UNITED STATES OF AMERICA,
v.
TEN THOUSAND SEVEN HUNDRED DOLLARS AND NO CENTS ($10,700.00) IN UNITED STATES CURRENCY; ALLAN JOHNSON (DELAWARE DISTRICT COURT NO. 98-CV-00600)
UNITED STATES OF AMERICA,
v.
TWENTY ONE THOUSAND FOUR HUNDRED AND SIXTY DOLLARS AND NO CENTS ($21,460.00) IN UNITED STATES CURRENCY (DELAWARE DISTRICT COURT NO. 98-CV-00603)
ALLAN JOHNSON;* JERMAINE P. THOMAS, APPELLANTS
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 00-1635
Argued March 15, 2001
Filed July 19, 2001
On Appeal from the United States District Court for the District of Delaware (D.C. Nos. 98-CV-00600, 98-CV-00603) District Judge: Honorable Sue L. Robinson
Notes:
Notes
(Pursuant to F.R.A.P. 12(a))
[Copyrighted Material Omitted][Copyrighted Material Omitted]
Joseph M. Bernstein, Esq. [argued] 300 Delaware Avenue Wilmington, DE 19801 Counsel for Appellants Allan Johnson Jermaine P. Thomas
Paulette Nash, Esq. [argued] Office of United States Attorney 1201 Market Street, Suite 1100 P. O. Box 2046 Wilmington, DE 19899-2046 Counsel for Appellee United States of America
Before: Rendell, Ambro, and BRIGHT,* Circuit Judges
OPINION OF THE COURT
Rendell, Circuit Judge
This civil forfeiture proceeding stems from the government's seizure of $21,460.00 and $10,700.00 in United States currency from claimants Allan Johnson and Jermaine Thomas, respectively, after they were stopped for a traffic violation while driving on Interstate 295 outside of Wilmington, Delaware. Claimants appeal the District Court's determination that the government's seizure of the currency did not violate the Fourth Amendment, and its conclusion that the government met its burden of establishing probable cause to institute forfeiture proceedings against the currency pursuant to 21 U.S.C. S 881(a)(6) (1999). Because we agree with the claimants' position that the government failed to establish that it had probable cause to commence forfeiture proceedings, we will reverse the District Court's Decree of Forfeiture entered on April 28, 2000, and remand the matter with directions that the District Court enter judgment in favor of the claimants. Given our disposition, we need not, and will not, address claimants' Fourth Amendment challenge to the seizure of the currency.
I. FACTS and PROCEEDINGS
A. Factual Background
The outcome of this appeal depends upon the legal significance we ascribe to the facts surrounding the forfeiture of the currency, and we are constrained in this respect by the government's agreement to stipulate to a bare record of agreed facts, which we fully set forth here. At 10:12 a.m. on April 29, 1998, Officer McManus of the Delaware River and Bay Authority ("DRBA") stopped a rented Ford Taurus for traveling 60 miles per hour in a 50 mile per hour zone. The vehicle was occupied by three individuals: Antonio Whitfield, the driver; claimant Jermaine Thomas, who was located in the front passenger seat; and claimant Allan Johnson, who was in the back seat. All three occupants exited the vehicle and provided identification indicating that they were from Wilmington, North Carolina. Whitfield also provided the rental car agreement which listed the lawful driver as Thomas, despite the fact that Whitfield was driving when McManus stopped the car.
McManus's police report indicated that she questioned each occupant individually concerning the group's travel plans. Whitfield told McManus that they were going shopping, but that he was not sure where. McManus also noted that Whitfield's hands were shaking and that he avoided making eye contact with her. Thomas and Johnson told McManus that they were going to northern New Jersey to visit family. McManus observed that Thomas also avoided making eye contact with her.
McManus obtained consent to search the vehicle. During a check of the interior, she noticed a strong odor of air freshener, but did not find any weapons or contraband. Upon searching the trunk, McManus found two bags-- a black duffel and a blue backpack. She also noticed two cellular telephones and cologne. Johnson claimed ownership of the blue backpack and consented to McManus examining its contents. McManus opened the blue backpack and found clothes at the top; underneath the clothes she discovered a blue plastic bag, and inside the blue plastic bag was another blue plastic bag tied at the top. Inside the interior blue plastic bag was an unknown amount of United States currency rubber-banded together. Johnson claimed ownership of the money, advised that it was $21,000, and that the group was en route to buy a car.
