Opinion
No. 04-04-00608-CV
Delivered and Filed: August 24, 2005.
Appeal from the 81st Judicial District Court, Frio County, Texas, Trial Court No. 02-12-00385CVF, Honorable Olin B. Strauss, Judge Presiding.
Reversed and Remanded.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
The State of Texas appeals the trial court's no-evidence summary judgment against it in its civil forfeiture suit. We hold the summary judgment record includes more than a scintilla of evidence that the seized money was contraband subject to forfeiture and therefore reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
Factual and Procedural Background
After two police officers stopped a rented van being driven by Francisco Enrique Garcia for a traffic violation, they conducted a roadside investigation and found in the van a toolbox containing $104,000 in United States currency. Garcia denied knowing the money was in the toolbox, but was nonetheless arrested for money laundering. Subsequently, the State filed a civil forfeiture petition pursuant to chapter 59 of the Texas Code of Criminal Procedure and alleged the $104,000 was contraband subject to forfeiture. After Garcia assigned $91,000 of the seized funds to Babek Elham, Elham intervened. Sterling Bank, Elham's creditor, also intervened. Together, they moved for a no-evidence summary judgment, claiming the seized funds were proceeds from the sale of used cars; and "the [S]tate has no evidence that the seized money was in anyway [sic] related to any illegal activity including the purchase and/or sale of illegal drugs." The State responded, relying upon its notice of seizure, the seizing officer's affidavit, a schedule of the seized property, and a lengthy investigative report. After granting certain of Elham's and Sterling Bank's objections, the trial court struck the notice of seizure and portions of the seizing officer's affidavit and the investigative report and then granted the motion. On appeal, the State does not challenge the trial court's order striking portions of its summary judgment evidence; rather, it argues the remaining evidence is sufficient to defeat the motion.
Applicable Law and Standard of Review
Money that is derived from or intended for use in manufacturing, delivering, selling, or possessing a controlled substance is subject to forfeiture . Tex. Crim. Proc. Code Ann. arts. 59.01, 59.02 (Vernon Supp. 2004). To prevail in a forfeiture action, the State must show by a preponderance of the evidence that probable cause exists for seizing the money. Tex. Const. art. I, § 9; State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). Probable cause in this context equates to "a reasonable belief that a `substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.'" $11,014.00, 820 S.W.2d at 784 (quoting $56,700 in U.S. Currency v. State, 730 S.W.2d 659 (Tex. 1987) (quoting United States v. $364,960.00 in U.S. Currency, 661 F.2d 319, 323 (5th Cir. 1981))). Probable cause, like any other ultimate fact, "may be proved by circumstantial evidence." $11,014.00, 820 S.W.2d at 785.
On appeal, we review a summary judgment de novo. Accordingly, a trial court errs in granting a no-evidence summary judgment under Rule 166a(i) if the summary judgment record contains more than a scintilla of summary judgment evidence — sufficient evidence to enable reasonable and fair-minded people to differ in their conclusions — on the challenged element. See Tex. R. Civ. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).
Discussion
The State argues the circumstantial evidence surrounding the seizure constitutes more than a scintilla of evidence that the seized funds were derived from or intended for use in manufacturing, delivering, selling, or possessing a controlled substance. We agree. The State's summary judgment evidence establishes that the $104,000 in currency was folded, banded by rubber bands, vacuum sealed in plastic bags containing fabric softener sheets, and stored in a toolbox made to look as if it had never been opened. Although Garcia argues in reliance upon United States v. $506,231 in U.S. Currency, 125 F.3d 442 (7th Cir. 1997), that the amount of money and its method of storage is immaterial, his reliance is misplaced. In that case, police officers raided a pizzeria and discovered approximately $500,000 in small bills wrapped in plastic bags stuffed inside a forty-four gallon drum hidden in a boarded-up elevator or dumbwaiter shaft. $506, 231 in U.S. Currency, 125 F.3d at 444. In reversing the district court's grant of summary judgment that there was probable cause to believe the money was subject to forfeiture, the court concluded that the amount of money and its method of storage were immaterial in the absence of other evidence connecting the money to drugs or other criminal activity. Id. at 452. That is not the case here. Absent from $506, 231 in U.S. Currency — but present here — is the distinctive manner in which the large amount of currency was wrapped. As the seizing officer noted in his investigate report, the currency in this case was folded, banded by rubber bands, and sealed air-tight in plastic bags containing fabric softener sheets, indications of drug-related activity. See United States v. $141,770.00 in U.S. Currency, 157 F.3d 600, 604 (8th Cir. 1998) ("But where, as here, large sums of currency are not only stowed above the ceiling panel, but also wrapped in scented fabric softener sheets and sealed in three layers of zip-lock bags, the connection to drug trafficking cannot be reasonably disputed."); United States v. $129,727 U.S. Currency, 129 F.3d 486, 490-91 (9th Cir. 1997) ("However, the nexus to drugs was provided by the distinctive manner in which the currency was wrapped in fabric softener sheets and plastic wrap.") United States v. $39,873.00, 80 F.3d 317, 319 (8th Cir. 1996) (noting both that "possession of a large amount of cash (here, nearly $40,000) is strong evidence that the cash is connected with drug trafficking" and that "drug traffickers sometimes use dryer sheets to mask the odor of narcotics"). Because the evidence the State produced constitutes more than a scintilla of evidence that the seized money was contraband subject to forfeiture, we reverse the trial court's judgment and remand the cause for further action consistent with this opinion.