Daniel Trujillo appeals the district court’s judgment of forfeiture of $128,740 in drug-trafficking proceeds under 21 U.S.C. § 881(a)(6). Trujillo argues the Government failed to show probable cause for the forfeiture. In addition, he contends that the civil forfeiture statute violates due process by requiring the Government to merely show probable cause in quasi-criminal proceedings. We affirm.
FACTS AND PROCEDURAL HISTORY
On October 4, 1994, a Los Angeles County sheriffs deputy on the narcotics detail at Los Angeles International Airport received a tiр from a citizen informant. Two men, Apolonio Portillo and Daniel Piujillo, had
When Flight 33 arrived, the DEA agent went to the tarmac to locate and identify the checked luggage with the baggage tag number given by the informant. He found a relatively new suitcase, with an identification tag bearing the name of Daniel Trujillo. Meanwhile, two deputies went to the gate to watch passengers deplane. They noticed Trujillo, one of the last passengers to deplane, who perused the gate area. The deputies followed Trujillo to the baggаge claim area, where they rejoined the DEA agent and pointed out Trujillo as a possible subject of the tip. Two women joined Trujillo. Trujillo scanned the baggage claim area while the suitcase that the DEA agent had previously identified circled the carousel five times. Then Trujillo picked up the bag, looked around again, and headed for the exit.
The DEA agent and one deputy followed Trujillo. At the arrival curb, the agent approached Trujillo and identified himself as a DEA agеnt. The deputy stood behind Trujillo. The agent specifically told Trujillo that he was not under arrest and he was free to leave. Trujillo indicated his willingness to speak. Upon request, Trujillo produced his airline ticket which bore the name of Daniel Piujillo, and his California identification with the name of Trujillo, explaining the discrepancy as due to the ticketing agent’s error. The DEA agent noticed that Trujillo’s ticket envelope also held a one-way ticket for Apo-lonio Portillo from New York tо Los Angeles.
The DEA agent announced he was on the airport’s narcotics detail and asked Trujillo if he was carrying narcotics or large amounts of currency. Trujillo said he was a shoe salesman and had $40,000 in his suitcase from the sale of two cars in New York the previous day. The agent asked for and received permission to open the suitcase. Inside were bundles of currency, wrapped first in fabric softener sheets and then tightly in plastic wrap.
Meanwhile, about ten feet away, the LAPD detective had been speaking to Maria Ramos, one of the woman who had met Trujillo. Ramos told the detective the carry-on bag she carried belonged to Trujillo, who had given it to her in .the baggage claim area. When the carry-on bag was brought to Trujillo, he stated that the clothes inside the bag were his, but the bag actually belonged to Portillo. A deputy asked for and received consent to open the Carry-on bag. Inside were two bundles of U.S. currency, one marked $50,000 and thе other marked $25,-000. The currency in the carry-on bag was wrapped in fabric softener sheets and plastic wrap in the same manner as that in the suitcase.
The DEA agent then asked Trujillo to accompany him to the DEA office at the airport, where Trujillo gave further information. Because Trujillo had not been advised of his Miranda rights and the district court found that he had been under de facto arrest, the court suppressed all statements and evidence arising solely from the detention at the DEA оffice. A trained narcotics dog alerted the agents to the presénce of narcotics on the currency. Trujillo was arrested and the Government seized a total of $129,727 in U.S. currency: $128,740 from the two bags and $987 from Trujillo’s person.
Nine months after the arrest and seizure, the Government filed a complaint for civil forfeiture of the $129,727. After filing a claim for restitution, Trujillo moved to suppress essentially all the Government’s evidence, alleging violations of the Fourth and Fifth Amendments.
At the district court hearing on Trujillo’s motion to suppress, the DEA agent was the sole Government witness. The agent, who had eight years’ experience as a DEA. special agent, testified that many of Trujillo’s actions were consistent with a drug courier profile. These includéd Trujillo’s late-night cash purchase of a one-way ticket, travel between New York and Los Angeles, use of a relative
At the court’s suggestion, the parties stipulated that the district court could base its judgment in the forfeiture action solely on the evidence presented at the suppression hearing instead of holding a trial. The parties stipulated to the motions that would be offered if a trial were held. Trujillo moved the court for an order declaring that the forfeiture statute violated due process by requiring the Government to prove only probable cause fоr seizure. In addition, the parties stipulated that the Government would not rely on the canine sniff to establish probable cause.
The district court denied Trujillo’s motion and issued a judgment granting forfeiture of $128,740 to the United States. This timely appeal followed.
DETERMINATION OF PROBABLE CAUSE
A. Standard of Review
We review the district court’s determination of probable cause de novo. See United States v. Jones,
B. Discussion
Currеncy associated with drug trafficking is subject to forfeiture to the Government. No property right exists in:
All moneys .. . furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this title, all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of this title....