Thomas claimed ownership of the black duffel bag and also consented to McManus examining its contents. McManus searched the bag and found clothing; under the plastic liner of the duffel bag, she found a second unknown quantity of United States currency that was rubber-banded in a similar fashion as the first amount she found. Thomas stated that there was $8,000 in the bag. Johnson and Thomas confirmed that they did not have receipts for the currency.
After completing the search, at approximately 10:30 a.m., McManus decided to transport the currency back to the DRBA troop for further investigation. She also requested that the claimants ride with her back to the DRBA troop, which they did. Upon arrival, Thomas and Johnson were searched and questioned, but both refused to provide any information other than personal data. During the search, DRBA officers found $2,950.00 in cash on Thomas's person, rubber-banded in a fashion similar to the money found in the trunk of the car. They also found $430.00 in cash on Johnson's person. At some point thereafter, Officer Creighton spoke with Enterprise Rental Car Company and discovered that the lease agreement under which the vehicle had been rented provided that the vehicle was not to be driven north of the Virginia border. Also, at approximately 12:30 p.m., Officer Penrod spoke with an officer at the Wilmington, North Carolina Police Department, who advised him that each of the men lived in an area known for high drug activity, and that Johnson had murder charges pending against him. At some point between 12:05 p.m. and 2:05 p.m., Officer Thompson conducted a canine detection test. The record indicates that the test "gave positive indications on the currency" but offered "negative indications" with respect to the interior and exterior of the vehicle. Between 2:00 p.m. and 3:00 p.m., officers issued two traffic citations to Whitfield and transported all three occupants to the Wilmington, Delaware bus station to return home to North Carolina. The DRBA kept the currency and the cell phones. Claimants were not charged with any illegal activity other than the traffic citations.
Between 2:47 p.m. and 3:11 p.m., DRBA Sergeant Gaworski vacuumed the automobile and the currency, and subjected both to an ION Scan Analysis. The graphs, which purportedly show the results of the ION Scan on the items in the vehicle, are included in the record. Agent David Allegretto of the Drug Enforcement Agency ("DEA") stated in an affidavit that the results of this test indicated "that the monies showed high levels of cocaine residue, an indication that the monies were involved in drug trafficking," A-12, but the affidavit does not explain more specifically how he arrived at that conclusion by reviewing the graphs provided.
DRBA officers subsequently performed criminal histories on all three persons in the vehicle. Whitfield, the driver, had no criminal history. Claimant Thomas had been convicted of one drug offense -- conspiracy to traffic in cocaine on February 7, 1995. Claimant Johnson had been convicted of several drug offenses, including (1) possession of controlled substances on August 16, 1989, and August 3, 1992; (2) possession of cocaine on November 12, 1994; and (3) possession with intent to sell and distribute narcotics on March 14, 1996.1
B. Proceedings in the District Court
Based on the evidence collected in the field and at the DRBA troop, the government filed two verified complaints of forfeiture in rem against the currency pursuant to 21 U.S.C. S 881(a)(6).2 The complaints averred that forfeiture was justified under the statute because the currency was "used or intended to be used to facilitate a drug transaction and/or constitutes proceeds traceable to a drug transaction." Agent Allegretto of the DEA stated in an affidavit that, based upon the information learned during the stop and subsequent investigation, the government's forfeiture was based on the theory that "the subjects were on their way to New Jersey to purchase drugs to take back to Wilmington, North Carolina for sale." A-13.
After Johnson and Thomas filed claims of ownership of the currency, they filed a motion for summary judgment, arguing that the currency was seized in violation of their Fourth Amendment rights, and that consequently, the evidence collected at the DRBA troop could not be used in determining if there was probable cause to institute forfeiture proceedings. They also claimed that even if the government could utilize the "pre-seizure" and "post- seizure" evidence, it was insufficient to satisfy its threshold burden of establishing probable cause to institute forfeiture proceedings.
The District Court entered an order denying claimants' motion for summary judgment. First, the Court rejected claimants' Fourth Amendment challenge to the seizure, finding that McManus had probable cause to detain the currency and subject it to further investigation based upon the information she had gathered up to that point during the encounter with the claimants. In finding probable cause, the Court recognized that these facts, "if viewed through the lens of a scholarly analysis, are consistent with innocent travel," but went on to conclude "that the degree of suspicion that attaches to these particular non-criminal acts via the experience of this law enforcement officer is sufficient to pass probable cause muster."3 A-21 to -22. Second, having found that the seizure was supported by probable cause, the Court held "that the government carried its burden of proof " in the forfeiture action, because the totality of the information was sufficient to establish probable cause that the currency was subject to forfeiture pursuant to S 881(a)(6).
