Unpublished Disposition, 874 F.2d 817 (9th Cir. 1989)

MEMORANDUM^* 

The claimant Hervator Lewis appeals the district court's order that defendant currency be seized pursuant to 21 U.S.C. § 881. The claimant contends that the motion to suppress the currency as the fruit of an illegal search was erroneously denied. He also contends that the government failed to show probable cause to believe that the currency was connected to illegal drug transactions. We hold that the search was lawful and the currency properly seized.

DISCUSSION

The claimant contends that the search of the automobile was unlawful; therefore, the evidence seized from the automobile should have been suppressed. For us to reverse the district court's decision to deny the motion to suppress, the claimant must demonstrate that the search was illegal.

The claimant contends that the police officers lacked probable cause to believe that criminal activity was taking place when they searched the automobile of the claimant's son; therefore, the search was unlawful. The district court's finding of probable cause to search the automobile is reviewed de novo. United States v. Salazar, 805 F.2d 1394 (9th Cir. 1986).

Police must have a founded, reasonable suspicion of criminal activity to make an investigatory stop. United States v. Collum, 614 F.2d 624, 627-28 (9th Cir. 1979), cert. denied, 446 U.S. 923 (1980). A reasonable suspicion may ripen into probable cause upon discovery of additional evidence obtained after an automobile is lawfully stopped. United States v. Jacobs, 715 F.2d 1343 (9th Cir. 1983). If police have probable cause to believe that contraband is contained in an automobile, a warrantless search of that automobile is valid. United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157 (1982).

In the present case, the police had a reasonable suspicion to believe that criminal activity might be taking place. The police saw a vehicle driven by the claimant's son parked in the entrance of an alleyway, next to a partially stripped Mazda RX-7, in a neighborhood where automobiles were often stripped for their parts. When the vehicle suddenly sped away, the officers had a reasonable suspicion that automobile stripping had taken place, and properly conducted an investigatory stop. During the stop, the sight of the bulging pillowcase, which the officers believed might contain stolen automobile parts, elevated their suspicion to the level of probable cause. The fact that the officers did not actually see the contraband inside the pillowcase before commencing the search does not, by itself, preclude a finding of probable cause. See United States v. Head, 783 F.2d 1422 (9th Cir. 1986), cert. denied, 476 U.S. 1171 (1986). Accordingly, the district court properly found that the totality of the circumstances created probable cause to believe that the claimant's son was engaging in a criminal act.

Under 21 U.S.C. § 881(a) (4) (West 1981 and Supp.1988), property may be forfeited to the government if there is probable cause to believe that the property has been used or is intended for use in violation of the narcotics laws. To prevent forfeiture, a claimant who asserts ownership of the property must either refute the government's showing of probable cause or prove, by a preponderance of the evidence, that the property was not connected to illicit drug trafficking. United States v. $5,644,540 in U.S. Currency, 799 F.2d 1357 (9th Cir. 1986).

A. Probable Cause to Believe the Currency is Connected to a Narcotics Violation

Probable cause to connect the currency to a violation of the narcotics laws exists when the government has reasonable grounds to believe that the property in question was related to an illegal drug transaction. This standard requires more than mere suspicion but less than prima facie proof. United States v. $93,685.61 in U.S. Currency, 730 F.2d 571, 572 (9th Cir. 1984), cert. denied, 469 U.S. 831 (1984). Probable cause may be established by "the aggregate of the facts." $93,685.61 in U.S. Currency, 730 F.2d at 572. The finding of probable cause to seize the currency is reviewed de novo. United States v. One 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1434 (9th Cir. 1985).

In the present case, the district court found probable cause based on the large sum of money in small denominations, two prior drug-related arrests of the claimant's son, evidence of drugs and drug-related paraphernalia in a room used by the claimant's son, and the alert of a narcotic-detecting dog. Claimant asserts that this evidence is insufficient to establish probable cause because the government failed to demonstrate a "substantial connection" between the currency and a violation of the narcotics laws. However, the government is not required to establish a substantial connection between the forfeited property and the alleged illegal activity. United States v. $5,644,540 in U.S. Currency, 799 F.2d at 1362 (citing United States v. Four Million, Two Hundred Fifty Five Thousand, 762 F.2d 895 (11th Cir. 1985), cert. denied, 474 U.S. 1056, 106 S. Ct. 795 (1986)). Rather, the forfeiture statute requires only "probable cause for belief that a substantial connection exists...." United States v. Four Million, Two Hundred Fifty Five Thousand, 762 F.2d at 903. Looking at the aggregate of the facts, the evidence offered by the government is sufficient to sustain this burden of proof.

After the government has established probable cause to connect the defendant property to illegal drug trafficking, the burden is on the claimant to prove by a preponderance of the evidence that the property to be forfeited came from a legitimate source or was intended to be used for legitimate purposes. United States v. One Twin Engine Beech Airplane, 533 F.2d 1106 (9th Cir. 1976). Whether the claimant has sustained this burden of proof is a factual determination which must be affirmed unless clearly erroneous. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir. 1985).

The claimant asserted that the currency represented profits saved from his janitorial business, but was unable to explain how he could have saved such a large sum of money from a business whose tax returns revealed meager profits. He was also unable to explain why he did not keep the currency in a bank account, where it could earn interest, but instead kept it in a safe in a high-crime residential area. Moreover, the claimant's plan to use the currency the day of the seizure to pay the balance owed on a car lease and possibly to invest in a house is equally implausible. The district court did not credit claimant's testimony concerning the source of the funds and his plan for their alleged use. We hold that the court's finding that the claimant failed to prove by a preponderance of the evidence that the currency was not connected to any illicit drug trafficking was not clearly erroneous.

AFFIRMED.