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HomeMy WebLinkAbout97-0095 MiscCOMMONWEALTH VS. $23,320.00 IN U.S. CURRENCY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-0095 MISC. IN RE: COMMONWEALTH'S MOTION FOR FORFEITURE ORDER AND NOW, this ! "2 day of September, 1998, the petition of the Commonwealth for forfeiture of the captioned quantities of money is GRANTED. Timothy Doherty, Esquire Deputy Attorney General Peter Foster, Esquire For Claimants BY THE COURT, r~ess, J. :rim COMMONWEALTH VS. $23,320.00 IN U.S. CURRENCY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-0095 MISC. IN RE: COMMONWEALTH'S MOTION FOR FORFEITURE OPINION AND ORDER On December 24, 1997, claimants Lludin Palmer and Richard Myers were traveling eastbound on Interstate 76, the Pennsylvania Turnpike. At around 9:15 a.m. they were timed by State Trooper Todaro as traveling eighty miles per hour, well in excess of the posted speed limit. Trooper Todaro stopped the car and asked the driver, Mr. Myers, to produce a license and registration. Myers produced a Florida drivers license and a rental agreement for the car, which reflected that the car had been rented by Palmer, who was seated in the front passenger seat. At the trooper's request, Palmer produced his New York driver's license. Trooper Todaro then ran a check on both claimants' licenses and, after finding no outstanding warrants, asked Myers to exit the vehicle and step to the rear of the car. The trooper then issued a warning. In subsequent conversation, Myers informed Trooper Todaro that he and Palmer had spent the last three days in Pittsburgh, that they were returning to New York City, and that they had no luggage in the car. Trooper Todaro then returned Myers to the car and asked Palmer to step to the rear of the vehicle. After agreeing to answer questions, Palmer informed Trooper Todaro that he and claimant Myers had been in Pittsburgh since Sunday and that they had no luggage in the car. Trooper Todaro then requested and obtained permission to search the vehicle. Subsequently, he requested the aid of Corporal Shelley and his police dog, Schnapps. After the 97-0095 MISC. claimants exited their vehicle Corporal Shelley conducted a survey using the dog. This resulted in three "alerts" -- the term used when a drug-detection canine indicates that there is an odor of either marijuana, cocaine, heroine, or their derivatives -- one at the glove compartment, one on the back seat, and one in a bag in the trunk. The alert on the shopping bag in the trunk was described as "strong" and the bag was thereupon searched. The search of the bag revealed seven bundles of U.S. currency totaling $23,320. The seven bundles were comprised of twenty-four sub bundles, each in the approximate amount of $1000. The claimants were then separated and questioned by the troopers as to the origin of the money. Palmer stated that the money was his and that he had borrowed it from an uncle to purchase a wrecked vehicle in order to repair and resell it. Claimant Myers stated that $10,000 of the money was his and that the remainder belonged to Palmer. The discrepancy in the two Stories led the troopers to confiscate the money pending further investigation. The troopers then returned to the police barracks accompanied by Palmer and Myers. At the barracks, the currency was subjected to a "scan." This was done by placing several envelopes full of shredded paper and old shredded U.S. currency on the floor where they were subjected to being sniffed by Schnapps. The first scan was done without the currency which is the subject of these proceedings. There was no alert from the dog. The second test included the money seized in this case and Schnapps strongly alerted on the seized currency. The claimants were then questioned separately by narcotics specialist, Trooper Lownsbery. During the interview, claimant Palmer stated that his uncle had loaned him the money to purchase a wrecked vehicle that he and claimant Myers were going to repair and resell 2 97-0O95 MISC. at a profit. Palmer stated that he and Myers had looked at a Toyota land cruiser that required work and had decided not to purchase it. In a separate interview, claimant Myers stated that they had examined a damaged Honda Civic, also intending to repair and resell it. Trooper Lownsbery then attempted to contact claimant Palmers stated employer, but neither of the two phone numbers that Palmer offered were correct. Trooper Lownsbery then attempted to contact claimant Michael Gibson, the man whom Palmer described as his uncle. Upon contacting Gibson, Trooper. Lownsbery learned that Palmer was not Gibson's nephew and that Gibssn had no knowledge of any plan to purchase wrecked vehicles. Gibson stated that he was Palmer's landlord, that Palmer was seven months behind in his rent, but in spite of that he had given Palmer $24,000 in cash to hold while Gibson was out of town. Gibson claimed that the currency was to be used to pay taxes. Subsequently, the Commonwealth initiated these forfeiture proceedings. During the course of discovery, the stories of claimants Myers and Palmer changed to more closely reflect Mr. Gibson's statement to the effect that Palmer was holding the money for "safe keeping." Also during discovery claimant Gibson refused to answer interrogatories