US v. $64,765.00 IN US CURRENCY
| Decision Date | 10 June 1991 |
| Docket Number | Civ. No. 90-0009-BE. |
| Citation | 786 F. Supp. 906 |
| Parties | UNITED STATES of America, Plaintiff, v. $64,765.00 IN UNITED STATES CURRENCY, Defendant. |
| Court | U.S. District Court — District of Oregon |
COPYRIGHT MATERIAL OMITTED
Charles H. Turner, U.S. Atty., D. Oregon, Leslie J. Westphal, Asst. U.S. Atty., Portland, Or., for plaintiff.
Santiago E. Juarez, Juarez Law Office, P.S., Seattle, Wash., Charles G. Duncan, Eugene, Or., for claimant Esteban Vargas Elizalde.
This is a civil forfeiture action. The plaintiff, the United States of America, has moved for summary judgment and the claimant, Esteban Vargas Elizalde, has made a cross-motion for summary judgment and to suppress evidence. The court held an evidentiary hearing with respect to the motion to suppress on March 18, 1991.
As a practical matter, the court must determine what evidence is admissible before addressing the motions for summary judgment. Therefore, the court will deal with the motion to suppress before turning to the motion for summary judgment.
Although forfeiture actions are generally civil in form, they are "quasi-criminal" in nature. Therefore, the exclusionary rule prohibits the government from using evidence obtained in violation of the Fourth Amendment to prove a forfeiture. United States v. One 1977 Mercedes Benz 450SEL, 708 F.2d 444 (9th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984). A prior determination regarding admissibility in a related criminal proceeding is binding in a forfeiture action. In a case such as this one, where no criminal charges are pursued, the court may take evidence and determine a motion to suppress by the claimant.
At the evidentiary hearing, Oregon State Troopers Douglas Hoffman and Kevin Bennett testified on behalf of the government. Elizalde's testimony was presented to the court through two affidavits and a deposition. The court makes the following findings of fact with respect to the motion to suppress.
At approximately 1:20 a.m. on March 22, 1989, State Trooper Douglas Hoffman performed a routine survey of the South Umpqua Rest Area on Interstate 5, about 112 miles north of the California border. Hoffman noticed a 1985 Ford Thunderbird with a California license plate parked at the rest area. He observed that the Thunderbird had only one license plate, in violation of Oregon law.
Hoffman parked the patrol car to the rear and side of the Thunderbird, without blocking its ability to exit. The headlights, but not the flashing lights, of the patrol car were on. Hoffman checked with computerized Department of Motor Vehicle records, and was informed that the Thunderbird was registered to a car dealership in Chula Vista, California. Hoffman suspected that the Thunderbird might be stolen. At first, Hoffman did not see anyone in the Thunderbird, but when he used his flashlight to check the vehicle identification number of the Thunderbird, Hoffman noticed the claimant lying in the rear seat and made contact.
Elizalde stated in his affidavits that he was not sleeping in the rear seat, but in fact was returning from the rest room at about 12:00 a.m. when Hoffman made contact. In his deposition, Elizalde conceded that he was resting in the Thunderbird when Hoffman arrived. Elizalde was also inconsistent regarding the timing of events. In his deposition he stated that he arrived at the rest stop around 10:00 or 11:00 p.m., and that he had been at the rest stop about 15 or 20 minutes. These discrepancies undermine Elizalde's credibility, and the court accepts Hoffman's testimony as to the time and manner in which he encountered Elizalde.
One of the Thunderbird's windows was slightly open, and Hoffman motioned to Elizalde to roll down the window. Elizalde opened the car door. Hoffman explained about the missing license plate and that the car was registered to a dealership. He asked Elizalde for his driver's license and registration. Elizalde gave him an Oregon driver's license, immigration papers and documentation on the car, which showed that it belonged to a Benito Garcia Rubio of Tucson, Arizona. Elizalde indicated that he had borrowed the car from Rubio.
After this discussion, Hoffman was satisfied that the Thunderbird was not stolen, but he suspected that Elizalde might be a drug or money courier. Hoffman gave Elizalde a warning regarding the license plate violation, returned Elizalde's documents and told him that he was free to leave. Hoffman asked Elizalde if he understood that he was free to go and Elizalde said "yes." Elizalde contends that Hoffman did not return the documents until the end of their encounter, but held the documents in his hand. In light of the many discrepancies in Elizalde's deposition and affidavits, and because it is physically unlikely that Hoffman conducted the search of the car while holding documents in his hand, the court accepts Hoffman's version of events.
