Commonwealth v. Marshall

DELLA PORTA, Senior Judge,

dissenting.

I respectfully dissent. The law, which is accurately quoted in the majority opinion, is clear that the Commonwealth has the burden to establish by a preponderance of the evidence:

1) that the money was furnished or intended to be furnished in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act) or the proceeds traceable to such an exchange or 2) that the money was used or intended to be used to facilitate any violation of the Controlled Substance Act. 42 Pa.C.S. § 6801(a)(6)(i)(A), (B). In so showing, the Commonwealth must establish a nexus between the unlawful activity and the property subject to forfeiture.1

The Court went on to say that the Commonwealth must first establish that “the money was subject to forfeiture under Section 6801(a) of the Act,” before the burden shifts to the claimant to disprove the Commonwealth’s evidence or establish other reasons to avoid forfeiture.2

In that case the Commonwealth established that claimant was conducting a methamphetamine drug operation. The police confiscated several thousand dollars worth of drugs and drug paraphernalia, and upon arrest and search of claimant, found the key to a safe-deposit box from which they recovered the $32,950.00 sought to be confiscated. Given this factual determination, our Court held that the trial court correctly found that the Commonwealth had met its burden of establishing the nexus between the illegal activity and the money it sought to forfeit.

Similarly, in the other case cited by the majority3 the trial court found sufficient evidence, albeit circumstantial in nature, to determine that the Commonwealth had met its burden of proof to establish a nexus between illegal activities and the money in question. See also Petition of Maglisco, 341 Pa.Superior Ct. 525, 491 A.2d 1381 (1985) and the leading case of Commonwealth v. Landy, 240 Pa.Superior Ct. 458, 362 A.2d 999 (1976), which analyzes the historic development of the law of forfeitures.

In the case sub judice, the trial court erred in totally ignoring the requirement that the Commonwealth has the burden of proof, and in arriving at not more than a suspicion of possible illegal activity mostly from the evidence offered by the claimant rather than the Commonwealth. The sum total of the findings of fact in support of the corpus of the illegal activity consist of: (1) “I find it strange that a speeding vehicle comes to a sudden halt and the rear seat passenger [claimant] does not awaken”.4 (2) Within a *820very short time thereafter, Claimant sat “in an upright position.” (3) The seat bottom is in a pulled position from the back rest, “and $3,000.00 plus has conveniently fallen into the space thus created.” (4) Money was noticed in that space when Claimant was removed from the seat. (5) The $3,400 recovered was packaged in hundred dollars packets, “folded in a manner consistent with the manner in which those involved in drug activity bundle their money.” [The trooper’s testimony was that the currency bills were sequentially arranged, one faced up and the next faced down. Incidentally, I am advised that some people do that with fresh bills to avoid their sticking together.] (6) “The money smells either of cocaine, marijuana or heroin, and does so strongly.” [This was based on a test with a specially trained dog.]

The rest of the trial court’s findings concerns the claimant’s explanation of how he got the money and his failure to produce other witnesses to support his testimony which the court found to “ring[s] hollow, not true.”

Giving the benefit of every doubt to the above findings of fact and all reasonable inferences that can be drawn therefrom, I still cannot find the existence of any illegal activity connected with the money in question. At best, there is a possibility that the money may have been, at some unknown time in the past, connected with some illegality. But, so can the money in my pocket or anyone else’s pocket. Also, banks generally package money in $100 bundles. By coincidence or intentionally to avoid bills from sticking together, any perfectly innocent person could possess money similarly arranged as Claimant had. And, lastly, such perfectly innocent person has no way of determining in what contact the currency in his pocket or purse may have been before reaching him or her.

The Claimant here has an absolute right to put the Commonwealth to the proof of establishing by a preponderance of the evidence that the money seized has a nexus with unlawful activity on the part of Claimant. No matter how one adds the court’s findings, it is clear to me that the trial court was in error in its determination that the burden of proof has been met. Therefore, I would reverse.

. Commonwealth v. $32,950.00 United States Currency, 160 Pa.Commonwealth Ct. 58, 61, 634 A.2d 697, 698 (1993), petition for allowance of appeal denied, sub nom Commonwealth v. Friel, 538 Pa. 637, 647 A.2d 512 (1994) (footnotes omitted).

. Id. at 61-62, 634 A.2d at 699.

. Commonwealth v. $9,310.00 United States Currency, 162 Pa.Commonwealth Ct. 315, 638 A.2d 480 (1994).

. All of these findings are from the trial court's opinion.