Commonwealth v. $4,020.00 Belonging to Harry Dunlap

1

Commonwealth of Pennsylvania v. $4,020.00 Belonging to Harry Dunlap

Appeal of: Harry Dunlap

No. 921 C.D. 2023

Commonwealth Court of Pennsylvania

August 16, 2024

OPINION NOT REPORTED

Submitted: July 5, 2024

BEFORE: HONORABLE ANNE E. COVEY, JUDGE HONORABLE STACY WALLACE, JUDGE HONORABLE BONNIE BRIGANCE LEADBETTER, SENIOR JUDGE

MEMORANDUM OPINION

STACY WALLACE, Judge

Harry Dunlap (Dunlap) appeals, pro se, from the March 7 2023 order of the Court of Common Pleas of Clearfield County (the trial court), which granted the Commonwealth of Pennsylvania's (Commonwealth) petition for forfeiture (Forfeiture Petition) of $4,020.00 cash in United States currency the police seized from Dunlap when they arrested him and charged him with violations of The Controlled Substance Drug, Device, and Cosmetic Act (Drug Act),^[1] under the provisions of the Controlled Substance and Forfeiture Act (Forfeiture Act).^[2] After review, we affirm.

BACKGROUND

On November 9, 2021, Officer Zane Rhed (Officer Rhed) of the DuBois City Police Department conducted a traffic stop of Dunlap's vehicle. Original Record (O.R.), Item No. 19. During the interaction, Officer Rhed searched Dunlap and his vehicle, and Officer Rhed seized methamphetamine, a glass smoking pipe, and $4,020.00 cash. Id. Officer Rhed charged Dunlap with possessing a controlled substance and with possessing drug paraphernalia, both violations of the Drug Act. Id. Dunlap pled guilty to possessing the drug paraphernalia. Id. On August 23, 2022, the Commonwealth filed a Forfeiture Petition requesting forfeiture of the $4,020.00 cash Officer Rhed seized from Dunlap. Id., Item No. 2. In response, Dunlap filed an answer and a petition for return of property in which Dunlap asserted the cash was not related to any drug activity, but rather was payment he received from a friend to install a furnace. Id., Item Nos. 4, 5.

On January 17, 2023, the trial court held a hearing on the Commonwealth's Forfeiture Petition. At the hearing, the Commonwealth presented the testimony of Officer Rhed, who indicated he is a K-9 handler and primarily conducts drug investigations. Id., Item No. 19. Officer Rhed observed Dunlap commit a traffic offense after Dunlap left a "known drug house." Id. Officer Rhed was familiar with the house because the police had executed search warrants there before and seized controlled substances. Id. Additionally, the police had conducted numerous stops of pedestrians and vehicles coming from the house, and the police seized controlled substances as a result. Id.

After initiating the traffic stop of Dunlap, Officer Rhed approached him and observed a white powdery substance on Dunlap's nose. Id. Officer Rhed learned Dunlap had an outstanding warrant, and Officer Rhed placed him under arrest. Id.

Subsequently, Officer Rhed conducted a search of Dunlap and his vehicle. Id. Officer Rhed found methamphetamine underneath the driver's seat, a glass smoking pipe, and $4,020.00 cash in Dunlap's pocket. Id. The money was packaged into multiple groups in packets of a thousand dollars, held together with a rubber band, and placed inside a plastic bag. Id. Officer Rhed explained this type of packaging was consistent with his observations of money packaging in other drug trafficking cases. Id. According to Officer Rhed, Dunlap provided two different explanations for having the money, indicating first he was purchasing a furnace for himself, and then stating the money was for construction costs. Id.

At the hearing, Dunlap testified on his own behalf. Dunlap claimed he received the money from a friend to purchase a furnace. Id. Additionally, Dunlap testified he had six to eight marijuana cigarettes in the cupholder, which the police did not charge him with, and explained the marijuana and methamphetamine were both for his personal use. Id. Regarding the house Dunlap had been visiting, he explained he knew the resident from jail, he had not seen him in a long time, and he stopped to visit. Id. Dunlap claimed he did not engage in any drug activity while at the house. Id.

By opinion and order dated March 7, 2023 (Opinion), the trial court granted the Commonwealth's Forfeiture Petition. The trial court accepted Officer Rhed's testimony as credible, and discredited Dunlap's explanation for possessing the money. Trial Ct. Op., at 3-4. The trial court noted the Forfeiture Act's statutory rebuttable presumption and explained:

Within the Forfeiture Act, the Legislature created a presumption that money … found in close proximity to controlled substances possessed in violation of [the Drug Act] shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of [the Drug Act.] 42 Pa.C.S. § 5802(6)(iii). In this case, the money subject to forfeiture was found in Dunlap's pocket, and the cash was divided into three bundles of $1,000.00, and one bundle of $1,020.00. The methamphetamine was found in a black box located under the driver's seat of Dunlap's vehicle. Additionally, Dunlap testified that there were marijuana cigarettes in the cupholder next to the driver's seat.

