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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12388
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00031-LGW-JEG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll
Plaintiff-Appellee,
versus
DAMIAN JULIAN,
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Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 12, 2012)
Before HULL, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
After pleading guilty, Damian Julian appeals his conviction for traveling in
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interstate commerce with the intent to promote, manage, establish, or carry on
unlawful activity (a cocaine distribution conspiracy), in violation of 18 U.S.C.
§ 1952(a)(3).1 On appeal, Julian challenges the district court’s denial of his
motion to suppress evidence that $21,015 in cash was found on the front seat of a
vehicle he was driving. After review, we affirm.
I. BACKGROUND
A. Offense Conduct
On November 27, 2007, Investigator William Woolard of the Camden
County Sheriff’s Office was patrolling Interstate 95 (“I-95”) in Camden County,
Georgia. Woolard was on patrol as part of a heightened drug interdiction
program, and he knew that I-95 was a known drug corridor. Woolard initiated a
traffic stop of a green Chevrolet Impala that Woolard observed failing to maintain
a single lane. Defendant Julian was driving the Impala and was the sole occupant.
Woolard approached the vehicle and requested Julian’s driver’s license.
Woolard then learned that the Impala was a rental car, and that Julian was neither
the renter nor an authorized driver. The rental agreement listed Sharon Miller as
the renter. Although it appeared that the rental agreement was expired, Julian told
Woolard that he had just renewed it.
1
Julian does not appeal his 60-month sentence.
2
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Woolard explained to Julian why he pulled him over, and Julian stated that
his car “was pulling.” Woolard asked Julian if he had been arrested before, and
Julian replied that he had been arrested for smoking marijuana. Julian further
stated, in response to Woolard’s questions, that he was traveling from Florida to a
recording studio in Brunswick, Georgia, and that he was a music producer who
traveled frequently. Julian, however, could not provide the studio’s street address.
Julian did know that it was located “off of Exit 38” and offered to take Woolard
there.
Following this initial period of conversation, Woolard asked Julian if he
could search the Impala. Julian gave his consent. On appeal, Julian does not
challenge the district court’s findings that he consented to the search of the Impala
and that Woolard had probable cause for the traffic stop—namely, Julian’s failure
to maintain a lane and use a turn signal. Rather, Julian challenges only the denial
of his motion to suppress evidence of the cash found in the Impala.
During the search, Julian stood behind the Impala with his back to it (i.e., in
front of and facing Woolard’s patrol car), a position that Woolard thought was
unusual, since “[m]ost people when you go inside their vehicle they want to watch
you do it.” In his search of the Impala, Woolard found a cardboard box on the
front passenger seat that contained some loose cash, as well as twenty bundles of
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cash wrapped in rubber bands. Woolard did not find any receipts or other
paperwork related to the money in the Impala. Woolard took the box out of the
Impala, placed it on the hood of his patrol car, and removed the bundles of money.
Upon discovering the funds, Woolard also detained Julian by handcuffing
him and placing him in the backseat of his patrol car. Woolard then requested
additional police assistance, and other law enforcement officers, as well as a police
dog, came to the site of the traffic stop. Woolard, along with the other law
enforcement officers, conducted a more extensive search of the Impala. No other
suspicious items or contraband were discovered. There is no indication that the
police dog gave a positive alert on either the cash or the Impala.
After Woolard gave Julian Miranda2 warnings, Woolard asked him how
much money was in the box. Julian responded that the money totaled
approximately $20,000.00, and that he had earned it by producing records. Julian
did not have any receipts or paperwork documenting the source of the cash.
Woolard later testified that, each time he asked Julian a question, Julian
“would look down and away.” Julian stood with his arms folded the entire time,
which Woolard considered unusual because most drivers typically let their arms
rest at their sides and were generally more relaxed. Woolard also observed that
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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the muscles around Julian’s eyes were twitching. However, Julian’s overall
demeanor was calm, and he cooperated with Woolard during the traffic stop.
