United States of America v. $6,600.00 in United States currency, in rem, No. 3:2012cv01624 - Document 35 (D. Or. 2013)
Court Description: OPINION AND ORDER. For the foregoing reasons, claimant's Motion to Suppress (#20, #23) is DENIED. IT IS SO ORDERED. Signed on 12/4/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, 3:12-cv-01624-MA Plaintiff, OPINION AND ORDER v. $6,600.00 IN UNITED STATES CURRENCY, in rem, Defendant. S. AMANDA MARSHALL United States Attorney District of Oregon ANNEMARIE SGARLATA Assistant United States Attorney 1000 Southwest Third Avenue, Suite 600 Portland, Oregon 97204-2902 Attorneys for Plaintiff BRIAN L. MICHAELS 259 East Fifth Avenue, Suite 300-D Eugene, Oregon 97401 Attorney for Claimant Sean Beeman MARSH, Judge In this civil forfeiture proceeding, claimant Sean Beeman moves to suppress all evidence obtained from a parcel delivered to 1 - OPINION AND ORDER claimant's home, including the defendant currency. For the reasons set forth below, claimant's motion is denied. FACTUAL BACKGROUND The material facts are undisputed. 1 Inspector Scott Helton intercepted a On March 13, 2012, Postal U.S. Mail express parcel addressed to claimant at the Portland Air Cargo Center in Portland, Oregon. An inquiry of a law enforcement database revealed that the name of the sender, "Tyson Shatswe1l,n was not associated with the listed return address. Inspector Helton sought the assistance of Nikko, a certified controlled substance detection dog, and Officer Scott C. Groshong, Nikko's certified handler. Outside of Officer Groshong and Nikko's presence, Inspector Helton arranged the parcel in a deployment line along with five similar control parcels. Upon examining the deployment line, Nikko alerted on the subject parcel in the manner he has been trained to do when he detects the odor of a controlled substance. Nikko did not alert to any other parcel in the deployment line. The next day, the Inspector Helton, along with other officers in Interagency Narcotics Enforcement Team ( INET) went to the address of the intended recipient of the parcel in Eugene, Oregon at approximately 3:45 1 in the afternoon. Be,fore going to the Because the facts are undisputed, this motion is appropriate for resolution without an evidentiary hearing. United States v. Quoc Viet Hoang, 486 F.3d 1156, 1163 (9th Cir. 2007) . 2 - OPINION AND ORDER residence, INET Detective Jacob Luquin inquired with the Oregon Nedical Narijuana Program (ONIVIP) at 11:40 that morning to determine whether claimant was registered with ONNP. At 12: 00, the ONNP responded that claimant was registered as a patient, as well as a caregiver for 15 other patients, grower for four. asking Det. of whom claimant was listed a Inspector Helton did not recall specifically Luquin to make the inquiry with ONNP, but it was information he found relevant to his investigation of the parcel. Upon arriving at the recipient address listed on the parcel, Det. Luquin and Inspector Helton contacted claimant outside the residence. Claimant stated that the express mail parcel contained $9,000 in cash that was payment of a loan from a friend. Det. Luquin asked if they could speak in private and began walking toward the front door, but claimant insisted on speaking outside. Det. Luquin asked claimant to whom he had loaned the money and for what purpose, but claimant refused to answer. When Det. Luquin asked if he could open the parcel, claimant unsuccessfully tried to grab it from him. officers if he needed an attorney, Claimant asked the at which point Det. Luquin advised claimant of his Niranda rights, informed him that he was not under arrest, and said that attorney if he desired to do so. he had a right to contact an At that point, claimant called his attorney on his cellular telephone and granted consent to open the parcel. 3 - OPINION AND ORDER The first envelope The parcel contained two white envelopes. had "DJ Pay 3500'' written on the outside and contained $3,500 in The second envelope had "TS" written on the outside, cash. contained $3, 100 and cash in a note read that "Tyson and 3100." Together, the currency found in the parcel constitutes the $6,600 When asked, in currency at issue in this proceeding. reported that claimant "Ty" sent him the money in repayment of a loan claimant had given him to assist his return to Oklahoma after Ty visited claimant in Eugene to help with claimant's marijuana grow. Claimant said that Ty used the $9,000 loan to purchase a car in Eugene and drive it back to Oklahoma. request to talk and Claimant again declined the officers' the count money While inside. outside, Det. Luquin Claimant told the officers that he is a smelled fresh marijuana. medical marijuana standing patient, a grower for four patients, and a caregiver for a "whole bunch," and had some marijuana plants drying inside the house. While spoke claimant officer counted the money. apparently contrary to his to counsel, Det. Luquin and another At some point in the conversation, and prior statement, claimant told the officers that he was not consenting to their opening the parcel or counting the cash. 2 Claimant asked what was going to happen to the 2 Claimant now concedes he consented to the opening of the parcel. Mem. in Supp. of Mot. to Suppress (#21) at 7, 10. 