*1 DOT, this information to which then had IV,
duty, “give Article imposed reported ...
same to the conduct effect it if had occurred
that would such conduct
in” 1581. Pennsylvania. 75 Pa.C.S. reported by
Based the conduct licensing authority, ap-
Mississippi DOT 1532(b) §§
propriately applied 75 Pa.C.S. suspended
and 3731 and licensee’s license period.
for a one year
For reasons the order of com- these pleas
mon is court reversed. Judge in the
President COLINS concurs only.
result
ORDER
NOW, 25, 2002, the November order
the Court of Common Pleas Crawford
County above-captioned matter is
hereby reversed. Pennsylvania
COMMONWEALTH of
Eugene McJETT, Appellant. Pennsylvania. Court of
Submitted Briefs Oct. 25, 2002.
Decided Nov.
(Commonwealth) petition for forfeiture of money pursuant to 42 Pa.C.S. 6801- known The Controlled *3 (Forfeiture Forfeiture Act Substances Act). affirm. We n 4, 1998, members of On a Philadelphia Department executed Police residence at search warrant at McJett’s City in the of 5028 North Marvine Street search, po- Philadelphia. During that items, including sixty lice seized several ($60,000)in curren- thousand dollars triple cy, a .9 mm and a beam handgun Philadelphia, ap- Floyd, Michael G. The was con- scale. seizure pellant. pursuant to a search is- ducted warrant Levy, Philadelphia, ap- M. Jonathan an supported by on that date and sued pellee. by probable given cause Detec- affidavit in- Reynolds, a narcotics tive Michael J. COLINS, Judge, BEFORE: President by Philadelphia vestigator employed PELLEGRINI, SMITH-RIBNER, Judge, (Detective Attorney’s Reyn- District Office LEADBETTER, COHN, Judge, Judge, olds).1 SIMPSON, LEAVITT, Judge, and Judge, Judge. was Alleging that the warrant issued it not probable without cause because was Judge BY
OPINION
COHN.
affiant,
a
McJett filed
based on reasonable
(McJett)
a
appeals
suppress
deci-
motion
the search warrant
Eugene McJett
to his
gain entry
which was
home.
sion of the Court of Common Pleas of
(trial court)
Additionally, arguing that
there was
Philadelphia County
denying
cash confis-
his
for return of
insufficient nexus between the
petition
$60,000
drug
from home and the
currency
granting
form of
in
cated
his
of the mon-
Pennsylvania’s
allegedly
which
was
source
occasions,
had,
affidavit,
at
Reynolds
at
he
least five
his
Detective
stated
which
In
(De-
"Gino.” The infor-
spoke
purchased cocaine from
that he
with Detective Mark Dunn
Dunn)
that
had been
also stated
"Gino”
tective
the Richmond Police De-
mant
Jersey
partment
regarding
stopped May
in
of 1998 on the New
Task Force
infor-
D.E.A.
by
Turnpike
Toyota
which was
pertaining
Landcruiser
sale
cocaine
mation
kilograms of
Majett”
to contain three
cocaine
"Eugene 'Gino'
He stated that
found
[sic].
girlfriend were
relayed
that "Gino” and his
to him information
Detective Dunn
who,
informant,
awaiting
provided by
trial. Detective
further
a confidential
interest,
penal
that
corroborated the information
acting against
own
indicat-
avowed
he
his
given
to him the confidential informant
supplied
with
ed that McJett
him
cocaine
Intelligence
checking Philadelphia Police
Philadelphia, Pennsylvania. Detective Dunn
alia,
finding, inter
that McJett’s
relayed
Files and
the informant described
also
"Gino,”
male, 6'0",
pounds,
stopped
250
nickname was
he
as a black
“Gino"
operating a
operated
Jersey while
years
of 1998 in New
approximately 39
old who
Toyota
later
Landcruiser
found
Toyota
newer model Cad-
which
Landcruiser
kilograms of co-
three-and-one-half
STS.
informant also stated
contain
illac
caine, and
his address was 5028 North
resided in a house located in
“Gino”
Street,
Street,
Philadelphia.
