United States v. $1,032,980.00 in U.S. Currency

Decision Date02 March 2012
Docket NumberCase No. 3:10–CV–157–VKA.
Citation855 F.Supp.2d 678
PartiesUNITED STATES of America, Plaintiff, v. ONE MILLION, THIRTY–TWO THOUSAND, NINE HUNDRED EIGHTY DOLLARS IN U.S. CURRENCY ($1,032,980.00), Defendant.
CourtU.S. District Court — Northern District of Ohio

855 F.Supp.2d 678

UNITED STATES of America, Plaintiff,
v.
ONE MILLION, THIRTY–TWO THOUSAND, NINE HUNDRED EIGHTY DOLLARS IN U.S. CURRENCY ($1,032,980.00), Defendant.

Case No. 3:10–CV–157–VKA.

United States District Court,
N.D. Ohio,
Western Division.

March 2, 2012.


[855 F.Supp.2d 683]


Guillermo J. Rojas, Office of the U.S. Attorney, Toledo, OH.


MEMORANDUM DECISION AND ORDER

VERNELIS K. ARMSTRONG, United States Magistrate Judge.
I. Jurisdiction

Jurisdiction is established under 28 U.S.C. § 1345 which provides that the district courts shall have original jurisdiction over all civil actions, suits or proceedings commenced by the United States. The parties consented to the undersigned conducting all proceedings and entering judgment pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

II. Introduction

This is a forfeiture action filed pursuant to the Drug Abuse Prevention and Control Act, 21 U.S.C. §§ 801 to 904. Plaintiff, United States Government is seeking forfeiture of Defendant, $1,032,980.00. Plaintiff asserts that Defendant property is proceeds from illegal drug trafficking activities

[855 F.Supp.2d 684]

and/or was used or intended to be used to facilitate illegal drug trafficking in violation of 21 U.S.C. § 841(a). This Court has original jurisdiction under 28 U.S.C. § 1345. This being an in rem forfeiture proceeding, this Court also has jurisdiction pursuant to 28 U.S.C. § 1355 and 21 U.S.C. § 881. Subject matter jurisdiction is established pursuant to 21 U.S.C. § 881 and 18 U.S.C. § 981. Venue is proper pursuant to 28 U.S.C. § 1395.

III. Procedural History

On January 21, 2010 Plaintiff United States Government filed a Verified Complaint in Forfeiture against Defendant $1,033,000.00, asserting a cause of action, under 21 U.S.C. § 881, that Defendant was seized currency that had been used in, had been intended to be used in, or constituted the proceeds from illegal drug trafficking activity 1. (Docket No. 1).

On January 26, 2010, a Warrant of Arrest In Rem was issued ordering the U.S. Marshals service to seize and detain in its custody Defendant $1,033,000.00 [hereinafter referred to as Defendant $1,032,980.00] and ordering that all persons claiming an interest in Defendant property shall file a claim of interest pursuant to 18 U.S.C. § 983 and Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims within 35 days of actual receipt or publication of the Warrant of Arrest in Rem. (Docket No. 2).

On February 19, 2010, Claimant Anthony Vigna filed a Verified Claim Opposing Forfeiture claiming ownership and/or possessory interest in Defendant $1,032,980.00. (Docket No. 6). On February 24, 2010, Plaintiff filed a Declaration of Publication stating that a Notice of Civil Forfeiture had been posted on an official government internet site, www. forfeiture. gov, advising all parties of their right to file a petition regarding Defendant $1,032,980.00. (Docket No. 7). Subsequent to the filing by Plaintiff of the Declaration of Publication no other persons or entities have come forward claiming interest in or ownership of Defendant.

On June 11, 2010, Claimant filed an Answer of Claimant Anthony Vigna to Government's Complaint for Forfeiture In Rem with a demand for trial by jury. (Docket No. 14).

On July 30, 2010, in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, District Judge Jack Zouhary issued an Order of Reference, pursuant to consent of parties, that this case be transferred to the undersigned for all further proceedings and entry of judgment. (Docket No. 21).

On March 28, 2011, Claimant filed a Notice of Motion and Motion to Suppress Evidence, with attached Memorandum of Points and Authorities in Support. (Docket No. 36). On April 25, 2011, Plaintiff filed an Opposition to Claimant's Motion to Suppress. (Docket No. 37). On May 5, 2011, Claimant filed a Reply to Government's Opposition. (Docket No. 38).

On August 12, 2011, a Hearing was held before this Court on Claimant's Motion to Suppress. On September 12, 2011, a continuation of the Hearing of August 12, 2011 was held.

On December 1, 2011, Plaintiff filed a Post Hearing Brief in Opposition to Claimant's Motion to Suppress (Docket No. 53) and Claimant filed a Post Hearing Brief in

[855 F.Supp.2d 685]

Support of his Motion to Suppress. (Docket No. 54).