4 - OPINION AND ORDER money, The and asked the officers to speak with his attorney. officers informed claimant that they were under no obligation to speak with his attorney, but did so in any event. Inspector Helton informed claimant's attorney that the money would be submitted for Claimant told Inspector Helton that he had a civil forfeiture. "closed mind" regarding the medical benefits of marijuana. Det. residence, Luquin but claimant asked declined. claimant for consent After Det. to search Luquin his advised claimant of his intention to apply for a search warrant for the residence, claimant said he would rather discuss a consent search. Det. Luquin asked claimant to speak with his attorney again before agreeing to a consent search. After claimant spoke with counsel, claimant and the officers agreed that the duration of any search would be limited to 30 minutes, and the scope would be limited to evidence of unlawful manufacturing or delivery of marijuana and money laundering. As claimant was reading the form, he commented about being coerced into allowing the search. Det. Luquin stopped claimant from signing the form unless his consent was voluntary. Claimant confirmed that he was consenting to the search voluntarily, and signed the consent form with the stipulations. To determine the amount of marijuana claimant was permitted to possess, the officers registration with OMMP. verified the extent of claimant's The search of claimant's home revealed a marijuana grow that was compliant with claimant's OMMP limits. 5 - OPINION AND ORDER Officers did not seize any evidence from the house and concluded the search within the agreed time period. DISCUSSION Claimant argues the defendant currency should be suppressed for three reasons. First, claimant argues that the officers' initial inquiry into OMMP records violated his Fourth Amendment rights. parcel Second, was claimant asserts that his consent to open the Finally, involuntary. claimaDt maintains that the seizure of the defendant currency after the interaction at his home was not supported by probable cause. I. OMMP Records Inquiry Claimant moves to suppress "all evidence related to and contained in the package carrying [the] defendant currency" on the basis that the initial inquiry into participation was an unlawful search. OMMP inquiry violated Oregon law, O~JMP records revealing his Even assuming the initial and further assuming that claimant has .a reasonable expectation of privacy in OMMP records, the OMMP inquiry would not justify suppression of any of the evidence stemming from the officers' contact with claimant at his home. Consent to search "is tainted where the evidence indicates that it stemmed from the prior illegal Government action." States v. Oaxaca, 233 F.3d 1154, 1158 (9th Cir. 2000). United Suppression of evidence "is not justified unless 'the challenged evidence is in 6 - OPINION AND ORDER some sense the product of the illegal governmental activity.'" Segura v. United States, 468 U.S. 796, 815 (1984) States v. Crews, 445 U.S. 463, 471 (1980)). not be excluded as 'but for' (quoting United Thus, "evidence will 'fruit' unless the illegality is at least the cause of the discovery of the evidence." Id.; see also United States v. Pulliam, 405 F. 3d 782, 785-87 (9th Cir. 2005). Here, there is no evidence the OMMP inquiry was even a "but for" dause of obtaining plaintiff's consent to open the parcel. Probable cause was not required for the brief seizure of the parcel for the purpose of deploying a narcotics detection canine. Viet Hoang, 486 F.3d at 1162. Quoc Once Nikko alerted to the parcel in the deployment line, probable cause supported the further seizure of the parcel based on (1) Nikko's alert; (2) the apparent mismatch between the name "Tyson Shatswell" and the listed return address; and (3) the sender's use of express mail, which Inspector Helton knew to be a common method of shipment in narcotics transactions . Declaration of Scott Helton at 3; see Quoc Viet Hoang, 486 F.3d at 1158-59, 1162. With the properly seized parcel in hand, the officers traveled to claimant's home. There is no evidence that the officers' knowledge of claimant's OMMP participation in any way affected the course of the interaction that led to claimant granting consent to open the package. Indeed, claimant does not dispute that he was the first to mention his OMMP participation in his interaction with 7 - OPINION AND ORDER Thus, claimant's consent to open the parcel was not the officers. related to the OMMP inquiry that claimant alleges violated his rights, Fourth Amendment and be cannot therefore consent his tainted because it did not stem from any prior illegal government See Oaxaca, 233 F.3d at 1158. action. Voluntariness of Consent II. Claimant briefly argues that his consent to open the parcel "Whether consent to search was voluntarily was not voluntary. is given circumstances.'" 