21 U.S.C. § 881(a)(6). The Government must show probable cause that the currency seized from Trujillo was specifically assоciated with drug trafficking, not just with illegal activity in general. See 19 U.S.C. § 1615; see also United States v. $191,910.00 in U.S. Currency,
Determination of probable cause for forfeiture is based upon a “totality of the circumstances” or “aggregate of facts” test. See United States v. U.S. Currency, $30,-060.00,
The district court found probable cause for the seizure of the currency found in the suitcase and carry-on bag. It bаsed its findings on the following circumstances, the first five of which were consistent with a drug courier profile:
(1) A citizen informant gave a tip concerning Trujillo’s late-night cash purchase of a one-way ticket; the slight discrepancy in names was easily explained by clerical error.
(2) Trujillo was one of the last persons to deplane.
(3) Trujillo looked around while at the baggage claim area.
(4) Trujillo, while close to the baggage carousel, allowed his suitcase to circle five times before picking it up.
(5) Trujillo travelled from New York to Los Angeles. New York is a source for drug-related money travеlling to Los An-geles, a drug source city. A" high percentage of all drug-related currency travels between New York and Los Angeles.
(6) While speaking with the DEA agent at curbside, Trujillo was nervous, his hand was shaking, and he was “cotton-mouthed.”
(7) Both the suitcase and carry-on bag contained large amounts of currency.
(8) In each bag, the currency was wrapped in fabric softener sheets, then further wrapped in plastic wrap, a practice used by couriers to thwart narcoties-sniffing canines.
Trujillo’s actions before his bags were opened gave rise to a reasonable suspicion in the eyes of experienced narcotics investigators that he was involved in drug trafficking. This circuit has long recognized the validity of drug courier profiles as partial grounds for reasonable suspicion justifying limited investigative detention. See United States v. Erwin,
When Trujillo was questioned by the DEA agent at curbside, even more factors gave rise to a suspicion of drug-related activity. Trujillo was nervous and shaking as hе spoke to the officers. He told the DEA agent that he was a shoe salesman but was carrying $40,000 currency from the sale of two cars, a highly unusual tale. His ticket and identification revealed him to be the subject of the informant’s tip. Moreover, in his ticket envelope he carried the ticket of Apolonio Portillo, the other subject of the informant’s tip, and he identified his carry-on bag as belonging to Portillo. Nevertheless, Trujillo had not left the plane with Portillo or met him at the baggage claim. Under these circumstances, the narcotics detail collectively had sufficient “articulable facts which, together with objective and reasonable inferences,” would have supported a limited investigatory detention. Easyriders Freedom F.I.G.H.T. v. Hannigan,
After Trujillo’s bags were opened with his consent, reasonable suspicion ripened into probable cause for Trujillo’s arrest and the seizure of the currency. Trujillo was carrying $115,000 in currency in two bags, an “extremely large amount” of money that by itself was “strong еvidence that the money was furnished or intended to be furnished in return for drugs.” United States v. $29,959.00 U.S. Currency,
Courts have often .recognized the strong connection between fabric softener sheets and illegal drugs. The Third Circuit rejected the claim that a person was an “unwitting courier” partially on the basis that “she brought [a co-conspirator] a package of Bounce Fabric Softener sheets ... so [he] could package drug money for transport.” United States v. Edmonds,
The nexus between fabric softener and drug trafficking is recognized to be of great probative value. In several eases, private individuals have conducted package searches based solely on the scent of fabric softener. See, e.g., United States v. Brown,
This court has found probable cause for civil forfeiture of drug related moneys even with relatively little evidence so long as the evidence is sufficiently probative. See e.g., United States v. Roth,
Given the strong nexus to drug activity provided by the distinctive manner in which the currency was wrapped and the totality of circumstances at the time the carry-on bag was opened, we hold that “a prudent person with the officers’ combined experience in narcotics investigations” would conclude that Trujillo was involved in illegal drug transactions. Hoyos,
CONSTITUTIONALITY OF BURDEN OF PROOF
A. Standard of Review
The constitutionality of a statute is a question of law that we review de novo. See United States v. Michael R.,
B. Discussion
Trujillo also challenges the constitutionality of the burden of proof in civil forfeiture proceedings. He contends “a mere probable cause burden in cases which have historically been considered quasi-criminal and which constitute a form of punishment violates the Due Process Clause of the Fifth Amendment.” (Appellant’s Opening Br. at 17.) Given the expansion of forfeiture statutes in the 1970s and 1980s to include drug-related actions, and in the light of additional
Actions for civil forfeiture employ a shifting burden of proof:
In all suits or actions ... brought for [ ] forfeiture ... where the property is claimed by any person, the burden of proof shall lie' upon such claimant; and in all suits or actions brought for the recоvery of the value ... the burden of proof shall be upon the defendant: Provided, That probable cause' shall be first shown for the institution of such suit or action, to be judged of by the court....
