In re $300,000 in U.S. Currency

309 A.3d 1117

IN RE: $300,000 IN U.S. CURRENCY

Appeal of: Zhi Xiong Xu

In re: $300,010 in U.S. Currency

Appeal of: Zhi Xiong Xu

CASES CONSOLIDATED

No. 520 C.D. 2022

No. 521 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued April 5, 2023

Decided February 1, 2024

Appealed from Nos. CP-60-MD-57-2020 and CP-60-MD-4-2021, Common Pleas Court of the County of Union, Lori R. Hackenberg, J.

Julian Allat, State College, for Appellant Zhi Xiong Xu.

Christopher J. Schmidt, Deputy Attorney General, Harrisburg, for Appellee Commonwealth of Pennsylvania.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY PRESIDENT JUDGE COHN JUBELIRER

Zhi Xiong Xu (Appellant) appeals the Order entered in the Court of Common Pleas of Union County (trial court or suppression court), granting the Commonwealth of Pennsylvania’s (Commonwealth) "Motion for Order of Forfeiture" (Forfeiture Motion) pursuant to the Pennsylvania Controlled Substances Forfeiture Act (Forfeiture Act)¹ and dismissing Appellant’s "Motion for Return of Property Pursuant to Pa.R.Crim.P. 588 and 42 Pa. C.S.[ ] [§] 5806" (Return of Property Action)²,³ following a Pennsylvania state trooper’s seizure of $300,010.00 and an iPhone (currency and phone) from Appellant during a traffic stop. This Order also made final the suppression court’s order denying Appellant’s Motion to Suppress Evidence (Suppression Motion) on the basis Appellant was subjected to an investigative detention and unreasonable seizure without any evidence of illegal activity. The suppression court determined that, under the totality of the circumstances, Appellant’s detention was justified as there was reasonable suspicion he was involved in criminal activity. The trial court determined based upon a disclaimer and acknowledgement form (Form) Appellant later signed that the currency had been used in illegal drug trafficking in violation of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act).⁴ The instant appeal requires us to consider whether the currency and phone were the products of a lawful search and seizure as well as the validity of the Form and the extent it can be used to meet the Commonwealth’s burden of proof under the Forfeiture Act to justify the forfeiture of those items where no controlled substances were found and no arrests were made. Because we find the suppression court erred in denying the Suppression Motion and, therefore, the Commonwealth cannot establish that the currency and phone were connected to an illicit drug activity, we reverse the suppression court’s order entered on December 20, 2021, and we reverse the trial court’s order entered on April 29, 2022, granting the Forfeiture Motion and denying Appellant’s Return of Property Action.

I. FACTUAL BACKGROUND

On January 23, 2020, Appellant was driving a rented, silver Cadillac sport utility vehicle (SUV) westbound on Interstate 80 (I-80) when he was stopped by Trooper Christopher Isbitski (Trooper) of the Pennsylvania State Police for various viola- tions of the Vehicle Code.⁵ It was during this stop that the currency and phone that are the subject of these actions were seized.

At a hearing on Appellant’s Suppression Motion on December 9, 2021, Trooper testified as follows to the traffic stop, his interactions with Appellant, and the seizure of the currency and phone. On January 23, 2020, at which time the temperature was in the low 30s and snow was on the ground, Trooper observed that while the SUV was not traveling at a high rate of speed, there was a "drastic speed reduction" when it passed his patrol car, which is "not normal with the innocent motoring public." (Reproduced Record (R.R.) at 117a, 122a-24a, 158a, 188a-89a.) Trooper also noticed the driver of the SUV appeared to be leaning back behind the B-pillar⁶ of the SUV and had both hands on the wheel in the "10 and 2 position." (Id. at 123a, 159a, 189a.) Trooper proceeded to follow the SUV, which reached 78 miles per hour, started passing other vehicles, failed to use a turn signal when changing lanes twice, and followed a tractor trailer too closely. (Id. at 124a-25a, 165a.)⁷ After observing this driving behavior, Trooper initiated a traffic stop and noted that the SUV’s right turn signal remained on when it pulled over. (Id. at 126a-27a.)

