Com. of Pa. v. Vasquez

182 A.3d 1091

COMMONWEALTH of Pennsylvania

v.$301,360.00 U.S. CURRENCY and One 2011 Lexus, RX350, VIN #2T2BK1BA48C081250

Appeal of: Clarissa Vasquez

No. 1229 C.D. 2016

Commonwealth Court of Pennsylvania.

Argued September 13, 2017

Decided April 4, 2018

Michael A. Ventrella, Mount Pocono, for appellant.

Philip M. McCarthy, Deputy Attorney General, Harrisburg, for appellee.

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, Judge¹ , HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE COHN JUBELIRER

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 RX350⁴ (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) , ––– Pa....