finding sufficient nexus where hundreds of thousands of dollars in currency were found in proximity to only four ounces of marijuana
How later courts described this case
- finding sufficient nexus where hundreds of thousands of dollars in currency were found in proximity to only four ounces of marijuana
- holding constitutional questions and questions of interpretation and application of statutes reviewed de novo
- “[T]here is nothing even remotely criminal in possessing . . . a large sum of cash.”
- stating burden of proof to show probable cause in civil forfeiture proceeding
Written by the judges who cited it.
The opinion
LIVERMORE, Judge,
specially concurring.
What is present in this case is an amount of marijuana that would be possessed by a user and $313,500 in cash. From this we are asked to find probable cause that the cash was the proceeds of drug dealing and thus subject to seizure and to forfeiture. I join Judge Pelander in declining to do so. First, there is no direct evidence in the case about the prevalence of cash in society. If a judge were to conclude that cash amounts so large can most probably be explained by illicit drug dealings, it can only be by some form of illegitimate judicial notice, derived perhaps from television, that large sums of cash mean that. That such sums are unfamiliar to middle class judges is, of course, not proof of criminality. Second, if the amount of cash itself is insufficient, putting it next to proof of marijuana use does not create sufficiency. I doubt that placing it next to a bottle of gin or a pack of cigarettes would permit the conclusion that the money was derived from illicit sales of those commodities. Just because a person uses an illegal or socially suspect substance does not permit a finding that his living is earned from it. Finally, the statutory inference is of little utility. The legislature can do many things. Establishing verities, I would have thought, was not one of them. Assuming, however, that an inference were permissible, it is insufficient standing alone, as it does in this case, to establish probable cause for forfeiture. 1
. I am deeply troubled by the position of the dissent that it is permissible to consider the 1980 cocaine possession conviction as tending to prove that the claimant was a drug dealer in 1994. If marijuana possession in 1994 does not sustain that finding, cocaine use fourteen years before will not sustain it. Moreover, such use of a prior conviction is an impermissible character use under Rule 404, Ariz.R.Evid., 17A A.R.S.