SUPREME COURT TO COMMONWEALTH COURT: “Propinquitas, but no cigar.”
The PA Supreme Court has decided the case of Commonwealth v. $34,440.00 U.S. Currency, 102 MAP 2016 (December 19, 2017), holding that the rebuttable presumption set forth in Pennsylvania’s Controlled Substances Forfeiture Act (“Forfeiture Act”) may be sufficient to satisfy the Commonwealth’s initial burden of demonstrating a nexus between seized currency and prohibited drug activity; however, it is not a necessary prerequisite to demonstrate the elements of the innocent owner defense under the Forfeiture Act in order to rebut that presumption.
Lugo was stopped by PA State Police and consented to a search of the vehicle he was driving. The Trooper discovered ecstasy pills in the cigarette outlet in the center console area of the vehicle and a small amount of marijuana by the rear passenger door. Additionally, Trooper Felsman uncovered $34,440.00 in cash hidden in another location in the vehicle. Lugo admitted the drugs were his but denied the cash belonged to him. His passengers also denied the cash was theirs. Ultimately, Lugo resolved the criminal charges that were filed against him for possessing the drugs and the Commonwealth thereafter moved to forfeit the cash, pursuant to the Forfeiture Act, due to proximity of the cash to the drugs found. A subject named Falette came forward and claimed that he owned the vehicle; the cash found was his; and, he obtained the cash in a personal injury settlement for which he produced cancelled checks. He hid the cash in the car because he did not want to use a bank and, unbeknownst to him at the time, Lugo borrowed the car, resulting in his arrest and the confiscation of the money.
The Forfeiture Act provides that money and negotiable instruments found in close proximity to controlled substances possessed in violation of The Controlled Substance, Drug, Device and Cosmetic Act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act. Further, the Act provides for the “Innocent Owner” defense wherein the burden is placed upon the claimant to show that (1) the claimant is the owner of the property; (2) the claimant lawfully acquired the property; and, (3) the property not unlawfully used or possessed by him.
The trial court concluded that Falette failed to established the innocent owner defense. Additionally, after Falette appealed to the Commonwealth Court, that court also held that proof of proximity was sufficient to establish a substantial nexus and that the innocent owner defense provided the sole method by which claimants can rebut the presumption.
Falette ultimately appealed to the Supreme Court and, although the Court agreed that proof of proximity may be sufficient to satisfy the Commonwealth’s overall evidentiary burden of proving a substantial nexus for the purpose of currency forfeitures, it held that the Commonwealth Court erred in concluding that the innocent owner defense provided the sole basis for rebutting that presumption.
Instead, the Supreme Court concluded that the presumption may be rebutted by demonstrating that the seized currency is not the proceeds of drug sales, independent of a claimant’s ability to satisfy the innocent owner defense. Accordingly, if “the presumption is rebutted sufficiently, the burden of proof will remain with the Commonwealth such that it must put on further evidence of a nexus to drug activity beyond the mere propinquity* between the money and controlled substances.”
In a forfeiture proceeding involving money, the Commonwealth bears the initial burden of proving either (1) that the money was furnished or intended to be furnished in exchange for a controlled substance; (2) that the money represents proceeds traceable to such an exchange; or, (3) that the money was used or intended to be used to facilitate a violation of the Controlled Substance Act. Once the Commonwealth sustains its initial burden of proving a substantial nexus between money and illegal drug activity, the burden then shifts to the claimant, who can avoid forfeiture of the property if he demonstrates he is an innocent owner under the above-stated “innocent owner” defense.
The Supreme Court specifically noted that, “in the context of currency forfeitures, the Forfeiture Act does not seek to target money possessed by those who are merely recreational drug users.” Accordingly, the rebuttable presumption set forth in the Act relates only to the second basis for forfeiture, i.e., the money represents the proceeds of a sale of a controlled substance.
Thus, the Supreme Court concluded that once the Commonwealth has established a substantial nexus, the burden shifts to the claimant to show, notwithstanding this nexus, that he had no involvement with the illegal drug activity and that his acquisition of the property was lawful.
“The innocent owner defense does not require that claimants disprove the Commonwealth’s evidence that the property in question was unlawfully used … instead, it establishes an affirmative defense that allows claimants who had nothing to do with the underlying illegal activity to recover the property by disassociating themselves from the Commonwealth’s evidence regarding the nexus between the money and a violation of the Controlled Substance Act.” Therefore, an innocent owner may demonstrate that the money belonged to him, that he lawfully acquired it, and that he did not unlawfully use or possess it, notwithstanding the fact that other individuals may have been planning on furnishing the money in exchange for a controlled substance.
*propinquity |prəˈpiNGkwətē| noun 1. the state of being close to someone or something; proximity: he kept his distance as though afraid propinquity might lead him into temptation. 2 technical close kinship. ORIGIN late Middle English: from Old French propinquité, from Latin propinquitas, from propinquus ‘near,’ from prope ‘near to.’
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