U.S. v. $8,880 in U.S. Currency, 96-CV-6003L.
| Decision Date | 15 November 1996 |
| Docket Number | No. 96-CV-6003L.,96-CV-6003L. |
| Citation | 945 F.Supp. 521 |
| Parties | UNITED STATES of America, Plaintiff, v. $8,880 IN U.S. CURRENCY, Defendant. |
| Court | U.S. District Court — Western District of New York |
Anne Van Graafeiland, Assistant U.S. Attorney, Rochester, NY, for plaintiff.
Dudley M. Bertram, Rochester, NY, for defendant.
DECISION AND ORDER
The United States commenced this action pursuant to 21 U.S.C. § 881(a)(6) seeking the forfeiture of approximately $8,880.00 in U.S currency. The money was seized from Noel McDermoth ("McDermoth"), the claimant in this action, on June 10, 1995 at the Greater Rochester International Airport by officers of the Monroe County Sheriff's Department. The officers obtained the money after approaching McDermoth and asking him some questions about his trip and his identification. The initial contact was prompted by the fact that McDermoth and his travel companion Kinyeild Thomas ("Thomas") had just purchased two round-trip tickets to New York City with cash, had refused to produce identification to the ticket agent, and checked no luggage. After this initial discussion at the gate area, the officers requested McDermoth to accompany them to a security office in the airport for further investigation. At the office McDermoth was asked to empty his pockets. He did so and the officers seized $8,880 in cash on the belief that it was traceable to narcotics transactions.
Currently pending before me are McDermoth's motion for summary judgment or, in the alternative, to suppress evidence obtained at the time of the seizure, and the Government's cross-motion for summary judgment.
For the reasons that follow, the Government's motion for summary judgment is granted and McDermoth's motion is denied in its entirety.
Fed.R.Civ.P. 56 provides that a motion for summary judgment shall be granted if the pleadings and supplemental evidentiary materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, in the forfeiture context, "[i]f there [is] no genuine factual issue as to whether the seized currency was linked to an exchange involving illegal narcotics, summary judgment [is] proper." United States v. $31,990 in U.S. Currency, 982 F.2d 851, 854 (2d Cir.1993).
Pursuant to 21 U.S.C. § 881(d), United States v. $37,780 in U.S. Currency, 920 F.2d 159, 162 (2d Cir.1990) (quoting 19 U.S.C. § 1615). Thus, although the burden ultimately falls on the claimant, the Government bears the "initial burden of establishing probable cause for instituting the forfeiture proceeding ..., that is, `probable cause to believe that the properties are the fruits of illegal drug activity.'" United States v. Daccarett, 6 F.3d 37, 55 (2d Cir. 1993) (citations omitted), certs. denied, 510 U.S. 1191, 114 S.Ct. 1294, 127 L.Ed.2d 648, 510 U.S. 1192, 114 S.Ct. 1295, 127 L.Ed.2d 648, and ___ U.S. ___, 114 S.Ct. 1538, 128 L.Ed.2d 190 (1994).
In this case, the Government moves for summary judgment on the grounds that the present record clearly establishes probable cause for forfeiture of the money. McDermoth moves for summary judgment on the grounds that it does not.
To establish probable cause for the forfeiture, the Government must show that it has United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir. 1986) (citations and footnote omitted). "There need not be a substantial connection between the drug activities and the property in question, but only a nexus between them." Daccarett, 6 F.3d at 55 (citing United States v. 785 St. Nicholas Ave., 983 F.2d 396, 403 (2d Cir.), cert. denied, 508 U.S. 913, 113 S.Ct. 2349, 124 L.Ed.2d 258 (1993). The Government may prove probable cause by circumstantial evidence. Daccarett, 6 F.3d at 56.
Furthermore, the Government need not demonstrate probable cause until the forfeiture trial or, as in this case, motion for summary judgment. Id. at 55. It may rely on evidence uncovered after the seizure. $37,780, 920 F.2d at 163. As the Second Circuit has noted, "`[o]nce a forfeiture proceeding is brought, if further evidence is legally obtained to justify the government's belief, there is no persuasive reason to bar its use.'" Id. (quoting United States v. Premises and Real Property at 4492 S. Livonia Road, 889 F.2d 1258, 1268 (2d Cir.1989)).
Once the Government has made a showing of probable cause, the burden shifts to the claimant to show, by a preponderance of the evidence, that the defendant property was not in fact used unlawfully and hence is not subject to forfeiture. United States v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 487 (2d Cir.1995) (citing Daccarett, 6 F.3d at 57); see also Livonia Road, 889 F.2d at 1267 ().
In this case, McDermoth also moves to suppress certain evidence obtained by the officers at the airport when they seized the $8,880. McDermoth contends that he was detained and seized in violation of the Fourth Amendment and that the fruits of that seizure should be suppressed and must not be considered by the Court in determining whether the money should be forfeited. Specifically, McDermoth seeks to suppress both the written confession of his companion, Thomas, admitting that the money was the proceeds of drug sales and the evidence that dogs trained to detect narcotics "alerted" on the money.
Of course, if the initial detention or seizure was unlawful under the Fourth Amendment, evidence obtained by virtue of that seizure must be suppressed. $37,780, 920 F.2d at 163.
However, the "res" itself is not subject to suppression in a forfeiture proceeding in the sense that the property itself becomes immune from forfeiture because it was obtained in violation of the Fourth Amendment. Id.; see also I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039-40, 104 S.Ct. 3479, 3483-84, 82 L.Ed.2d 778 (1984).
Therefore, even if the initial seizure was unlawful, forfeiture is still appropriate if the Government can meet its burden without using either Thomas's confession or the evidence relating to the canine alert.
In this case, I find that probable cause for the forfeiture exists without considering any evidence obtained during the alleged "seizure." Accordingly, I do not need to resolve the legality, vel non, of the initial seizure of the money.
As noted, to establish probable cause "the government must have `reasonable grounds' to believe the property is subject to forfeiture, and these grounds must rise above the level of `mere suspicion.'" Daccarett, 6 F.3d at 55. More specifically, the government must have reasonable grounds to believe that a nexus exists between drug activities and the property in question. Id.
The Government points to a number of factors suggesting that probable cause exists. Initially, Monroe County Sheriff's Officers were telephoned by a Delta ticket agent, alerting them to what the agent described as a suspicious sale. In particular, the agent told the officers that two round-trip tickets to New York City were purchased with large amounts of cash, in the names Michael and Tasha Thomas, but that the purchasers would not provide any identification. The agent further stated that the passengers checked no luggage (the return flight was the next afternoon).
Based upon this information and the agent's description of the couple, an officer went to the gate and approached a man matching the description. The officer asked to see his ticket (which was in the name Michael Thomas) and then asked to see some identification. McDermoth initially said he had none but then produced an identification card in the name Noel McDermoth. When asked why his ticket was in the name Michael Thomas, McDermoth replied "it's just a name I use when I'm in a hurry."
At this time, McDermoth was alone. When asked by the officer about his companion, McDermoth said she was in the bathroom. When she exited the bathroom the officer approached her and asked for some identification and then for her plane ticket. Her identification, in the name "Kinyeild Thomas," did not match the name on the ticket, "Tasha Thomas." When asked why, she stated that she was using a relative's ticket.
Up to this point, none of the information obtained by the officer is subject to a Fourth Amendment analysis because the dialogue between the officer, McDermoth and Thomas does not constitute a "seizure." See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991) (). "[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public...
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