In consideration of the presumption created by the Forfeiture Act due to the cash's proximity to the drugs, this Court finds that the Commonwealth has established its burden by a preponderance of the evidence. Furthermore, Dunlap has not presented any credible evidence that would rebut the presumption and show lawful ownership and use of the money. Therefore, the $4,020.00 belonging to Dunlap, and seized by the [police] during the traffic stop . . . is subject to forfeiture in accordance with 42 Pa.C.S.[] § 5802(6).

Id. at 2, 4.

Dunlap now appeals. On appeal, Dunlap raises two issues.^[3] In his first issue, Dunlap argues the Commonwealth failed to prove, by a preponderance of the evidence, a sufficient nexus between the seized money and illegal activity. Dunlap's Br. at 9. Specifically, Dunlap contends that because the Commonwealth dismissed the possession of methamphetamine charge, "there [are] no drugs to be considered in this [a]ppellate review." Id. at 14-15. Additionally, he asserts the Commonwealth did not introduce the pipe as evidence and did not introduce any evidence of drug residue, fingerprints, or DNA found on the pipe. Id. Thus, he maintains this Court should not consider his possession of the pipe, and without this evidence, the Commonwealth failed to prove a nexus between the money and illegal drug activity. Id. at 14-15. In his second issue, which is substantively similar to his first, Dunlap argues the trial court violated his right to due process guaranteed by the Fourteenth Amendment to the United States Constitution.^[4] Id. Specifically, Dunlap asserts his "14th [Amendment] due process right was violated based on mere suspicion, spec[ulation], and conjecture" because "there was no real testimony of any drug transactions or any intent to sell anything." Id. at 16. Dunlap contends the trial court "erred [by] not requiring any evidence of fact necessary to the decision therein." Id. at 17.^[5]

DISCUSSION

In an appeal from a forfeiture proceeding, this Court reviews whether the trial court abused its discretion or committed an error of law, and whether the trial court's findings of fact are supported by substantial evidence. Commonwealth v. 1997 Chevrolet, 106 A.3d 836, 847 (Pa. Cmwlth. 2014). We are deferential to the trial court's findings so long as they are supported by substantial evidence. Id.

The Forfeiture Act permits the forfeiture of property exchanged for drugs or used or intended to be used to facilitate any violation of the Drug Act. See 42 Pa.C.S. § 5802. In relevant part, the Forfeiture Act provides the following are subject to forfeiture:

(A) Money . . . or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of [the Drug Act], and all proceeds traceable to such an exchange.

(B) Money . . . or other things of value used or intended to be used to facilitate any violation of [the Drug Act].

42 Pa.C.S. § 5802(6)(i)(A)-(B).

In a forfeiture proceeding involving seized money, the Commonwealth bears the burden of proving, by a preponderance of the evidence, a nexus between the money and a violation of the Drug Act. Commonwealth v. Burke, 49 A.3d 542, 546 (Pa. Cmwlth. 2012). A preponderance of the evidence equates to a "more probable than not" standard. Commonwealth v. $32,950.00 U.S. Currency, 634 A.2d 697, 698 n.9 (Pa. Cmwlth. 1993). While the Commonwealth may satisfy its burden by circumstantial evidence, it must demonstrate more than a "possibility or a mere suspicion of a nexus." Commonwealth v. $301,360.00, 182 A.3d 1091, 1097 (Pa. Cmwlth. 2018).

In a forfeiture proceeding involving money, the Commonwealth must initially prove:

(1) . . . the money was furnished or intended to be furnished in exchange for a controlled substance, (2) . . . the money represents proceeds traceable to such an exchange, or (3) . . . the money was used or intended to be used to facilitate a violation of the [Drug] Act.

Commonwealth v. $34,440.00 U.S. Currency, 174 A.3d 1031, 1039 (Pa. 2017). When money is found in close proximity to controlled substances possessed in violation of the Drug Act, it is presumed to be derived from selling controlled substances. 42 Pa.C.S. § 5802(6)(ii). Our Supreme Court has held this rebuttable presumption may be sufficient to satisfy the Commonwealth's initial burden of demonstrating a nexus between seized money and prohibited drug activity under the Forfeiture Act. $34,440.00 U.S. Currency, 174 A.3d at 1041. Once the Commonwealth satisfies its burden of proving a substantial nexus between the seized money and illegal drug activity, the burden then shifts to ...