or to produce discoverable documents. Instead, he invoked his Fifth Amendment right against self incrimination. We subsequently denied a Commonwealth motion to compel but did not preclude the possibility that we would draw a negative inference from the defendant's refusal to respond to discovery. Claimant Gibson did not appear for the forfeiture hearing and has offered no testimony or tangible evidence suggesting that he is the rightful owner of the money in question. Prior to the forfeiture hearing, but after the traffic stop in question, claimants Palmer and 3 97-0095 MISC. Myers were again stopped for speeding en route to New York. A search of their vehicle revealed a large quantity of scented laundry detergent, a substance often used as a masking agent to confuse a narcotics canine. The standard that we must employ in this action is clearly stated in Com. v. Marshall: In forfeiture proceedings involving money, the Commonwealth bears the initial burden of proving either 1) that the money was "fumished or intended to be furnished ... in exchange for a controlled substance ..., [or represents the] proceeds traceable to such an exchange;" or 2) that the money was "used or intended to be used to facilitate any violation of the Controlled Substance, Drugs, Device and Cosmetic Act." 42 Pa.C.S. Sec. 6801 (a)(6)(I)(A), (B) (Supp. 1995). In meeting this burden, the Commonwealth must establish, by a preponderance of the evidence, the nexus between the money and illegal activity. Com. v. Marshall., 548 Pa. 495, __, 698 A.2d 576, 578 (1997). In that case, the Pennsylvania Supreme Court found the following factg did not, by a preponderance of the evidence, establish the required nexus: 1) Appellant had been unemployed for 1-1/2 years prior to arrest; 2) Appellant and the driver of the car gave inconsistent stories concerning the ownership of the money; 3) the currency was bundled in a manner consistent with drug dealing and was found between the seat cushions; 4) the drug-sniffing dog alerted on the cash; and 5) Appellant's testimony was not credible. Marshall at ,698 A.2d at 578,579. There are many similarities between Marshall and the present case: Claimant Palmer has no visible employment; claimants Palmer, Myers and Gibson 4 97-0095 MISC. all have contradictory stories conceming the ownership and origin of the currency; the currency was bundled in a manner consistent with drag dealing; the narcotics canine alerted on the currency both in the trunk and during the cash scan; and finally we do not find claimants Palmer and Myers' testimony to be at all credible. If this were the extent of the Commonwealth's evidence we would, nonetheless, be bound to find for the claimants. There are facts, however, which distinguish this case from Marshall. The first is the later stop and search of a vehicle occupied by Palmer and Myers. The search, as we have observed, revealed an abnormally large quantity of detergent, supporting a suggestion that these two men are drag couriers and that the currency found in the claimants' car was involved in drug trade. Further strengthening this conclusion is claimant Gibson's refusal to participate in discovery claiming that to do so would incriminate him. During our hearing, claimants Palmer and Myers attempted to characterize the currency as proceeds from the settlement of claimant Gibson's deceased roommate's estate. Gibson, however, has produced no documents nor has he answered interrogatories in a way which would verify this claim. He did not even appear at the forfeiture hearing and has offered no testimony with respect to the origin of the money. To the contrary, and more important in determining whether the Commonwealth has met his burden, he has suggested that his testimony would implicate him in criminal activity. Given the totality of the circumstances in this case, we are satisfied that the Commonwealth has established a nexus between the seized currency and the sale or procurement of controlled substances. Once the nexus is established the focus tums to the claimants. According to Marshall., "[i]f the Commonwealth established this nexus, the burden shifts to the claimant to establish that 5 97-0095 MISC. he owns the money, that he lawfully acquired it, and that it was not unlawfully used or possessed by him." Com. v. Marshal!, 548 Pa. 495 .... 695 A.2d 576, 578 (1997). This the claimant has not done. There are three named claimants in this action - - Palmer, Myers and Gibson. The suggestion of all three, albeit belatedly, is that the currency originated with Gibson. For whatever reason, claimant Gibson has completely avoided taking any action to prove that he lawfully possessed the $23,320. He has responded to discovery by stating that his answer to questions concerning the money would implicate him in unlawful activity. He has, subsequently, produced no documents nor any other evidence which would in any way support his claim. He did not appear at the forfeiture hearing and has offered no testimony with respect to the origin of the money. ORDER AND NOW, this ] at day of September, 1998, the petition of the Commonwealth for forfeiture of the captioned quantities of money is GRANTED. Timothy Doherty, Esquire Deputy Attorney General Peter Foster, Esquire For Claimants BY THE COURT, Kevin ~ess, 6