After the Court denied claimants' summary judgment motion, the parties entered into a "Stipulation for Entry of a Decree of Forfeiture," in which claimants reserved their right to appeal. The Court entered the Decree of Forfeiture, and this appeal followed.
II. JURISDICTION and STANDARD OF REVIEW
The District Court exercised subject matter jurisdiction over the forfeiture action pursuant to 28 U.S.C. SS 1345 and 1355. United States v. RR # 1, Box 224 ,
III. DISCUSSION
Claimants first contend that the District Court erred in finding that the seizure of the currency was lawful under the Fourth Amendment because it was supported by probable cause. They maintain that the facts within McManus's knowledge, up to the point at which she informed claimants that she was seizing the currency for further investigation, gave rise only to a "reasonable suspicion," and not probable cause, to detain the currency. Second, claimants urge us to reverse the District Court's determination that the government had probable cause to institute forfeiture proceedings, a necessary prerequisite under S 881(a)(6), claiming that the facts within the government's knowledge at the time that it filed the in rem complaints were insufficient to establish a nexus between the currency and any predicate drug activity by claimants. As indicated above, we will decide this appeal on the latter basis.
In civil forfeiture cases instituted pursuant to S 881(a)(6), S 881(d) mandates that United States customs procedures govern the allocation of the parties' burdens of proof. United States v. RD 1, Box 1,
S 1615. Burden of Proof in forfeiture proceedings
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; Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged . .. by the court.
Id. (emphasis added). Thus, the government bears the initial burden of establishing that it had probable cause to believe that the currency was subject to forfeiture at the time that it filed the forfeiture complaints in the District Court. If the District Court determines that the information relied upon by the government is sufficient to establish probable cause that the currency may be forfeited, the procedure set forth in S 1615 shifts the burden to the claimant to show by a preponderance of the evidence that he or she has a defense to the forfeiture. E.g. , United States v. One 1973 Rolls Royce,
Three elements must be present in order to subject a claimant's property to civil forfeiture pursuant to 21 U.S.C. S 881(a)(6): (1) the subject property must be moneys, negotiable instruments, securities, or other things of value; (2) there must be probable cause to believe that there exists illicit drug activity that renders the seized property subject to forfeiture; and (3) there must be probable cause to believe that a connection, or nexus, exists between the seized property and the predicate drug activity the government has identified.4 See, e.g., RR # 1, Box 224,
In determining whether the government's proofs are sufficient to pass the probable cause threshold, we point out initially that the facts of this case do not present the "typical" forfeiture scenario we have previously addressed under S 881(a) in which the claimants' property, real or personal, can be linked to a narcotics violation because the property was seized as a consequence of a police investigation, arrest or conviction for an underlying drug crime.6 Moreover, this case is also unusual because the government has not presented any evidence whatsoever from which it could be inferred that claimants were involved in any drug exchange at or around the time that the government instituted forfeiture proceedings.7 As a matter of logic, circumstantial evidence implicating claimants in recent drug activities, such as, for example, evidence of claimants' contemporaneous affiliation with known drug traffickers, or claimants' possession of drugs or drug paraphernalia at the time of the seizure, would support the government's theory that the money in claimants' possession is connected to illegal drug trafficking. If presented by the government, such evidence would have provided a strong, albeit inferential, present link between claimants' currency and the drug trade, and would have provided a more compelling case for forfeiture under S 881(a)(6). Here, however, the government does not dispute that McManus did not find drugs or drug paraphernalia in claimants' vehicle, and it does not point to any reliable evidence of a similar nature from which it can be inferred that claimants were involved in drug activities at or around the time the government seized the currency and filed the forfeiture complaint.8
We are aware, of course, that the government need not link the currency to "a particular identifiable illicit drug transaction" among several to forfeit the money on the theory that it constitutes drug proceeds. E.g. , United States v. 92 Buena Vista Ave.,
Probable cause, as a standard of proof, "is defined as a reasonable ground for belief in guilt." United States v. 6109 Grubb Rd.,
As we previously mentioned, the government's in rem complaint alleged, in a rather conclusory fashion, two possible connections between claimants' currency and a predicate violation of the drug laws. It claimed that claimants intended to use the currency to facilitate a drug exchange, or that the currency constituted proceeds traceable to such an exchange by claimants at some point in the past. Allegretto's affidavit provided a more specific (albeit unsupported) hypothesis, namely that the money was connected to a drug exchange because the claimants were most likely traveling to New Jersey to purchase drugs with the currency.