After Woolard completed the search and concluded the traffic stop, he
permitted Julian to leave. Woolard took possession of only the cash, later counted
and determined to be a sum of $21,015. Woolard later testified that he explained
to Julian that the money was not being returned because Woolard had seen no
paperwork substantiating its origin and did not know where it had come from, or
“if [Julian had] robbed a bank.” Woolard also had been unable to verify Julian’s
occupation or source of income, other than by a business card provided by Julian,
as there was nothing else in the car to substantiate Julian’s claim that he was a
music producer. Woolard further testified that he had several times before found
drugs along with large sums of cash that were wrapped in rubber bands in
$1,000-increments, similar to the cash found in the Impala.
Following the seizure of the cash, law enforcement took that cash to a bank
and had it converted into a cashier’s check. This money was later forfeited
pursuant to administrative proceedings after no one came forward to claim it. The
forfeiture of the money is not challenged in this appeal either. Again, the only
issue is the suppression of the cash in the criminal case against Julian.
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B. Procedural History
Over three years after the traffic stop, in March 2011 Julian was charged in
a 21-defendant, 4-count indictment that related to a large drug distribution
conspiracy. However, as explained below, the indictment was later dismissed as
to Julian, and he ultimately pled guilty to a 1-count information that contained
only the § 1952(a)(3) charge at issue in this criminal case.
Prior to pleading guilty to the information, Julian filed a motion to suppress
the cash seized during the traffic stop. Julian asserted that Woolard’s seizure of
the cash from the Impala was not supported by probable cause to believe that the
cash was linked to drugs or other illegal activity.
Following an evidentiary hearing and supplemental briefing by both parties,
the district court denied Julian’s motion to suppress the cash. Specifically, the
district court identified the following seven factors that, under the totality of the
circumstances, provided probable cause to believe that the cash was connected to
an illegal drug transaction: (1) the substantial value of the cash; (2) the condition
of the funds, which had been “rubber-banded into bundles [and] concealed in a
worn cardboard box”; (3) Julian’s admission to a previous narcotics arrest;
(4) I-95, the road on which Julian was traveling when Woolard initiated the traffic
stop, was a known drug corridor; (5) Julian’s unusual, nervous behavior during the
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stop; (6) Julian’s ambiguous travel plans; and (7) the fact that Julian was driving a
rented car, and he was not an authorized user of that car under the rental
agreement.
Thereafter, the government and Julian entered into a plea agreement. The
government filed an information under a new case number, charging Julian with
one count of traveling in interstate commerce with the intent to promote, manage,
establish, or carry on unlawful activity (a cocaine distribution conspiracy), in
violation of 18 U.S.C. § 1952(a)(3). Julian pleaded guilty, pursuant to the written
plea agreement, and waived his right to an indictment.
In the plea agreement, Julian reserved his right to appeal the district court’s
denial of his motion to suppress the cash evidence. The initial indictment was
dismissed as to Julian upon the government’s motion. The district court accepted
Julian’s guilty plea, adjudicated Julian guilty of the information’s sole count, and
sentenced him to 60 months’ imprisonment. Thereafter, Julian filed this appeal.
II. DISCUSSION
On appeal, Julian argues that the district court erred in denying his motion
to suppress evidence of the $21,015.00 seized from his car during the traffic stop.
He asserts that, under the totality of the circumstances, Investigator Woolard did
not have probable cause to seize the funds as drug proceeds, and thus, the cash
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evidence should have been suppressed.3
A. Our Precedent
A seizure occurs when there is a meaningful interference with a person’s
possessory interest in property. United States v. Virden, 488 F.3d 1317, 1321
(11th Cir. 2007) (holding that the non-consensual seizure of the defendant’s
vehicle was unreasonable absent probable cause because of its scope and
intrusiveness, including because the seizure was accomplished by moving the
vehicle to a new location for the purposes of investigation). A warrantless seizure
of personal property in plain view is permissible under the Fourth Amendment
where officers have probable cause to believe that the property is contraband. See
United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). Probable cause is a
“reasonable ground for belief of guilt, supported by less than prima facie proof but
more than mere suspicion.” United States v. $242,484.00, 389 F.3d 1149, 1160
(11th Cir. 2004) (en banc) (internal quotation marks omitted) (addressing the civil
forfeiture statute, 21 U.S.C. § 881(a)(6), which uses a probable cause standard
identical to that employed in criminal cases involving seizures).