Philadelphia,
Marvine
5000 block of Marvine
$60,000in
ey,
petitioned
containing
McJett
for return
bag
vet
U.S. curren-
property.
bedroom, pistol
cy from
front
found
bedroom,
coat in
a man’s
that same
as
court,
Before the trial
McJett
testified
scale,
triple-beam
well
which he iden-
as a
$60,000
obtained the
cash seized
being
weigh
tified
used to
police,
part,
win-
gambling
trade,
substances for the
controlled
nings,
$20,000
and that
was a
gallon-size plastic bags
located
some
gift
his wife from her mother in 1996.
next to the scale from kitchen which he
testimony,
of-
part
packaging
considered
material.
receipts
year
fered into evidence
for the
*4
jewelry,
also
that
He
stated
some
numer-
casinos,
City
various Atlantic
as
reflecting residency, keys
ous documents
well
his 1996
Re-
Federal Income Tax
phones
and mobile
were also seized.
turn. McJett
testified that
a
also
he was
triple
diabetic
the
beam scale seized
The Commonwealth also offered the tes-
from his kitchen was used weigh
to
food.
timony of Detective Dunn who stated that
kitchen,
to
plastic
As
the
found in
bags
he
Philadelphia
contacted the
Police De-
McJett stated that he was a fisherman and
1998,
in
partment August
an
after
investi-
the bags
give
to
store
fish and to
gation was conducting
he
led to a cocaine
excess fish that he caught
family,
to
supplier in Philadelphia. He stated that
friends and neighbors. He also testified
he
Detective
that
in-
Reynolds
advised
an
gun
the police
Sep-
on
he
in custody
dividual
had
informed him
4, 1998,
tember
belong
did not
to
him
that
person
he had been
with a
dealing
he did not
it got
know how
in his house.
Philadelphia
known as “Gino”
for sever-
However, when asked which
he
bedroom
months,
al
and that cocaine seized from
in,
slept
he stated that the
his
members of
had
Virginia
allegedly
informant
family slept in
of
any
rooms
Dunn
come from him.
testified
Detective
house at
given time.
that he
all
gave
Reynolds
Detective
The Commonwealth offered the testimo-
in regard
information
to “Gino” that
ny of
Reynolds
Detective
that
who stated
him,
informant had given to
such as a
he first became involved with the matter
physical description,
operated
he
that
he
when was contacted at
beginning
of
STS,
Toyota Landcruiser and
that
Cadillac
September
Dunn,
1998 Detective
a task
associates, description
“Gino”
two
had
Richmond,
force officer from D.E.A. in
lived,
in which
the area
“Gino”
and cell
Virginia, regarding information about an
phone, pager
telephone
and home
num-
individual
as a
supply
identified
source of
bers.
that,
of cocaine. He stated
with the infor-
Raymond Blassengale (Blassengale), the
Dunn,
mation he received from Detective
provided
who
informant
Detective Dunn
police reports
his
independent
own
McJett,
regarding
with information
also
investigation,
prepared
he
affidavit
testified before the trial court. He stated
a search warrant
to search
that he had known McJett from around
McJett’s residence. After
securing
warrant,
approximately
Reynolds
Philadelphia
search
fifteen
Detective
stated
years.
he
during
that
and other officers went to
He stated that
McJett
McJett’s
occasions-— n
residence to
fronted
to him four
execute
warrant. He
cocaine
residence,
upon searching
February,
stated that
twice in
once in June and once
purple
Royal
August
Blassengale
he confiscated a
Crown
vel-
around
12 or 13.
stat-
$50
2. Detective
stated
were
bills.
$100
that there
bills and 30—
585—
possession
large
amount
controlled
ed
and McJett would meet at
that he
1998, Blassengale’s
testi-
substance
Murray
at the
Street exit
trucking station
purchased co-
recently
that he had
mony
1-95
to
the cocaine to
for McJett
deliver
and the fact
him,
caine from McJett
paid
Virginia
either
and he
McJett
explain
credibly
could not
where
in Philadelphia.3
from,
$60,000 came
nexus
sufficient
suppress
As
to
to McJett’s motion
existed warrant
seizure
events
warrant, the trial court found that
search
appeal
property.4
his
This
followed.
there were no facts
establish
although
given
Blassengale
had ever
informa-
Initially,
McJett contends
before, he
any police department
tion to
conducted at
the search
seizure
and his information was reli-
was credible
was unlawful
home on
story
able because his
was corroborated
probable
there
no'
cause
sources,
many
other
made
statements
the search
support the issuance of
warrant
Department
Police
Richmond
and seizure were
under which
interest,
against
legal
and, therefore,
he is entitled
conducted
*5
reputation supported Blassen-
argues
McJett’s
He
property.5
return of
findings,
Based on those
informant
gale’s tip.
