United States v. $38,005.00 in U.S. Currency

UNITED STATES OF AMERICA, Plaintiff, v. $38,005.00 IN UNITED STATES CURRENCY, Defendant.

No. 5:15-CV-27-REW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON

June 22, 2016

MEMORANDUM OPINION AND ORDER*** *** *** ***

The United States and Claimant, Julius L. Belle, filed cross-motions for summary judgment. DE ##18 (Claimant's Motion), 19 (United States's Motion). Plaintiff responded, DE #20 (Plaintiff's Response), but Claimant did not. Nor did Claimant reply. The motions are ripe for consideration. For the following reasons, the Court DENIES both motions. Claimant fails to justify suppression under the Fourth Amendment. Further, genuine factual disputes preclude summary judgment for either side.

I. Relevant Factual and Procedural Background

On February 5, 2015, the United States filed a verified complaint in rem to obtain forfeiture of $38,005.00 pursuant to 21 U.S.C. § 881(a)(6). DE #1 (Complaint). The complaint, supported by an affidavit from DEA TFO Robert J. Hart, alleges that the currency "was furnished or intended to be furnished in exchange for controlled substances, was proceeds traceable to such an exchange, or was intended to be used to facilitate the illegal sale of narcotics." Id. at 2 ¶ 6. Belle, by counsel, answered the Complaint on March 16, 2015, tendering also a verified claim. DE #4 (Verified Claim); DE #5 (Answer). Following a discovery period, the Government and Claimant filed the motions currently under consideration.

This forfeiture action arises from a traffic stop of Julius Belle by Lexington Police on May 22, 2014.¹ In the afternoon of the 22nd, Lexington Police Officers Ryan Nichols and Matthew Merker were in one unit patrolling a Lexington PD-designated "high criminal activity" area. DE #18-2 (Nichols Deposition), at 6-7. Shortly before 5 p.m., theofficers observed a "white Challenger with dark tinted windows" operating near a gas station on the corner of Augusta and Etawah Drives. Id. at 9; DE #18-1 (Plaintiff's Discovery Responses - Uniform Citation), at 42. Based on the observation that the windows were illegally tinted, the officers initiated a traffic stop for excessive window tint, at 4:55 p.m. Id.

After the officers activated their flashing lights, Belle pulled into a gas station. Id. at 15. Belle did not immediately stop upon entering the station parking area; he proceeded to a gas pump and exited his vehicle as if to pump gas. Id. Officer Nichols asked Belle to return to his vehicle, radioed (via Merker) in the stop, and approached Belle. Id. at 15-16; DE #18-1 (Dispatch Log), at 16. Officer Nichols requested Belle's information, including his driver's license, registration, and proof of insurance. Id. at 18. Belle provided a permit of some type but was unable to provide a valid driver's license or proof of insurance. Id. According to Officer Nichols, Belle appeared nervous as evidenced by his labored breathing and visibly excessive heartbeat. Id. at 19. After the initial questioning, Officer Nichols returned to his patrol vehicle and began to run Belle's personal information. Id. This check involved radioing Belle's information into dispatch² and accessing the Fayette County jail website. Id. According to Officer Nichols, the database revealed numerous arrests for drug trafficking and carrying a concealed deadly weapon. Id. at 19, 54. Based on Belle's nervousness, the time he took to stop his vehicle,the high crime nature of the area of stop, and Belle's prior arrest record,³ Officer Nichols radioed for the assistance of a narcotics canine at approximately 5:01 p.m. Id. at 19, 48-50; DE #18-1 (Dispatch Log), at 16.

Two canine units arrived at the scene at approximately 5:12 p.m., including Lexington Police Officer Chad Karsner and his certified drug dog, Lux. Id. at 25; DE #18-1 (Dispatch Log), at 16. While Officer Merker remained with Belle, Officer Nichols briefly described the situation to Officer Karsner. Id. at 26. Officer Nichols then presented Lux to the vehicle. Id. Lux alerted to the driver's side front quarter panel and the driver's side rolled down window. DE #19-5 (Karsner Affidavit), at 3. While Officer Karsner presented Lux, Officer Nichols engaged in casual conversation with Belle. DE #18-2, at 28. According to Officer Nichols, "one minute or less" elapsed between the canine's initial presentation to the vehicle and the alert. Id. at 29.

