Justia Federal District Court Opinions

As noted above, Johnson also had murder charges pending against him.

The District Court consolidated the two in rem proceedings by order dated November 29, 1998.

Despite the District Court's reliance on McManus's experience, we were unable to locate evidence anywhere in the record of that experience or any training that might inform her evaluation of the criminal nature of this admittedly non-criminal activity.

In their briefs, claimants contend that the government must establish probable cause to believe that a "substantial connection" exists between the seized currency and an illicit drug exchange. However, at oral argument, claimants' counsel admitted that he was unsure what, if anything, the adjective "substantial" added to the probable cause analysis. We recognize that some of our sister circuits have described the government's initial burden as requiring it to demonstrate a "substantial connection," while others have used language such as "nexus" or some "connection." Compare, e.g., United States v. $5,000 in United States Currency, 40 F.3d 846, 849 (6th Cir. 1994) (noting that government must establish probable cause to believe there is a "substantial connection" between the money and a controlled substance exchange), and United States v. $38,600.00 in United States Currency, 784 F.2d 694, 697 (5th Cir. 1986) (same) with $506,231.00 , 125 F.3d at 451 ("Probable cause for the forfeiture exists if the government demonstrates a nexus between the seized property and illegal narcotics activity.") (emphasis added), and United States v. One Lot of United States Currency ($36,634), 103 F.3d 1048, 1053 (1st Cir. 1997) ("[T]he government must show that it has probable cause to believe that the property had the requisite nexus to a specified illegal purpose.") (emphasis added). While we have previously noted in passing that the distinction between "substantial connection" and "nexus" or "some connection" "appears to be semantical," RD 1, Box 1, 952 F.2d at 58 n.5, we need not decide whether the various tests are substantively different. Assuming that the government is correct that it need only establish probable cause to believe that the money bears a connection or nexus to an illicit drug transaction, rather than a "substantial connection," we find that it has not met its burden in that regard.

The full text of S 881(a)(6) provides:

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter.

We have not overlooked the fact that the Allegretto affidavit alleges that, subsequent to the DRBA's seizure of the claimants' currency, claimant Johnson was arrested twice for narcotics violations in North Carolina. However, the government has not relied upon these allegations of subsequent arrests to uphold the District Court's probable cause determination, the statement remains uncorroborated in the record, and the record does not reveal the ultimate disposition of the charges. Moreover, the parties' stipulation of facts filed in the District Court did not recite the allegation in the Allegretto affidavit on this issue. Given the government's apparent disregard of the subsequent arrests, and in the absence of any information concerning the ultimate disposition of the charges, we attach no significance to Allegretto's statement. Cf., e.g., United States v. $215,300 in United States Currency , 882 F.2d 417, 419 (9th Cir. 1989) (holding that claimant's previous arrest for marijuana trafficking was not probative in forfeiture proceeding because it had been dismissed).

In several cases, other courts of appeals have found that the government had probable cause to institute forfeiture proceedings against currency where the government presented reliable direct or circumstantial evidence of claimants' contemporaneous involvement in drug activities. E.g., $36,634, 103 F.3d at 1051, 1054-55 (stating that circumstantial evidence was sufficient to show currency's link to drug activities where claimant associated with known drug traffickers who had been recently arrested for importing marijuana, and claimant planned to take identical route as drug traffickers); United States v. $149,442.43 in United States Currency, 965 F.2d 868, 876-77 (10th Cir. 1992) (finding that large amount of hidden currency, presence of drug paraphernalia, including packaging supplies and drug notations reflecting large drug transactions, established probable cause to forfeit currency); United States v. $91,960.00 in United States Currency, 897 F.2d 1457, 1462-63 (8th Cir. 1990) (finding probable cause to forfeit currency because, inter alia, claimant was found with large sum of money and a notebook that appeared to be a record of drug transactions, and had been convicted of drug crime one year after forfeiture); United States v. Padilla, 888 F.2d 642, 645 (9th Cir. 1989) (finding probable cause to forfeit currency where claimant was under police surveillance at the time of the forfeiture because he was suspected of engaging in narcotics transactions, and police searched associates' homes and found drugs; court found that government presented evidence that claimant "had recently been involved in a drug transaction"); $215,300, 882 F.2d at 419 (finding probable cause, relying upon fact that claimant's airline ticket was issued by Miami travel agency that had issued airline tickets for 20 to 30 other travelers from whom police had previously seized narcotics-related currency); United States v. $5,644,540.00 in United States Currency, 799 F.2d 1357, 1363 (9th Cir. 1986) (finding that probable cause existed based upon, inter alia , presence of cocaine in suitcase containing money and circumstantial evidence that claimant was connected to motel known as site for drug transactions); United States v. 13,000 in United States Currency, 733 F.2d 581, 585 (8th Cir. 1984) (stating that government had probable cause to forfeit currency based upon evidence of drug paraphernalia found on claimant's person at time of seizure and fact that, the day before the seizure, claimant made phone calls to same apartment in New York that he called just prior to his 1981 drug distribution arrest); United States v. $93,685.61 in United States Currency, 730 F.2d 571, 572 (9th Cir. 1984) (per curiam) (finding that government had probable cause to forfeit currency when claimant was arrested for drug violation and subsequent search of house found currency, drug paraphernalia and drugs); United States v. $84,000 in United States Currency, 717 F.2d 1090, 1099-1100 (7th Cir. 1983) (finding probable cause based on claimants' admissions that they intended to purchase drugs in Florida with currency and additional fact that police found narcotics with currency).

