(dissenting). Twelve years ago, this court stated in regard to forfeiture proceedings under G. L. c. 94C, § 47, that, “[forfeiture is punitive because it results in total loss of the property. But it is often also remedial, for . . . it restrains further illegal use of the forfeited item.” (Footnote omitted.) Commonwealth v. One 1972 Chevrolet Van, 385 Mass. 198, 201 (1982). Going on to explain the matter the court stated: “[T]he forfeiture of a motor vehicle not particularly adapted for use in criminal activity ... is unlike forfeiture of either (a) items, such as drugs, which are the subject matter of the crime itself, or (b) items, such as stills and certain burglary tools, which are special instruments tailored to the commission of crimes. The van here had no distinguishing quality that made it particularly suitable for use in committing crimes, and its ownership, possession, and use were not crimes themselves.” Id.
One might think that the same is true of legal currency of the United States. Yet, the court today concludes as to retroactive application of the amendment to § 47C (see St. 1989, c. 653, § 79) that there is no violation of the prohibitions against ex post facto laws, which are found in arts. 12 and 24 of the Massachusetts Declaration of Rights, because these forfeiture proceedings are remedial and not punitive in nature. Cf. Reale v. Superior Court, 265 Mass. 135, 138-139 (1928). In my view, the position taken by the court is not persuasive. Hence, I cannot join in its opinion. Also, I cannot join in the conclusion of the court for two additional reasons. First, the opinion is grounded on an unsupported finding of the trial judge; second, given what the court says about the use of hearsay evidence, I do not believe the Commonwealth’s burden of proof in forfeiture proceedings has been met. Accordingly, I dissent.
The court proceeds on the assumption that the claimant to the money, Romualdo Reyes, Jr., was not the legitimate owner of $14,200. This assumption is based on the trial judge’s finding that “the funds probably were obtained as a result of sales or distributions of cocaine.” Using circular logic, the court concludes that, since Reyes obtained the *11money through illegal means, the forfeiture was not penal in nature. As the court frames the issue, then, this case turns on the nature of the $14,200, as is typical of forfeiture cases. See Commonwealth v. One 1972 Chevrolet Van, supra.
At the outset, we must determine which burden of proof the Commonwealth bears: the preponderance of the evidence standard under G. L. c. 94C, § 47, as it existed in 1988, or the probable cause standard under the 1989 revision. As Reyes argues and the court recognizes, the determination as to whether the lower “probable cause” standard under the 1989 amendment may be applied depends on whether the retroactive application of the 1989 revision would violate ex post facto prohibitions. At this point in the inquiry, the way the money was obtained by Reyes is the proper first inquiry, and the intended future use of the money at the time it was seized is not relevant.1 See One 1972 Chevrolet Van, supra at 200-202. To determine whether ex post facto provisions apply here, see Doris v. Police Comm'r of Boston, 374 Mass. 443, 450 (1978), we must be concerned first with the source of the money (i.e., whether the money came to Reyes through legitimate means), because we must determine whether this forfeiture is punitive or remedial in nature.
If the $14,200 were proceeds from an illegal drug transaction, then forfeiture of the money would be remedial in nature since Reyes would not have a lawful right to the money. If, however, the money had been obtained through legitimate means, then the forfeiture would be punitive because Reyes *12had a lawful claim to the money at the time it was seized, and because currency is not a “special instrument [ ] tailored to the commission of crimes.” One 1972 Chevrolet Van, supra at 201. If the latter is the case, then the money “had no distinguishing quality that made it particularly suitable for use in committing crimes, and its ownership, possession, and use were not crimes themselves.” Id.
My view on the importance of the nature of the money at the time it was seized does not seem to be at odds with the reasoning of the court. We diverge, however, in the determination whether, on this record, the judge’s findings that the money was the proceeds of an illegal drug transaction, is supportable. I conclude that, apart from improperly considered hearsay, it is not.
In his testimony, Springfield police Officer Carlo Damato repeated the hearsay statements of an employee of Roy’s Towing Company regarding where and how the money was found. The money was said by the absent employee to have been found in a bag also containing a little over one gram of cocaine and one marihuana cigarette. Based on this hearsay evidence, Officer Damato was permitted to opine that the amount of cocaine was consistent with a sample from a larger supply of cocaine and that the money probably was intended for the purchase of a larger supply of cocaine. Damato also opined that the money was the proceeds of an illegal drug transaction. It is this latter opinion of Damato regarding the source of the funds, and on the judge’s finding based on this opinion, that the court bases its conclusion that Reyes had no legitimate claim to the money.