In support of these competing forfeiture theories, the government relies on several pieces of evidence, which, in its view, demonstrate that it had probable cause to believe that the currency was connected to a completed, or intended, drug exchange. It points to the seemingly large amount of cash found in the claimants' bags and the manner of storage of the currency (rubber-banded in bundles and concealed in bag), and also the claimants' prior drug convictions. It also relies on the canine's positive reaction to the currency and the results of the ION Scan Analysis. Finally, it cites the claimants' alleged residence in a high drug activity area in Wilmington, North Carolina, claimants' allegedly suspicious conduct during McManus's questioning, their violation of the rental car agreement, their possession of cellular phones, cologne and air freshener in the vehicle, and McManus's statement characterizing I-295 as having a volume of drug trafficking.
In reviewing the sufficiency of the government's information, we " `review each piece of evidence only to determine whether it is probative, not whether it establishes probable cause standing alone.' " United States v. 255 Broadway,11 F.3d 1000, 1004 (1st Cir. 1993) (quoting United States v. $67,220.00 in United States Currency,
First, we recognize that the evidence concerning the claimants' allegedly "suspicious" and nervous behavior during the traffic stop can be considered in determining whether the government had probable cause to forfeit claimants' currency. E.g., United States v. $129,727.00 in United States Currency,
Moreover, claimants' allegedly "suspicious" behavior during the stop and their violation of the rental car agreement are not particularly probative factors because, at best, they suggest involvement in some unspecified furtive activity; they do not indicate, more specifically, that claimants had engaged, or were about to engage, in a drug sale with this currency. E.g., United States v. $5,000 in United States Currency,
Similarly, claimants' travel on Interstate 295, which Officer McManus's report characterizes as having "some volume" of drug trafficking, A-77, is a factor to be considered in evaluating the totality of the circumstances. See, e.g., $22,474.00,
Moreover, the record contains no evidence in support of McManus's bald assertion that I-295 has "some volume" of drug activity and no proffer of her experience or training that might lend credibility to that assertion. Lacking a basis for this proposition, such as some recitation of her experience or training and how that experience or training supports her conclusion, we cannot credit the fact that the claimants were using a major interstate to be probative of drug trafficking. See Rivera v. Murphy,
The government also points to the fact that the DRBA officer received information from the Wilmington, North Carolina Police Department that claimants resided in a section of Wilmington characterized as a "high drug area." However, this statement is not probative of whether the money in claimants' possession was drug-related because, unlike evidence linking claimants' actual place of residence to known previous narcotics activities, e.g., United States v. $5,644,540.00 in United States Currency,
The government relies heavily on the remaining factors -- the positive dog sniff, the results of the ION Scan Analysis, the claimants' previous convictions, and the large amount of currency and manner of packaging (rubber-banded in large bundles) -- as establishing probable cause to believe that the money is linked to a consummated or contemplated drug transaction. Its substantial reliance on these pieces of circumstantial evidence is understandable given that they are the factors that point most directly to a contemporaneous connection between the currency and potential illegal narcotics activities by claimants. However, upon closer examination, these factors do not carry the evidentiary significance that the government ascribes to them.
First, we attach no significance to the evidence derived from the post-seizure dog sniff. While we recognize that we have previously, on occasion, accepted proof of a positive canine alert as probative in other contexts,10 we have not yet considered the extent to which a positive canine alert on a bundle of money is probative in assessing the government's probable cause to forfeit that currency pursuant to S 881(a)(6) based on its connection to drug trafficking. We note, however, that several of our sister circuits recently have called into question the evidentiary significance of a positive reaction to currency in determining whether there is probable cause to forfeit the money in light of studies indicating that a large percentage of United States currency is contaminated with sufficient traces of drug residue to cause a canine to "alert" to it. E.g., $506,231,
Nevertheless, for our purposes, we need not determine, as a general matter, the evidentiary weight that should be given to a positive dog reaction to seized currency. We agree with claimants' position that, on the facts of this case, the government's evidence of the dog's positive alert to the currency is not probative of whether the money can be connected to a drug exchange, because the government has not presented any evidence concerning this particular dog's past training and its degree of accuracy in detecting narcotics on currency. Therefore, we have no record basis for concluding that this evidence bolsters the government's case. See United States v. Carr,
We reach the same conclusion with respect to the evidentiary significance of the results from the ION Scan Analysis on the currency and the car. The government simply has not produced evidence concerning the reliability of this particular testing process or the training and qualifications of the tester, two factors which, of course, bear on the reliability and accuracy of the results. Instead, the parties' stipulation of facts merely incorporates the test results without providing any explanation of how the test measures the levels of narcotics on the currency, what the test results showed with respect to the levels and types of narcotics detected, and why those results were scientifically significant when compared to the results on other parts of the vehicle, or for that matter, when compared to "the norm."11 Also, the parties' stipulation does not provide any indication that the test itself was administered properly so as to ensure reliability of the results. The only evidence we do have in the record are the actual test results plotted on graphs, A-28 to A-33, a report from the individual who administered the scan explaining the logistics of how he conducted the test, i.e., testing each item separately, A-81 to -82, and a cursory explanation in the Allegretto affidavit that the test "showed high levels of cocaine residue" on the currency. A-6. But the documents the government has provided in the record do not provide sufficient information to guide us in evaluating the evidentiary significance of the test results, even though it is the government that bears the initial burden of establishing that it had probable cause to initiate the forfeiture proceeding.
