IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ELIAS GONZALES,
Plaintiff,
vs. CIV 03-1150 BB/WDS
THE CITY OF ALBUQUERQUE,
ROBIN BURGE and KEVIN FULLER,
City of Albuquerque Police Officers,
Defendants.
AMENDED PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
I. INTRODUCTION
The Defendants searched plaintiff’s home and belongings for crack cocaine. The Defendants found no crack cocaine, no packaging material, no scales, no evidence of any ongoing sales of crack cocaine. The Defendants did not arrest plaintiff. The Defendants never referred plaintiff to the District Attorney’s office. However, the Defendants did take plaintiff’s income tax refund, $5,276.00 in United States Currency, and ignored all due process guarantees in depositing it in a bank account that the City of Albuquerque controls. The defendants now claim qualified immunity for taking cash from an innocent citizen’s home and keeping it for government benefit.
II. FACTUAL BACKGROUND
Plaintiff works at the Ultimate Electronics. For the 49 hours before the warrant was obtained, plaintiff worked generally from 9:00 a.m. to 9:00 p.m.. For the remaining time he was usually with a family member. Plaintiff is not a drug dealer. Plaintiff never has sold drugs. Plaintiff did not make a hand-to-hand buy. (See Affidavit of Plaintiff and Raquel Gonzales).
The affidavit for search warrant contains no showing of a nexus between the alleged sale of drugs and plaintiff’s home. Defendant Burge alleges that her CI bought crack cocaine from plaintiff’s vehicle. There is no evidence offered of any illegal activity at plaintiff’s home. Defendant Burge states simply that “Based on Affiant’s training and experience, individuals who engage in the [sale] of illegal narcotics keep the illegal narcotics inside their residence.” There was no surveillance of plaintiff’s residence. There were no alleged sales at plaintiff’s residence.
In addition, Judge Murdoch signed the search warrant on April 24, 2003 at 2:51 p.m.. Thus, the alleged sale occurred as early as 2:00 p.m. on April 22, 2003. The Defendants waited another eight (8) days from the issuance of the warrant to execute the warrant at plaintiff’s home. Thus, the likelihood of finding any drugs or contraband at plaintiff’s home was remote in light that the search was ten days after an alleged sale in the street. Once inside plaintiff’s home, Defendants found a tobacco pipe and plaintiff’s tax refund. Defendants decided to take plaintiff’s tax refund and tag the money into evidence. Toward what end is the unanswered question.
Under state law, seized money must be deposited with the district court clerk. NMSA § 31-27-8 (A). Defendants must file a forfeiture action within thirty (30) days or return the cash. NMSA § 31-27-5 (A). Defendants did neither. There was no criminal case related to the seizure of the money. Plaintiff was not charged with any crime. Plaintiff was on probation for an unrelated crime. No one contacted his probation officer about the alleged sale.
Thus, the case is rife with disputed issues related to the basis for the search warrant, whether Defendants showed a nexus between the alleged criminal activity and plaintiff’s home, the staleness of the information and of the search warrant, the basis for the seizure of plaintiff’s cash, and defendants’ failure to follow the lawful process of the state.
III. RESPONSE TO ALLEGED UNDISPUTED MATERIAL FACTS
1. Denied. Plaintiff denies he sold any cocaine. Plaintiff supplies the court with documents and evidence showing an alibi for the complete two days before the search warrant was issued. (Affidavit of Plaintiff and Raquel Gonzales).
2. Plaintiff admits he lives at 10901 Red Robin Road SW. Plaintiff denies that any narcotic purchase took place. (Id.).
3. Plaintiff is unable to know what, if any, surveillance Defendant Burge conducted. Plaintiff admits he drives a 2003 Humvee.
4. Admitted that Defendant Burge obtained a search warrant. Denied that the search warrant authorized the seizure of cash. The plain meaning of the warrant authorized the seizure of cash which was “used to facilitate drug transactions.”
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
10. (Ask Elias about this).
11. (Ast Elias).
12. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
13. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
14. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
15. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
16. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
17. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
18. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
19. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
20. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
21. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
22. Plaintiff has no basis to admit or deny this allegation, as he was not present and did not witness the seizure of his cash.
23. Admitted.
24. Admitted.
25. Admitted.
26. Admitted.
27. Admitted.
28. Admitted.
29. Admitted.
30. Denied. The City has a “no settlement” policy. (See attached letter attempting settlement).
31. Admitted.
32. Admitted.
IV. LEGAL ARGUMENT
A. PLAINTIFF’S DUE PROCESS CLAIM
Defendants complain first about plaintiff’s failure to allege inadequate post-deprivation remedies. However, post-deprivation remedies have nothing to do with plaintiff’s claims. Hudson v. Palmer, 468 U.S. 517 (1984) and Parratt v. Taylor, 451 U.S. 527 (1981), apply only in cases where the property deprivation is “random and unauthorized .” As defendants have ably argued, their deprivation of plaintiff’s property was not “random and unauthorized.” As they stated in their undisputed facts 24 and 25, they did not keep the money for themselves. Defendants deprived plaintiff of his property under the supervision of their superior.
In Winters v. Board of County Commissioners, 4 F. 3d 848 (10th Cir. 1993), sheriff’s officers seized a stolen ring at a pawn shop. After the prosecution of the case, the Sheriff’s Department returned the ring to the putative owner without notice or hearing to the pawn shop owner. Id. at 851. State law provided for notice and hearing for a pawn shop owner in the plaintiff’s situation. Id. at 856. Plaintiff brought suit alleging a due process violation. The Sheriff’s Department attempted to use the reasoning in Hudson and Parratt to defeat plaintiff’s due process claims. However, in declining to adopt the Sheriff’s Department’s reasoning, the Winters’ Court re-stated the holdings in Hudson and Parratt:
an adequate post-deprivation remedy relieves due
process concerns only for random and unauthorized
deprivations of property.
Id. at 857, citing Hudson, 468 U.S. at 531-33 and Parratt, 451 U.S. at 541-44.
The Winters court explained that the defense of an adequate post-deprivation remedy is available for employees’ random and unauthorized acts because the unpredictability of the alleged activity renders a pre-deprivation hearing impossible. Id. at 857. The state is in no position to provide a pre-deprivation hearing when acts are random or unauthorized. Id. at 857. Thus, adequate post-deprivation procedures satisfy due process requirements.
In Winters, the Sheriff simply ignored pre-deprivation procedures. The Tenth Circuit stated plainly that the state may not ignore state procedural requirements then say there is no due process violation because plaintiff has adequate post-deprivation remedies. In other words, “[a]vailable post deprivation procedures are insufficient to neutralize a due process violation when the action is planned and authorized.” Id.
In the case at bar, defendants’ supervisor asserts that the seizure and retention of plaintiff’s money was “planned and authorized .” The state has provided plaintiff with pre-deprivation process. Pursuant to state law, defendants were required to deposit the money in state district court and were required to file a forfeiture complaint within thirty (30) days of seizing plaintiff’s money. See NMSA § 31-27-8 (A) and 31-27-4 (A). The forfeiture complaint may only be filed with associated criminal charges. Defendants ignored the required pre-deprivation procedures. Having ignored pre-deprivation procedures after their planned and authorized seizure, they cannot now argue that plaintiff needs to show inadequate post deprivation procedures.
In 2002, the State of New Mexico drastically changed it forfeiture laws. Seizures of property are only allowed pursuant to a court order, incident to an arrest or when a law enforcement officer “has probable cause to believe the property is property subject to a forfeiture and that the delay occasioned by the need to obtain a court order would frustrate the seizure”. NMSA 31-27-4. Thus, the only basis for the seizure of the cash is that there is probable cause to believe it is subject to forfeiture and a court order would frustrate the seizure. Defendants can show neither. Plaintiff can show affirmatively that the cash was not subject to seizure.