In determining whether probable cause existed at the time of a seizure of
3
A district court’s ruling on a motion to suppress presents a mixed question of law and
fact, and we review the application of law de novo and the findings of fact for clear error. United
States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007). In so doing, we view the facts “in the
light most favorable to the prevailing party in [the] district court.” Id.
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alleged drug proceeds, we evaluate whether, given a commonsense view of “the
realities of normal life” and the totality of the circumstances, there is “probable
cause to believe that the money is the proceeds of, or is otherwise connected to,
any illegal drug transaction.” Id. Even where the evidence presented by the
government would support an alternative hypothesis for the source of funds, this
does not prevent the evidence from being probative on the issue of probable cause.
Id. Furthermore, we have rejected the argument that probable cause was negated,
as to money seized as drug proceeds, because no drugs were found in the search
that uncovered the money. See United States v. $41,305.00 in Currency &
Traveler’s Checks, 802 F.2d 1339, 1343 (11th Cir. 1986) (noting that “[o]ne may
expect a drug dealer to have drugs or money or both on hand”).
In $242,484.00, this Court affirmed the district court’s ruling that the
government established probable cause that the cash seized from Deborah
Stanford was drug proceeds. 389 F.3d at 1160, 1168. Stanford was carrying a
large amount of currency, which was rubber-banded into bundles in a backpack, a
method of transportation not used by legitimate businesses. Id. at 1160-62. The
cash was sealed in cellophane and Christmas wrapping paper, a technique used by
couriers to prevent detection by drug-sniffing dogs and to conceal money. Id. at
1162. Stanford was traveling between New York and Miami, a flight corridor
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often used by drug organizations, and she purchased her ticket in cash and twice
changed her return date. Id. at 1162-63. Additionally, Stanford was not able to
tell agents who gave her the cash, where she picked it up, or where she stayed in
New York, and she told agents two conflicting stories about why she went to New
York and could produce no supporting documentation for either story or the
money. Id. at 1163-65. A dog trained to detect narcotics alerted on the bag
containing the currency. Id. at 1165-66. Finally, no one ever came forward to
claim the money. Id. at 1167-68.
In United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503 (11th Cir.
1993), this Court held that the large quantity of cash seized from Frederick Foster,
although insufficient by itself to establish probable cause, was highly probative of
a connection to illegal activity. Id. at 1505-07. Foster, who was intercepted by
law enforcement agents at the airport, paid for his round-trip ticket from Atlanta to
New York with cash under a false first name. Id. at 1505, 1507. Moreover, he
carried more than $100,000.00 for a single-day trip and appeared nervous when
questioned by agents. Id. at 1507. Finally, Foster had a history of narcotics
arrests and convictions, including at least three convictions for controlled
substance offenses. Id. at 1507-08.
In United States v. Boyce, 351 F.3d 1102 (11th Cir. 2003), the case that
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Julian urges controls here, this Court concluded that the arresting officer lacked
reasonable suspicion of criminal activity to detain the defendant motorist beyond
the initial traffic stop. Id. at 1107-08. Although the officer testified that the
defendant was unusually nervous during the stop, a videotape of the stop belied
the officer’s testimony, such that the district court clearly erred in finding that the
defendant was unusually nervous. Id. at 1108-09 (explaining the videotape
contradicted the officer’s assertions that the defendant sweated profusely, was
particularly talkative, and paced). Furthermore, although the officer found the
defendant’s travel plans to visit an ex-girlfriend suspicious, the defendant
explained why he was visiting her and such travel plans did not suggest any
criminal activity. Id. at 1109. We concluded that the only two remaining factors,
that the defendant was traveling through a known drug corridor in a rental car and
that he was planning to return the car two days late, were insufficient under the
totality of the circumstances to show reasonable suspicion to support the
defendant’s detention. Id. at 1109-10.
