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In re $75

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

IN RE: $75, 000.00 U.S. CURRENCY Appeal by Brian Katz

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-860295

          ATTORNEY FOR APPELLANT James R. Willis.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Jennifer Meyer Assistant County Prosecutor

          BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.


          MARY J. BOYLE, J.

         {¶1} 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 state.

         {¶2} Finding no merit to the assignments of error, we affirm.

         I. Procedural History and Factual Background

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 search.

         {¶9} 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.[1] The money was vacuum sealed, covered in brake grease, and then vacuum sealed again.[2] 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."

         {¶10} 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 car.[3] As for the speeding violation, Lieutenant Hughes only issued Katz a written warning.

         {¶11} 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?
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[.]

         Further, 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 the money.

         {¶12} 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 was lawful.

         {¶13} 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.[4]

         {¶14} It is from this judgment that Katz appeals.

         II. Law and Analysis

         A. ...

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