Based upon Lux's alert, the officers decided to search the vehicle. Prior to the search, Officer Karsner asked Belle "if there was anything inside the vehicle [the officers] needed to know about." Id. Belle advised that there was "a lot of cash in the trunk . . . around $40,000."⁴ Id. Upon searching the vehicle, Officer Karsner observed "marijuana shake"⁵ on the floor board between the driver's seat and center console, aswell as on the rear floor board behind the driver's seat.⁶ DE #19-5, at 3. Officer Karsner further located a large quantity of cash contained within a shopping bag in the trunk. Id. According to Officer Karsner, Lux separately alerted to the cash when presented with the bag.⁷ Id.

After locating the cash and "marijuana shake," Nichols called several additional officers to the scene, including his supervisor, Sergeant Brian Jared, and narcotics unit Sergeant Dawson. DE #18-2, at 34. Sergeant Dawson interviewed Belle. Id. at 36. Once Sergeant Dawson completed his interview, Officer Nichols wrote Belle a citation for three traffic violations: (1) window tint below the AS1 line; (2) driving on an expired operator's license; and (3) no insurance. DE #18-1 (Uniform Citation), at 42. Upon issuance, Belle was free to leave.⁸ Id. The stop ended at approximately 5:56 p.m.⁹ DE #18-2, at 37; DE #18-1 (Dispatch Report), at 17. The officers seized the cash.

The primary officers then left the scene of the stop and went to the Lexington PD narcotics office to conduct a count of the seized cash. DE #18-2, at 40-41. Officers counted $38,005.00 in U.S. currency with the following bill breakdown: 116 $100 bills, 74 $50 bills, 1,065 $20 bills, 101 $10 bills, and 79 $5 bills. Id.; DE #18-1 (LDP Evidence Record), at 41. The cash as seized was contained within a blue cloth bag within a largeAbercrombie shopping bag and bundled with rubber bands in increments of $5,000. Id. at 44-46; DE #18-1 (LDP Evidence Record), at 41; DE #18-1 (Plaintiff's Response to Interrogatories), at 8.

Authorities eventually dismissed the traffic charges upon notice of correction by Belle. DE #18-1 (Plaintiff's Response to Requests for Admission), at 4. Police did not charge Belle with any crimes related to the seized funds. Id. In July 2014, Belle filed a petition for remission with the DEA, seeking return of the seized currency. DE #19-4 (Hart Affidavit), at 3. In August 2014, the DEA conducted interviews of Belle and his long-time girlfriend Lavasha Renee¹⁰ Duff.¹¹ Id. Following these interviews, the DEA recommended denial of the petition for remission. DE #18-1 (DEA Report of Investigation), at 33. This civil forfeiture action, targeting the cash seized, followed.

II. Standard of Review

A federal civil in rem forfeiture action draws from several procedural sources. The claim origin is statutory (in this case, 21 U.S.C. § 881(a)(6) and CAFRA, 18 U.S.C. § 983). The particular framework of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions governs specific pleading and claim mechanics. However, the civil rules generally continue to apply except where inconsistent with the Supplemental Rules. See United States v. $50,800.00 in U.S. Currency, No. CV-10-2004-PHX, 2011 WL 2434225, at *1 (D. Ariz. June 16, 2011) ("Federal civil in rem forfeitures are governed by the Federal Rules of Civil Procedure."); see also Supplemental Rule G(1) (assuring that "Federal Rules of Civil Procedure also apply" to forfeiture actions inrem except to extent the Supplemental Rules "address an issue"); United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 159-50 (3d Cir. 2003) ("The Civil Rules therefore also apply to in rem proceedings, but only to the extent that they are not 'inconsistent with' the Supplemental Rules[.]"). Thus, the summary judgment mechanics of Rule 56 apply to (and in conformity with) the specific substantive steps of a CAFRA action. See, e.g., United States v. 939 Salem St., Lynnfield, Mass., 917 F. Supp. 2d 151, 154-55 (D. Mass. 2013) ("Summary judgment may be entered in an in rem civil forfeiture action where the moving party satisfies the familiar Rule 56 standard.").

Pursuant to Federal Rule of Civil Procedure 56, a court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).

The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 at 414 ("The party moving for summaryjudgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts"...