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United States v. $38

United States District Court, Eighth Circuit

May 29, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
$38, 000.00 IN UNITED STATES CURRENCY, Defendant.

MEMORANDUM AND ORDER

CHERYL R. ZWART, Magistrate Judge.

This matter is before the court on the plaintiff United States of America's complaint for forfeiture of $38, 000 in United States Currency (the "Currency"). (Filing No. 1). Claimant Richard A. McKee filed an answer seeking dismissal of the case, asserting the United States cannot demonstrate the Currency was used or was intended to be used to facilitate a drug transaction. (Filing Nos. 9 & 10). A bench trial was held before the undersigned on January 7, 2013, and the parties have now submitted post-trial briefs in support of their respective positions. For the reasons set forth below, the Currency shall be forfeited to the government.

BACKGROUND

On August 25, 2011, Douglas County Sheriff's Deputy Dave Wintle, accompanied by his drug detector dog, Kubo, was driving a marked police cruiser westbound on Interstate 80 in Douglas County, Nebraska. Wintle has received education and training in criminal interdiction from various sources, including Desert Snow, and he uses criminal interdiction tactics as a part of his duties when conducting traffic stops.

Wintle observed the Claimant, Richard McKee, traveling westbound on Interstate 80 in a white Honda with Oregon license plates. Wintle saw McKee following the car in front of him at a distance of approximately one car length. Wintle initiated a traffic stop.

Wintle approached the car on the passenger's side and asked McKee for his license and registration. While talking to McKee, Wintle noticed an Indiana temporary registration certificate on the floor of the passenger's side of the car and a black duffel bag on the front passenger seat. Wintle instructed McKee to accompany him back to the police cruiser. McKee sat unrestrained in the front passenger side of Wintle's car while Wintle checked his license and registration. McKee told Wintle that the car belonged to a friend of his.

While waiting for the information on McKee's license and the car's registration, Wintle engaged in casual conversation with McKee regarding the nature of his travel and his work. McKee stated that he and a friend who owned the car drove from Oregon to Ohio and that McKee was now on the return trip. He further stated that his friend was on a different schedule and flew back to Oregon earlier in the week. His friend apparently purchased the car in Oregon, but was registering the vehicle in Indiana. When asked about his employment, McKee stated that he was working a temporary construction job, but was finishing up classes to become a math professor "in about a month."

While they were talking, McKee stated he knew he was probably following the car in front of him too closely, but he wondered if Wintle could let him go with a warning and not issue a ticket. McKee stated he had little money and was broke. Wintle informed McKee that he was going to give him a warning, but advised him to watch his following distance in the future.

Wintle gave McKee his license and registration back and asked McKee if he would mind answering a few questions. McKee agreed to do so. Wintle again asked McKee about his travel itinerary and McKee provided him answers consistent with their previous conversation on the topic. Wintle asked McKee if he had any items of contraband in the car, such as marijuana, cocaine, methamphetamine, or heroin. McKee denied having these items. Wintle then asked McKee if there was a large sum of money - anything over $10, 000 - in the car. McKee denied having a large amount of currency.

Wintle then asked if he could walk his canine, Kubo, around the car. McKee consented. Kubo indicated to the odor of narcotics in the trunk of the car. Wintle returned to his patrol car. McKee stated that he had put his clothes in the truck so they would not "stink up" the rest of the car. At that time, Wintle informed McKee of Kubo's indication and that Wintle would be searching the car for illegal contraband. Wintle was joined by another officer and they began searching the car. They discovered a garment bag in the trunk with three plastic grocery sacks containing clothes. Wintle described the bags as smelling strongly of raw marijuana. The law enforcement officers also searched the suitcase in the front passenger seat. Inside the suitcase they discovered a pair of rolled-up sweatpants containing a white paper sack. Inside the white paper sack, the officers found three rubber-banded bundles of money.

About an hour after the currency was found in McKee's suitcase, Wintle had Kubo conduct a canine sniff of the bundled money. Wintle walked Kubo around a room of lockers at the Sheriff's office. The dog did not alert or indicate to the odor of controlled substances coming from anywhere in the room. He and his dog stepped out of the room, then another officer hid the Currency in one of the lockers in the room. Deputy Wintle returned to the room with Kubo and directed Kubo to sniff for the odor of narcotics. Kubo indicated to the locker where the currency was hidden. Law enforcement officials seized the Currency.

LEGAL ANALYSIS

McKee challenges the seizure of the Currency, asserting: 1) the traffic stop was not supported by probable cause; 2) he was illegally detained following the conclusion of the traffic stop; and 3) the Currency is not ...


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