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HomeMy WebLinkAboutCP-21-MD-0000292-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : $14,000.00 U.S. CURRENCY : CP-21-MD-0292-2010 IN RE: PETITION FOR FORFEITURE AND CONDEMNATION OPINION AND ORDER OF COURT Masland, J., September 30, 2010:-- Before the court is the Attorney General's petition for forfeiture and condemnation pursuant to the Controlled Substances Forfeiture Act, 42 Pa. C.S. §6801, et seq. The petition stems from the seizure of $14,000 from Michael Shokroon (Claimant) following a traffic stop on the Pennsylvania Turnpike. I. Background The Commonwealth contends the seized currency constitutes proceeds from drug transactions based on three factors: (1) Claimant's inconsistent, suspicious responses to questioning during the traffic stop; (2) a K-9 unit's sniff search indicating the presence of drugs on the currency; and, most importantly, on an Ion Scan test which detected a significant level of cocaine residue on the currency. For his part, Claimant contends he is the owner of the currency which was lawfully obtained through the operation of his legitimate cell phone sales business. He attributes the elevated cocaine levels on the currency to the cash- based nature of his business, its location, and its questionable clientele. CP-21-MD-0292-2010 For the following reasons, the court finds that the Commonwealth failed to carry its initial burden of establishing a nexus between the seized currency and the unlawful sale of controlled substances. Further, even if the Commonwealth had satisfied its burden, Claimant successfully established that the currency was lawfully acquired and possessed, and, therefore, the Commonwealth's petition is denied and the $14,000 shall be returned to Claimant. II. Discussion A. Burdens of Proof At the outset, the court notes “that the forfeiture statute was not designed to hurt innocent third parties.” Commonwealth v. Hess, 617 A.2d 307, 311 (Pa. 1992). As such, “[a]ttempts by the Commonwealth to seize assets from bona fide innocent third parties subsequent to the exchange of the assets in payment for goods or services [are] not permitted under the forfeiture statute.” Id. at 310. Instead, the Commonwealth must carry the initial “burden of establishing by a preponderance of the evidence that a nexus exists between the pertinent unlawful activity and the property subject to forfeiture.” Commonwealth v. $11,600.00, U.S. Currency, 858 A.2d 160, 164 (Pa. Cmwlth. 2004). The Commonwealth fails to carry this burden if the evidence proves nothing more than the possibility or suspicion of a nexus between the money and criminal activity. Id. at 165. Where the Commonwealth sustains its initial burden, the burden shifts to the claimant to prove he is the owner of the money, that he lawfully acquired the -2- CP-21-MD-0292-2010 money, and that he did not unlawfully use or possess the money. Id. at 164. B. Nexus Requirement The Commonwealth contends it established a nexus between the seized currency and criminal activity, in light of the contradictory and non-credible statements made by Claimant at the traffic stop, the manner in which the currency was bundled, the K-9 sniff, and most importantly, the Ion Scan results. In forfeiture proceedings, the court must review the evidence by a logical rather than an absolutist standard. Commonwealth v. $6,425.00 Seized From Esquilin, 880 A.2d 523, 534 (Pa. 2005). Accordingly, the court evaluates the totality of the evidence, drawing appropriate logical inferences from the evidence presented at hearing. Id. C. Commonwealth's Evidence At hearing, the Trooper who conducted the traffic stop described Claimant's responses to questioning as suspicious. Claimant, a non-native English speaker, gave apparently inconsistent statements regarding whether he was in possession of a large amount of currency, whether he consented to a search of his vehicle, and the precise purpose of the currency. Following this exchange, a K-9 unit arrived to perform a sniff search of Claimant's vehicle. During this search, the K-9 alerted officers to the presence of the currency due to its odor of controlled substances. The officers noted the currency was packaged in six separate bundles sorted by denomination--consistent with the packaging of drug proceeds. Based on this, the officers seized the currency for Ion Scan -3- CP-21-MD-0292-2010 testing to verify the presence and determine the amount of controlled substances on the currency. Subsequently, an Ion Scan was performed on the currency to determine the presence and level of controlled substance residue. The Ion Scan is critical in this forfeiture because, without it, the Commonwealth fails to establish the nexus requirement as a matter of law. See Commonwealth v. Marshall, 698 A.2d 576, 576-79 (Pa. 1997) (holding evidence claimant was unemployed, made inconsistent statements, possessed money bundled consistent with drug dealing, and K-9 alert to presence of narcotics on currency insufficient to establish nexus). Without Ion Scan test results to indicate the presence of a quantifiable amount of a controlled substance on the currency, the Commonwealth proves “nothing more than the 'possibility' or the 'suspicion' of a nexus ….” Id. at 579. Compare $11,600.00, U.S. Currency, 858 A.2d at 165 (distinguishing Marshall on the grounds of Ion Scan results establishing cocaine levels five times average amount on currency in general circulation). Here, the Ion Scan indicated the currency tested positive for cocaine residue at a level of 1129 digital units. Com. Ex. 9. The state-wide average amount of cocaine residue on currency is 277.43 units. Com. Ex. 8. Based on these figures, the Commonwealth contends the currency had 4.069 times more cocaine residue than average, thus establishing the currency consists of drug proceeds. Com. Ex. 9. The Commonwealth argues this level of cocaine residue, similar to the level in Marshall, coupled with the other corroborating evidence -4- CP-21-MD-0292-2010 previously discussed, carries its burden of establishing a nexus between the seized currency and drug dealing activity. The court disagrees. D. Findings of Fact As previously stated, the court evaluates the totality of the evidence presented and cannot take an absolutist view of any single piece of evidence. Thus, the court cannot consider the Ion Scan test results, alone, dispositive. Instead, viewing the totality of the evidence, the court concludes the Commonwealth has failed to establish the nexus requirement. 