While the government also relied on the presence of cologne, cellular telephones and air freshener in the vehicle as indicators of a valid narcotics nexus, we do not view these factors as probative on this issue. Aside from the general allegation in the Allegretto affidavit that all of the facts and circumstances indicated to him that the currency was drug- related, A-7, the government has not presented any evidence that addresses the more specific issue of whether the presence of these objects is indicative of involvement in the drug trade. In the absence of a record basis for concluding that these factors are indicative of drug- related activity, we will ascribe no significance to the presence of these items in evaluating whether the government had probable cause to institute the forfeiture. See, e.g., 30,060.00, 39 F.3d at 1044 (rejecting government's argument that drug dealers carry money in wrapped bundles and its statement that the amount involved was consistent with the cost of two kilograms of cocaine because "it provide[d] no authority for these contentions, which are, in any event, speculative"); cf. $129,727.00, 129 F.3d at 488-89 (finding probable cause to forfeit, crediting testimony by DEA agent with eight years' experience that many of claimants' actions were consistent with drug courier profile). In any event, were we to consider this information, the degree of probative value we would attach to it is minimal, as the presence of these objects is not "out of the ordinary" in the sense that few persons would possess these items while traveling. See, e.g., United States v. Sokolow, 490 U.S. 1, 8 (1989) (stating that defendant's cash purchase of two airline tickets was probative because that conduct was "out of the ordinary, and it [was] even more out of the ordinary to pay that sum from a roll of $20 bills containing nearly twice that amount of cash").

For example, in United States v. Massac , 867 F.2d 174, 176 (3d Cir. 1989), we upheld the defendant's warrantless arrest, concluding that the government had probable cause to arrest based upon an informant's tip that the defendant and her companion acted suspiciously in booking the trip from Florida, the companion's suspicious conduct upon arrival in Wilmington, Delaware, and the trained dog's positive reaction to the defendant's luggage at the train station. We found the dog sniff evidence was probative because "of the fact that trained dogs can detect the presence of concealed narcotics with almost unerring accuracy and the finding of the district court that this particular dog met the training and reliability requirements." Id. Subsequently, in United States v. Carr, 25 F.3d 1194 (3d Cir. 1994), we affirmed the defendant's conviction for conspiracy to launder money from a specified unlawful activity -- the felonious sale and distribution of drugs -- based in part on evidence that a trained dog alerted to the money at issue. Id. at 1202-03. Over Chief Judge Becker's dissent, we found that the positive alert to the money found in the defendant's residence was but "only one piece of evidence" tending to prove the defendant's guilt and involvement in the conspiracy, and that the cumulative weight of all of the evidence was sufficient to support the conviction. In a footnote, we specifically rejected the argument that the dog sniff evidence had no probative value because of the circumstance that a large portion of the nation's currency is tainted with drugs. Id. at 1202 n.3. This position, however, is not without its detractors. E.g., id. at 1216-17 (Becker J., concurring in part and dissenting in part) ("I am inclined to the view that the information now available establishes a strong presumption against the admissibility of evidence of a canine's alert to currency, and that the government can rebut that presumption only if it first clearly and convincingly establishes outside the presence of the jury, the relevance and non- prejudicial character of the offered evidence."); United States v. Frost, 999 F.2d 737, 745 (3d Cir. 1993) (Pollak, J., concurring) (noting that defendant's contention that probable cause to search could not be based upon result of a positive canine alert was "not .. . frivolous," but that he waived the argument by not making it in the district court). In any event, our analysis in Carr is consistent with the result we reach here because in Carr, we specifically referred to the fact that it was the results of a "trained" dog alert that were admitted in the district court. Carr, 25 F.3d at 1203.

The government also points out that the money found in Johnson's bag was double-bagged in plastic, but there is no evidence in the record that narcotics-related currency is generally transported in this fashion.

See generally note 8, supra (listing cases in which government presented circumstantial evidence of recent connection to or involvement with drugs to establish probable cause to forfeit currency).

BRIGHT, Circuit Judge, concurring.

I write separately to add emphasis that, in this case, this court calls a halt to a government's attempt under the forfeiture statute to take someone else's money based on chimerical or flimsy evidence or even pretext. I wholeheartedly join in Judge Rendell's opinion