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Commonwealth v. $301

Commonwealth Court of Pennsylvania

April 4, 2018

Commonwealth of Pennsylvania
v.
$301, 360.00 U.S. Currency and One 2011 Lexus, RX350, VIN #2T2BK1BA48C081250 Appeal of: Clarissa Vasquez

          Argued: September 13, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge 1 HONORABLE MICHAEL H. WOJCIK, Judge

          OPINION

          RENÉE COHN JUBELIRER, JUDGE.

         In this appeal, we examine the Commonwealth's burden of proof to justify forfeiture of property under the Controlled Substances Forfeiture Act (Forfeiture Act), [2] when, at a traffic stop on a known drug route, no controlled substances were found and no arrests were made, although $301, 360 in cash was found hidden in a secret compartment in the vehicle. The Court of Common Pleas of Monroe County (trial court) found that the cash and vehicle had been used in illegal drug trafficking in violation of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), [3] based on 27 "indicators" of illegal activity. Although we agree that the presence of this cash, under the totality of the circumstances here, is highly suspicious, we cannot find that these suspicions are sufficient to establish the requisite substantial nexus between the cash and vehicle and violations of the Drug Act. We must therefore reverse.

         I. Background

         On June 11, 2014, Enrique Laporte (Laporte) was driving west with his passenger, Zaida Lopez (Ms. Lopez), both New York residents, on Interstate 80 in Monroe County, Pennsylvania, in a 2011 Lexus RX350[4] (Lexus) later found to be titled in the name of Luis Lopez and registered to Clarissa Vasquez (Vasquez), when he was pulled over for tailgating. During the traffic stop, Pennsylvania State Police (PSP) Corporal Nicholas Cortes (Corporal Cortes) observed numerous indicators of criminal activity, including, inter alia, the overwhelming odor of air fresheners, various prayer cards in the dashboard area, Laporte's tattoos, [5] the vehicle traveling on a known drug route, and the driver's and passenger's criminal histories and inconsistent stories, which he opined connected Laporte and Ms. Lopez to illegal drug trafficking. Corporal Cortes sought permission to conduct a search of the Lexus. After Laporte consented to the search, Corporal Cortes and another trooper discovered thirteen vacuum-sealed and separately duct-taped packages containing the $301, 360 (Cash) in a hidden compartment between the back seat and cargo area of the Lexus. PSP seized the Cash and Lexus. Laporte and Ms. Lopez denied ownership or knowledge of the Cash and signed currency disclaimer forms to that effect. Laporte received a warning for tailgating, and he and Ms. Lopez were released. It is undisputed that no drugs or drug paraphernalia were found in the vehicle, and no criminal charges were ever filed in relation to the seized Cash or Lexus. A week later, an ion scan of the Cash was performed and revealed trace amounts of four different controlled substances, including cocaine, heroin, procaine, and tetrahydrocannabinol (THC). An ion scan of the compartment revealed trace amounts of heroin and THC.

         The Commonwealth filed a petition for forfeiture and condemnation in September 2014. Vasquez, who was not present in the vehicle during the traffic stop, challenged the forfeiture. Upon consent of Vasquez, the Commonwealth filed an Amended Petition for Forfeiture and Condemnation (Amended Petition) in December 2015, averring that the owner of both the Cash and Lexus was unknown but that the Lexus was registered to Vasquez at the time of the seizure and that Laporte and Ms. Lopez denied ownership or knowledge of the Cash and signed disclaimer forms to that effect. (Am. Petition ¶¶ 5(A)-(B), 7(G).) The Commonwealth maintained that the Cash was "furnished or intended to be furnished by any person in exchange for a controlled substance, in violation of the" Drug Act, "was proceeds traceable to such an exchange, " or was "used or intended to be used to facilitate any violation of [the Drug] Act, or is otherwise subject to forfeiture under the [Drug Act]."[6] (Am. Petition ¶ 8.)

