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United States of America v. Funds In the Amount of $239

June 5, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
FUNDS IN THE AMOUNT OF $239,400,
DEFENDANT, JOHN VALDES AND TRACEY BROWN, CLAIMANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

This is an in rem civil forfeiture action brought by the United States pursuant to 21 U.S.C. § 881(a)(6), for forfeiture of funds in the amount of two hundred thirty-nine thousand four hundred dollars ($239,400). The Government alleges the funds were furnished in exchange for a controlled substance and were intended to be used to facilitate narcotics trafficking, in violation of 21 U.S.C. § 801, et seq.

Before the court is Claimants' motion to suppress evidence. For the following reasons, the motion is DENIED.

I. BACKGROUND

This case arises out of an encounter between law enforcement officers assigned to the DEA Transportation Interdiction Group at Amtrak Union Station in Chicago, Illinois and Claimant John Valdes ("Valdes") that resulted in the seizure of $239,400. On February 11, 2011, at approximately 1:30 pm, DEA Special Agent Robert Glynn ("SA Glynn") and DEA Task Force Officers ("TFOs") Dennis Ivanich, Robert Schaller and Michael Tucker, all dressed in plainclothes, went to the first class lounge with the intention of making contact with Valdes, who was laid over in Chicago for five hours on a cross country trip from Boston, Massachusetts to Los Angeles, California. Valdes' travel itinerary had been flagged as suspicious during a passenger manifest screen because he had a one-way ticket for a private sleeper car that was purchased via a credit card issued to another individual, George Brown, shortly before the train's scheduled departure time for $824.00. These characteristics--the lack of a return ticket, the last minute purchase in someone else's name, the high price paid, and the private sleeper car--fit the profile of a drug courier, and the officers were seeking to investigate further.*fn1

The stories diverge over what transpired once the officers reached the first class lounge. I lay out Valdes' version first, followed by TFOs Ivanich and Schaller's.

A. The Facts According to Valdes

At 1:30 pm, Valdes was seated in the far right corner of the first class lounge with three pieces of luggage. He was chatting with a couple seated next to him when he received a page over the loudspeaker telling him to come to the reception desk. Valdes asked the couple to watch his bags for him while he responded to the page. When he got to the reception desk, he was directed to the officers who were standing ten to fifteen away from the front door. One of the officers identified himself as a DEA agent and showed Valdes his badge. At this point, Valdes says that 3 to 4 officers were standing "all around" him, and Valdes claims he noticed what he thought to be a revolver on the hip of the officer who identified himself.

The officer who identified himself told Valdes that he was not under arrest and was not in trouble, but did not tell him that he was free to leave. The officer asked Valdes where his luggage was, and Valdes told him that it was at the back of the lounge where he had been sitting. The officer then told Valdes that he had to take them to his luggage, and he did. When they got to the luggage the officer asked Valdes if he had any drugs in his luggage. Valdes responded "no." The officer then asked if he had any money in his luggage and Valdes said that he did. When the officers asked how much, Valdes said "a lot."

The officers then told Valdes they needed to speak with him about the money and they were going to take him somewhere, but did not specify where. Valdes agreed to accompany them and reached for his luggage, at which point one of the officers stood in between Valdes and his luggage and said "you can't touch that." One of the officers grabbed the luggage and Valdes was led out of the lounge over to an elevator roughly a hundred feet away in the main lobby. Valdes and the officers boarded the elevator and took it down to a secure area in the basement where the Interdiction Task Force had offices.

Once in the basement, Valdes was led into a small room with a bench, a desk, and a twoway mirror. He was told to sit on the bench and his luggage was placed in the hallway just outside the doorway of the room, so that it was still visible to him. Valdes claims the officers proceeded to search his suitcase in the hallway without his consent: "They got my suitcase. They throw them on the floor, they then unzipped a liner compartment and they saw four packages and they partially opened one and said, oh, okay there's money here . . ." (Transcript of 3/14/2012 evidentiary hearing, p. 27).

