Com, Appellant v. $17,400 US Currency (N.A. Padilla-Gomez) (majority)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania, Appellant v. $17,400 US Currency (Noe Adolfo Padilla-Gomez) BEFORE: : : : : : : : No. 1157 C.D. 2011 SUBMITTED: September 23, 2011 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: November 1, 2011 Appellant, the Commonwealth of Pennsylvania, appeals from the order of the Court of Common Pleas of Lebanon County (trial court), which granted Appellee, Noe Adolfo Padilla-Gomez s, petition for return of property. We affirm. On August 11, 2010, Pennsylvania state trooper Justin Coda and Lebanon city police officer Frank Bettancourt1 conducted a traffic stop of an Acura driven by Appellee on the 2000 block of North 9th Street, Lebanon, Pennsylvania. The officers stopped Appellee because they could not see through the tinted windows of his car, a vehicle code violation. Appellee was accompanied by two passengers. Appellee produced a Guatemalan driver s license and a Texas 1 Bettancourt is fluent in Spanish and acted as an interpreter throughout the traffic stop. registration card, which reflected that the vehicle was registered to Vidyadhar Silivery. Appellee informed the officers that he was in the business of exporting vehicles and had taken a bus from Guatemala to the Texas border. After crossing the border he purchased the Acura and drove north to Philadelphia to purchase a truck for export. Appellee did not purchase the truck and left Philadelphia heading for Interstate 81 south. Appellee was given a warning regarding the tinted windows and told him he was free to go. However, Coda then asked Appellee if he could speak further with him and obtained permission to search the vehicle. During the search, the officers discovered two bags each containing $8000 in twenty dollar bills and $1400 in the pockets of one of the passengers. Appellee informed the officers that he had converted the money to U.S. dollars in Guatemala and had not declared the money at the border crossing. Following discovery of the money, a K-9 search of the vehicle indicated that the dog detected the odor of narcotics but could not determine the source. The officers confiscated the money. The Pennsylvania State Police and the Pennsylvania National Guard performed an ion scan of the money. The money was fanned out on a table and the ion scanner primarily scanned the edges of all the bills. The bills were not scanned individually. The first ion scan returned a reading of 989 digital units of cocaine. The second ion scan, which used a more sensitive channel, returned a reading of 1,296 digital units of cocaine. The readings were four times the casual contact level of money in general circulation in Pennsylvania. The Commonwealth confiscated the money pursuant to Section 6801(a)(6)(i) of the Forfeiture Act, 42 Pa. C.S. § 6801(a)(6)(i), but did not file any criminal charges against Appellee. 2 Appellee filed a petition for return of property with the trial court. After conducting a hearing and consideration of the parties briefs, the trial court granted the petition for return of property. The trial court held that forfeiture was not warranted because the Commonwealth had failed to establish a nexus between the forfeited currency and unlawful criminal activity. The trial court relied upon Commonwealth v. $9,000 U.S. Currency (Robert Collins), 8 A.3d 379 (Pa. Cmwlth. 2010), which involved nearly identical facts. The trial court acknowledged that while Appellee s credibility was questionable, the Commonwealth failed to carry its burden because the positive ion scan did not rule out that a few individual bills could be the source of the positive reading, and that the Commonwealth failed to submit evidence regarding the casual contact level of money circulating in Guatemala. This appeal followed. The Commonwealth asserts that it established the requisite nexus through the positive ion scan results, Appellee s behavior during the traffic stop and the inconsistencies in Appellee s story. However, we must agree with the trial court that $9,000 U.S. Currency (Robert Collins) is factually indistinguishable from the case at hand, and therefore must control the disposition of this case. Accordingly, this Court finds that the issue raised in this appeal is accurately and thoroughly addressed in the opinion of the Honorable Charles T. Jones, Jr. of the Court of Common Pleas of Lebanon County, filed May 12, 2011, in Commonwealth v. $17,400 US Currency (Noe Gomez), No. CP-38-MD-317-2010, and this Court affirms on the basis of that opinion. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 3 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania, Appellant v. $17,400 US Currency (Noe Adolfo Padilla-Gomez) : : : : : : : No. 1157 C.D. 2011 ORDER AND NOW, this 1st day of November, 2011, the order of the Court of Common Pleas of Lebanon County is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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