         Vasquez filed an Answer and New Matter to the Amended Petition, admitting that the Lexus was registered to her at the time of the seizure and denying that the owner was unknown. She averred lawful ownership of the Lexus and the Cash and, accordingly, requested that all of the seized property be returned to her.

         In February 2016, the Commonwealth filed an Answer to the New Matter, acknowledging, inter alia, that PSP had not filed any criminal charges as a result of the seizure but denying that there was nothing illegal found in the Lexus, in that significant residual amounts of numerous controlled substances were discovered, through the use of ion scans, on the seized Cash and in the Lexus. In addition, the Commonwealth learned through discovery that the Lexus was titled in the name of Luis Lopez in September 2014 but registered to Vasquez. The matter was scheduled for trial.

         Prior to trial, Vasquez filed two motions in limine on March 21, 2016. In her first motion in limine, Vasquez argued that the forfeiture of the Cash and Lexus constitutes an excessive fine. (Reproduced Record (R.R.) at 22a-23a.) Vasquez's second motion in limine sought to preclude the Commonwealth from presenting evidence, through the testimony of Staff Sergeant Jennifer Marsh of the Pennsylvania Army National Guard's Counter Drug Joint Task Force (National Guard), who conducted the ion scans of the Cash and compartment and who had been deposed by Vasquez. Vasquez challenged Staff Sergeant Marsh's qualifications as an expert and the methodologies used in scanning the Cash and compartment, including, inter alia, Staff Sergeant Marsh's use of only Pennsylvania's casual contact level for cocaine found on currency in general circulation, her alleged failure to follow the same procedures utilized in conducting ion scans in banks, the absence of any evidence that the seized Cash was circulated in Pennsylvania, and possible cross-contamination. (Id. at 17a-21a.) The trial court did not rule on the motions in limine.

         Subsequently, the Commonwealth filed a Motion for Order of Forfeiture, acknowledging that Vasquez remained the only person who had sought return of the Cash and Lexus, characterizing Vasquez as "a sham claimant, " and averring that Laporte, Ms. Lopez, and Luis Lopez had not filed an answer or otherwise asserted any claim to the Cash or Lexus.[7] (Motion for Order of Forfeiture, R. Item 49.) On March 30, 2016, the trial court issued an order declaring that "[a]ll claims of right, title and interest of Enrique Laporte, Zaida Lopez and Luis Lopez in the . . . [Cash and Lexus] is . . . terminated, revoked and rendered null and void." (Trial Ct. Order, Mar. 30, 2016, R. Item 49.)

         A Non-Jury Trial was held on April 6, 2016, at which the Commonwealth presented the testimony of Corporal Cortes and Staff Sergeant Marsh of the National Guard.[8] It also presented eleven exhibits, which included a New York State Department of Motor Vehicles (DMV) record showing that the Lexus is registered to Vasquez and titled in Luis Lopez's name, and an excerpt from Vasquez's deposition. Vasquez did not testify at trial, nor did she present any witnesses or evidence on her own behalf.

         Following the Non-Jury Trial, the trial court granted the Commonwealth's Amended Petition. The trial court determined that the Commonwealth established a substantial nexus under the Forfeiture Act based upon evidence of 27 indicators of criminal activity, including the ion scan evidence, that caused it to believe that the Cash and Lexus were connected to illegal drug activity. (Trial Ct. Op. at 17-18.) Specifically, with regard to the Cash, the trial court found, based upon the totality of the circumstances, that the Cash was "furnished or intended to be furnished" by a person in exchange for controlled substances or "used or intended to be used to facilitate" violations of the Drug Act, stating further that it "would have to suspend all common sense, logic, and reason to find this [Cash] is not connected to violations of the [Drug] Act." (Id. at 19.) Regarding the Lexus, the trial court relied upon the same circumstantial evidence as the Cash to "find a sufficient or substantial nexus between the [Lexus] and facilitation of a [Drug Act] violation." (Id. at 20.) The trial court also determined that Vasquez failed to rebut the presumption of forfeiture by proving the innocent owner defense under Section 6802(j) of the Forfeiture Act, 42 Pa. C.S. § 6802(j).

