United States District Court, S.D. Illinois
MICHAEL J. REAGAN UNITED STATES DISTRICT JUDGE.
case is now before the Court on Claimant's Motion to
Suppress $96, 480.00 of United States Currency that was
seized during a traffic stop on December 16, 2014 in
unincorporated Madison County, Illinois. The Court held an
initial suppression hearing on December 16, 2016, with an
additional hearing on January 26, 2017. On February 22, 2017,
the undersigned entered a skeleton Order denying the Motion
to Suppress to allow the parties to prepare for a rapidly
approaching trial date, with the expectation that a more
complete order would follow (Doc. 87). This document serves
as the aforementioned follow-on Order.
December 16, 2016 and January 26, 2017 hearings, Officers
Chris Modrusic, Larry Brantley, Kale Pirtle, Jesse Fulkerson,
Matt Plassman and Kevin Thebeau testified; claimant, Jason
Hughes, also testified. Prior to the evidentiary hearings,
the parties also submitted various affidavits and sworn
responses to requests for admissions. The following facts
take account of the live testimony and documentary evidence,
giving preference to live testimony.
December 16, 2014, officers from the Pontoon Beach Police
Department stopped a silver Chevrolet Impala traveling
westbound on I-70 near mile marker 19. The officers who
conducted the initial stop-Larry Brantley and Chris
Modrusic-were Pontoon Beach Police officers, deputized to
work for the Drug Enforcement Administration
(“DEA”). On that day, they were working a drug
interdiction shift, monitoring traffic on Interstate 70.
Before the stop their vehicle was stationary in a median
Brantley testified that he was monitoring traffic for a car
that ‘looked good.' He observed the Impala drive by
with out-of-state plates, and chose to follow it. On the
first day of testimony he indicated that he was not sure if
he observed the Impala following too closely before pulling
out of the median, though on the second day, he said he saw
the following violation prior to pulling out. In any event,
he activated his lights and the vehicle came to a stop near
mile marker 19 on Westbound I-70.
marker 19 is located within unincorporated Madison County.
The nearest town is Marine. A map used at the hearing and
submitted into evidence shows that mile marker 19 is not
within Pontoon Beach, nor is it a part of an adjoining
stopping the Impala, Officer Brantley approached the
passenger's side, while his partner for the day-Officer
Modrusic-stood cover near the squad vehicle. Officer Brantley
testified that when the Impala passed him on the interstate
he thought it was a solo driver, but when he approached the
car he noted a passenger who appeared to be awakening from a
nap. He testified that the passenger appeared confused to
find an officer at the car window. The passenger-Claimant
Jason Hughes-disputes that he was sleeping at the time.
Instead, he testified that he had his seat reclined to rest,
but that he was awake at the time of the stop.
Brantley testified that he stopped the Impala for following
too closely. Officer Brantley was unable to describe the
vehicle being followed too closely, or to describe how he
determined that it was following too close, though he did not
use a radar gun or any special equipment to make his
observation. Officer Modrusic said that he was looking at the
computer when Brantley decided to follow the vehicle, but
that he did ultimately observe the following too closely. He
could not describe the following offense in more detail. By
contrast, Hughes testified that he and driver Eric Wisniewski
were not following any vehicle too closely at the time of the
vehicle, Officer Brantley secured the driver's license of
Wisniewski and asked Wisniewski to accompany him to the squad
car. Wisniewski complied and sat in the front of the squad
while Officer Modrusic performed a license check. Brantley
returned to the vehicle to speak with the passenger, Hughes.
Brantley asked Hughes about the nature of his travel and his
destination, to which Hughes responded that he was returning
home to Colorado after attending Uncle Jim's funeral in
Pittsburgh, Pennsylvania. Brantley then returned to the squad
vehicle and entered a consensual conversation with Officer
Modrusic and driver Wisniewski. Officer Brantley believed he
returned to the squad car around 11:20a.m.. By joining the
conversation, Brantley quickly realized that Hughes and
Wisniewski had different stories. Hughes said the funeral was
in Pittsburg, but Wisniewski said it was in Indianapolis.
Pressed on the matter, Wisniewski began to display nerves,
staring at the ceiling and pausing, while adjusting his
on the inconsistency, Brantley returned to the Impala to
speak with Hughes a second time. Brantley believed that on
this second occasion he secured Hughes' license to run a
check and/or he asked for the rental care agreement. This
second trip occurred about 15 or so minutes in to the stop.
At some point, Brantley and Modrusic spoke briefly outside of
the squad car to confirm with each other that there appeared
to be differing stories. At some point Hughes also exited the
Impala and told Brantley that he could contact someone to
verify their whereabouts, which Brantley said was
unnecessary. As the officers worked to straighten out the
story, they contacted Officers Kale Pirtle and Jesse
Fulkerson who were on hand as a canine unit that day.