On January 11, 2012, counsel presented Closing Arguments as to Claimant's Motion to Suppress.

This cause is currently before this Court on Claimant's Motion to Suppress.

Motion to Suppress and the Exclusionary Rule

The exclusionary rule operates to prevent use of evidence obtained either directly or indirectly by unlawful conduct. Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). This principal has become established as the “fruit of the poisonous tree” doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Thus, in accordance with the exclusionary rule, Claimant seeks suppression of certain evidence obtained following an allegedly illegal stop and subsequent warrantless searches and seizures as relates to Claimant's challenge to Plaintiff's forfeiture action against Defendant currency.

IV. Factual Background

Set forth below is a narrative of facts and events relevant to the material issues of this case.

A. Traffic Stop
1. Prior to the stop

During the mid to late morning of March 25, 2009, Ohio State Highway Patrol Trooper Alejo Romero and his partner Trooper Stacey Arnold were positioned in their vehicle at a highway crossover strip, near mile marker 58, on Interstate 80 (the Ohio Turnpike). Trooper Romero was the driver of the trooper vehicle and Trooper Arnold was a passenger. In the back seat of the trooper vehicle was K9 Hans, Trooper Romero's drug detection German Shepard. The weather conditions were wintery and blustery.

At approximately 10:54–10:55 a.m. the Troopers observed a black, 2003, Chevrolet Silverado pickup truck traveling in a westerly direction on the highway. Troopers Romero and Arnold first observed the Silverado when it was east of them as it was traveling on the highway. Trooper Romero indicated that the Silverado appeared to slow down somewhat as it approached the highway crossover strip where the Troopers' vehicle was located. The Silverado bore a Nevada license plate.

Thereupon, at approximately 10:55 to 10:56 a.m., Troopers Romero and Arnold made the decision to follow the Silverado. The Troopers initiated their pursuit, approached the Silverado and followed the vehicle at a close, observing distance.

The Troopers identified the license plate number and ran a license plate check on the vehicle via the Mobile Computer Terminal (MCT) system and determined that the vehicle was owned by a Cory Steven Daiker of Reno, Nevada. The Troopers noticed several features and characteristics of the Silverado as well as certain behaviors and actions of the driver and passenger of the vehicle.

The unique features or characteristics of the vehicle noticed by the Troopers included that there appeared to be no visible gap between the frame and the bed of the truck, there was the appearance of a new undercoating of paint in the wheel well on the driver's side of the vehicle and that the wheel well appeared to have been cleaned recently. Also the spare tire, which was mounted on the underside, rear of the bed of the truck, appeared to be positioned unusually low.2

[855 F.Supp.2d 686]

Trooper Romero also indicated that he observed the driver of the Silverado looking back at the pursuing trooper vehicle in the driver's side mirror and that the driver appeared to be nervous and agitated and that his behavior appeared to change upon noticing that he was being followed by an OSHP vehicle. He said that the passenger was also observed to look back on several occasions at the pursuing trooper vehicle through the back window of the cab of the truck.

Trooper Romero claimed that he and Trooper Arnold viewed the Silverado move, swerve or veer onto or across the white line on the passenger side of the highway on three separate occasions during the final, approximately forty-five seconds of their pursuit of the Silverado.

Trooper Romero stated that the first such move or swerve near to or across the right white line, occurred for a brief moment while the Silverado was on an overpass.

The second such move or swerve occurred as the Silverado was proceeding through a curve near mile marker 56 on the highway. This swerve took place approximately one-eighth of a mile after the first move or swerve was observed to have occurred. This swerve may have lasted a few moments longer than the first swerve and involved the Silverado going a bit further astray than in the first swerve, as Trooper Romero claimed he saw the passenger side wheels of the Silverado not only reach and cross the white line but near or make contact with the rumble strip of the highway, further toward the edge of the roadway.

Trooper Romero stated that the third move or swerve occurred shortly after the second one, possibly as a result of an effort to correct the movement of the second swerve, as the Silverado straightened out from the curve. This third touching upon or crossing the white line also took place for only a brief moment.3

A total of approximately 45 seconds elapsed between the observation of the first claimed traffic violation and the decision to initiate the stop.

In all, after the Troopers caught up to the Silverado to a close, observing distance, they continued to follow the Silverado for approximately one and one-half minutes. After initiating pursuit and reaching the Silverado the Troopers followed the vehicle for approximately one and one-half miles.

Although they had video and audio recording capabilities, the Troopers did not video record their trailing of the Silverado until they signaled the Silverado to pull over to the berm of the highway at approximately mile marker 55 of the Ohio Turnpike. Only then, as the Silverado turned off the highway and...

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