         Vasquez appealed, [9] arguing, inter alia, that the trial court erred in: (1) determining that the Commonwealth met its burden of establishing a substantial nexus between the seized Cash and Lexus and a violation of the Drug Act; (2) finding a rebuttable presumption in favor of forfeiture; and (3) not finding that the forfeiture of the Cash and Lexus violates the Eighth Amendment to the United States Constitution and Article I, Section 3 of the Pennsylvania Constitution as an "excessive fine."

         II. Analysis

         The Forfeiture Act authorizes the forfeiture of a vehicle which "in any manner . . . facilitate[s] the transportation, sale, receipt, possession or concealment of" controlled substances under the Drug Act. 42 Pa. C.S. § 6801(a)(4). The Forfeiture Act also permits the forfeiture of money that is: (1) "furnished or intended to be furnished by any person in exchange for a controlled substance in violation of" the Drug Act; (2) "proceeds traceable to such an exchange"; or (3) "used or intended to be used to facilitate any violation of" the Drug Act. 42 Pa. C.S. § 6801(a)(6)(i)(A)-(B); Commonwealth v. $34, 440.00 U.S. Currency (Falette), 174 A.3d 1031, 1039 (Pa. 2017). In a forfeiture proceeding involving either money or a vehicle, the Commonwealth bears the initial burden of establishing, by a preponderance of the evidence, that a substantial nexus exists between the property subject to forfeiture and a violation of the Drug Act.[10] Commonwealth v. $6, 425.00 Seized from Esquilin, 880 A.2d 523, 529 (Pa. 2005). "A preponderance of the evidence is tantamount to a 'more likely than not' standard." Id. The Commonwealth need not establish one of the above bases for forfeiture with "evidence directly linking the seized property to illegal activity, nor is a criminal prosecution or conviction required to establish the requisite nexus." Falette, 174 A.3d at 1039 (citing Esquilin, 880 A.2d at 529-30). Instead, the Commonwealth may satisfy its burden of establishing a party's involvement in illegal drug activity by circumstantial evidence. Id. at 1040. However, the Commonwealth must establish more than the possibility or a mere suspicion of a nexus. Commonwealth v. Marshall, 698 A.2d 576, 578-79 (Pa. 1997). Once the Commonwealth has met its initial burden of establishing a substantial nexus between the seized property and illegal drug activity, the burden of proof shifts to the claimant to prove that he or she is the owner of the property, acquired the property lawfully, and did not use or possess the property unlawfully. 42 Pa. C.S. § 6802(j).

         We are aware that "the law generally disfavors forfeitures, requiring forfeiture statutes to be strictly construed, " Falette, 174 A.3d at 1039 (citing Commonwealth v. 1997 Chevrolet and Contents Seized from Young, 160 A.3d 153, 193 (Pa. 2017)), and that forfeiture cases "are fact sensitive cases." Commonwealth v. $9, 000 U.S. Currency (Collins), 8 A.3d 379, 384 (Pa. Cmwlth. 2010).

         A. Waiver

         On appeal, Vasquez argues that the trial court erred in determining that the Commonwealth met its burden of establishing a substantial nexus between the seized Cash and Lexus and a violation of the Drug Act. In addition to challenging the Commonwealth's evidence as a whole, Vasquez contends that the ion scan evidence is insufficient, as a matter of law, to sustain the Commonwealth's burden. The Commonwealth responds that Vasquez waived her challenges to the ion scan evidence because she failed to object to that evidence at trial and did not ask the court to rule on the pending motion in limine in that regard. We, therefore, initially address whether Vasquez waived her challenges to the ion scan evidence.