Hoffman then asked Elizalde whether he was carrying any drugs and Elizalde said "no." Hoffman asked whether he could check the trunk of the car. Elizalde did not seem to understand at first, so Hoffman asked the same question in Spanish. In response, Elizalde, removed the keys from the ignition, walked to the back of the car, and opened the trunk. Hoffman asked again if he could check the trunk and its contents and Elizalde agreed.
Elizalde contends that he does not have a good command of English, and he did not fully understand the questions put to him or what was going on. He contends that Hoffman did not speak to him in Spanish. Hoffman testified that there was some language barrier, which required him to repeat some questions and to ask questions in Spanish before he felt that Elizalde understood.
However, it is clear from Elizalde's deposition that he understood when Hoffman asked whether he had any drugs; that he responded that he had no drugs; that Elizalde understood when Hoffman asked if he could search the trunk of the car; and that Elizalde responded that he could do it because he had nothing there. These admissions are generally consistent with Hoffman's version of events, and inconsistent with Elizalde's prior affidavits. The court accepts Hoffman's testimony that he asked certain questions in Spanish, and that Elizalde understood the gist of what was being asked.
The search of the trunk revealed no drugs or contraband. The trunk contained some plastic bags, a spare tire and jack, jumper cables, other car maintenance items such as a container of antifreeze, and a container of laundry softener.
Hoffman then asked if he could check the interior of the Thunderbird, and Elizalde nodded and gestured toward the car. Elizalde denied that Hoffman asked about searching the interior, but Hoffman's testimony is accepted due to Elizalde's lack of credibility. Elizalde was standing by the side of the Thunderbird while Hoffman searched. Hoffman observed clothes hanging in the rear seat area and a pillow on the back seat. Hoffman tugged on the back seat and felt that it was loose. Hoffman picked up the pillow and felt that it was heavy. He suspected that it contained a handgun and felt the outside of the pillow. The pillow contained hard bulky items which were not consistent with a handgun.
Hoffman asked Elizalde whether the pillow contained narcotics or cash. At first, Elizalde denied knowing the contents of the pillow. After being asked several times, Elizalde indicated that the pillow contained money. Hoffman then radioed for assistance from Trooper Kevin Bennett, the operator of a trained police dog named "Mac." The radio call occurred about 11 minutes after Hoffman made contact with Elizalde.
Hoffman asked Elizalde who the money belonged to, and Elizalde told him that it belonged to Roberto Lopez of Los Angeles. Elizalde told Hoffman that he had a phone number for Lopez. Hoffman asked for the number, and Elizalde brought out his wallet. Hoffman examined the wallet and found a piece of paper with the name Lopez and a telephone number.
Bennett and Mac arrived at approximately 2:20 a.m. The officers did not ask Elizalde if they could use the dog to search the Thunderbird. The pillow was replaced in its original position. Mac alerted to the pillow and to the trunk of the car. Bennett put the pillow on the ground outside of the car to see if Mac would repeat his alert, and Mac did. On closer examination of the trunk, the officers found traces of suspected marijuana and cocaine residue in the trunk.
Elizalde contends that Hoffman did not ask him about the contents of the pillow until after Bennett arrived with Mac. In light of Elizalde's vague and conflicting testimony regarding the timing of events, the court accepts Hoffman's testimony as more credible and more likely. Elizalde also contends that he did not give Hoffman his wallet but that Hoffman took the wallet and looked through it while searching him. Again, the court accepts Hoffman's version of events.
After Mac alerted to the pillow, Hoffman asked Elizalde how much money was in the pillow and Elizalde told him it was about $65,000 or more than $64,000. Hoffman dumped the contents of the pillow out on the hood of the Thunderbird. Hoffman found several bundles of money, with multiple thousands of dollars in each bundle. Hoffman asked Elizalde to accompany him to the patrol office where the money could be counted and a receipt provided. Elizalde indicated that he did not wish to go to the patrol office, and sat in the patrol car while Hoffman prepared a receipt for $65,000. Elizalde was given the receipt, and left the rest area. The actual amount of the currency was later determined to be $64,765.
Elizalde contends that the evidence regarding the currency and his statements should be suppressed because he was improperly detained on a pretext regarding the car's license plate. He argues that Hoffman did not have reasonable suspicion to justify...
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