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Commonwealth of Pennsylvania v. David Ferdinand Burke

August 1, 2012

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID FERDINAND BURKE COMMONWEALTH OF PENNSYLVANIA
v.
$8,240 U.S. CURRENCY APPEAL OF: DAVID FERDINAND BURKE



The opinion of the court was delivered by: Robert Simpson, Judge

Argued: October 20, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge (P)*fn1

HONORABLE MARY HANNAH LEAVITT, Judge

OPINION BY JUDGE SIMPSON

In this statutory appeal, David Ferdinand Burke (Burke) asks whether the Court of Common Pleas of Monroe County (trial court) erred in granting the forfeiture petition of the Commonwealth of Pennsylvania (Commonwealth) under the act commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§6801-6802. Burke contends the trial court erred in determining a nexus existed between the $8,240 in cash discovered in the car he was driving and illegal drug trafficking. Furthermore, Burke claims that even if circumstantial evidence of a nexus existed, he established he lawfully obtained the money, and he did not use or intend to use it for any unlawful purpose. Upon review, we affirm.

I. Background

In January 2010, Pennsylvania State Police (PSP) Trooper Mark Conrad (Trooper Conrad) effectuated a traffic stop of Burke for speeding. At that time, Trooper Conrad discovered Burke and his passenger had drug-related criminal histories. Trooper Conrad asked Burke if he could search the vehicle, and Burke consented.

In the course of the search, Trooper Conrad discovered $8,240 in cash and a digital scale inside the center console. The cash was bundled with rubber bands in $1,000 dollar increments containing $20, $50, and $100 denominations. Burke initially denied having knowledge of the money, but after Trooper Conrad asked him to sign a disclaimer form to that effect, he accepted ownership. Furthermore, Burke admitted to occasionally buying and smoking marijuana and to using the digital scale to weigh the marijuana before purchasing it.

Trooper Conrad called PSP Trooper Gerald Powell (Trooper Powell), a drug sniffing dog handler, for assistance. Trooper Powell's dog alerted to Burke's car's center console as an area that had an odor of a controlled substance. Trooper Powell's dog also smelled the cash at the PSP barracks and detected narcotics on the seized money. No drugs were found in the car.

Ultimately, Trooper Conrad seized the digital scale and the cash and charged Burke with speeding and possession of drug paraphernalia for the digital scale. In time, Burke pled guilty to the possession of drug paraphernalia.

Thereafter, Burke filed a motion for the return of the $8,240 with the trial court. In response, the Commonwealth filed a petition for forfeiture and condemnation. A hearing ensued to address both parties' filings.

At the hearing, Troopers Conrad and Powell testified for the Commonwealth about their observations during the traffic stop and seizure. Additionally, the Commonwealth presented the expert testimony of Sergeant Frank Jost (Sergeant Jost) who conducted an ion scan of the seized cash to measure the microscopic levels of illicit substances contained on the bills. Sergeant Jost testified he scanned all of the cash in one measurement and compared it to the casual contact level for currency circulated within Pennsylvania. In doing so, he determined the $8,240 contained approximately five times more cocaine residue than is characteristic for money circulated in the state. Burke timely objected to Sergeant Jost's testimony, but the trial court overruled his objections.

Burke testified on his own behalf. According to Burke, on the day Trooper Conrad pulled him over, he was travelling from Rochester to Bronx, New York to visit family. Additionally, Burke planned to drive into New Jersey to purchase a new vehicle.

Burke explained that the police recently recovered his current car after he reported it stolen. Additionally, he testified that when the car was recovered it was in damaged condition and his personal property had been taken from the interior. Therefore, after receiving the proceeds of an insurance check for the damage and the stolen property, Burke decided to buy a new car. As such, Burke testified that of the $8,240 found in the car $6,200 was from an insurance check. He claimed the remainder of the money came from three months of savings he made working for the City of Rochester as a truck driver.

As to the scale, Burke admitted he smoked marijuana and used the digital scale to weigh the marijuana he purchased. However, he denied selling marijuana or intending to use the cash to buy narcotics.

After the hearing, the trial court denied Burke's motion and granted the Commonwealth's forfeiture petition. Burke filed an appeal. In his subsequent Rule 1925 specification of issues on appeal, Burke argued the trial court erred in overruling his objection to Sergeant Jost's testimony and in admitting the ion scan results. Burke also claimed the Commonwealth failed to meet its burden to establish a nexus between the cash and illegal conduct, and that he rebutted the evidence tending to establish such a nexus.

In its well-reasoned Rule 1925(a) opinion, the trial court thoroughly addressed each of Burke's contentions. The trial court determined, based on the totality of the evidence presented by the Commonwealth, a nexus existed between the cash and drug trafficking. Furthermore, after shifting the burden to Burke, the trial court determined he did not rebut the presumption of forfeiture because he failed to present credible evidence that he obtained the cash lawfully. Thus, the trial court concluded forfeiture was justified.