testimony
the
of the confidential
the
proba-
there
policé
trial court concluded that
for the Richmond
was not sufficient
for
probable
for
to
cause
a search
ble cause to issue a search warrant
establish
therefore,
and,
way
no
for the
the mo- warrant because there was
McJett’s residence
Philadelphia police
determine or evalu
to
merit.
to
to
suppress
tion
was without
As
veracity, reliability or
ate
petition
property,
to
the
the informant’s
McJett’s
return
that,
knowledge.6
trial
on McJett’s
basis of
court found
based
initially
which it
seized unconsti-
3. The
offered the testi-
traband
has
Commonwealth also
Anthony,
Quigley,
tutionally.
mony
Sergeant
a New
v.
418
of Detective
Commonwealth
Officer,
82,
(1992).
Jersey
Pa.Super.
State Police
who testified
109 separate confi four transactions with MeJett Information received from transaction, pur- may during dential form properly informants 1998—the last basis, probable only basis cause on a being determination. chase cocaine credit Luv, 570, prior v. exe- Pa. 735 three weeks the issuance and (1999). proba A.2d 87 A determination cution of the search warrant. Because upon provided ble based independently cause information Detective corrobo- Blassengale’s Blassengale a confidential depends story, informant rated reliability participated drug-re- the informant’s basis of admitted that sense, knowledge activity viewed a common non lated with MeJett criminal tip technical manner. Id. may activity place Such a that such took at McJett’s probable residence, probable constitute cause in where there was sufficient dependently or tip, corroborate the where cause issuance of a search provided the informant has accurate infor warrant There- for McJett’s residence. past, fore, mation criminal in denying the trial court did not err where the participated suppress. informant himself the motion to activity. the criminal Id. See also Com also contends that trial MeJett Jones, monwealth 542 Pa. 668 A.2d ordering court erred (1995) (plurality opinion). seized from his home on case, receiving this after Detec pursuant be forfeited to the Forfei report tive Dunn’s pro of the information Act not ture items vided to him Blassengale, Detective *6 activity contraband and no unlawful story corroborated Blassengale’s Commonwealth, The established.7 howev by checking police and that all finding files er, established, argues it of the provided by factual information evidence, preponderance of the that a nex Blassengale, including physical McJett’s money drag-related us between the and residence, description, the location of his existed, activity criminal forfeiture of the types of vehicles MeJett operated, as money appropriate. well as information recent ar regarding a in Jersey possession
rest New of permits for three- Act the for The Forfeiture cocaine, and-one-half of kilograms was ac feiture of for or exchanged drugs curate. Additionally, admit or used to Blassengale used intended to be facilitate Substance, ted to participating drug-related crimi of The violation Controlled activity nal with when 42 Drug, MeJett he told the Device Cosmetic Act. Pa.C.S. 6801(a)(6)(i)(A) (B).8 § Richmond had entered into In a forfeiture 710, (Pa.Super.2002) (quoting granted, appeal 227 569 805 526 Commonwealth Pa. A.2d 252, 177, Lopez, Pa.Super. v. 415 A.2d (2002). 609 (1992)). 178-179 provide: 8. Those subsections ( n ) generally.—The following Forfeitures scope appeal Our of review an from a subject shall be to forfeiture to the Com- proceeding pursuant forfeiture Forfei- property rights ex- monwealth no shall examining is ture Act limited to whether the ist in them: findings supported trial fact are court’s of ( n )(i) evidence whether the trial substantial following: All of court abused its or instruments, discretion committed (A) Money, negotiable secu- Property error law. v. Real of Commonwealth things value or rities or other furnished 1117, Improvements, by any person 787 A.2d 1120 n. 5 intended to be furnished (Pa.Cmwlth.2001), exchange substance in vio- petition for controlled allowance 110 seizure, has the at the time there is no