11:35a.m. the canine unit responded to the scene and Officer
Pirtle prepared to conduct a sniff with his canine, Dallas.
Officers Matt Plassman and Kevin Thebeau also arrived around
the time the sniff was initiated. Both the driver and the
Claimant refused to consent to a search of the vehicle. The
driver ultimately is alleged to have said “I don't
care” to the suggestion of a dog sniff. Officer Pirtle
testified that after he had secured Hughes away from the
vehicle, he removed Dallas and gave the hand command for
Dallas to search the vehicle.
immediately began circling the vehicle. On his first pass
Dallas alerted to the seam of the rear passenger door. Dallas
alerts by quickened breathing, tail wagging, a pronounced
head jerk, and pawing at the area he alerts to. Dallas
exhibited these signals on the Impala. Officer Pirtle does
not reward Dallas roadside. He put Dallas back in the vehicle
upon alert. Officer Modrusic testified that he saw Dallas
Fulkerson then opened the trunk at Officer Thebeau's
command. Inside the trunk the officers observed two gift
wrapped packages with tags. An officer may have asked
Claimant Hughes about who the packages belonged to prior to
opening one, though the record is not exceedingly clear on
this point. Officer Thebeau opened one package, revealing a
large sum of United States currency vacuum packed and
concealed in a Disney Frozen blanket.
discovering the currency, the occupants of the vehicle were
handcuffed and transported separately to the Pontoon Beach
Police Department. Officer Brantley drove the Impala to the
department where it was placed in the Sally port for a more
thorough search. The occupants were either placed in
detention cells or conference rooms. Additional facts about
the search at the station are not relevant to a decision on
the Suppression Motion, so the Court will omit these facts at
section gives a general overview of asset forfeiture. In the
case at bar, there are not any past or present criminal
charges pending in relation to this stop. After this broad
overview, the analysis will dissect this stop step-by-step to
assess the appropriateness of suppression.
forfeiture proceedings are governed by statute, by the
Federal Rules of Civil Procedure, and by the Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions (the latter referred to in this Order simply as
“Supplemental Rules”). Certain property is
subject to forfeiture by the United States, pursuant to 21
U.S.C. § 881. The United States Attorney General may
elect to seek criminal forfeiture under 18 U.S.C. § 982
or civil forfeiture under 18 U.SC. § 983. See United
States v. $133, 420 in U.S. Currency, 672 F.3d 629, 634
(9th Cir. 2012).
forfeitures operate in personam against the
defendant and serve as a penalty upon conviction. By
contrast, civil forfeitures operate in rem against
the property itself, “under the theory that the
property is guilty of wrongdoing.” See United
States v. Duboc, 694 F.3d 1223, 1228 (11th Cir. 2012).
In a civil forfeiture proceeding, the property owner's
culpability is not considered in determining whether the
property should be forfeited. See United States v.
Cherry, 330 F.3d 658, 668 n. 16 (4th Cir. 2003);
Vereda, Ltda. v. United States, 271 F.3d 1367 (Fed.
Cir. 2001). While a conviction is necessary to uphold a
criminal forfeiture, conviction is irrelevant in a civil
forfeiture proceeding. United States v. One Piper Aztec F
De Lux Model 250 PA 23 Aircraft, 321 F.3d 355 (3d Cir.
2003).” 3 Crim. Prac. Manual § 107.4 (2012).
881 provides, inter alia, for the forfeiture to the United
States of property used in the commission of federal
controlled substance violations punishable by more than one
year in p rison. See 21 U.S.C. § 881;
United States v. Real Property Located at 15324
County Hwy E, 332 F.3d 1070, 1072 (7th Cir. 2003).One
subsection, § 881(a)(6), provides for forfeiture of
money or things of value furnished or intended to be
furnished in exchange for a controlled substance, all
proceeds traceable to such an exchange, and all moneys used
or intended to be used “to facilitate any violation of
this subchapter.” In other words, § 881(a)(6)
authorizes the civil forfeiture of any property derived from
the proceeds of a drug transaction, traceable to the
transaction, or intended to be used to facilitate a
controlled substance offense.
civil forfeiture proceeding, the government bears the burden
of establishing by a preponderance of the evidence that the
property is subject to forfeiture. If the government's
theory is that the property was used to commit or facilitate
the commission of a criminal offense, the government must
establish that there was a substantial connection between the
property and the offense.
Seventh Circuit has explained the civil forfeiture provision
of the Controlled Substances Act, 21 ...