19 U.S.C. § 1615. This section, which originally applied only to forfeitures for customs violations, was extended to drug-related forfeitures by 21 U.S.C. § 881(d).
The burden of proof in a forfeiture action has two parts. To initiate forfeiture, the Government was required to show it had probable cause to believe the currency Trujillo carried was аssociated with drug trafficking. As we have held, the Government satisfied this burden. Once the Government met this initial burden,, the burden shifted to Trujillo to show by a preponderance of the evidence that the currency was not related to drug trafficking. Because Trujillo offered no proof of non-trafficking origins for the currency, it was forfeited to the Government on the initial showing of probable cause.
Seen in this light, the actual burden of proof is similar to the standard Trujillo urges us to adopt: it is a preponderance of the evidence standard, albeit one in which the claimant bears the burden. The Government must prove probable cause as a threshold matter. If the claimant offers evidence that the currency is not related to drug trafficking, the Government must then offer enough probative admissible evidence to contest the claimant’s ' proof. Moreover, the claimant need not even prove a legal source for the currency: the claimant simply must show that the currency was not “proceeds of,” “furnished or intended to be furnished by any person in,” or “used or intended to be used to facilitate” an illegal drug transaction. 21 U.S.C. § 881(a)(6). Under the preponderance standard, the Government must at least equal the claimant’s proof with admissible evidence to prevail in a forfeiture action. See, e.g., $29,959.00 U.S. Currency,
When this court upheld the constitutionality of the civil forfeiture burden of proof in One 1970 Pontiac GTO, we recognized the standard of proof was not probable cause but a preponderance standard shifted to the claimant. In the face of a challenge similar to Trujillo’s suggesting that “forfeiture statutes are essentially criminal,” we acknowl
Nor does this circuit stand alone in holding the shifting burden of proof does not violate due process. Every circuit court that has directly addressed the issue has found no due process violation. See United States v. One Beechcraft King Air 300 Aircraft,
Trujillo mischaracterizes the Supreme Court’s decisions in Austin and Good Real Property as materially changing constitutional law relating to forfeitures. Both decisions are relatively limited, and neither hinges on a characterization of forfeiture as criminal or quasi-criminal. In Austin, the Court held forfeiture under §§ 881(a)(4) and (a)(7) was a monetary punishment subject to the limitations of the Eighth Amendment’s Excessive Fines Clause. Austin,
Soon after its decision in Austin, the Supreme Court held that, аbsent exigent circumstances, the Due Process Clause required notice and a meaningful opportunity to be heard before the Government seized real property under forfeiture statutes. See Good Real Property,
Moreover, the Supreme Court has indicated its intention to read Austin and Good Real Property narrowly. The Court refused to extend Austin’s punishment rationale to bring forfeiture under the Double Jeopardy Clause in United States v. Ursery, — U.S. —,
Where the Supreme Court has emphasized the civil nature of forfeitures under § 881(a) and indicated its intention to limit Austin and Good Real Property to their facts, this court will not reach a contrary result. In accordance with our precedent and the decisions of six other circuits, we hold that the shifting burden of proof applied to forfeitures of drug-related currency does not violate the Due Process Clause.
OTHER ISSUES RAISED ON APPEAL
Trujillo argues that the district court improperly permitted the Government to introduce hearsay evidence at the hearing on Trujillo’s motion to suppress evidence. He suggests this hearsay is also inadmissible in the Government’s showing of probable cause for forfeiture. This contention is without merit. A court may properly consider hearsay evidence in an evidentiary hearing. “Preliminary questions concerning ... the admissibility of evidence shall be determined by the court.... In making its determination it is not bound by the rules of evidence except those with respect to privileges.” Fed.R.Evid. 104(a). Moreover, this circuit’s settled rule allows hearsay evidence to be used to show probable cause for civil forfeiture. See United States v. 874 Gartel Drive,
CONCLUSION
We hold that the Government satisfactorily met its threshold burden of proof for forfeiture of currency related to drug trafficking. We further hold the statutory burden of proof for forfeiture does not violate the Due Process Clause. The district court’s judgment of forfeiture is AFFIRMED.
Notes
. In $49,576.00 U.S. Currency, the majority opinion also urged a reexamination of the due process ramifications of the forfeiture statute, citing a recent “doctrinal upheaval” in Supreme Court jurisprudence.