Thus, the government has left us to our own devices to decipher the meaning of the test results and evaluate their evidentiary significance in establishing probable cause to forfeit the currency. Given the circumstances, we simply cannot accept the government's conclusory statement that the test results show claimants' involvement in "significant drug activity." We conclude that the lack of credible information in the record concerning the ION Scan Analysis compels the conclusion that the results cannot be considered a factor weighing in the government's favor in the overall probable cause analysis. Cf., e.g. , Rivera,
Finally, and perhaps most importantly, the government points to the large amount of cash, the manner in which the currency was transported, and claimants' prior convictions as the strongest evidence in its favor. It contends that the presence of a large sum of cash in a vehicle occupied by individuals previously convicted of drug offenses provides the requisite connection between claimants' currency and illegal drug activities.
While these factors admittedly might cause one to suspect that claimants may have been involved, or about to engage, in drug activities with this money, are they enough, when considered with the other suspicious circumstances, to give rise to the reasonable belief that such was the case? We think not. We recognize that the amount of money in claimants' possession and the method of packaging constitute probative circumstantial evidence that the currency itself is connected to illicit narcotics transactions. E.g., United States v. $149,442.43 in United States Currency,
As for the manner of packaging--rubber-banded in large bundles and concealed in baggage--the government has not presented evidence that this method of storage is unique to the drug trade.12 See, e.g. , $30,060.00,
Finally, the government points to the prior convictions as supplying the requisite proof that claimants' currency could be linked to drug activity. We recognize, of course, that evidence of a prior drug conviction is probative of probable cause to forfeit currency in the claimant's possession under S 881(a)(6), e.g., $22,474.00,
To be sure, claimants' prior convictions demonstrate that claimants could be linked to the narcotics trade in the past, and in that sense, their criminal record is probative because it might give rise to a reasonable suspicion or "hunch" that the currency in their possession was drug- related. But in our view, without additional credible evidence linking claimants, and thus, their currency, to drugs, claimants' prior convictions do not provide a sufficient temporal link to the drug trade to support the forfeiture of claimants' currency. This result is appropriate where, as here, claimants were not charged with narcotics violations based on the events that led to the forfeiture, there is no credible evidence in the record that links claimants to any current drug activities,13 and the remaining evidence is not specific enough to the drug trade to provide the requisite connection or "hook" to narcotics. E.g., $5,000,
In sum, we have considered the probative force of the credible evidence in its totality, and we cannot agree that the government has satisfied its burden of establishing that it had reasonable grounds to believe that the claimants had committed, or were about to commit, a predicate violation of the drug laws, and that the currency was "connected" to that drug activity. While some of the factors upon which the government relies arguably are suspicious and suggestive of involvement in some illicit activity, and might even support a "hunch" that the money somehow was connected to the drug trade, they do not rise to the level of establishing probable cause to institute forfeiture proceedings under S 881(a)(6). Rather, to establish probable cause in this context, the evidence must be sufficient to link the currency, via the claimants' actions, to the illegal drug trade in a manner that would support a reasonable belief that the money is, in essence, "drug money." See, e.g., $30,060.00,
Nothing ties this money to any narcotics activities that the government knew about or charged, or to any crime that was occurring when the government attempted to seize the money. . . . We reiterate that the government may not seize money, even a half a million dollars, based on its bare assumption that most people do not have huge sums of money lying about, and if they do, they must be involved in narcotics trafficking or some other sinister activity. Moreover, the government may not require explanations for the existence of large quantities of money absent its ability to establish a valid narcotics nexus.