This finding of the judge regarding the source of the money is unsupported by any credible or admissible evidence. Surely, law enforcement officers may give opinions about instrumentalities and evidence of crimes. P.J. Liacos, Massachusetts Evidence 379-380 (6th ed. 1994). Nevertheless, an opinion that is a “mere guess or conjecture ... in the form of a conclusion from basic facts that do not tend toward that conclusion any more than toward a contrary one has no evidential value.” Toubiana v. Priestly, 402 Mass. 84, 91 *13(1988). See Commonwealth v. Seven Thousand Two Hundred Forty-six Dollars, 404 Mass. 763, 766 (1989) (where the only evidence presented is based on conjecture and surmise, the evidence is insufficient). Here, there are no “basic facts” which support the officer’s opinion regarding the source of the money.
The officer’s opinion regarding the source of the money should be distinguished from his opinion regarding the intended use of the money (i.e., purchase of a larger quantity of cocaine), which is more sufficiently grounded in the evidence admitted at trial: e.g., that the amount of cocaine was consistent with a “sample”; and the money was bundled in $1,000 lots. In contrast, there is nothing in this record that supports the officer’s opinion that the money was derived from an illegal drug transaction.2
Thus, I cannot agree with the finding that Reyes did not have a legitimate right to the money. Forfeiture of the money in this case would be punitive in nature, just as would be forfeiture of a common Chevrolet van. Since in this case G. L. c. 94C, § 47, is, in effect, a penal statute, retroactive application of the 1989 amended version of G. L. c. 94C, § 47, and its “probable cause” standard, would violate constitutional prohibitions against ex post facto laws because it lessens the Commonwealth’s burden of proof. See Doris, supra at 450; Commonwealth v. Bargeron, 402 Mass. 589, 590-591 (1988). The applicable version of the statute, G. L. c. 94C, § 47 (1988 ed.), requires the Commonwealth to prove all material facts by a preponderance of the evidence. *14This, the court acknowledges, the Commonwealth has not done. Ante at 4.
Even if I were to assume that the “probable cause” standard set forth in the 1989 amendment constitutionally could be applied in this case, I could not conclude that the Commonwealth has met its burden. The hearsay statements of the unknown employee of Roy’s Towing, brought in through Officer Damato, should not have been admitted. Without these statements, the Commonwealth has not shown probable cause to institute forfeiture proceedings.* *3 G. L. c. 94C, § 47 (d), as appearing in St. 1989, c. 653, § 79.
The court’s discussion of the hearsay issue in this case is confusing. It says that there is no hearsay problem because the testimony regarding the employee’s statement was “admissible, not to prove the truth of the out-of-court statement, but simply to prove Damato’s state of mind and the reasonableness of the Commonwealth’s decision to institute the forfeiture action, that is, to prove ‘probable cause to institute the action.’ ” Ante at 5. General Laws c. 94C, § 47, however, says nothing about police officers’ or district attorneys’ states of mind or mere reasonableness in instituting this type of action.4 The statute requires “probable cause to institute the action.” Probable cause determinations deal with articulable facts and circumstances, not just reasonable states of mind. See Commonwealth v. Grzembski, 393 Mass. 516, 521 (1984).
Yet the court goes on to adopt the rule for indictments, which incorporates a probable cause standard, Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), that hearsay evidence may be used at indictment proceedings. Com*15monwealth v. Gibson, 368 Mass. 518, 522-525 (1975).5 See ante at 9. The court apparently believes that, for forfeiture proceedings, this is a better rule than the rule in District Court probable cause hearings that hearsay statements that would be inadmissible at trial are inadmissible at the probable cause hearing. Myers v. Commonwealth, 363 Mass. 843, 849 & n.6 (1973).6 I note, however, that this discussion regarding the admission of hearsay evidence contradicts the court’s earlier statement that there is no hearsay problem here because the evidence is offered for state of mind purposes, not for the truth of the matter asserted. Analytically, the court cannot have it both ways.