Trooper approached the vehicle on the passenger side and instructed Appellant to lower the window. (Id at 173a-76a.) After what he described as a "[c]ordial, friendly" interaction, Trooper asked Appellant for his driver’s license and paperwork for the SUV, when he learned the SUV was a rental. (Id. at 132a.) Trooper noticed Appellant was "[o]verly nervous and [his] hand[s] [were] shaking," and he told Appellant he would consider just giving him a warning. (Id. at 132a, 136a, 143a-46a.) Appellant volunteered information about his "vague travel plans," which seemed convoluted to Trooper whose suspicions were heightened when he discovered the rental agreement for the SUV was one-way from New York, LaGuardia Airport on January 23, 2020, to Denver, Colorado, on January 25, 2020. (Id. at 134a, 137a, 141a-44a.) Appellant indicated he was going to Columbus, Ohio, to visit a friend and the friend’s child for the Chinese New Year, after which he was headed to Denver, Colorado, to see another friend. However, Trooper observed these plans "conflicted with" the two-day rental agreement for the SUV which was due to be returned in Denver the same morning Appellant indicated he would be in Columbus for the Chinese New Year. (Id. at 137a-39a.)

Trooper had a clear view of the interior of the vehicle and noticed a shopping bag full of snacks on the front passenger seat, which suggested "potentially long travel" along I-80. (Id. at 178a-79a.) Trooper did not witness Appellant make any furtive movements or attempts to reach for something within the vehicle, did not observe any weapons or drug paraphernalia, did not smell any drugs or alcohol in the SUV or "anything of note[,]" was able to determine Appellant’s driver’s license was valid, and did not issue a written citation or warning. (Id. at 177a-78a, 181a, 190a, 198a-99a.) Instead, as Trooper "conducted] [the] business of the traffic stop,"⁸ he asked Appellant to exit the SUV and stand at the passenger side of the police cruiser, at which time he asked Appellant to see his driver’s license and vehicle documents again, because Trooper had returned these items to Appellant before the pat-down. (Id. at 135a-36a.) Trooper asked Appellant whether there were any firearms, drugs, or large amounts of currency in the SUV, to which Appellant responded, "[n]o, [n]o, no, no, no" and raised his hands in the air. (Id. at 135a, 146a-47a.) The transcript of the video recording of the encounter and the video show that, at that time, Trooper stated, "Okay. Let’s pat you down so I make sure you don’t have any -- any pistols or nothing like that. You know what I mean? Money -- how much money you got on you, a couple hundred bucks," to which Appellant responded, "[y]eah." (Id. at 254a.) Trooper testified he interpreted Appellant raising his hands as consent to search Appellant, so Trooper conducted a pat down, finding no weapons. (Id. at 182a, 185a-86a.) Appellant denied there was anything illegal in the SUV or that he was traveling with a large amount of money. (Id. at 146a-48a.) Trooper believed "criminal activity was afoot" due to "[t]he one-way rental [from LaGuardia, New York]; the source areas from LaGuardia to Denver, Colorado; the conflicting statements that [Appellant] provided [Trooper]; [Appellant’s] overly nervous [demeanor]; the vague travel plans; and [the fact Appellant was] flying home from Denver, Colorado, back to California." (Id. at 145a, 180a.) Trooper asked to search the SUV, and Appellant consented. (Id. at 148a.) Trooper asked Appellant to open a suitcase in the trunk,⁹ and when Appellant did so, Trooper observed currency concealed inside. Trooper also found currency in a large paper bag in the trunk. Trooper seized the currency believing it was related to unlawful activity. (Id. at 149a-52a.) Trooper admitted that "no reasonable person would walk away after law enforcement had taken possession of their driver’s license, their rental car agreement, their money[,] and their phone[.]" (Id. at 204a-05a.) During the encounter, another officer who arrived at the scene to assist with the search, identified as Corporal Mark Conrad, told Appellant, "You need to follow us back [to the barracks], wait to see what the [drug-detection K9] does, and we’ll go from there," and immediately before the video of the encounter ended, he again stated, "You have to follow us out." (Id. at 149a, 274a, 276a.) Appellant proceeded to follow Trooper in the SUV to the barracks where he was given his Miranda¹⁰ warnings by Corporal Luke Straniere (Corporal). (Id. at 208a-09a, 213a, 216a-17a.) Corporal explained he conducted a pat-down of Appellant to ensure he did not have any weapons prior to proceeding beyond the lobby of the barracks. Although Corporal also told Appellant he was free to leave, Corporal testified he did not inform Appellant the currency and phone would be returned to him if he did so. (Id. at 220a-23a.)

While at the barracks, Trooper testified Appellant told Trooper he was taking the currency to Denver to buy a farm. (Id. at 155a.) Trooper also testified that at the barracks, Appellant provided the password to the phone and executed the Form and other waivers. (Id. at 154a-55a.) The Form, which was witnessed by Trooper and signed by both Appellant and him on January 23, 2020, at 3:22 p.m., reads in pertinent part as follows:

I, [Appellant’s full name], acknowledge and admit that I had [ ] Bulk Currency … seized from me by the Pennsylvania State Police, on 1/23/20….

I, [Appellant

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