The opinion of the court was delivered by: Judge Leavitt
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Robert Collins appeals an order of the Court of Common Pleas of Cumberland County (trial court) granting the Commonwealth of Pennsylvania's petition for forfeiture of cash in the amount of $9,000 under the act commonly known as the Controlled Substances Forfeitures Act (Forfeiture Act), 42 Pa. C.S. §§6801-6802. The trial court held that the Commonwealth established a sufficient nexus between the cash and illegal drug trafficking by an ion scan showing trace amounts of cocaine on cash seized from Collins. Concluding that the Commonwealth's evidence was inadequate to establish a nexus, we reverse.
The undisputed facts are as follows. On March 5, 2009, Pennsylvania State Police Corporal Daniel Housel stopped Collins, who was traveling on Interstate 81 in Cumberland County, because of his vehicle's "excessively" tinted windows. The vehicle, owned by Collins' sister, was registered in New York. Collins is a West Virginia resident and was driving to New York at the time of the traffic stop. After doing a computer background check, Corporal Housel learned that Collins' driver's license had been suspended and that Collins had once been convicted for possession of marijuana. Collins agreed to a search of the car, first telling Corporal Housel that there was $9,000 in cash in the vehicle. In the glove box, Corporal Housel found $5,000 in cash, and in the driver's side door pocket he found $4,000 in cash. A State Police "drug dog"*fn1 checked the car, alerting at the glove box, indicating that he detected the odor of a controlled substance. However, no controlled substances were found in the glove box or anywhere else in the car.
In response to Corporal Housel's questions about the large amount of cash, Collins replied that an individual, "Paul," had given him the money to buy a car at the Mason Dixon Auto Auction. When Collins declined to provide Paul's full name or any contact information, the police seized the cash. After an ion scan found trace amounts of cocaine on the cash, the Commonwealth filed a forfeiture petition.
At the hearing on the Commonwealth's forfeiture petition, Corporal Housel testified. Housel stated that he invited Collins to have "Paul" call the police to discuss the seized cash, but he never heard from Paul. Housel then explained that he contacted the Mason Dixon Auto Auction and was informed that there was no record of Collins having been there. Housel admitted, however, that there would be no record of Collins' presence at the auto auction unless he had purchased a vehicle. Corporal Housel acknowledged that (i) no narcotics were found in the vehicle or on Collins and (ii) no criminal charges were filed against Collins. Finally, Housel acknowledged that he allowed Collins to continue his trip with only a warning about the tinted windows and for driving with a suspended license.
The Commonwealth next presented testimony from State Police Trooper Christopher Manetta. Manetta testified that when he saw that Housel had pulled over a motorist on I-81, he stopped to offer assistance. While Housel searched the car, Manetta asked Collins why he had such a large sum of cash. Collins first replied that two different people from New York gave him the cash to buy each of them a car. Collins then stated that a person named "Paul," who owned a car dealership in New York, had given him the cash. Collins said that he had gone to the auto auction but did not find a suitable car to purchase. Manetta confirmed that because Collins refused to provide specific information about "Paul," the officers decided to seize the cash.
Manetta testified that the seized cash was placed in an evidence locker. The cash was stored together but still bundled as it had been found in the car. One bundle contained $5,000; four separate bundles each contained $1,000. Manetta testified that, in his experience, this manner of bundling cash was consistent with the practices of drug dealers.
Sergeant First Class Frank Jost, who is in charge of ion scan operations in Pennsylvania, also testified for the Commonwealth. He performed an ion scan on the cash seized from Collins on November 9, 2009.*fn2 Jost explained that an ion scan is like a small vacuum cleaner that is run over the money and captures residue of narcotics present on the money. Jost fanned out the money from all five bundles to test it in the aggregate. The results were positive for "cocaine high" of 875 digital units.*fn3 Jost explained that cash in circulation typically carries trace amounts of narcotics. By doing ion scans on cash obtained from multiple banks throughout Pennsylvania and averaging the results, the State Police establish a statewide "casual contact level" for cocaine on cash. For 2007, the casual contact level was 219.29 digital units; in 2008 it was 277.43 digital units. The levels found on Collins' cash were 3.15 times higher than the casual contact level for Pennsylvania. Based on these ion scan results, Jost opined that Collins' money had recently been in contact with cocaine.
On cross-examination, Jost explained that 875 was a single reading obtained from a single scan done on all the cash. Since he had tested all of it together, he had no way of knowing if some of the bills contained large amounts of cocaine residue and others did not. In other words, it was possible that a single bundle, or single bill, was the one with all of the cocaine residue and that the rest of the cash was free of any cocaine residue, or at least residue well below the statewide casual contact level. Jost also conceded that it was impossible to know how the residue got on the cash. If someone had used cocaine and then handled the cash in a legitimate transaction, the cash would have cocaine residue on it.
Collins presented the testimony of Richard Paul, Jr., who identified himself as a friend of Collins who resides in Brooklyn, New York. Paul testified that he gave Collins $9,000 in cash to purchase two vehicles at auction because Collins had told him that he knew a place where he could buy cars at a much lower price than at auctions in New York. It was intended that Collins purchase one vehicle for Paul's personal use and a second vehicle for resale at a profit. Paul is not a car dealer. He works for the City of New York and he earned $35,140 in 2008. Paul testified that he had saved up the $9,000 over a period of approximately 10 years.
Finally, Collins testified on his own behalf. Collins testified that Paul gave him the $9,000 to buy two vehicles; a van for Paul and a Buick for resale. He went to Mason Dixon Auto Auction on March 3, 2009, but he did not find an appropriate vehicle. Collins explained that he did not give the police officers specific contact information for Paul because Paul was at work when Collins was stopped, and Paul cannot receive calls at work.
The trial court granted the forfeiture petition, and Collins appealed to this Court. In its PA. R.A.P. 1925(a) opinion, the trial court explained that the Commonwealth met its burden of proving a nexus between the $9,000 in cash and a violation of the Controlled Substance, Drug, Device and Cosmetic Act.*fn4 The evidence supporting the nexus was: (1) the method of bundling the money; (2) the drug dog's alert; and (3) the ion scan results. The burden then shifted to Collins to prove ...