The problem with the conclusion of the court that hearsay should be allowed in forfeiture proceedings as in indictment proceedings is that the Commonwealth is permitted to establish probable cause to institute a forfeiture proceeding by using hearsay evidence that is usually inadmissible in other proceedings, and then the burden shifts to the claimant, who is unable to cross-examine and impeach the absent declarant.7 This case shows the danger of the court’s rule, because *16here Reyes could not cross-examine the only person who linked the drugs and the money and on whose statements the result in this case was based. The Commonwealth was not required to establish any indicia of reliability of the declarant’s statement, did not show that the declarant was unavailable to come to court, and did not even show that it had attempted to find the declarant. See Commonwealth v. Meech, 380 Mass. 490, 496-498 & n.12 (1980) (discussing standards that would apply if court considered admitting hearsay not covered by an established exception to the rule).
The hearsay testimony of Officer Damato should not have been allowed. Without that testimony, there is no showing of any nexus between the drugs and the money. As a result, I would not conclude that the Commonwealth had met its burden of establishing probable cause to proceed. In the first instance, as noted above, I do not believe that the probable cause standard under the 1989 amendment to G. L. c. 94C, § 47, can be applied in this case. Accordingly, I dissent.
The court suggests that the seizure of money intended for use in a drug transaction is “preventive,” and thus the forfeiture proceeding is remedial. This statement is intended by the court to explain the distinction it finds between this case and Commonwealth v. One 1972 Chevrolet Van, 385 Mass. 198 (1982), where, as the court recognizes, the property legitimately belonged to thé claimant and thus the forfeiture was punitive. In this case, there was no admissible evidence that even permitted an inference that the property was not legitimately Reyes’, and thus I do not understand how this forfeiture would not be punitive even if it were “preventive.” Indeed, in One 1972 Chevrolet Van, supra, we recognized that forfeiture proceedings usually are both preventive and penal in nature. Id. at 201.
There was, for example, no evidence that Reyes had a history of illegal drug sales, or that he was known to be a drug dealer.
Reyes testified that the money was a loan. His testimony was corroborated by three witnesses, including two who testified that they had loaned Reyes much of the money in issue for the purpose of buying real estate. If one is to conclude that, since $14,200 was in cash and not a check, it must be illegal, that view is not only speculative but overlooks the fact that, in many cultures, banks are suspect and cash is the medium of exchange. I hope that the police officer, the trial judge, and, perhaps my colleagues are not unwittingly being culturally insensitive in reaching their conclusions.
It was the employee who stated where and how the money was found. Without his statement linking the drugs and the money, there is no evidence connecting the two. Cf. Commonwealth v. Seven Thousand Two Hundred Forty-six Dollars, 404 Mass. 763, 765-766 (1989), and cases cited.
l have little doubt that the Commonwealth always truly believes that it is reasonable to institute a forfeiture action.
The court overlooks the fact that, after indictment, the ultimate loss of a substantial constitutional right (liberty) must later be established by credible evidence beyond a reasonable doubt. Ante at 9.
The court also seems to adopt Federal standards for probable cause and the admission of hearsay for forfeiture proceedings. Mere reference to the applicable Federal statutes and cases and the assertion of the court’s belief that these are more appropriate standards do not constitute a convincing appellate discussion as to why these Federal standards should be adopted by this court in interpreting the law of the Commonwealth. Ante at 8.
We expressly have rejected the Federal standard for probable cause. See, e.g., Commonwealth v. Upton, 394 Mass. 363, 373 (1985). Also, we never have adopted the so-called “innominate” exception to the hearsay rule which is contained in Fed. R. Evid. 803 (24). Commonwealth v. Costello, 411 Mass. 371, 377 (1991). Indeed, this rule was not even urged for adoption as part of the proposed Massachusetts Rules of Evidence. P.J. Liacos, Massachusetts Evidence 529 (6th ed. 1994).
If the Commonwealth wants to take advantage of the lax Federal standards, it should go to Federal court to do so. The cost of that privilege, however, may be that the Federal government would get the proceeds.
Even if hearsay is allowed in an indictment proceeding, it would not be allowed at trial, unless an exception to the rule applies, so there is a safeguard for the defendant. Here, there is no safeguard for the claimant: he *16could not refute the story of the employee of Roy’s Towing, except by his own testimony, which the judge chose not to believe.