U.S. v. U.S. Currency, $30,060.00

• Decision Date: 08 November 1994
• Docket Number: No. 92-55919,92-55919
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. U.S. CURRENCY, $30,060.00, Defendant. Albert Joseph Alexander, Claimant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1039

39 F.3d 1039

63 USLW 2351

UNITED STATES of America, Plaintiff-Appellant, v. U.S. CURRENCY, $30,060.00, Defendant.

Albert Joseph Alexander, Claimant-Appellee.

No. 92-55919.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 31, 1994.

Decided Nov. 8, 1994.

Lee S. Arian, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellant.

Jerold L. Bloom, Sherman Oaks, CA, for claimant-appellee.

Appeal from the United States District Court for the Central District of California.

Before: TANG, PREGERSON, and NOONAN, Circuit Judges.

Opinion by Judge TANG; Dissent by Judge NOONAN.

TANG, Senior Circuit Judge:

The government appeals the district court's grant of summary judgment in favor of Albert Joseph Alexander. The district court concluded the government did not establish probable cause that $30,060 seized from Alexander was connected to drugs as required to warrant forfeiture under 21 U.S.C. Sec. 881(a)(6). The government argues the narcotics detection dog's positive alert to the presence of the scent of a controlled substance on Alexander's money, the packaging and the amount of the money, and Alexander's false accounts of the money's source and his own employment record is sufficient evidence to establish the requisite probable cause. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

BACKGROUND

Deputies of the Los Angeles County Sheriff's Department stopped Alexander for running a stop sign. When the deputies approached Alexander's Ford Tempo, they saw on the front passenger seat a plastic bag filled with money. The money was arranged in $1,000 stacks bound by rubber bands; the bills included denominations of $5, $10, $20, $50, and $100. It is unclear whether the deputies removed the plastic bag from the seat. While still at the scene, they called for a narcotics detection dog. The dog positively alerted to the bag of money, indicating the presence of the scent of a controlled substance. The deputies searched Alexander and his car for drugs, but found none.

After reading Alexander his rights, the deputies questioned him about the money. Alexander stated: (1) the bag contained $30,000; (2) he was a partner with Dave Tucker and had earned the money by working at Tucker's Cafe; (3) he had no documentation to show how he had earned the money nor a bank account where he kept the money; and (4) he currently worked at a store named Jim Dandy's Liquor. Thereafter, Alexander was taken into custody and charged with violating Cal.Health and Safety Code Sec. 11352, an offense involving a controlled substance.

Back at the station, the deputies attempted to verify Alexander's statements. The money was counted and it totaled $30,060. The deputies called Dave Tucker at a number provided by Alexander. Tucker said that Alexander was his daughter's boyfriend and had no connection to Tucker's Cafe. They also called Steve Lee of Jim Dandy's Liquor who stated that Alexander no longer worked at the liquor store.

All state charges against Alexander were eventually dismissed. The Federal Bureau of Investigation adopted the seizure, however, and the federal government sought to forfeit Alexander's money as drug money under 21 U.S.C. Sec. 881(a)(6). Alexander responded that the seizure was illegal and moved to dismiss the government's complaint and to suppress evidence derived from the Alexander next moved for summary judgment. After briefing and oral argument on the motion, the district court granted summary judgment in favor of Alexander, concluding the above facts were insufficient to establish probable cause that the money was connected to drugs as required to warrant forfeiture under 21 U.S.C. Sec. 881(a)(6). The government filed a timely notice of appeal, and the district court stayed execution of the judgment pending the government's appeal.

search of his car. The district court denied Alexander's motion. Alexander sought a writ of mandamus from the Ninth Circuit, but the writ was denied.

STANDARD OF REVIEW

A district court's determination of probable cause is reviewed de novo as a question of law. United States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1146 (9th Cir.1989). A district court's grant of summary judgment is also reviewed de novo. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339 (9th Cir.1989). The evidence must be viewed in the light most favorable to the non-moving party to determine whether there are any genuine issues of material fact for trial and whether the district court correctly applied the relevant substantive law. Id. at 1339-40.