         In its 1925(a) opinion, although it conceded that it did not rule on her motion in limine, the trial court determined that Vasquez waived her arguments with regard to the ion scan evidence because Vasquez did not object to that evidence at trial. (1925(a) Op. at 7-8.) While we agree with the trial court that, to the extent Vasquez sought to preclude Staff Sergeant Marsh's testimony through the motion in limine, any argument in that regard is waived. The parties agreed to qualify Staff Sergeant Marsh as an expert for a limited purpose, she proceeded to testify, and Vasquez made no other objection to preclude her testimony. (R.R. at 135a-36a.) However, Vasquez has preserved her argument that the ion scan evidence is not sufficient to sustain the Commonwealth's burden. Vasquez argues that the Commonwealth has not sustained its burden of establishing a substantial nexus between the seized property and a violation of the Drug Act with the testimony of Staff Sergeant Marsh. The record establishes that Vasquez challenged the sufficiency of the Commonwealth's evidence throughout these proceedings. Initially, Vasquez successfully limited Staff Sergeant Marsh's testimony to only her operation of the ion scanner device and the reading of the results. Then, at the close of the Commonwealth's evidence, Vasquez raised numerous legal challenges to the ion scan evidence in support of her motion for compulsory nonsuit, which the trial court denied. (Id. at 193a-97a.) Accordingly, we conclude that Vasquez preserved her legal challenges to the sufficiency of the ion scan evidence, which are now properly before this Court.

         B. Substantial Nexus

         1. Ion Scan Evidence

         We next address whether the Commonwealth met its burden of demonstrating a substantial nexus with its ion scan evidence. Vasquez argues that the ion scan results are meaningless because the Commonwealth did not compare those results to any casual contact levels from any relevant geographic area. (Vasquez's Br. at 16 (quoting Collins, 8 A.3d at 387).) She further asserts that the ion scan was not conducted in a way that prevents a small number of bills from affecting the overall results and that the ion scan should have been conducted in the same manner as it would have been performed in a bank. The Commonwealth contends that the trial court properly accepted the ion scan evidence to establish the presence of controlled substances on the Cash and in the compartment. The Commonwealth submits that ion scan evidence should be admissible, generally, to prove the presence of controlled substances other than cocaine on seized currency and other items, and, in such situations, casual contact levels should not be required because data does not exist for substances not typically found on currency in general circulation. (Commonwealth's Br. at 36.) The Commonwealth also maintains that the ion scans were properly conducted in accordance with established testing procedures.

         In its 1925(a) opinion, the trial court justified its reliance on the ion scan evidence on the basis that Staff Sergeant Marsh's testimony was limited to her personal operation of the ion scanner and the results of the ion scan, which, the trial court stated, was all it considered. (1925(a) Op. at 9.) The trial court further explained its consideration of Staff Sergeant Marsh's testimony stating that it "made no mention [in its initial Opinion] of ion scan data from other states, and did not take into account whether the currency had ever been circulated in Pennsylvania, as no comparison to the Pennsylvania 'casual contact level' was ever made at trial." (Id.) It also noted the Commonwealth's confirmation that Staff Sergeant Marsh had not been called to testify regarding casual contact levels. (Id.)

         Staff Sergeant Marsh testified that trace amounts[11] of illicit substances are normally found on currency in general circulation, and those amounts vary by geographic region. (R.R. at 149a, 157a.) The average trace amount of a controlled substance found on cash in general circulation in a particular geographic region is known as the casual contact level. Because the casual contact level of an illicit substance may be found on currency in general circulation, the mere presence of this level on tested currency does not demonstrate a nexus to illegal activity. Collins, 8 A.3d at 387.

         Furthermore, under our case law, in order for an ion scan to be relevant, and thus, admissible, the currency tested must be compared to the casual contact levels in the geographic region in which the currency was circulated. Id. at 388. In Collins, an ion scan revealed levels of cocaine on seized cash that were approximately three times higher than the casual contact level for cocaine on cash established in Pennsylvania. Id. at 382. However, the witness used the casual contact level for Pennsylvania, while the evidence showed that Collins was a West Virginia resident, the car was owned by his sister and was registered in New York, and he was driving from West Virginia to New York on an interstate highway when he was stopped by police. Id. at 388. The Court found there was no evidence that the seized money was ever circulated in Pennsylvania, thereby rendering the Pennsylvania casual contact level irrelevant. Id. Therefore, in Collins, the ion scan evidence was not sufficient to meet the Commonwealth's burden.