501 determined be 'to the totality all of the United States v. Patayan Soriano, 361 F.3d 494, (9th Cir. 2004) 218, 222 (1973)). from 412 U.S. (quoting Schneckloth v. Bustamante, The court considers five factors in determining the voluntariness of consent to search: "' (1) whether defendant was (2) in custody; drawn; (3) whether the arresting officers whether Miranda warnings were given; had their guns whether the (4) defendant was notified that [he] had the right not to consent; and (5) whether the defendant had been told a search warrant could be Patayan Soriano, obtained.'" 361 F.3d at 502 (quoting United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002)). factor is determinative, as they No single "are only guideposts, mechanized formula to resolve the voluntariness inquiry." Claimant argues that the officers' inquiry and the officers' consent involuntary. 8 - OPINION AND ORDER seizure of not a Id. allegedly unlawful OMMP the parcel This argument is without merit. rendered his As discussed above, there is no evidence that the knowledge officers' of claimant's participation in OMMP led to claimant's consent to open Moreover, the officers' mere possession of the parcel the parcel. pursuant to a seizure supported by probable cause does not amount to "coercion" sufficient to render consent involuntary. Application of the five factors makes clear that claimant's consent was voluntary. granted claimant As the officers informed him shortly before consent, claimant was not in custody. The officers did not have their guns diawn and were not physically intimidating claimant in any way. Despite being assured he was not the officers took the additional step of informing in custody, claimant of his Miranda rights. Claimant was not notified of his right to withhold consent, but the officers did assure him that he was welcome to call his attorney and informed him of his Miranda rights. With respect to opening the parcel, claimant was not told in a threatening manner that a search warrant could be obtained. See Patayan Soriano, 361 F.3d at 504-05. the factors militates voluntary. Thus, the application of strongly toward finding that consent was The mere fact of the officers' seizure of the parcel does not overcome the strong indicia throughout the encounter that claimant's consent was freely given. III. Probable Cause to Seize the Defendant Currency Finally, claimant argues that the officers lacked probable cause to seize the defendant currency after the parcel had been 9 - OPINION AND ORDER opened and his home searched. The following facts I disagree. known to the officers at the end of the interaction at claimant's home establish that "the facts available to [them] would 'warrant a person of reasonable caution in the belief'" that the defendant currency transaction. (2013) the represented of proceeds Florida v. Harris, u.s. an narcotics illegal 133 S.Ct. 1050, 1055 (plurality (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) opinion)). A law enforcement database indicated the name listed with the return address on the parcel was not associated with that address. A narcotics detection canine alerted to the odor of narcotics emanating from the parcel. 3 amount of currency. The parcel contained a large Claimant's explanation that the currency was $9, 000 in repayment of a loan to "Ty" was inconsistent with the parcel containing $6,600 in payment from what appeared to be two different people. marijuana through Claimant had access to saleable quantities of his participation in OMMP. 4 The originated from out of state, where OMMP does not apply. parcel Finally, 3 Claimant's argument that Nikko's alert does not contribute to a finding of probable cause is meritless. Claimant does not See Pl.'s dispute that Nikko is properly trained and certified. The alert of Resp. to Claimant's Mot. to Suppress (#27) exh. B. a certified narcotics detection canine supports a finding of probable cause. Harris, 133 S.Ct. at 1055-58. 4 Claimant neither disputes that he informed the officers of his participation in OMMP, nor argues that the later inquiry of OMMP records was illegal. 10 - OPINION AND ORDER claimant had marijuana at his home, albeit in a quantity compliant with OMMP regulations. These facts, along with the officers' knowledge based on their training and experience, are sufficient to establish 'fair probability'" that the defendant proceeds of an illegal drug transaction prudent Illinois [people, ] v. original) . not Gates, The legal 462 seizure U.S. of currency the 235 kind of constituted which 'reasonable and ~on technicians, 213, ~the act. ' " (1983)) defendant Id. (quoting (alteration currency after in the interaction at claimant's home was supported by probable cause. CONCLUSION For the foregoing reasons, claimant's Motion to Suppress (#20, #23) is DENIED. IT IS SO ORDERED. DATED this ~ day of December, 2013. tff~~z;e~ Malcolm F. Marsh United States District Judge 11 - OPINION AND ORDER
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