In New Mexico cash may be forfeited only when the district court finds by clear and convincing evidence that a criminal prosecution has resulted in a conviction. NMSA § 31-27-6 (E). Since there was no criminal prosecution of plaintiff, there can be no basis to believe the cash was subject to forfeiture.
Due process requires that the state follow the process afforded to its citizens. The “ mere promulgation of laws and regulations, which . . . preserve the most fundamental rights” is only the starting point. Id. quoting Wolfenbarger I, 774 F.2d at 364. The state must follow its procedures. Id.
B. PLAINTIFF’S FOURTH AMENDMENT CLAIMS
Plaintiff adequately disputes the allegation there was a controlled buy involving him. His affidavit, his work records, his income tax returns and the affidavits of those in his family adequately dispute the alleged facts offered by Defendant Burge. Plaintiff’s dispute of the allegation places the case in those requiring a trial. Breidenbach v. Bolish, 126 F.3d 1288 (10th Cir. 1997); Aponte Matos v. Toledo Davila, 135 F.3d 182 (1st Cir. 1998).
Although plaintiff bears a heavy burden to show that the warrant, on its face, shows inadequate probable cause, plaintiff contends that this is an appropriate case for the court to so hold. In short, Defendant Burge showed no nexus between the alleged buy in the street and plaintiff’s home. Defendant Burge had no knowledge of quantity or alleged drug activity of plaintiff. Great deference is given to the issuing judge, 131 F. 3d 1371, 1375 (10th Cir. 1997). But the absence of any showing in the warrant between the alleged criminal conduct and plaintiff’s home is glaring. 229 F. 3d 1002 (10th Cir. 2000); U.S. v. Lee, 173 F. 3d 1258, 1265 (10th Cir. 1999); 163 F. 3d 1164, 1171 (10 Cir. 1998); 128 F. 3d 1358, 1362 (10th Cir. 1997); 170 F.3d 632, 638 (6th Cir. 1999).
Finally, the warrant was stale at the time of its execution and no reasonable officer could believe it to be a valid warrant. Staleness is decided on a case by case basis. The seizure of the cash cannot be justified based on the quoted language in the affidavit. If so, Defendants show a flagrant disregard for the plain meaning of the warrant. Foster, 100 F. 3d 846, 849-50 (10th Cir. 1996). The Defendants were not going there to seize cash. They would be able to seize cash that had some facilitation to or was the result of drug trafficking.
It is hornbook law that items seized must have a nexus to criminal behavior. Warden v. Hayden, 387 U.S. 294 (1967). In the normal case an officer must have probable cause of the incriminating nature of a seized item.
Defendants make many tortured and conflicting claims as to their basis for the seizure of cash. In their brief they argue that the cash incriminated plaintiff. The obvious question is, incriminated him in what crime? Defendants did not arrest plaintiff, did not refer him to the district attorney. Defendants did not ever refer plaintiff to his probation officer. Weinbender, involved the seizure of a homemade silencer under the belief it was a pipe bomb. Either item was illegal and subject to seizure. The citation of Rael for support of the seizure of plaintiff’s cash defies credibility. Rael involved a drug distribution prosecution wherein there were at least five (5) hand to hand buys. The New Mexico Court approved the introduction of evidence of the Defendant’s “ substantial wealth” through proof of an “inordinately lavish lifestyle” or “extraordinarily large amount of cash or material possessions”. The whole seizure begs the question of what prosecution was the cash relevant to. There was no arrest, thus, the cash was not evidence of any criminal activity.
A warrantless seizure of cash requires probable cause. See United States v. Baro, 15 F.3d 563, (6th Cir. 1994)(seizure of cash was unconstitutional where officer recovered currency from luggage in an airport to take it for a canine sniff test). The seizure of the cash base upon the alleged alert of a dog has been held to be inadequate numerous times in the far-off past. There is no scientific support for proposition that drug residue on cash shows that the cash is the result of drug sales.