$506,231,
Under S 881(a)(6), the government must present sufficient facts to warrant a reasonable belief that the seized property was connected to illicit drug activities. We conclude that the government has failed to meet its burden in this case.
IV. CONCLUSION
For the foregoing reasons, we will REVERSE the District Court's Decree of Forfeiture entered on April 28, 2000, and will REMAND the matter with directions that the District Court enter judgment in favor of the claimants.
Notes:
Hon. Myron H. Bright, Senior Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
As noted above, Johnson also had murder charges pending against him.
The District Court consolidated the two in rem proceedings by order dated November 29, 1998.
Despite the District Court's reliance on McManus's experience, we were unable to locate evidence anywhere in the record of that experience or any training that might inform her evaluation of the criminal nature of this admittedly non-criminal activity.
In their briefs, claimants contend that the government must establish probable cause to believe that a "substantial connection" exists between the seized currency and an illicit drug exchange. However, at oral argument, claimants' counsel admitted that he was unsure what, if anything, the adjective "substantial" added to the probable cause analysis. We recognize that some of our sister circuits have described the government's initial burden as requiring it to demonstrate a "substantial connection," while others have used language such as "nexus" or some "connection." Compare, e.g., United States v. $5,000 in United States Currency,
The full text of S 881(a)(6) provides:
The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter.
We recognize, of course, that forfeiture under S 881(a) is not conditioned upon an arrest or conviction for a drug offense. We merely point out that the link between an underlying drug crime and the seized property certainly is more apparent where the forfeiture is the product of an associated drug arrest, conviction or targeted investigation of the claimant. E.g., One 1973 Rolls Royce,
We have not overlooked the fact that the Allegretto affidavit alleges that, subsequent to the DRBA's seizure of the claimants' currency, claimant Johnson was arrested twice for narcotics violations in North Carolina. However, the government has not relied upon these allegations of subsequent arrests to uphold the District Court's probable cause determination, the statement remains uncorroborated in the record, and the record does not reveal the ultimate disposition of the charges. Moreover, the parties' stipulation of facts filed in the District Court did not recite the allegation in the Allegretto affidavit on this issue. Given the government's apparent disregard of the subsequent arrests, and in the absence of any information concerning the ultimate disposition of the charges, we attach no significance to Allegretto's statement. Cf., e.g., United States v. $215,300 in United States Currency ,
In several cases, other courts of appeals have found that the government had probable cause to institute forfeiture proceedings against currency where the government presented reliable direct or circumstantial evidence of claimants' contemporaneous involvement in drug activities. E.g., $36,634,
While the government also relied on the presence of cologne, cellular telephones and air freshener in the vehicle as indicators of a valid narcotics nexus, we do not view these factors as probative on this issue. Aside from the general allegation in the Allegretto affidavit that all of the facts and circumstances indicated to him that the currency was drug- related, A-7, the government has not presented any evidence that addresses the more specific issue of whether the presence of these objects is indicative of involvement in the drug trade. In the absence of a record basis for concluding that these factors are indicative of drug- related activity, we will ascribe no significance to the presence of these items in evaluating whether the government had probable cause to institute the forfeiture. See, e.g., 30,060.00,
For example, in United States v. Massac ,
Our review of the test results indicates that for each area of the vehicle that was vacuumed and subject to analysis, the test results were plotted on a separate graph. The two graphs that reported the testing on the currency and the trunk are marked "ALARM," and there appears to be a higher level of cocaine indicated on each graph as compared to other substances indicated. However, we also note that on these graphs, the test recorded an increased (but less significant) presence of a substance marked "Cal," but we have no explanation as to what "Cal" represents. The government has given us little context in which to evaluate the test results; we simply do not know from the record what the peaks mean, how the test works, and why we should accord the results any evidentiary significance.
The government also points out that the money found in Johnson's bag was double-bagged in plastic, but there is no evidence in the record that narcotics-related currency is generally transported in this fashion.
See generally note 8, supra (listing cases in which government presented circumstantial evidence of recent connection to or involvement with drugs to establish probable cause to forfeit currency).
BRIGHT, Circuit Judge, concurring.
I write separately to add emphasis that, in this case, this court calls a halt to a government's attempt under the forfeiture statute to take someone else's money based on chimerical or flimsy evidence or even pretext. I wholeheartedly join in Judge Rendell's opinion