         In this case, Staff Sergeant Marsh testified on cross-examination that she used only the 2014 casual contact level for cocaine in Pennsylvania, (R.R. at 161a-65a), although she did not testify what those casual contact levels were.[12] However, the evidence established that Laporte and Ms. Lopez were New York residents, the Lexus was registered to another New York resident, Vasquez, and Laporte and Ms. Lopez were traveling from New York to Illinois on an interstate highway when they were pulled over. The Commonwealth did not present any evidence that the Cash was ever circulated in Pennsylvania, and Staff Sergeant Marsh testified that she could not speculate as to whether the Cash had ever been circulated in Pennsylvania. (R.R. at 161a.) Pursuant to Collins, ion scan evidence is irrelevant where the Commonwealth fails to compare the level of a controlled substance found on seized money with the casual contact level obtained from the relevant geographic area in question and prove that the money had ever been circulated in that region. Collins, 8 A.3d at 388. Thus, the casual contact level for Pennsylvania is irrelevant here.[13]Absent evidence of the casual contact levels from the relevant geographic areas, the ion scan test results are irrelevant and, thus, inadmissible.[14] Accordingly, we conclude that the trial court erred in relying upon the ion scan evidence under these circumstances.[15] See Commonwealth v. $17, 182.00 U.S. Currency (King), 42 A.3d 1217, 1220 (Pa. Cmwlth. 2012) (parties agreed that trial court correctly excluded ion scan evidence based on Collins because Commonwealth did not present any evidence that the seized money was ever circulated in Pennsylvania and evidence established that the relevant geographic area was New York); see also Commonwealth v. $15, 000 U.S. Currency (Williams), 31 A.3d 768, 775 n.6 (Pa. Cmwlth. 2011) (concluding that trial court correctly determined that ion scan evidence was irrelevant and inadmissible based on Collins because Commonwealth did not present any evidence that the seized money was ever circulated in Pennsylvania and evidence established that the relevant geographic areas were New York and New Jersey).

         2. Other Indicators of Illegal Activity

         We next consider whether the remaining evidence upon which the trial court relied was sufficient to establish a nexus between the seized Cash and Lexus and illegal drug activity. Specifically, the trial court relied on the following indicators of illegal activity identified in Corporal Cortes' testimony in finding a nexus: (1) multiple air fresheners/overwhelming odor; (2) prayer cards, including that of a known "narco saint"; (3) Laporte's money and tattoos; (4) the Lexus's occupants' criminal histories; (5) their untruthful statements about their criminal histories; (6) the Lexus's registration to an absent third party; (7) the recent registration of the Lexus; (8) the Lexus's presence on a known drug route; (9) inconsistent stories about where the driver lived; (10) where Laporte and Ms. Lopez were going; (11) how they met up with each other in Brooklyn; (12) Laporte's repeated requests for Corporal Cortes to search the vehicle; (13) Ms. Lopez's demeanor when the troopers were close to discovering the compartment; (14) the discreet location of the Cash; (15) the intricacy of the compartment;[16] (16) the bundling of the Cash; (17) Laporte and Ms. Lopez's denial about having any knowledge of the Cash or compartment; (18) the existence of Luis Lopez's fingerprint on the duct tape; (19) Vasquez's admission that she had the compartment installed; (20) Vasquez's statement that no other person knew of the compartment; (21) Vasquez's statement that no one else had access to the compartment; (22) Vasquez's refusal to identify who built the compartment; and (23) the New York State DMV record showing that Luis Lopez owned the vehicle and Vasquez was only the registrant. (Trial Ct. Op. at 17-18.) Vasquez argues that this remaining evidence creates, at most, only a suspicion of illegal activity, not a nexus, based on established case law. The Commonwealth responds that it met its burden of proving a substantial nexus between the Cash and Lexus and unlawful drug activity by a preponderance of the evidence.