1. Claimant's Statements During Traffic Stop First, the court attributes Claimant's allegedly contradictory statements to his lack of fluency in English rather than an attempt to deceive the investigating officers. The court bases this finding on the testimony of both Claimant and his wife. Their testimony was not only credible, but the manner in which Claimant testified also served to corroborate his verbal challenges with the English language. This finding is further corroborated by the Waiver of Rights and Consent to Search, which includes two handwritten notations made by the investigating officer. In the area reserved for the Consentor's signature, the notation reads, “Request made form explained verbal consent only.” The second notation appears to be a quote from Claimant, stating in quotation marks, “I don't like signing things I don't understand.” Com. Ex. 1. Accordingly, the court finds Claimant's allegedly contradictory statements to the investigative officers were the result of his limited grasp of English and therefore do nothing to advance the -5- CP-21-MD-0292-2010 Commonwealth's burden of establishing the nexus requirement. 2. Currency Packaging Next, the court determines the suspicious packaging of the currency can be attributed to the nature of Claimant's legitimate business rather than drug trafficking. At hearing, Claimant and his wife (and business partner), credibly testified that they operate a predominantly cash-based business selling cell phones and cell phone accessories. This credible testimony was corroborated by voluminous documentation establishing the legitimacy of Claimant's business, including licenses from Pennsylvania, Maryland, and West Virginia. Cl. Ex. 2. In addition, Claimant presented his 2007, 2008, and 2009 tax returns revealing significant gross receipts ($1,148,420 in 2009), adjusted gross income ($296,329 in 2009), and taxes paid ($21,688 in 2009) as a result of his business. Cl. Ex. 1. Based on this evidence, the potentially suspicious collating and packaging of the currency was more likely than not for the legitimate purpose of Claimant's business. Accordingly, the currency's packaging does not contribute to establishing the nexus requirement. 3. Ion Scan Testing Finally, the court addresses the Ion Scan results. Unlike the cases cited by the Commonwealth, here, Claimant provided a perfectly plausible explanation for the elevated Ion Scan reading. Claimant's wife credibly and candidly admitted that many of cell phones sold at their kiosks/stores were to customers who -6- CP-21-MD-0292-2010 appeared to be seedy characters in rough areas of southwestern Pennsylvania, including the Monroeville Mall in Allegheny County, the county with the highest average cocaine residue in the state. See Com. Ex. 8 (Allegheny Casual Contact level: 510.47; State average: 277.43). Though she testified to never knowingly selling cell phones to drug dealers, Claimant's wife acknowledged her suspicions that many of their customers may be involved with illegal drugs and often paid cash. Notable here, the Commonwealth introduced no evidence to establish Claimant ever evaded the law to provide drug dealers with cell phones or engaged in any illegal activities related to his business. Unlike several of the cases cited by the Commonwealth wherein the claimants were under surveillance for drug-related activities, all the evidence suggests Claimant 1 operates a legitimate, licensed cell phone dealership. In fact, neither Claimant nor his wife have a criminal record beyond the speeding infraction that initiated the instant forfeiture action. Accordingly, the court finds the elevated cocaine residue levels on the seized currency are the result of the nature of Claimant's legitimate business, not evidence of Claimant's participation in criminal activity. As such, the 1 The court is not enamored with Claimant’s clientele and does not wish to encourage businesses to provide services to drug dealers; however, dealers, like everyone else in our society, use cell phones. They also eat and may be known to frequent fast-food establishments. An Ion scan of a MacDonald’s cash register in Monroeville might yield a suspiciously high reading, but no one would propose a forfeiture in that case. Until the legislature outlaws the sale of goods and services to suspected criminals, otherwise legitimate businesses must not be penalized for attracting less than savory customers. -7- CP-21-MD-0292-2010 Commonwealth has presented no persuasive evidence to establish the initial nexus requirement, and therefore, the forfeiture petition must be denied. E. Conclusion In conclusion, the Commonwealth failed to present sufficient evidence to satisfy its burden of proving a nexus between the seized currency and unlawful activities. Further, based on the foregoing analysis, the court finds that even if the Commonwealth had carried its burden, Claimant would have successfully carried his burden to prove he is the owner of the money, that he lawfully acquired the money, and that he did not unlawfully use or possess the money. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this of September, 2010, after a hearing on the petition for forfeiture and condemnation, the court finds that the $14,000.00 U.S. Currency is not forfeited under the Act and shall be returned to its rightful owner, the Claimant, Michael Shokroon. By the Court, Albert H. Masland, J. Robert B. Stewart, III, Esquire Senior Deputy Attorney General For the Commonwealth Gregory B. Abeln, Esquire For Claimant :saa -8- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : $14,000.00 U.S. CURRENCY : CP-21-MD-0292-2010 IN RE: PETITION FOR FORFEITURE AND CONDEMNATION ORDER OF COURT AND NOW, this of September, 2010, after a hearing on the petition for forfeiture and condemnation, the court finds that the $14,000.00 U.S. Currency is not forfeited under the Act and shall be returned to its rightful owner, the Claimant, Michael Shokroon. By the Court, Albert H. Masland, J. Robert B. Stewart, III, Esquire Senior Deputy Attorney General For the Commonwealth Gregory B. Abeln, Esquire For Claimant :saa