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07/23/97 COMMONWEALTH PENNSYLVANIA v. FLOYD

July 23, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
FLOYD MARSHALL, APPELLANT.



Appeal from the Order of the Commonwealth Court, entered July 27, 1995 at No. 1534 C.D. 1994, Affirming the Order of the Court of Common Pleas of Chester County, entered May 11, 1994 at No. 1054 M. 1993. Before: Flaherty, C.j., And Zappala, Cappy, Castille, And Nigro, JJ. Madame Justice Newman did not participate in the consideration or decision of this case. Mr. Justice Castille files a Dissenting opinion.

The opinion of the court was delivered by: Nigro

JUSTICE NIGRO

DECIDED: July 23, 1997

Appellant Floyd Marshall appeals from the Commonwealth Court's affirmance of the trial court's denial of his motion for the return of $3,400.00 in U.S. currency that had been seized and forfeited to the Commonwealth. For the reasons presented herein, we reverse.

On August 10, 1993, Appellant was asleep in the back seat of a car that was stopped for speeding by State Police Trooper Ryan Hutchinson. After approaching the vehicle and making the initial inquiries, Hutchinson learned that there were outstanding arrest warrants for the driver and the front-seat passenger. Hutchinson arrested these men and placed them in his police cruiser. He then returned to the stopped vehicle and spoke with Appellant.

After checking the information Appellant had given him, Hutchinson learned that there was also an outstanding warrant for Appellant's arrest. Hutchinson then asked Appellant to step out of the car.

As Appellant did so, Hutchinson noticed that the back seat cushion was pulled away from the upright portion of the seat, and that packets of currency were present in the exposed area. In response to Hutchinson's inquiries, Appellant stated that $700.00 had been given to him by his girlfriend and that the rest was for a catering business. See N.T. at 31a. The driver, however, stated that $400.00 was his. See N.T. at 32a.

Hutchinson arrested Appellant and placed him in the police cruiser with the other two men. *fn1 He then searched their car. From the exposed area in the back seat, he recovered and confiscated $3,400.00 in various denominations, divided into packets totaling $100.00 each, and arranged within each packet so that the individual bills alternated face-up and face-down. The search uncovered no drugs or drug paraphernalia.

The next day, several Troopers hid the $3,400.00 in a desk in the police barracks and conducted a test with a drug-sniffing dog. The dog found the hidden currency and "alerted" on it, indicating the residual presence of cocaine, marijuana, hashish, or heroin. See N.T. at 50a-51a.

Appellant filed a motion for return of property pursuant to Pa. R. Crim. P. 324. A hearing was held, during which Appellant stated that $400.00 of the $3,400.00 was his personally. See N.T. at 17a. He further stated that he "does a little catering," N.T. at 5a, and that the remaining $3,000.00 had been advanced to him by a relative and a friend in order to buy food for catering jobs. See N.T. at 17a, 19a-20a. Hutchinson testified, based on his training, that the manner in which the $3,400.00 was organized and bundled was consistent with drug activity. Also, Trooper Timothy D. Markley, the officer who had overseen the dog-sniff test, testified concerning the design and results of that test.

Based on the evidence presented at the hearing, the trial court denied Appellant's motion and ordered the money forfeited. On appeal, the Commonwealth Court affirmed. Senior Judge Della Porta Dissented, however, finding that the Commonwealth had not met its burden of proving a nexus between the money and illegal drug activity.

We granted allocatur to determine whether the trial court erred in concluding that the evidence presented was sufficient to sustain the Commonwealth's burden under 42 Pa.C.S. § 6801(a). *fn2

In forfeiture proceedings involving money, the Commonwealth bears the initial burden of proving either 1) that the money was "furnished or intended to be furnished . . . in exchange for a controlled substance . . ., [or represents the] proceeds traceable to such an exchange"; or 2) that the money was "used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act." 42 Pa.C.S. § 6801(a)(6)(i)(A), (B) (Supp. 1995). In meeting this burden, the Commonwealth must establish, by a preponderance of the evidence, the nexus between the money and illegal activity. See Commonwealth v. $16,208.38 U.S. Currency Seized From Holt, 160 Pa. Commw. 440, 448, 635 A.2d 233, 237-38 (1993), appeal denied, 538 Pa. 634, 647 A.2d 509 (1994); Commonwealth v. $32,950.00 U.S. Currency, 160 Pa. Commw. 58, 61, 634 A.2d 697, 698 (1993). If the Commonwealth establishes this nexus, the burden shifts to the claimant to establish that he owns the money, that he lawfully acquired it, and that it was not unlawfully used or possessed by him. See 42 Pa.C.S. § 6802(j) (Supp. 1995); Commonwealth v. $16,208.38 U.S. Currency Seized From Holt, 160 Pa. Commw. at 449, 635 A.2d at 238; Commonwealth v. $32,950.00 U.S. Currency, 160 Pa. Commw. at 62, 634 A.2d at 697.

In the instant case, the trial court found the following facts sufficient to support the Conclusion that the money in question was connected to drug activity: 1) Appellant had been unemployed for 1-1/2 years prior to the arrest; 2) Appellant and the driver of the car gave inconsistent stories concerning the ownership of the money; 3) the currency was bundled in a manner consistent with drug dealing and was found between the ...


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