B. Facts in Julian’s Case
Here, under the totality of the circumstances, we conclude that probable
cause existed for the seizure of $21,015 in cash from the car Julian was driving.
Although all seven factors identified by the district court, taken together, support a
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finding of probable cause, the most probative of these factors are the condition of
the funds and their substantial value. At the time of the traffic stop, Julian was in
possession of a significant amount of cash, the vast majority of which had been
rubber-banded into 20 separate bundles of $1,000 each and concealed inside of a
cardboard box, and “[a] common sense reality of everyday life is that legitimate
businesses do not transport large quantities of cash rubber-banded into bundles
and stuffed into packages.” $242,484.00, 389 F.3d at 1161. Julian had no
paperwork, bank receipts, or any documentation whatsoever concerning the source
of the funds. Although Julian provided an explanation for the cash’s origin, the
fact that his explanation could support an alternative hypothesis does not prevent
the lack of documentation from being probative on the issue of probable cause.
See id.
In addition, unlike in Boyce, the video of the traffic stop in the present case
did not belie Woolard’s testimony. Woolard himself testified that although Julian
was calm and cooperative, he exhibited some signs of nervousness, including
looking down and away while speaking, holding and folding his arms across his
chest, and watching his car only minimally during Woolard’s search. Woolard
testified that he had conducted between two and three thousand traffic stops
during his career, and the district court properly gave some weight to Woolard’s
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inferences regarding Julian’s behavior. See $242,484.00, 389 F.3d at 1162.
The other facts found by the district court, though not as probative as the
amount of cash, the condition of the cash, and Julian’s behavior, support the
district court’s finding of probable cause. Julian was traveling down a known
drug corridor in a rental car for which he was neither the renter nor the authorized
driver, and he admitted to a prior drug-related arrest. See id. at 1167; cf.
$121,100.00 in U.S. Currency, 999 F.2d at 1507-08 (noting that the individual
from whom the defendant currency was seized had a history of narcotics arrests
and convictions, but focusing on his convictions for controlled substance
offenses). Finally, Julian could not provide Woolard with the address of his
destination in Brunswick, and while this failure on Julian’s part is distinguishable
from the suspicious travel plans at issue in $242,484.00 and $121,100.00 in U.S.
Currency, the district court nevertheless was permitted, under the totality of the
circumstances, to take this factor into consideration in making its probable cause
determination. See $242,484.00, 389 F.3d at 1160.4
Accordingly, in light of the foregoing, and after our careful review of the
4
We also note that, while Julian contended during the traffic stop that the cash belonged
to him, the fact that no person came forward to claim the funds in the administrative forfeiture
proceedings is another factor, one not considered by the district court, that further supports a
finding of probable cause to believe that the cash was drug proceeds or was otherwise connected
to drug activity. See United States v. $242,484.00, 389 F.3d 1149, 1167-68 (11th Cir. 2004) (en
banc).
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record and briefs in this case, we affirm the district court’s denial of Julian’s
motion to suppress the $21,015 cash evidence seized from the car Julian was
driving.5
AFFIRMED.
5
We recognize that the government alternatively argues that even if Woolard erroneously
seized the cash itself, he still would have been able to testify as to: (1) the circumstances
surrounding the traffic stop, including the factors that supported the district court’s probable
cause finding; (2) his discovery of the box; (3) details concerning the nature of its contents,
which he learned during the course of the lawful search prior to the seizure; and (4) Julian’s
admission to him that the box contained about $20,000, even if testimony regarding the exact
sum of money would have been excluded. Based on this argument, the government reasons that
any seizure error was harmless. We need not reach the issue of harmless error, however, because
there was no error in the present case.
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