U.S. v. U.S. Currency $31,828

• Decision Date: 26 April 1985
• Docket Number: No. 84-1875,84-1875
• Citation: 760 F.2d 228
• Parties: UNITED STATES of America, Appellant, v. U.S. CURRENCY $31,828, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 228

760 F.2d 228

UNITED STATES of America, Appellant, v. U.S. CURRENCY $31,828, Appellee.

No. 84-1875.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1985.

Decided April 26, 1985.

Juan C. Marrero, Washington, D.C., for appellant.

Anthony Jamison, Rock Island, Ill., for appellee.

Before ROSS and BOWMAN, Circuit Judges, and OLIVER, ^* District Judge.

ROSS, Circuit Judge.

The United States of America appeals from the judgment of the United States District Court for the Southern District of Iowa denying forfeiture of $31,828 which was seized in connection with arrests for cocaine trafficking. The government contends that the currency was proceeds directly traceable to drug profits in violation of 21 U.S.C. Sec. 881. ¹ The district court held that, because the currency was seized in violation of the fourth amendment, the government failed to establish probable cause for forfeiture. For the reasons set forth below, we reverse the district court.

FACTS

During the period from January 1979 through March 12, 1982, the Drug Enforcement Administration (DEA) conducted an investigation which established John Jetter as a significant source of cocaine in the Clinton, Iowa area. Twice during that time, undercover agents bought two ounces of cocaine from him. On March 11, 1982, Kevin Corbin, a man cooperating with the DEA, bought cocaine from Randall Maniccia, who was also under investigation, using five preserialized $100 bills. On March 12, 1982, local drug enforcement officers obtained warrants to search Jetter's residence. The search warrants authorized officers to search for stolen windows and air conditioners, but not for controlled substances.

Later on March 12, Corbin and Special Agent Brad Thompson of the Iowa Division of Criminal Investigations went to Jetter's house to buy cocaine. They watched him conduct his narcotics business over the telephone, and Jetter told them he needed a computer to keep track of all of his drug deals. Jetter offered to sell Agent Thompson one-half pound of cocaine, and said he could get another one-fourth pound from another source. Jetter told the two men he was traveling to Miami that evening to buy more cocaine, and he directed an associate, in their presence, to arrange flight reservations.

Agent Thompson agreed to buy cocaine, and Jetter suggested they go next door to complete the transaction because Jetter's house was full of people. Before the three left Jetter's house, Jetter went into a room and returned with a clear plastic bag containing a powder later identified as cocaine. Once next door, Jetter gave the bag to Thompson for inspection. Jetter said he had two reliable suppliers in Florida, and quoted a price of approximately $32,000 for one pound of cocaine. Agent Thompson arrested Jetter and seized the cocaine.

Shortly after the arrest, federal and local officers searched Jetter's house pursuant to the warrant obtained earlier in the day. The federal agents mistakenly believed the warrant authorized a search for controlled substances. During the search DEA Agent Thornton forced open a locked safe and seized $31,828 found in the safe. This money included several of the marked bills Corbin had passed to Maniccia the previous day. During the search, the officers also seized a sawed-off shotgun, a "cocaine handbook," telephone records and notebooks containing information indicative of drug trafficking, and several grams of marijuana found in plain view.

On March 31, 1982, John Jetter was indicted on two counts: distribution of 8 1/2 ounces of cocaine, and conspiracy to distribute cocaine. He moved to suppress the evidence seized from his house, charging that the evidence was obtained in violation of the fourth amendment. On June 2, 1982, the district court suppressed most of the evidence, including the $31,828. Nevertheless, on December 10, 1982, the jury convicted Jetter on both counts, and this court upheld the conviction November 28, 1983. United States v. Jetter, 722 F.2d 371 (8th Cir.1983).

On April 26, 1982, the United States filed a complaint for forfeiture against the $31,828, alleging the money was proceeds of cocaine trafficking. On July 8, 1982, Mr. and Mrs. Jetter filed an application for remission and return of the currency. They argued that the earlier suppression precluded the government from seeking forfeiture of the currency in a subsequent civil action. At the January 12 forfeiture hearing, the district court identified the main issue as whether the government could force forfeiture of money which the district court determined had been seized illegally in an unconstitutional search. The court found that the government had established probable cause to believe Jetter was involved in drug trafficking. The court believed, however, that the evidence of the discovery, and indeed the very existence, of the currency must be disregarded, and held that the government thus failed to carry the initial burden of establishing probable cause for forfeiture.

DISCUSSION:

In a forfeiture action pursuant to 21 U.S.C. Sec. 881, the government has the initial burden of showing that there is probable cause to believe that the property seized is linked to the illegal activity. United States v. Thirteen Thousand Dollars in United States Currency, 733 F.2d 581, 584 (8th Cir.1984). The appellant contends that it has met this burden.

It is clear that evidence derived from a search which violated the fourth amendment is inadmissible in a forfeiture proceeding. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S.Ct. 1246, 1251, 14 L.Ed.2d 170 (1965). The district court correctly held that since the $31,828 found in Jetter's safe was illegally seized, the currency was inadmissible in the forfeiture proceeding. ² The court went a step further, however, and held that since the currency itself was inadmissible, the government did not meet its initial burden of showing probable cause. The district court did not, however, complete the analysis of probable cause. In our opinion the court's conclusion was incorrect.

In United States v. Eighty-eight Thousand, Five Hundred Dollars, 671 F.2d 293, 297 (8th Cir.1982), we said that the mere fact that property was seized illegally will not immunize it from forfeiture. Further, that case stated that although any evidence which is the product of such a seizure must be excluded at trial, the forfeiture can proceed if the government can show probable cause with untainted evidence. Id. (see n. 6). The question not addressed by the district court in this case was whether the government produced sufficient evidence other than the currency and other items suppressed to link the currency to...