proceeding, present Commonwealth establish, present. Id. by preponderance requirement drugs burden to be evidence, that a nexus between has sus Once Commonwealth subject an un- property to forfeiture and nex establishing tained its burden of such 42 lawful exists. Pa.C.S. us, production shifts to the burden 6802(j);9 Fidelity v. property disprove owner of the Accounts, 109, Bank 158 Pa.Cmwlth. 631 a statu Commonwealth’s case or .establish (1993). 710, Preponderance A.2d 716 Com tory defense avoid forfeiture. is to a “more the evidence tantamount $26,556.00 Poli monwealth v. Seized from likely than not” standard. Commonwealth (Pa.Cmwlth.1996 ). doro, A.2d 389 672 $32,950 Currency, v. U.S. 160 Pa.Cmwlth. 697, (1993), petition 634 A.2d n. 9 698 judice, In the case the record sub nom., appeal allowance denied sub and reasonable drawn from the inferences Friel, 538 Pa. support finding evidence the trial court’s (1994). preponder- A.2d 512 Proof items house seized from McJett’s ance of the “often alluded to as evidence is were, likely not, more than weighing and a determi- evidence operations proceeds trafficking mythical based way nation which such, operations and, of such as tipped.” are scales Id. for upholding the trial court’s decision property. feiture of McJett’s evi preponderance of the First, up dence standard the Com certain to the require leading does not events produce directly provide insight monwealth evidence of his seizure linking illegal activity. time. property to to McJett’s activities at the $32,950.00 Jersey police A.2d at 699. McJett’s Currency, stopped New example, For circumstantial can vehicle and found kilos evidence three-and-one-half car; party’s be used to establish a involvement of cocaine was subse- *7 drug activity support in arrested for trans- quently possession forfeiture. 1998, In porting Nine Thousand Three cocaine. Blassen- August U.S.C., informant, Ten gale, Hundred Dollars 162 Pa. an Richmond gave (1994). 315, against about Cmwlth. A.2d information McJett that was Further, although drugs penal in most cases are his interest and oth- corroborated Substance, (1) Drug, the the lation The Controlled That claimant is the owner of Act, proceeds Device and all mortgage Cosmetic property or the holder of a chattel exchange. traceable to such an or contract of conditional sale thereon. instruments, (B) Money, negotiable secu- (2) lawfully acquired That claimant things other intended to rities or of value or property. any be used to of The facilitate violation (3) unlawfully it was used or That not Substance, Drug, Device and Controlled possessed by him. that it shall In the event Act. Cosmetic unlawfully appear the property was possessed by person other than used or provides: That Section claimant, then claimant shall show proof. Owner’s burden the time —At possession was unlawful use or hearing, produces if the Commonwealth knowledge his consent. Such without question was property evidence that the in used, knowledge be absence of or consent must unlawfully possessed or otherwise 6801(a), pre- under subject reasonable the circumstances to forfeiture under section claimant to the burden shall be sented. show:
HI (Court sources;10 triple-beam er n. 2. classified scale Blassengale described his appellant’s drug para- in house as relationship business with wherein found McJett supported con- phernalia; in such evidence purchased cocaine at least four times in appellant’s son was involved clusion that gave accounting accurate drug activity money seized from in Jersey, MeJett’s arrest New de- premises was result of his involvement scribed the current make and model of business, justifying with the thus its vehicles, drug MeJett’s and knew then MeJett’s forfeiture). po- current In address.11 issue, $60,000, lice found the items at a .9 Third, assuming that the Commonwealth scale, mm handgun triple and a beam proof, met its initial burden conducting
while
legal
of MeJett’s
show, to
required
would be
meet
Thus,
chronology
home.
of events and
persuasion,
property
burden of
proximity
their
time to the 1998 seizure
lawfully acquired
proper-
was
and that the
MeJett’s
leads to a conclusion ty
unlawfully
possessed.
was not
used or
was,
not,
likely
that McJett
more
than
However,
6802(j).
See 42 Pa.C.S.
involved in the drug trade at the time.
“unworthy
trial court found McJett to be
fact,
and,
judge
of belief’
as finder of
Second,
permitted
a trial judge is
responsible
solely
evaluating
for
to draw
reasonable inferences from
credibility
weighing
of the
witnesses
the evidence. Nine Thousand Three Hun
$32,950.00
testimony.
Currency,
their
Thus,
dred Ten Dollars U.S.C.
the trial
ordering his home and the forfeiture confiscated from affirmed. of activity, source allegedly from McJett is which was the petitioned return money, McJett for
ORDER
Finding that a
property.
of his
sufficient
of
warrant
nexus
events existed to
NOW,
25, 2002, the order of
November
property,
of
based on his
seizure McJett’s
the Court
Philadel-
of Common Pleas of
con-
possession
large
a
amount of a
of
phia
mat-
County,
above-captioned
1998;
an infor-
trolled substance
ter,
affirmed.
is hereby
recently
testimony
mant’s
that he had
Judge
OPINION
McJett,
DISSENTING
BY
and the
purchased cocaine
PELLEGRINI.
