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
FERNANDEZ, Judge,
dissenting.
I respectfully dissent. The majority rejects the trial court’s reliance on the statutory inference because it believes that the statutory inference alone is insufficient to establish probable cause for forfeiture under the facts of this case. Unlike the majority, I find a sufficient rational basis in the facts to establish probable cause for forfeiture, considering the' totality of the circumstances.
Appellant had previously been convicted of possession of cocaine in 1980, as shown by a certified copy of the conviction that was admitted. He committed several traffic violations on a public street and the interstate highway and was stopped. The Department of Public Safety officer smelled the odor of burning marijuana and was told by appellant that he would find two “roaches” in the ashtray. The officer then found the marijuana, which was compressed and appeared to be fresh, and a shoe box containing a large amount of currency. This evidence, in my opinion, is sufficient to show probable cause based on former A.R.S. § 13-4305(B) as a matter of law. United States v. Padilla, 888 F.2d 642 (9th Cir.1989). The state is not required to trace the currency to any particular transaction. United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432 (9th Cir.1985).
The only evidence appellant presented was the testimony of his passenger, who essentially denied any knowledge of the marijuana or the currency. The trial court specifically disregarded his testimony as not being credible. Thus, it is clear to me that appellant did not meet his burden of rebutting the statutory inference.
In State ex rel. Cook v. Saynes, 713 S.W.2d 258, 262 (Mo.1986), the Missouri Supreme Court stated:
The fact that money is found in close proximity to forfeitable controlled substances furnishes a logical basis for the inference of forfeitability; hence the presumption may not be said to be arbitrary. Further as defendant is afforded the full opportunity to rebut it, it does not appear to us the risk of erroneous deprivation [of a defendant’s constitutionally protected interest in the money] is unconstitutionally great____
Considering the totality of the circumstances here, I find that the inference the trial court drew under § 13-4305 was not irrational, impermissible, or violative of appellant’s constitutional rights. I agree with the trial court that sufficient evidence was presented to establish probable cause to warrant forfeiture.