DISCUSSION

In a civil forfeiture proceeding under 21 U.S.C. Sec. 881(a)(6), seized money is subject to forfeiture if it was: "(1) furnished or intended to be furnished in exchange for a controlled substance; (2) traceable to such an exchange; or (3) used or intended to be used to facilitate a violation of federal drug laws." United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1071 (9th Cir.1994). In such a proceeding, the government must initially establish probable cause that the claimant's money was connected to drugs. 21 U.S.C. Sec. 881(d); 19 U.S.C. Sec. 1615; United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1362 (9th Cir.1986). The determination of probable cause is based on "the aggregate of facts," United States v. $93,685.61 in U.S. Currency, 730 F.2d 571, 572 (9th Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 119, 83 L.Ed.2d 61 (1984), and "simply involves the question whether the information relied on by the government is adequate and sufficiently reliable to warrant the belief by a reasonable person that the [money] was" connected to drugs. United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1282 (9th Cir.1983). Circumstantial evidence may suffice to establish probable cause for forfeiture. United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432 (9th Cir.1985).

To meet its burden of establishing probable cause, "the government must show that it had reasonable grounds to believe that the [money] was related to an illegal drug transaction, supported by less than prima facie proof but more than mere suspicion." $5,644,540.00 in U.S. Currency, 799 F.2d at 1362. "To pass the point of mere suspicion and to reach probable cause, it is necessary to demonstrate by some credible evidence the probability that the money was in fact connected to drugs." United States v. Dickerson, 873 F.2d 1181, 1184 (9th Cir.1988) (emphasis in original).

The government argues the narcotics detection dog's positive alert to the presence of the scent of a controlled substance on Alexander's money, the packaging and amount of the money, and Alexander's false accounts of the money's source and his own employment record is sufficient evidence to establish probable cause that Alexander's money is connected to drugs as required to warrant forfeiture under 21 U.S.C. Sec. 881(a)(6). The district court found it was not, and, under the circumstances of this case, we agree. These facts, alone or in combination with each other, are insufficient to establish the requisite probable cause.

The government emphasizes the narcotics detection dog's positive alert to Alexander's large sum of money and the plastic bag in which that money was contained. We have previously found such an alert to be "strong evidence" when making a probable cause determination. United States v. $215,300 U.S. Currency, 882 F.2d 417, 419 (9th Cir.1989), cert. denied, 497 U.S. 1005 (1990). In recent years, however, subsequent courts, including our own, have questioned the probative value of positive dog alerts due to the contamination of America's paper money supply with narcotics residue. See $191,910 in U.S. Currency, 16 F.3d 1051, 1062 n. 21 (9th Cir.1994) (expressing concern that currency contamination may affect the probative value of a narcotics detection dog's positive alert in currency forfeiture cases); United States v. $53,082 in U.S. Currency, 985 F.2d 245, 250 n. 5 (6th Cir.1993) (same); United States v. $639,558 in U.S. Currency, 955 F.2d 712, 714 n. 2 (D.C.Cir.1992) (same); see also Jones v. Drug Enforcement Admin., 819 F.Supp. 698, 719-21 (M.D.Tenn.1993) (rejecting the probative value of a narcotics detection dog's positive alert to seized currency on the basis of evidence of widespread currency contamination); United States v. $80,760 in U.S. Currency, 781 F.Supp. 462, 475-76 (N.D.Texas 1991), aff'd, 978 F.2d 709 (5th Cir.1992) (table) (same).

In addition, this court has never held that the mere fact of a narcotics dog's positive alert to a large sum of money constitutes sufficient evidence to establish probable cause for forfeiture. Rather, probable cause is established only when an "aggregate" of facts--over and beyond the positive dog alert to a large sum of money--demonstrate the money's connection to drugs, with no single fact being dispositive. See $215,300 U.S. Currency, 882 F.2d at 419; United States v. $5,644,540 in U.S. Currency, 799 F.2d at 1363 (finding that no single fact was dispositive with regard to a probable cause determination). We decline to expand the holding of $215,300 U.S. Currency to encompass the instant case, where the aggregate of facts do not demonstrate the money's connection to drugs, and where Alexander has documented through uncontradicted evidence that greater than seventy-five percent of all circulated currency in Los Angeles is contaminated with the residue of cocaine or other controlled substances.

Alexander's evidence was presented by affidavit from Jay B. Williams, a forensic toxicologist who has specialized in drug and alcohol analysis for over twenty-four years. Since 1982, Williams has conducted numerous tests concerning the contamination of circulated United States currency. He has tested samples of $1, $2, $5, $10, $20, $50 and $100 bills taken from noncriminal sources, such as banks, casinos, department stores and restaurants, in various cities throughout the western...