United States District Court, D. Nebraska
For United States of America, Plaintiff: David M. Wear, Nancy A. Svoboda, U.S. ATTORNEY'S OFFICE - OMAHA, Omaha, NE.
For Timothy Hickman-Smith, Claimant: J. William Gallup, GALLUP LAW FIRM, Omaha, NE.
LYLE E. STROM, Senior United States District Judge.
This matter is before the Court following a bench trial held on August 26, 2014. The plaintiff United States of America brought this action for forfeiture of $9,230 in United States Currency (" currency" ) (Filing No. 1). Claimant Timothy Hickman-Smith filed an answer asserting that the United States cannot demonstrate that the currency was the product of any criminal activity (Filing No. 12). For the reasons set forth below, the Court finds that the government has failed to meet its burden under the preponderance standard to show a substantial connection between the defendant property and a controlled substance offense.
On March 13, 2013, at approximately 6:54 p.m., Omaha Police Officers Jeffrey Wasmund (" Wasmund" ) and Jeff Shelbourn (" Shelbourn" ) conducted a traffic stop of Timothy Hickman-Smith (" Hickman-Smith" ) for changing lanes without signaling his intent to change lanes within 100 feet. Hickman-Smith was driving a black Volkswagen Jetta rental car from Hertz with Minnesota plates. No police video or audio was recorded during the traffic stop.
Officer Wasmund approached the driver's side of the vehicle and Officer Shelbourn approached the passenger side. Officer Wasmund and Officer Shelbourn both testified that upon approaching the vehicle they smelled a strong odor of marijuana. Officer Wasmund instructed Hickman-Smith to step out of the vehicle. The record is unclear about whether or not Hickman-Smith was placed in handcuffs. Officer Wasmund testified that he placed Hickman-Smith in the police cruiser and began asking questions. When asked about the odor of marijuana, Hickman-Smith responded that there was no marijuana in the vehicle. The officers then conducted a search of Hickman-Smith's person and the vehicle.
During the search of Hickman-Smith's person, Officer Wasmund located two folded bundles of United States currency in Hickman-Smith's left front pocket. One bundle contained $670 and the other contained $560. The search of the vehicle produced an additional $8,000 located in the front armrest storage compartment. The currency was taped in plastic wrapping and folded into eight separate bundles containing $1,000 each. The denominations of the currency included multiple
$20, $50, and $100 bills. The officers testified that the plastic bag containing the $8,000 smelled of marijuana. The officers also recovered two cell phones from the front seat, a box of one gallon size freezer bags and one box of plastic sandwich bags located in the trunk, and multiple rubber bands on the vehicle's turn signal lever. However, the search did not result in finding any marijuana in the vehicle.
When Hickman-Smith was asked about the currency, he stated that he recently sold a 1978 Chevrolet Monte Carlo for $8,000. Hickman-Smith informed the officers that he sold the vehicle to an African-American female named " Sydney" and an African-American male named " Vermont" but that he did not have their contact information. He also stated that the money on his person was his own personal money. When asked about the cell phones, Hickman-Smith stated that the black Samsung phone belonged to his girlfriend, and the white Iphone was his personal phone. The officers seized the $9,230 based on the nature of the traffic stop, the odor of marijuana, the large amount of currency, and the way the currency was packaged. Hickman-Smith was released without a traffic citation and left the scene on foot.
1. Motion to Suppress