After the bag containing the money had been searched, the officers presented Valdes with several documents that they asked him to read and sign. The first was a "Consent to Search" form, which Mr. Valdes claims had not been filled in to indicate the items to be searched or the date. After being asked to sign the consent form, Mr. Valdes stated to the officer, "this is telling me that I told you that it was okay for you to go to my bag and I gave you permission and I didn't . . . you already opened my bags, it's already opened, so why am I going to give you consent to something that you've already done?" (Transcript of 3/14/2012 evidentiary hearing, p. 32). An argument apparently ensued but was interrupted by a bizarre turn in the conversation when the officer asked Mr. Valdes if he liked Boston sports teams. Mr. Valdes believes this was an attempt to calm him down and get him to sign the form. It was unsuccessful. Mr. Valdes continued to refuse to sign the consent form, at which point the officer told Mr. Valdes if he did not sign the form the officers would forge his signature and say that he had signed the form. That "bothered" Mr. Valdes at "a very high level," and he persisted in his refusal to sign the form.

The "Consent to Search" form as admitted into evidence by both parties (Government Exhibit No. 7; Claimant Exhibit Letter A) lists three items to be searched: "1 Gray 'Apt. 9' Roller Suitcase; 1 Gray 'Apt. 9' Handbag; 1 Green 'High Sierra' handbag." Below the list appears two statements: "I HAVE NOT BEEN THREATENED, NOR FORCED IN ANY WAY"; and "I FREELY CONSENT TO THIS SEARCH." Below these statements are a signature and date line, and below that are two lines for witness signatures. The form is dated "2-11-11 " and a mark appears on the signature line that closely resembles signatures that Valdes admits are his own that appear on other documents in evidence. The two witness lines are also signed, apparently by TFO Ivanich and TFO Schaller.

Next Mr. Valdes was given an "Advice of Rights" form. The top of the form read "BEFORE WE ASK YOU ANY QUESTIONS, DO YOU UNDERSTAND:", and below it the basic Miranda warnings were listed. Next to each warning was a blank line to be signed or initialed. Valdes initialed all five lines to indicate that he had read and understood his rights. Below the list of rights was a "WAIVER OF RIGHTS" section which stated "[ ] I have read or [ ] someone has read to me this advice of rights and I understand what my rights are. I am willing to freely and voluntarily answer questions without a lawyer present." The two boxes indicating whether the signor had himself read the form or someone else had read it to him were left blank. Below this is a signature line and two witness lines. Valdes claims that, after initialing the form five times to indicate that he understood his rights, he refused to sign the form to indicate waiver of these rights. The "Advice of Rights" form admitted into evidence (Government Exhibit No.8; Claimant Exhibit Letter B) contains a mark on the signature line that closely resembles the signature that appears on the "Consent to Search" form. The two witness lines are also signed, apparently by TFO Ivanich and TFO Schaller.*fn2

After refusing to sign the "Consent to Search" and "Advice of Rights" forms, Valdes received a phone call from his wife. When he answered the phone, the officers told him that he could not touch his phone so Valdes told his wife he had to call her back and hung up the phone. Valdes was then fingerprinted, photographed, and had his drivers license information taken down by one of the officers. Valdes then asked the officers whether he would be able to catch his train.

He was told that he was allowed to leave and would be escorted back upstairs to the passenger lounge by one of the officers.

On the way out of the room, one of the officers asked Valdes who he was going to see. Valdes told the officer he was going to see "Sam." The officer asked him "Sam who?" and Valdes told him "Sam Vongphakdy" and spelled his name. Valdes explained that he bought a lot of computer equipment from Mr. Vongphakdy and offered to show the officers emails on his phone pertaining to the sale of such equipment. One of the officers asked Valdes to tell them more about Mr. Vangphakdy, but Valdes refused because he was upset about one of the officer's earlier comments that they would forge his signature if he refused to sign the forms. Valdes was allowed to take his luggage but the money was seized. He was then escorted back upstairs and the encounter ...


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