United States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two & 43/100 Dollars ($149,442.43) in United States Currency

965 F.2d 868, 1992 WL 111580
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 27, 1992
DocketNo. 90-5261
StatusPublished
Cited by43 cases

This text of 965 F.2d 868 (United States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two & 43/100 Dollars ($149,442.43) in United States Currency) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two & 43/100 Dollars ($149,442.43) in United States Currency, 965 F.2d 868, 1992 WL 111580 (10th Cir. 1992).

Opinion

SAFFELS, District Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Claimants, Tom and June Fisher, appeal from a judgement of the District Court ordering the forfeiture of $149,442.43 in United States currency; one 1988 Chevrolet Suburban Classic VIN 1GBER16K5JF136752; and one 1989 Chevrolet Silverado Pickup VIN 1GCGC24K1KE122725 in accordance with 21 U.S.C. § 881(a)(4) and (a)(6)1 and 26 U.S.C. §§ 7301(a) and 7302.

In this case, the United States sought forfeiture of the defendant currency and various vehicles which were seized during the execution of a search warrant of the claimants’ residence. The search warrant covered financial records of drug transactions, monies derived from or produced for the procurement of illicit drugs and other items evidencing claimant Tom Fisher’s (“claimant Fisher’s”) involvement in drug trafficking. During the execution of the search warrant, a total of $149,442.43 in United States currency was found in claimant Fisher’s home, most of which was discovered in a plastic ammunition box in a cupboard in the laundry room. Also seized were financial records, drug notation records, a small quantity of marijuana, triple beam scales, a digital scale and 14 various firearms. The district court upheld the validity of the search warrant and its execution, and denied claimant’s motion to suppress.

Thereafter, the district court conducted a four day bench trial. After receiving and considering the evidence, the district court ruled that all of the items seized, except five vehicles, were properly seized under 21 U.S.C. § 881(b)(1),2 because they were discovered incident to the execution of a valid search warrant and were subject to forfeiture due to the existence of a sufficient nexus to criminal activity, namely drug trafficking and tax evasion. In reaching this conclusion, the district court found that the claimants had failed to establish by a preponderance of the evidence that the property and currency were derived from legitimate income or that the defendant property was not used to facilitate drug trafficking. The court further ruled that the government had failed to establish a nexus between the goods and illegal gambling pursuant to 18 U.S.C. § 1955. The court ordered the return of five vehicles.

1. Motion to Suppress

Claimants first contend on appeal that the district court erred in denying their motion to suppress because the issuance of the search warrant and its execution were improper. Specifically, appellants contend [872]*872that the warrant was not supported by probable cause because the information relied upon was stale, was based upon hearsay, mere opinion of the affiant officer, and failed to establish a nexus between the claimants’ residence and evidence of illegal activity. Appellants further contend that the affiant had deliberately omitted salient facts. Last, appellants contend that the trial court erred in denying their motion to suppress because the execution of the search warrant was overbroad, and thus, it was turned into an impermissible general search in violation of the fourth amendment.

Although forfeiture proceedings are inherently civil in nature, they are not to be effectuated in derogation of one’s constitutional rights. United States v. $3,799.00 in United States Currency, 684 F.2d 674, 677 (10th Cir.1982) (citing One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965)). Thus, any defects in process used to secure the possession of defendant property may defeat the government’s right to possession, inasmuch as the government will be barred from introducing evidence illegally seized in violation of the fourth amendment to prove a claim of forfeiture. Id. (citing Bramble v. Richardson, 498 F.2d 968 (10th Cir.1974), cert. denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974)).

In determining whether the district court properly denied claimants’ motion to suppress, this court must accept the trial court’s findings of fact unless they are clearly erroneous. United States v. Lopez, 777 F.2d 543, 548 (10th Cir.1985) (citing United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984)). Furthermore, the evidence must be considered in the light most favorable to the government. United States v. Short, 947 F.2d 1445, 1449 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990).

A. Probable Cause

In assessing whether a search warrant is supported by probable cause, a magistrate’s determination of probable cause must be given considerable deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). However, reviewing courts will not defer to a magistrate’s determination if the affidavit provides no substantial basis for determining the existence of probable cause. United States v. Leon, 468 U.S. 897, 915, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984).

Upon consideration of the search warrant and supporting affidavit, we conclude that a substantial basis exists to find probable cause for the issuance of the search warrant. A review of the supporting affidavit, reveals that the affiant, Officer Larry Fugate ("Officer Fugate” or “affiant officer”) was employed as a Cook County Deputy Sheriff and had been assigned to the drug division for two years at the time of the affidavit. The affidavit further reveals that Officer Fugate worked as a police officer for 11 years. During his employment, Officer Fugate received specialized training while working with seasoned narcotics investigators. This training included his participation in several undercover drug investigations. (Appendix to Corrected Brief of Appellants, at 54.)

His supporting affidavit further states that he had received information from a reliable confidential informant (“informant number one”), who had previously given his department reliable information on four separate occasions resulting in four arrests and convictions.

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Bluebook (online)
965 F.2d 868, 1992 WL 111580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-one-hundred-forty-nine-thousand-four-hundred-forty-two-ca10-1992.