A narcotics dog’s alert to currency is not probable cause. For the purposes of forfeiture of currency, evidentiary value of narcotics dog’s alert to the money was minimal in light of the extent of narcotics contamination of currency in circulation. See, United States v. $5,000 in U.S. Currency, 40 F.3d 846 (6th Cir. 1994) see also, United States v. $49,576 U.S. Currency, 116 F.3d 425 (9th Cir. 1997) (court found that drug-sniffing dog had alerted to money was entitled to little weight in determining whether government had probable cause to believe money was involved in drug transaction, as basis for forfeiture, in light of widespread contamination of money with drug-residue in the community where money was seized).
It is clearly established that currency sniffs are an area where a positive canine alert is not probable cause, due to the wide spread contamination of money with drug residue. For example, in United States v. $639, 558 in U.S. Currency, 955 F.2d 712 (D.C. 1992), during a civil forfeiture action, the court ruled that the dog alerted to cocaine adhering to the cash. The defendant’s expert, a Dr. James Woodford, testified that 90 % of all cash in the United States contains sufficient quantities of cocaine to alert a trained dog. This expert also testified that bills may contain as little as a millionth of a gram of cocaine, but that is many times more cocaine than is needed for a dog to alert. The handler testified that the number was lower, near 70 %. There is one study indicating that up to 97 % of all bills in circulation in the country are contaminated by cocaine, with an average of 7.3 micrograms of cocaine per bill. Id.
In United States v. $53,082 U.S. Currency, 985 F.2d 245 (6th Cir. 1993), evidence did not establish probable cause, as the narcotic detector’s dog’s reaction could not be used, as agents’ original seizure was without probable cause. The court recognized that there is some indication that residue from narcotics contaminates as much as 96% of the currency currently in circulation. Id.
In United States v. $30,060 U.S. Currency, 39 F.2d 1039 (9th Cir. 1994), a civil forfeiture action, the court found that there was not probable cause to believe $30,060 of money found in an automobile was involved in narcotics, based on these factors:
1. Narcotics dog alerted to the presence of controlled substances on money;
2. The money was packaged in $1000 bundles which corresponded to the price of two kilograms of cocaine;
3. The suspect gave false accounts of the money’s source; and,
4. The suspect gave false information on his employment record.
The suspect presented evidence that over 75% of the currency in the area was contaminated with the residue of cocaine and the government presented no other evidence connecting the money to drugs. Quoting Jones v. Drug Enforcement Administration, 819 F.Supp. 698, 721 (M.D. Tenn. 1993), the Ninth Circuit reasoned, “the continued reliance of courts and law enforcement officers on [such an alert] to separate ‘legitimate’ currency from ‘drug-connected’ currency is logically indefensible.’” U.S. v. $30, 060.
In United States v. $506, 231 U.S. Currency, 125 F.3d 442 (7th Cir. 1997), the court was unwilling to take seriously the evidence of the post-seizure dog sniff where even the government admits that at least one-third of the currency in the United States in contaminated with cocaine. In United States v. $10, 700 U.S. Currency, 258 F.3d 215 (3rd Cir. 2001), the court found, for the purposes of a civil forfeiture proceeding, that a dog’s positive canine alert to traces of cocaine being on currency seized was not probative of whether money in claimant’s possession could be connect to a drug exchange. In that matter the government, as the City here, did not present any evidence concerning dog’s past training and its degree of accuracy in detecting narcotics on currency. Id.
Respectfully submitted,
_____________________________
KENNEDY & OLIVER, P.C.
Joseph P. Kennedy
Shannon L. Oliver
1000 Second Street NW
Albuquerque, New Mexico 87102
244-1400
I HEREBY CERTIFY that a true and correct
copy of the foregoing was mailed to opposing
counsel this 27th day of January, 2004.
___________________________________
Joseph P. Kennedy
Ann Maggiore
Butt, Thornton & Baehr, P.C.
P.O. Box 3170
Albuquerque, New Mexico 87190-3170
Stephanie Griffin
Assistant City Attorney
P.O. Box 2248
Albuquerque, New Mexico 87103-2248