ex-
credibly
fact that
could not
$60,000
from, plain where the
came
majori-
I respectfully dissent from the
Af-
petition.
trial court
McJett’s
denied
ty’s holding
denies Eugene
which
McJett’s
court,
con-
firming
majority
the trial
request for
in the form
return
cludes that
estab-
the Commonwealth
$60,000
pursuant
currency
Pa.
by preponderance
a
evidence
lished
6801-6802,
§
commonly
C.S.
known
a
nexus between the
Controlled Substances Forfeiture Act
and,
existed,
drug-related
activity
criminal
(Forfeiture Act),
a
sufficient nexus
therefore,
ap-
the money
forfeiture of
$60,000 and
criminal ac-
any
between the
disagree.
I
propriate.
tivity does
not exist make it forfeitable.
permits
Act
forfei-
Forfeiture
4, 1998,
On
members of the
used
money exchanged
drugs
ture of
Philadelphia
Department
Police
executed
or intended to
facilitate
be
a
at
search warrant McJett’s residence at
Substance,
violation
the Controlled
Phila-
City
5028 Marvine Street
n
42 Pa.C.S.
Drug, Device and Cosmetic Act.
search,
delphia. During
police
(B).
6801(a)(6)(i)(A)
§
In a forfeiture
items,
sixty thou-
including
seized several
proceeding,
has
($60,000) in
currency,
sand dollars
U.S.
a
preponderance
burden
establish
mm
triple
.9
and a
scale.
handgun
beam
the evidence that a
between the
nexus
The search arid seizure was conducted
un-
property subject to forfeiture and an
pursuant
search warrant
issued
Pa.C.S.
exists.
lawful
that date
supported by
an affidavit of
6802Q).1
probable
given
cause
Detective Mi-
case,
investigator
chael J.
In this
execution of
Reynolds,
narcotics
warrant,
Philadelphia
triple
At-
employed by the
District
found
iden-
torney’s
Alleging
Office.
there
scale which Detective
beam
cbn-
weigh
the cash tified as
used to
an insufficient nexus between
However,
present
be
at the time
seizure.
1. In
of its conclusion that
sufficient
exists,
majority
nexus
cites Common
these
for is that there must
what
cases stand
$32,950
wealth,
Currency,
160 Pa.
money and a
be a direct
between the
link
(1993), petition
Cmwlth.
While maintain no illusions about presence drugs or drug residue on McJett, the just because an par- individual has items anywhere any house or. ticipated illegal drug-related activity in testimony tying particular those funds to a past the does necessarily not mean that enterprise, criminal a sufficient nexus be- items located in his residence are connect- $60,000 tween the any seized and criminal ed to any that or drug-related other activi- activity does not exist to it make forfeita- ty. majority What the has done is con- Accordingly, ble. I respectfully dissent. clude that is seized as a result of a search that results no
charges, person explain has to
where he got money government or the it,
can seize thus making likely it in- son, search of the key recovered a for a questioned safe regarding money. him the deposit obtaining box. executing After police phone then called the the number another number, deposit warrant for the safe petitioner gave them as his home box, $32,950.00 police identifying was in drug himself as a courier who appeal, the box. On this Court concluded supposed petitioner, was to meet told the in- although there was no phone direct link be- dividual on the that he would sell the money any tween the illegal activity, get promised pay- "load” if he did not sufficient nexus existed between the seized ment. police After the individual told the illegal items and the peti- where the officer not to do that but instead to wait for $9,310.00 carrying tioner’s was key son "Tony,” to the safe ap- was seized. On deposit arrest, at drug box the time of peal, although this Court concluded that envelopes some of the money in which petitioner drugs did not have on him at kept seized, was attorney had the name of his money the time the there was a them, and money seized from the safe money sufficient nexus between the and the deposit strong box methamphetamine had a illegal activity the seizure where odor consistent with the petitioner’s smell detected at the plans, carry- travel maimer in case, original time drug ing raid. In that money, and the amount and the there was a presence direct link. flight couriers on the same In Nine Thousand Three person trafficking Hundred Ten Dol- was consistent with a U.S.C, petitioner lars drugs, phone arrived in Philadel- and the conversation with the phia flight. on an Upon ques- Air Jamaica petitioner’s sup- at the residence individual tioning by immigration regarding ported officer peti- the reasonable inference that the carrying, amount of drug trafficking tioner was involved in on that case, petitioner gave conflicting trip. police officer an- In that could at least petitioner swers. The state *10 specific drug detained the link the to a transaction.