Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE: $75, 000.00 U.S. CURRENCY Appeal by Brian Katz
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT James R. Willis.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Jennifer Meyer Assistant County
BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, J.
Claimant-appellant, Brian Katz, appeals the trial court's
judgment, ordering the forfeiture of the $75, 000 seized from
him on March 11, 2016. On appeal, he raises two assignments
of error for our review:
1. The court erred when it denied the motion to suppress and
for the return of illegally seized property.
2. Given the state cannot seize money from an individual,
with or without probable cause, and require the person from
whom it was seized to prove it was lawfully acquired, it
follows the court erred when it forfeited this money to the
Finding no merit to the assignments of error, we affirm.
Procedural History and Factual Background
On March 11, 2016, the state filed a complaint for civil
forfeiture of the $75, 000 found in Katz's vehicle
pursuant to R.C. 2981.05. On May 31, 2016, Katz filed a
motion to suppress the money found during the traffic stop.
At the hearing on both the motion to suppress and forfeiture,
the following evidence was presented.
In January 2016, Detective Payne with the city of Broadview
Heights was assigned to the Cleveland, Ohio high intensity
drug trafficking area ("HIDTA"). Along with other
HIDTA assigned officers, Detective Payne was conducting
surveillance on a number of individuals suspected of drug
trafficking who were traveling to and from the Cleveland
Hopkins Airport and leaving and entering multiple hotels and
residences throughout their stays in Cleveland. During his
surveillance, Detective Payne conducted criminal history
checks of the observed individuals and even approached them
in the airport and searched their bags after receiving their
consent to do so; however, he and the other officers found
nothing of evidentiary value in their bags. Detective Payne
and HIDTA officers also searched one of the hotel rooms where
the individuals stayed, finding drug residue and other
materials that Detective Payne testified were commonly used
to package and transport drugs.
On February 15, 2016, HIDTA officers observed one of the
individuals pick up two males at the airport, one being Katz.
The individual dropped Katz off at a hotel in Cleveland,
where Katz paid cash for a one night's stay. The next
day, HIDTA officers observed Katz travel to a Cleveland
residence with the same males from the day before. At the
residence, Katz entered a 2014 Toyota Camry with California
license plates and drove away.
HIDTA officers continued to follow Katz and informed a local
Ohio State Highway Patrol officer, Lieutenant Hughes, that
they suspected Katz to be a drug courier and gave him a
description of the vehicle. Lieutenant Hughes subsequently
observed Katz's vehicle traveling over the speed limit on
Interstate 71. Lieutenant Hughes paced Katz's vehicle at
a speed over the speed limit for a short distance and then
activated his emergency lights and conducted a traffic stop
at approximately 1:39 p.m.
After approaching the vehicle and asking for Katz's
license and registration, Lieutenant Hughes requested Katz to
accompany him to his vehicle and conducted a pat down of
Katz's person. While sitting in the police cruiser,
Lieutenant Hughes ran Katz's information. During this
time, Katz asked for a break, but did not deny that he was
speeding. Approximately five minutes after Lieutenant Hughes
stopped Katz and during the time that Lieutenant Hughes was
running Katz's information, Officer Andrejack of the
Cleveland Police Department and his canine partner arrived at
the scene upon request from HIDTA officers. While encircling
the vehicle, the canine positively alerted. Subsequent to
that alert, Lieutenant Hughes read Katz his Miranda
warnings and asked him if there were drugs or money in the
vehicle. Katz stated, "Not that I know of." Katz
was then securely placed in the back of a patrol car.
Lieutenant Hughes and other officers began to search the
vehicle on the side of Interstate 71; however, due to weather
conditions and safety concerns, the officers requested a tow,
deciding to conduct the search at the Brookpark State Highway
Patrol post instead. Katz was also transported to the post
and held in a separate room while the police conducted their
A search of the vehicle yielded 13 bundles of U.S. currency,
totaling $75, 000, which was hidden in the vehicle's rear
rocker panels. The money was vacuum sealed, covered in
brake grease, and then vacuum sealed again. Upon finding the
money and confirming that he was already Mirandized
and understood his rights, Detective Payne then interviewed
Katz. When Detective Payne asked him about the money, Katz
stated that it was "absolutely not" his and denied
knowing about the hidden compartments in the vehicle. Katz
provided a signed statement to Detective Payne, stating,
"I never knew about money found in car. It's not my
money. 2014 Camry."
Before letting Katz - who was not placed under arrest - leave
for the airport, the officers gave Katz a receipt for the
money, vehicle, and other property inside the
As for the speeding violation, Lieutenant Hughes only issued
Katz a written warning.
At the forfeiture hearing and contrary to his earlier
statements to police, Katz claimed that the money belonged to
him and was his life savings. Specifically, the following
exchange took place at the hearing:
ATTORNEY: [W]ho owned the money?
MR. KATZ: Me.
ATTORNEY: And how long had that money been in that car?
MR. KATZ: In that car for two years.
ATTORNEY: Yes. And what's the source of that money?
MR. KATZ: It's been income I've been earning for the
last 25, 30 years.
ATTORNEY: Your life savings?
MR. KATZ: Yes. I lost a lot of money in 2008, in the crash,
because I had most of my funds in the stock market[.] * * *
So I decided to keep my money, to hide it, and I paid taxes
on the money anyway, because it was income. So it was my
hard-earned money for 44 years[.]
when asked why he initially denied knowledge and ownership of
the money, Katz explained that he believed he would be
arrested for a hidden-compartments violation if he claimed
In its opinion and judgment entry, the trial court denied
Katz's motion to suppress, finding that the traffic stop
was constitutional because Katz was speeding, the traffic
stop was not unlawfully prolonged, the police had probable
cause to search the vehicle because the canine alerted, and
the police's removal of the vehicle to the patrol post
Additionally, the trial court found that Katz failed to
establish his ownership of the funds. Nevertheless, the trial
court considered the merits of the forfeiture action and
additionally found that the state proved by a preponderance
of the evidence that the money was subject to forfeiture.
Specifically, the court stated that it was:
more probable than not * * * that $75, 000 in currency,
wrapped in plastic, coated with brake grease to avoid scent
detection, then vacuum sealed and placed in [a] hidden
compartment in a vehicle, is either proceeds derived from or
acquired through the commission of an offense or an
instrumentality that was used in or intended to be used in
the commission or facilitation of a felony.
It is from this judgment that Katz appeals.
Law and Analysis