improper seizure does not immunize seized property from forfeiture
How later courts described this case
- improper seizure does not immunize seized property from forfeiture
Written by the judges who cited it.
The opinion
HANSEN, Chief Judge,
dissenting:
, I dissent from the majority’s remand of this ease. Clearly the trial court erred in granting State’s Motion for Summary Judgment. State presented no admissible facts in conjunction with its Motion for Summary Judgment to prove a crime had been committed or that the money seized was forfeitable under the Act.
This appeal involves a forfeiture of property under the Uniform Controlled Dangerous Substances Act, 63 O.S.1991 § 2-101 et seq. The facts as set out in State’s Motion for Summary Judgment are as follows, in pertinent part:
1. A highway patrol trooper stopped an automobile with Ohio plates for making an illegal lane change.
2. Jeffrey Whittington was driving the car. Robin Slater and Rick Lunsford were passengers in the car.
3. Another party, Jim Bolling, owned the car.
4. Whittington consented to the trooper searching the car. The trooper found $30,781.00 in two bags in the car.
5. The trooper requested further assistance because he knew drug dealers carry large amounts of cash.
6. Bogey, a drug detecting dog made a positive alert that narcotics had been present in two places in the ear.
7. The trooper found no drugs in the car.
8. After detaining the individuals for questioning, they were released.
9. No charges were filed against any of the individuals.
10. State seized the money and gave notice of forfeiture filed in September of 1989.
State attached to its Motion for Summary Judgment an affidavit of the trooper who stopped the car, and affidavits of two agents for the Oklahoma Bureau of Narcotics, stating the dog had told them that he found the scent of narcotics in the car indicating the money had been in close proximity to narcotics. However, Bogey did not identify the particular narcotic he said he sniffed. State also attached an affidavit of an investigator for Meigs County in Ohio. That affidavit stated that on April 3, 1992, long after the money was seized, he taped an interview with Lunsford where he stated the purpose of the trip he took that fateful day was to buy marijuana. Also attached to the motion was a judgment, dated in June of 1990, again long after the money was seized, against Hughes on a plea of guilty to possession with intent to distribute marijuana. Included in the record are affidavits of Lunsford and Slater disclaiming any drug related or other criminal activity.
Section 2-504 of the Act provides that any peace officer shall seize property subject to forfeiture under the act when:
4. Probable cause exists to believe the property has been used, or will be used, in violation of this act.
Under the facts and circumstances of this case, the officers had no probable cause to believe the money was used or would be used in violation of the act. Therefore, the property was not subject to seizure.
As noted in U.S. v. $191,910.00 in U.S. Currency, 788 F.Supp. 1090, 1096 (N.D.Cal.1992), probable cause must exist for the institution of the forfeiture. Thus, evidence obtained subsequent to the filing of the forfeiture may not be considered in determining probable cause. The Tennessee District Court in Jones v. United States Drug Enforcement Administration, 819 F.Supp. 698 (M.D.Tenn.1993) cited that decision with approval and pointed out the mere fact a travel-ler matches some elements of the drug courier profile does not amount to even articulable suspicion, much less probable cause.
As in Jones , the evidence of the narcotic-trained dog’s “alert” to the currency is of *1267 extremely little probative, weight. That Court made the following findings:
. ,, ^ As the Drug Enforcement Administration s own chemists reported.... currency in general circulation in this country is contaminated with traces of narcotics. Specifically, the chemist found that one-third of the bills in a randomly selected sample were contaminated with between 2.4 and 12.3 nanograms of cocaine per bill. ... The belts used at Federal Reserve Banks to sort currency were contaminated with approximately 200 nanograms of cocaine per belt. Jones , at p. 720.'
The Court also cited a study by Florida Dade County Medical Examiner’s Office, stating:
97% of the bills from around the country tested positively for cocaine, and noting that clean bills are contaminated in banks when they come in contact with contaminated ones. Jones , at p. 720.
The presence of trace narcotics on currency does not yield any relevant information whatsoever about the currency’s history. 1 We agree with these federal courts, that the dog’s alert to the presence of narcotics on the bills, without the finding of narcotics, is not probable cause to seize the money.
Our State and Federal Constitutions prohibit the taking of property without compensation or due process of law. Although our forfeiture statutes do not violate these constitutions in that the forfeiture is punishment for a violation of law, 2 our laws do not create a police state 3 In a civil forfeiture proceeding, the crime need not be proved beyond a reasonable doubt, but the forfeiture must still be in response to a criminal act. The $30,-781.00 was not found in close proximity to any forfeitable substances. 63 O.S.1991 § 2-603(A)(7). There is nothing remotely criminal in possessing $30,781.00. There was no rational basis for the initial seizure of the money. Accordingly, there was no basis for forfeiture as punishment. The trial court should have granted judgment in favor of the money, without hesitation.
. See, Curriden, Courts Reject Drug-Tainted Evidence, 79 A.B.A.J. 22, (August 1993).
. Richard Lyle Austin v. United States, — U.S. -, 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993).
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