Commonwealth Court Limits Government’s Ability to Seize Property under the Forfeiture Provision of the Controlled Substances Act

The Commonwealth Court of Pennsylvania has announced its decision in Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250. The Court’s decision dramatically restricts the government’s ability to seize, through civil forfeiture, property it claims was used to facilitate violations of the Controlled Substances Act (hereinafter “CSA”).

Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250 

On June 11, 2014, two individuals were driving the Lexus in question on Interstate 80 in Monroe County, Pennsylvania when it was pulled over for tailgating. Interstate 80 is a major highway that runs from California to New Jersey. The Lexus was not owned or registered to either of the two occupants inside the car. Both occupants of the car and its owner were from the state of New York. The car was also registered in New York.  

During the stop, the Pennsylvania State Trooper noticed numerous indicators of what he believed to be criminal activity. Specifically, he said that prayer cards, the driver’s tattoos, a strong smell of air fresheners, the vehicle traveling on a known drug route, the occupants’ criminal histories, and their inconsistent stories to the officer caused him to believe that the two individuals were engaged in narcotics trafficking. Because of these suspicions, the Officer requested permission to search the Lexus. The occupants consented to the search.

During the search of the Lexus, the officer recovered $301,360 in vacuum-sealed bags in a hidden compartment. No drugs or paraphernalia were recovered during the search. The police then seized the cash and the Lexus and the driver received a warning for tailgating. A week after the stop, the police performed an ion scan on the cash and the compartment where the money was found. This scan showed trace amounts of cocaine, heroin, THC, and procaine on the cash and trace amounts of heroin and THC in the compartment. However, there was no evidence that this money had ever been circulated in Pennsylvania, a fact that the Commonwealth would later concede.  

The Commonwealth then filed a forfeiture petition on the cash and Lexus. Their petition alleged the money and Lexus was used to “facilitate a violation of the Drug Act.”  The actual owner of the Lexus filed a response claiming lawful ownership of the cash and Lexus and requested that her property be returned to her.

A non-jury trial was held on April 6, 2016. Prior to the trial, the owner filed a Motion in Limine to preclude any evidence concerning the ion scan because the expert who conducted the ion scan only compared the levels of narcotics to Pennsylvania standards. This is significant because there was no evidence that showed the money had ever been circulated in Pennsylvania. For unknown reasons, the trial court did not decide the Motion in Limine.

At the trial, the Commonwealth called multiple witnesses including the Trooper who stopped the Lexus and Staff Sergeant Marshall who performed the ion tests on the cash and the compartment. The owner of the Lexus did not present any evidence. Following the trial, the court granted the Commonwealth’s petition and found that the Commonwealth established a substantial nexus between the property and criminal activity. Specifically, the trial court found 27 indicators of criminal activity, including the ion scan evidence, in making its determination that the cash and Lexus were used to facilitate a violation of the CSA. The trial court also found that the owner failed to rebut the presumption of forfeiture by proving the innocent owner defense. The owner then filed an appeal.

What is Forfeiture for a Violation of the CSA?

The logic behind Civil Forfeiture for violations of the CSA is to eliminate the economic incentives of drug trafficking. These forfeiture statutes allow the government to take property away when they prove that there is a nexus between the property and a violation of the CSA. The government does not need a criminal conviction to obtain the property. Worse, an acquittal does not prevent the government from seizing one’s property via civil forfeiture.

All sorts of property can be subject to forfeiture including: cars, money, homes, and other property that the government can link to drug trafficking. It is likely one has heard anecdotal stories about people whose homes were seized by the government under these forfeiture statutes because a family member used the home in some nefarious way. Courts are mindful of this and consequently are not in favor of forfeiture. Thus, the courts will strictly construe the forfeiture statutes. Nonetheless, a person who was not engaged in drug trafficking can lose their home because of the actions of a family member or someone else living in their home. If the government files a forfeiture petition against you it is imperative you speak to an attorney immediately because you can lose your property, including your home.   

As a preliminary matter, the Pennsylvania General Assembly repealed and replaced the provisions of the Forfeiture Act that were used in this case. Nonetheless, this case will still be relevant in future litigation. The current and relevant forfeiture laws concerning the CSA are codified under 42 Pa. C.S.A. § 5802, § 5803, and § 5805. § 5805 lays out the procedure that the Commonwealth must follow to seize property that is allegedly connected to a violation of the CSA. § 5802 is specifically titled “Controlled Substances Forfeiture,” however § 5803(b)(4) also addresses forfeiture when there is probable cause to believe that the property has been used or is intended to be used in violation of the CSA.  

At the trial, the Commonwealth does not have to prove beyond a reasonable doubt that the property in question was used or intended to be used in violation of the CSA. Rather, the standard is the preponderance of the evidence standard which is the lowest standard available. In essence, the Commonwealth must show that it is more likely than not that a nexus exists between the property and the criminal activity.

If the Commonwealth meets its initial burden, the burden then shifts to the claimant to prove that 1) he/she is the owner of the property, 2) the property was acquired lawfully, and 3) the property was not used/or intended to be used unlawfully. The claimant can also allege that they are entitled to the innocent owner defense which requires that the owner lacked either knowledge or consent to the use of the property to facilitate a violation of the CSA.

The Commonwealth Court Demands More Convincing Evidence to Seize One’s Property Under CSA Forfeiture

In Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250, the Commonwealth Court found that the evidence in the case was not sufficient to form a substantial nexus to a violation of the CSA. First, the Court attacked the ion scan evidence. The Court focused on the fact that the Commonwealth failed to show that the money was ever circulated in Pennsylvania. This is significant because money can have traces of narcotics on it through casual contact. However, the levels of these narcotics vary depending on the geographic area of where the money was circulated. In other words, the levels of narcotics found on currency in Pennsylvania are different than those found in New York.

 Pennsylvania courts have made clear that ion scan evidence is irrelevant if it cannot be determined where the money was circulated. Because the Commonwealth could not establish that the money was ever circulated in Pennsylvania and its expert only used casual contact levels for Pennsylvania, and not other states (i.e. New York) the Commonwealth Court held that this evidence was not relevant and thus could not be used to establish whether there was a substantial nexus between the property and violations of the CSA.

Next, the Court focused on the fact that no drugs or drug paraphernalia were recovered in the Lexus and no drug charges were filed against either of the occupants. This omission, the Commonwealth Court stated, makes establishing a nexus to illegal activity “difficult.” Further, the fact that the occupants gave inconsistent stories is not indicative of illegal activity because they were under no obligation to speak to the officer. Additionally, the Commonwealth offered no support as to why tattoos and prayer cards are indicative of criminal activity. Finally, Pennsylvania court precedents hold that a large amount of cash that is bundled and driving on a known drug highway does not establish the requisite nexus for forfeiture. As such, the Commonwealth Court found that the Commonwealth did not meet its burden and reversed the trial court.

Facing Criminal Charges or Forfeiture Proceedings? We Can Help. 

Philadelphia Criminal Lawyers Zak Goldstein and Demetra Mehta

If the government is attempting to seize your property using a civil or criminal forfeiture statute, you need an attorney who has experience with this complicated area of law. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.