The PA Commonwealth Court recently decided the case of Commonwealth v. $301,360.00 U.S. Currency and One 2011 Lexus, RX350, VIN #2T2BK1BA48C081250 (Appeal of: Clarissa Vasquez), No. 1229 C.D. 2016, holding that it was error for the trial court to order the forfeiture of $301,360.00 and a 2011 Lexus when the Commonwealth failed to establish a nexus between the cash, vehicle and violations of the Drug Act.
After conducting a traffic stop for tailgating, police observed what they described as numerous “indicators of criminal activity,” including, among others, the overwhelming odor of air fresheners, various prayer cards in the dashboard area, the driver’s tattoos, the vehicle traveling on a known drug route, and the driver’s and passenger’s criminal histories and inconsistent stories which the police believed connected them to illegal drug trafficking. The police sought and received permission to conduct a search of the Lexus during which time they 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. The police seized the Cash and Lexus. The driver and passenger denied ownership or knowledge of the Cash and signed currency disclaimer forms to that effect. The driver then received a warning for tailgating, and he and the passenger were released.
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 Motion to forfeit the seized money. Vasquez, who was not present in the vehicle during the traffic stop but is the registered owner of the vehicle, challenged the forfeiture.
During the forfeiture proceeding, 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. Vasquez argued 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.
After a non-jury trial, the trial court determined that the Commonwealth established a substantial nexus – based upon evidence of 27 indicators of criminal activity and the ion scan evidence – that caused the trial court to believe that the Cash and Lexus were connected to illegal drug activity.
Vasquez appealed, claiming that the Commonwealth failed to meet its burden of establishing a substantial nexus between the seized Cash and Lexus and a violation of the Drug Act at trial.
The Commonwealth Court began its analysis by recognizing that “the law generally disfavors forfeitures, requiring forfeiture statutes to be strictly construed.” It then explained that the burden to be applied in forfeiture cases involving money or a vehicle require the Commonwealth to initially establish, by a preponderance of the evidence, that a substantial nexus exists between the property subject to forfeiture and a violation of the Drug Act. Although acknowledging that the Commonwealth may satisfy its burden of establishing a party’s involvement in illegal drug activity by circumstantial evidence, the court emphasized that the Commonwealth must establish more than the possibility or a mere suspicion of a nexus.
As to the ion scan evidence, the Court first explained that 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.” And, 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. Furthermore, in order for an ion scan to be relevant and admissible, the currency tested must be compared to the casual contact levels in the geographic region in which the currency was circulated. The Court then concluded that in this case, because there was no evidence of the casual contact levels from the relevant geographic areas, the ion scan test results were irrelevant and inadmissible.
The Commonwealth Court thereafter addressed the various other factors enumerated by the trial court to establish a nexus between the Cash and Lexus and illegal drug activity. First, the Court noted 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.
Here, the Commonwealth Court noted that the vehicle at issue was stopped on I-80 for tailgating, a minor traffic violation. No drugs or drug paraphernalia were found in the Lexus or on the occupants, and no criminal charges were filed in relation to the seized Cash. The Court noted that those facts are probative of whether seized money was contraband subject to forfeiture. However, the Court concluded that this particular case suffered from a “drug nexus deficiency.”
What is more, because the Commonwealth failed to meet its initial burden of proof, the Court concluded that the burden never shifted to Vasquez to show she was an owner, innocent or otherwise, who is entitled to return of the property. “Under the plain terms of the Forfeiture Act, the burden does not shift to a claimant to show lawful ownership unless the Commonwealth first satisfies its burden, which it did not do here.”
In short, the burden of “proving lawful ownership of the property” never shifted to Vasquez because the Commonwealth failed to meet its burden of establishing a nexus between the seized cash and illegal drug activity.
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