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United States v. $96

United States District Court, S.D. Illinois

March 16, 2017

$96, 480.00 in United States Currency, Defendant,



          I. Introduction

         This 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.

         II. Facts

         At the 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.

         On 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 turn-around.

         Officer 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.

         Mile 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 municipality.

         Upon 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.

         Officer 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 stop.

         At 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.

         Officer 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 story.

         Based 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.

         By 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.

         Dallas 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 alert.

         Officer 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.

         Upon 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 this time.

         III. Applicable Law

         This 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.

         Civil 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).

         Criminal 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).

         Section 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.

         In a 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.

         The Seventh Circuit has explained the civil forfeiture provision of the Controlled Substances Act, 21 ...

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