Seizure of Cash Illegal Without Drug Charge?

On behalf of Raymond Giudice, P.C. posted in Criminal Defense, Federal Crimes and Drug Crimes on Friday, October 11, 2013.

The only official sanction levied on Jeffrey Mordica following his 2011 traffic stop was a warning ticket for having the windows in his car tinted too dark.

But before Lamar County Deputy Sgt. Chris Webster sent Mordica on his way, the officer relieved Mordica of more than $63,000 in cash. Webster decided that Mordica’s story of traveling to Atlanta to purchase a restaurant whose name he couldn’t recall—combined with his nervousness, use of air freshener and the interest Webster’s drug-sniffing dog displayed in his car—was reason enough to keep the cash under Georgia’s civil forfeiture statute.

Mordica was not charged with a crime, but Lamar County Superior Court Judge William Fears granted the state’s motion to seize the money under the forfeiture law, which allows the state to seize money or property it can demonstrate is “directly or indirectly used to facilitate a violation” of the Georgia Controlled Substance Act. Unlike criminal proceedings, prosectors need only prove the forfeited property was drug-related by a preponderance of the evidence, a lower standard than in criminal cases.

The Georgia Court of Appeals upheld Fears’ order last year, leading to Monday’s oral argument at the Supreme Court of Georgia.

Mordica’s attorney, Atlanta solo William Boddie Jr., asked the justices to overturn both lower courts, arguing that Webster had improperly detained his client. Boddie noted that the officer interrupted his ticket-writing and asked Mordica to drive several hundred yards up the road so the deputy could assist a fellow officer in apprehending a fugitive.

Boddie also said Fears had ignored Mordica’s explanations for having the bundles of rubber-
banded bills stashed in his car along with three cell phones, all details that a “drug and bulk cash smuggling” expert testified pointed to illegal activity.

Boddie conceded his client spent 12 of the past 25 years in prison for drug-related offenses, but the lawyer argued that the trial court was wrong to admit such “character evidence” into a civil forfeiture hearing, he said.

The court ignored testimony that Mordica had turned his life around, Boddie said, instead concluding that “once a drug dealer, always a drug dealer.”

Mordica’s costly encounter occurred June 7, 2011, as he was driving from Tallahassee to Atlanta. Webster, a canine handler assigned to the Interstate Criminal Enforcement Team, noticed excessively dark tinting on Mordica’s car and pulled him over.

According to appellate briefs, Webster noticed a strong odor of air freshener as he approached Mordica’s car. He asked Mordica to step out of the vehicle and tested the window tint at 12 percent, a violation of Georgia law.

Webster took Mordica’s driver’s license and asked where he was going. Mordica said he was going to Atlanta to purchase or lease a restaurant whose name he could not recall.

According to the Court of Appeals decision, Webster was in his patrol car checking Mordica’s license when another officer up the road radioed for help in taking a fugitive into custody. Webster told Mordica he was only going to write him a warning ticket and instructed him to drive forward about 300 yards as Webster followed, so he could assist with the fugitive.

Mordica complied, and when Webster had finished helping the other officer, he again had Mordica step out of the car and asked whether he was carrying any weapons or large amounts of cash.

Mordica said no, and Webster—suspicious of what the state’s brief described as Mordica’s “extreme nervousness”—asked if he could search the car. Mordica again said no, and Webster retrieved his dog and conducted a search around the car.

The dog alerted to the vehicle, and Webster handcuffed Mordica and again asked about guns and money. Mordica said he had $60,000 in the center console and under the seats. Webster searched the car and found $63,339 in cash, divided into bundles of $1,000, and three cell phones.

According to the state’s appellate brief, Webster asked Mordica about his finances and was told he made about $500 a week working at a restaurant, and that he had recently gotten $6,700 in a legal settlement. Mordica also said he’d recently taken out a $10,000 business loan.

Webster ran a criminal background check and found that Mordica had several drug-related arrests and convictions and had served time in federal and Florida state prisons.

No drugs or weapons were found in the car, and Mordica was released, but his money stayed in Lamar County.

During the forfeiture hearing in October 2011, Mordica’s lawyer presented evidence that Mordica was a part owner of a two-branch restaurant and that he also owned a carpet-cleaning busisness and an entertainment business.

Having lost at the trial level, Mordica challenged the forfeiture at the Court of Appeals. He argued among other things that Webster had impermissibly prolonged the traffic stop by making Mordica drive up the road and wait while he assisted in the fugitive arrest and then had his dog sniff the car.

The Georgia Court of Appeals upheld Fears’ order.

During Monday’s arguments, Justice David Nahmias quickly challenged Boddie on the issue of whether Webster had impermissibly prolonged the traffic stop.

“Didn’t he say he asked your client if he would agree to drive up the road?” asked Nahmias. “Isn’t that consent for a delay at least for the time required?”

Nahmias also questioned Boddie’s assertion that the trial court was wrong to infer criminal activity because of the presence of the three cell phones found after his client had been detained.

“But they can rely on the cell phones as one piece of evidence that the money found in the car was related to drugs,” Nahmias said, pointing out that the expert testimony supported such a conclusion.

Boddie responded that the Lamar County Sheriff’s Office had not performed any follow-up investigation or sought any criminal charges against his client.

“So what?” said Nahmias. “It’s not a criminal forfeiture, it’s a civil forfeiture.

“Obviously,” Nahmias said, “if drugs are found it makes it heck of a lot easier, but the question is, what is our standard of review?”

Under Georgia law, he said, the trial court is allowed to entertain any evidence of criminal linkage in granting a forfeiture petition.

Perhaps so, responded Boddie, but he said Baker v. State, 269 Ga. App. 722, supported his case. In the 2004 ruling, the Court of Appeals found in a case where no drugs were found and no charges were filed, “any link between the money and suspected illegal drug activity may be attenuated and difficult to prove. The hearing, therefore, likely will focus not on whether appellants can prove that the money has a legitimate source, but on whether the state can prove that any drug activity was involved.”

Not only had the state failed to prove any drug activity, Boddie said, but the trial court had ignored his client’s evidence that the money came from legitimate sources.

“The trial court thought that was all a bunch of junk and didn’t believe it,” said Nahmias.

Towaliga Circuit Assistant District Attorney J. Scott Johnston came under questioning from Justice Robert Benham and Dougherty County Superior Court Judge Denise Marshall, who was sitting in for Justice Keith Blackwell.

Marshall noted that Webster had testified that he would have had to let Mordica leave if Mordica had asked to leave before the search. At what point, she asked, did Webster decide he had probable cause to detain him and search his car?

Between the air freshener, Mordica’s nervousness and his shaky story about purchasing the restaurant, said Johnston, Webster was justified in bringing out his dog. When the dog alerted, he said, the search was warranted.

Benham noted that Mordica had offered evidence that some of his businesses generated a lot of cash and testified that he had brought a large sum of currency to impress the restaurant owner he was en route to see when stopped.

“Was any of that refuted?” asked Benham.

“I did not have any direct evidence to refute it,” said Johnston. But the trial court found that Mordica’s story—he had been released from prison in 2009, and had somehow bought into some businesses and was flush with cash two years later—was less than credible, he said. As the bell rang, Benham had one more question.

“Since this money has been confiscated, and he admitted he made this money, does he owe taxes?” Benham asked.

“It’s our position that he does,” said Johnston.

The case is Mordica v. State, No. S13G0584.

SOURCE: Daily Report, “Seizure of Cash Illegal Without Drug Charge?,”Greg Land, September 25, 2013.