United States v. $9,230.00 in United States Currency

58 F. Supp. 3d 945, 2014 U.S. Dist. LEXIS 139645, 2014 WL 4956238
CourtDistrict Court, D. Nebraska
DecidedOctober 1, 2014
DocketNo. 8:13CV254
StatusPublished
Cited by2 cases

This text of 58 F. Supp. 3d 945 (United States v. $9,230.00 in United States Currency) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. $9,230.00 in United States Currency, 58 F. Supp. 3d 945, 2014 U.S. Dist. LEXIS 139645, 2014 WL 4956238 (D. Neb. 2014).

Opinion

MEMORANDUM OPINION

LYLE E. STROM, Senior District Judge.

This matter is before the Court following a bench trial held on August 26, 2014. The plaintiff United States of America brought this action for forfeiture of $9,230 in United States Currency (“currency”) (Filing No. 1). Claimant Timothy Hickman-Smith filed an answer asserting that the United States cannot demonstrate that the currency was the product of any criminal activity (Filing No. 12). For the reasons set forth below, the Court finds that the government has failed to meet its burden under the preponderance standard to show a substantial connection between the defendant property and a controlled substance offense.

BACKGROUND

On March 13, 2013, at approximately 6:54 p.m., Omaha' Police Officers Jeffrey Wasmund (“Wasmund”) and Jeff Shelb-ourn (“Shelbourn”) conducted a traffic stop of Timothy Hickman-Smith (“Hickman-Smith”) for changing lanes without signaling his intent to change lanes within 100 feet. Hickman-Smith was driving a black Volkswagen Jetta rental car from Hertz with Minnesota plates. No police video or audio was recorded during the traffic stop.

Officer Wasmund approached the driver’s side of the vehicle and Officer Shelb-ourn approached the passenger side. Officer Wasmund and Officer Shelbourn both testified that upon approaching the vehicle they smelled a strong odor of marijuana. Officer Wasmund instructed Hickman-Smith to step out of the vehicle. The record is unclear about whether or not Hickman-Smith was placed in handcuffs. Officer Wasmund testified that he placed Hickman-Smith in the police cruiser and began asking questions. When asked about the odor of marijuana, Hickman-Smith responded that there was no marijuana in the vehicle. The officers then conducted a search of Hickman-Smith’s person and the vehicle.

During the search of Hickman-Smith’s person, Officer Wasmund located two folded bundles of United States currency in Hickman-Smith’s left front pocket. One bundle contained $670 and the other contained $560. The search of the vehicle produced an additional $8,000 located in the front armrest storage compartment. The currency was taped in plastic wrapping and folded into eight separate bundles containing $1,000 each. The denominations of the currency included multiple [947]*947$20, $50, and $100 bills. The officers testified that the plastic bag containing the $8,000 smelled of marijuana. The officers also recovered two cell phones from the front seat, a box of one gallon size freezer bags and one box of plastic sandwich bags located in the trunk, and multiple rubber bands on the vehicle’s turn signal lever. However, the search did not result in finding any marijuana in the vehicle.

When Hickman-Smith was asked about the currency, he stated that he recently sold a 1978 Chevrolet Monte Carlo for $8,000. Hickman-Smith informed the officers that he sold the vehicle to an African-American female named “Sydney” and an African-American male named “Vermont” but that he did not have their contact information. He also stated that the money on his person was his own personal money. When asked about the cell phones, Hickman-Smith stated that the black Samsung phone belonged to his girlfriend, and the white Iphone was his personal phone. The officers seized the $9,230 based on the nature of the traffic stop, the odor of marijuana, the large amount of currency, and the way the currency was packaged. Hickman-Smith was released without a traffic citation and left the scene on foot.

LEGAL ANALYSIS

1. Motion to Suppress

This case involved a joint hearing on claimant’s motion to suppress (Filing No. 16). The claimant argues that the search of his vehicle was without any legal justification and in violation of his constitutional rights. The government contends that the search and seizure were lawful.

In a civil forfeiture action, the Fourth Amendment’s exclusionary rule applies. See U.S. v. $404,905.00 in U.S. Currency, 182 F.3d 643, 646 (8th Cir.1999). The Fourth Amendment guarantees that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” United States v. Vore, 743 F.3d 1175, 1179 (8th Cir.2014) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The automobile exception permits the warrant-less search of a vehicle if police “had probable cause to believe the vehicle contained contraband or other evidence of a crime before the search began.” Vore, 743 F.3d at 1179 (quoting United States v. Wells, 347 F.3d 280, 287 (8th Cir.2003)). In addition, the Eighth Circuit has held that the odor of marijuana detected in a vehicle during a traffic stop gives the officers probable cause to search the vehicle. See United States v. Winters, 221 F.3d 1039, 1042 (8th Cir.2000).

In this case, the Court finds that the officers had probable cause to both stop and search the vehicle. The officers stopped Hickman-Smith’s vehicle due to a traffic violation, an improper lane change. The officers testified that as they approached the vehicle, they detected a strong odor of marijuana. As a result, the officers had probable cause to search the car for contraband or other evidence of a crime related to the odor of marijuana under the automobile exception. The search of Hickman-Smith’s person and vehicle was lawful. Claimant’s motion to suppress will be denied.

2. Forfeiture

The United States claims that the currency is subject to forfeiture under 21 U.S.C. § 881(a)(6), which states,

[948]*948All monies ... furnished or intended to be furnished by any person in exchange for controlled substance ... all proceeds traceable to such an exchange, and all monies ... used or intended to be used to facilitate any violation of [controlled substances used in violation of Title 21]. 21 U.S.C. § 881(a)(6).

The burden is on the government to establish, by a preponderance of the evidence, that seized property is subject to forfeiture. 18 U.S.C. § 983(c)(1). Forfeiture is permitted under 21 U.S.C. § 881 when the government establishes a “substantial connection between the property” and a controlled substance offense. 18 U.S.C. § 983(c)(3). Circumstantial evidence can establish that burden of proof. United States v. $84,615 in U.S.

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58 F. Supp. 3d 945, 2014 U.S. Dist. LEXIS 139645, 2014 WL 4956238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-923000-in-united-states-currency-ned-2014.