kramer expressly states, "Investigator Moss demanded to see the rest of the money, at which point Goodwin removed an envelope from his left front jacket which contained approximately $4,950.00." (Emphasis added.) Goodwin contends that he removed the envelope only after the officer touched his pocket and demanded that he "unveil the rest of the money by way of intimidation."

The facts demonstrate that Goodwin did not voluntarily give the currency to the officers. It is clear that the police officers impermissibly conveyed the "message that compliance with their requests [was] required." See Florida v. Bostick, --- U.S. ----, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). We therefore find the district court's finding of consent to be clearly erroneous.

Absent valid consent, the government must show probable cause to justify the seizure of the currency. On this appeal, the government does not argue probable cause existed, relying solely on the district court's finding of voluntary consent.

Generally, police officers must have a warrant before they can seize a person's property. United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637,...