As to Sergeant Jost's testimony and the ion scan results, the trial court, relying on our holding in Commonwealth v. $9,000 U.S. Currency (Collins), 8 A.3d 379 (Pa. Cmwlth. 2010) (en banc), determined the results were not legally relevant because Sergeant Jost only compared the seized $8,240 to cash circulated in Pennsylvania and Burke was commuting from New York. As such, the trial court determined, despite overruling Burke's original objection, it could not rely on the ion scan results to support its decision. Nonetheless, the trial court held, based on the totality of the circumstances, the Commonwealth established a nexus between the cash and drug trafficking without considering the ion scan results. Burke's appeal is now before this Court for disposition.*fn2

II. Issues

Burke argues the Commonwealth failed to prove the existence of a nexus between the $8,240 and any unlawful activity.*fn3 Additionally, Burke contends he rebutted the Commonwealth's evidence by establishing he obtained the money lawfully and did not use or intend to use it unlawfully.

III. Discussion

Pursuant to the Forfeiture Act, "[m]oney ... furnished ... in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act [(Controlled Substances Act)*fn4 ], and all proceeds traceable to such exchange, [or] ... used or intended to be used to facilitate any violation of [the Controlled Substance Act] is subject to forfeiture. 42 Pa. C.S. §6801(a)(6)(i)(A),(B).

In an action under the Forfeiture Act, the Commonwealth bears the initial burden to establish, by a preponderance of the evidence, a substantial nexus between unlawful activity and the money in question. Commonwealth v. Marshall, 548 Pa. 495, 698 A.2d 576 (1997). Under this standard, the Commonwealth must show that it is more likely than not that the nexus exists; this standard "is often alluded to as a weighing of the evidence and a determination based upon which way the scales are tipped." Commonwealth v. Fid. Bank Accounts, 631 A.2d 710, 718 (Pa. Cmwlth. 1993) (citing Commonwealth v. Doranzo, 529 A.2d 6, 8 (Pa. Super. 1987)) (emphasis omitted).

Where money is found in close proximity to illegal controlled substances a rebuttable presumption exists that the money is related to drug trafficking. 42 Pa. C.S. §6801(a)(6)(ii). In the absence of illegal drugs, circumstantial evidence may be sufficient to establish a nexus. Commonwealth v. $6,425.00 Seized from Esquilin, 583 Pa. 544, 880 A.2d 523 (2003). The proper inquiry requires weighing the totality of the circumstances presented without imposing artificial evidentiary requirements. Id.

If the Commonwealth establishes a nexus between the money and violations of the Controlled Substances Act, the burden shifts to the person opposing the forfeiture to prove he owns the money, acquired it lawfully, and did not use or possess the money for an illegal purpose. Commonwealth v. $16,208.38 U.S. Currency Seized from Holt (Holt), 635 A.2d 233 (Pa. Cmwlth. 1993).

It is well accepted that each forfeiture case is sensitive to its own particular facts. Commonwealth v. $310,020 U.S. Currency (Phung), 894 A.2d 154 (Pa. Cmwlth. 2006). However, a review of prior cases arising out of similar fact patterns is particularly appropriate. Collins.

We begin with our Supreme Court's analysis in Marshall. In that case, our Supreme Court considered whether cash discovered between the seats of a vehicle during a traffic stop was subject to forfeiture based on the totality of the circumstances. In attempting to prove the existence of a nexus, the Commonwealth established: (1) the cash was divided into $100 bundles; (2) the driver could not give a consistent story about the source of the cash, or why it was bundled in a manner consistent with drug dealing; and, (3) a drug sniffing dog alerted to the cash. Upon review, the Court determined the circumstances were insufficient proof to support forfeiture.

The Court noted the circumstantial evidence only established "the possibility or suspicion of a nexus." Id. at 501, 698 A.2d at 579. Additionally, the Court revealed its apprehension about the use of drug sniffing dogs to determine whether cash had a nexus to drug trafficking. Specifically, it noted that perfectly innocent persons could easily be in possession of cash previously exposed to illicit drugs. Moreover, the Court warned that even bundling money consistent with the manner commonly used in drug trafficking may be done innocently. Therefore, based on the totality of circumstances, including the absence of drugs, drug paraphernalia, or a criminal history, forfeiture was not justified.

Two years later, our Supreme Court again addressed similar circumstances pertaining to a forfeiture. In Commonwealth v. Fontanez, 559 Pa. 92, 739 A.2d 152 (1999), during a traffic stop, a police officer observed bound cash in an open paper bag on the floor of the stopped car. The police seized the money on the basis that: (1) the stop took place in a neighborhood known for drug activity; (2) the officer was familiar with the driver and his family and their involvement in drug trafficking; (3) the driver refused to explain the money's origin; and, (4) a drug sniffing dog alerted to the cash. Again this Court determined the factors amounted to nothing more than a suspicion of a nexus.

Reviewing its holdings in Marshall and Fontanez, the Court later summarized that it denied forfeiture in those cases because each suffered from a similar drug nexus deficiency. Esquilin. Specifically, it explained that because no drugs or drug paraphernalia had been found in proximity to the seized money and the officers did not observe an illegal drug transaction, the ...


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