In Re Twenty-Four ThouSand Dollars ($24,000) in United States Currency

171 P.3d 1240, 217 Ariz. 199, 518 Ariz. Adv. Rep. 39, 34 A.L.R. 6th 789, 2007 Ariz. App. LEXIS 228
CourtCourt of Appeals of Arizona
DecidedNovember 29, 2007
Docket1 CA-CV 07-0256
StatusPublished
Cited by16 cases

This text of 171 P.3d 1240 (In Re Twenty-Four ThouSand Dollars ($24,000) in United States Currency) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Twenty-Four ThouSand Dollars ($24,000) in United States Currency, 171 P.3d 1240, 217 Ariz. 199, 518 Ariz. Adv. Rep. 39, 34 A.L.R. 6th 789, 2007 Ariz. App. LEXIS 228 (Ark. Ct. App. 2007).

Opinion

OPINION

JOHNSEN, Judge.

¶ 1 The State of Arizona appeals the superior court’s order dismissing, for lack of probable cause, an Application for Order of Forfeiture of $24,000 in cash that authorities interdicted at a Phoenix shipping company. Because the State offered sufficient facts that, taken together, constituted probable cause to link the cash to the sale of illegal drugs, we reverse the superior court’s denial of the State’s forfeiture application and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 A Maricopa County Sheriffs Office “parcel interdiction team” was conducting an investigation at a private shipping/delivery company when it “noticed” a large box addressed to Robert Thomas of Appleman S. Electronics at 4317 East Cotton Center Boulevard in Phoenix. 1 The label on the box identified the sender as Shawn Brown; it showed his return address as The UPS Store in Cambridge, Ohio.

¶ 3 Officers attempted to contact Thomas and Brown but were unsuccessful. They were unable to locate a “Robert Thomas” associated with the listed Phoenix address. Brown had not left his address with the shipping company. He had given a telephone number, but the woman who answered the telephone said she had a different last name and that she did not send any parcels to Arizona. Workers at the store from which the box had been shipped told officers that Brown had paid the shipping fee in cash and had been adamant about obtaining a tracking number for the package.

¶ 4 Officers introduced a “certified narcotics K-9” to the carton, and the dog “had a positive alert to the box.” When officers opened the package, they found another box inside containing cash totaling $24,000. The cash had been soaked in rubbing alcohol and was wrapped in plastic secured by duct tape.

¶ 5 The State filed a Notice of Seizure for Pending Forfeiture and Notice of Pending Forfeiture and, pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-4307(3) (2001), published notice of the seizure. When no response was received within the statutory time, the State filed a forfeiture application, asserting that the money was subject to forfeiture under A.R.S. §§ 13-2314(G) (2001) and -3413(B) (2001).

¶ 6 The superior court denied the application on the ground the State had not met its burden of showing probable cause that the money was subject to forfeiture. Citing In re United States Currency in the Amount of $315,900.00, 183 Ariz. 208, 211, 902 P.2d 351, 354 (App.1995), the court found that “the totality of the circumstances fail to support more than a ‘mere suspicion’ that the property in question is subject to forfeiture.” The State timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).

DISCUSSION

A. Legal Principles and Standard of Review.

117 Under Arizona’s forfeiture statutes, A.R.S. §§ 13-4301 to -4315 (2001 & Supp.2006), “property is subject to forfeiture if some other statute provides for such a remedy.” In re $315,900.00, 183 Ariz. at 210, 902 P.2d at 353 (quoting In re 1986 Chevrolet Corvette, 183 Ariz. 637, 639, 905 P.2d 1372, 1374 (1994)). In a case such as this, where the forfeiture application is based on racketeering allegations, the required elements are an occurrence of an act of racketeering, see A.R.S. § 13-2301(D)(4) (Supp.2006), and a link between the property to be forfeited and the alleged racketeering conduct, see A.R.S. § 13-2314(G). In its forfeiture appli *202 cation, the State alleged racketeering involving the sale of prohibited drugs for financial gain and money laundering. A.R.S. § 13-2301(D)(4)(b)(xi), (xxvi). 2 The State further alleged the cash was subject to forfeiture pursuant to section 13-2314(G)(3), which permits forfeiture of “proceeds traceable” to a drug offense and “monies ... used or intended to be used in any manner or part to facilitate the commission of the offense.”

¶ 8 “Property subject to forfeiture ... may be seized for forfeiture by a peace officer” without court process if the “officer has probable cause to believe that the property is subject to forfeiture.” A.R.S. § 13^1305(A). After seizure, the State may commence a judicial in rem forfeiture such as this by filing a Notice of Pending Forfeiture pursuant to A.R.S. § 13-4311(A) (“If a forfeiture is authorized by law, it shall be ordered by a court on an action in rem brought by the state pursuant to a notice of pending forfeiture ----”). If a claimant asserts ownership of or an interest in the property, the matter proceeds to a hearing after discovery. A.R.S. § 13-4311(D)-(M). When, as here, no claimant comes forward, the State “shall apply to the court for an order of forfeiture and allocation of forfeited property,” which shall be granted upon showing of “jurisdiction, notice and facts sufficient to demonstrate probable cause for forfeiture.” A.R.S. § 13-4314(A). 3

¶ 9 In a case such as this, in which the State alleges that currency is subject to forfeiture based on a drug-related racketeering offense under A.R.S. § 13-2314(G)(3), the State must demonstrate probable cause to believe that the currency is a proceed of or facilitated a drug sale. See A.R.S. § 13-2301(D)(4)(b)(xi); In re $815,900.00, 183 Ariz. at 211, 902 P.2d at 354 (State must show probable cause “to believe the substantive standard has been satisfied” (quoting In re 1986 Chevrolet Corvette, 183 Ariz. at 640, 905 P.2d at 1375)).

¶ 10 The State is not required to show that officers had probable cause at the time they initially seized the property. In re U.S. Currency in the Amount of $26,980.00, 193 Ariz.

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Bluebook (online)
171 P.3d 1240, 217 Ariz. 199, 518 Ariz. Adv. Rep. 39, 34 A.L.R. 6th 789, 2007 Ariz. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-twenty-four-thousand-dollars-24000-in-united-states-currency-arizctapp-2007.