         First, it is undisputed that no drugs or drug paraphernalia were found in the Lexus in which Laporte and Ms. Lopez were riding or on their persons, and no criminal charges have been filed in relation to the Cash or Lexus. Although not dispositive, such facts have been held to be probative of whether seized property was in fact contraband. Commonwealth v. Fontanez, 739 A.2d 152, 154 (Pa. 1999); Marshall, 698 A.2d at 579. Case law teaches us that when no drugs or drug paraphernalia are found and when no criminal charges are filed, establishing a nexus, even in the presence of other indicators, is difficult. In Marshall and Fontanez, similar cases to the instant matter, our Supreme Court reversed this Court which had upheld the forfeiture of large sums of money where no drugs or drug paraphernalia were found on or near the claimants and no criminal charges were filed. In Marshall, police seized $3, 400 found in the back seat between seat cushions during a traffic stop for speeding. No drugs or drug paraphernalia were found in the vehicle or on the occupants, and no criminal charges were filed. The trial court found a nexus based on the appellant's and driver's inconsistent stories regarding ownership of the money, the money being bundled in a manner consistent with drug dealing, the cash being found between the seat cushions, the drug dog alerting on the money, and a finding that appellant's testimony was not credible. Marshall, 698 A.2d at 578-79. This Court affirmed, and our Supreme Court reversed, holding that this evidence showed nothing more than a "suspicion of a possible nexus" between the money and illegal drug activity. Id. at 579. The Court explained that the bundling of the money "is equally consistent with an innocent person's attempt to simplify and promote precision in the counting of lawfully obtained funds." Id. With regard to the drug dog alert, the Court noted that "[a] completely innocent citizen . . . could have in his or her possession, at any time, currency that happened to be involved in a drug transaction at some unknown time in the past." Id. Even considered along with the other factors relied upon by the trial court, the Supreme Court stated that residual presence of drugs on the money was not enough to prove the required nexus. Id.

         The Supreme Court also reversed this Court in Fontanez. In that case, the police stopped the appellant for a traffic violation and observed a paper bag on the floor of the vehicle that contained $2, 650. A drug dog alerted at the car, but no drugs or drug paraphernalia were found, and no criminal charges were ever filed in relation to the money. The trial court granted the Commonwealth's motion for forfeiture, relying on the late hour of the stop, the location of the stop in an area known for drug activity, the large amount of money, the officer's knowledge of appellant's family, and appellant's refusal to explain where he got the money. Fontanez, 739 A.2d at 154. This Court affirmed, and the Supreme Court reversed, concluding that those factors, taken individually or in combination, were insufficient to sustain the Commonwealth's burden of proving a nexus between the money and illegal drug activity. Id. at 154-55. The Court further observed that "a person stopped for a traffic violation has no obligation to respond to questions asked by an officer apart from statutory obligations to produce a driver's license, registration, and proof of insurance" and that the "failure to give an explanation where none is required cannot be construed as evidence of wrongful conduct." Id. at 155.

         In a subsequent discussion of Marshall and Fontanez, our Supreme Court recognized that both of those cases suffered from a "drug nexus deficiency that controlled the outcome" because no drugs or drug paraphernalia were found. See Esquilin, 880 A.2d at 534.

         More recently, in Collins, this Court reached a similar result. In that case, an officer stopped the appellant on an interstate highway, and after the appellant consented to a search of the vehicle, the officer found $9, 000 in the glove box and driver's side door. No drugs or drug paraphernalia were found, and no criminal charges were filed against the appellant. The trial court found a nexus between the money and illegal drug activity based on the bundling of the money, the drug dog's alert to the glove box, and the ion scan results. This Court distinguished the case from Marshall and Fontanez on the basis that those cases did not involve ion scan results. However, we determined that the ion scan evidence was inadmissible and that the remaining evidence was insufficient to establish the required nexus. Collins, 8 A.3d at 388. The Court also noted that it is not illegal to carry ...


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