                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania              :
                                          :   No. 1315 C.D. 2013
               v.                         :
                                          :   Submitted: May 9, 2014
William Jackson,                          :
                      Appellant           :


BEFORE:        HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                   FILED: August 11, 2014


               William Jackson (Jackson) appeals, pro se, from the May 20, 2013 order
of the Court of Common Pleas of Philadelphia County (trial court), directing that
$8,603.00 in United States currency be forfeited to the Commonwealth of
Pennsylvania (Commonwealth) pursuant to the Controlled Substances Forfeitures Act
(Forfeiture Act).1 The currency was confiscated from Jackson’s pant pockets during
a search and seizure that the police conducted after a vehicle operated by Jackson ran
a red light and the officers smelled and located marijuana in the vehicle.
               This case returns to us following our decision in Commonwealth v.
Jackson, 53 A.3d 952 (Pa. Cmwlth. 2012) (“Jackson I”), wherein we vacated the trial
court’s order directing forfeiture and remanded for further proceedings. In Jackson I,
this Court initially concluded that although Jackson was acquitted of the underlying

      1
          42 Pa.C.S. §§6801-6802.
drug possession charges, the Commonwealth was not precluded from seeking
forfeiture. Id. at 955-56.2 Next, this Court questioned whether Jackson, by virtue of
being imprisoned at the time, received proper notice of the forfeiture proceedings,
and we remanded the matter “so that the trial court can determine whether Jackson
was properly notified of his right to attend the hearing” and whether Jackson waived
his right to attend the hearing. Id. at 956-97. Finally, this Court was unable to
discern from the record certified on appeal whether Jackson was successful in
suppressing evidence during his criminal trial; accordingly, we further instructed the
trial court on remand “to determine whether evidence it used to support forfeiture of
Jackson’s money was, indeed, suppressed on the basis of an unlawful search and
seizure, and whether there is independent, unsuppressed evidence that the money is
contraband that would support forfeiture.” Id. at 958 & n.9.
               On remand, the trial court ensured that Jackson received proper notice
and Jackson participated in a hearing held on May 20, 2013. At this hearing, Officers
Barry Stewart and Marvin Ruley testified to the following facts. On June 28, 2009, at
approximately 8:00 p.m., Officers Stewart and Ruley stopped a purple Dodge
Charger that was being driven by Jackson because they observed it run a red light.
Officer Stewart noticed an opening of multiple holes in the metal of the car, which he
recognized as being consistent with bullet holes. When the passenger rolled down the

       2
         Under Pennsylvania law, neither a criminal prosecution nor a conviction is required for
property to be deemed forfeitable pursuant to the Forfeiture Act. Commonwealth v. $6,425.00
Seized from Esquilin, 880 A.2d 523, 530 (Pa. 2005); Commonwealth v. 542 Ontario St., 989 A.2d
411, 417 (Pa. Cmwlth. 2010) (en banc) (stating that it “is not necessary . . . that a forfeiture be
supported by an underlying criminal conviction.”) (citation and quotation omitted). The rationale
behind this rule is that forfeiture “is a civil consequence of violating a criminal statute” and,
consequently, “property is forfeited not as a result of a criminal conviction but in a separate civil
proceeding.” Commonwealth v. Assorted Consumer Fireworks, 16 A.3d 554, 558 (Pa. Cmwlth.
2011).



                                                 2
window, the officers smelled a strong odor of burnt marijuana emanating from within
the vehicle. The officers asked the passenger to step out of the car and saw a
marijuana cigarette in the door handle next to his seat. Officer Stewart arrested the
passenger for possession of marijuana and placed him in the back seat of the police
cruiser. Prior to placing the passenger in the cruiser, Officer Stewart conducted a
thorough search of the passenger’s person and effects and located one packet of
marijuana. (Trial court op. at 1-2; Notes of Testimony (N.T.) at 35-37, 64-67.)
               Officer Ruley approached the driver’s side of the car and Jackson was
unable to provide a license, registration, or proof of insurance. Officer Ruley asked
Jackson to step out of the vehicle and noticed large bulges in his pockets. Upon
questioning, Jackson informed Officer Ruley that the bulges were cash, and Officer
Ruley seized $8,603.00 from Jackson’s pockets, which consisted of various common
denominations, including 238 twenty dollar bills, 98 ten dollar bills, and 133 one
dollar bills. Because Officer Ruley was not satisfied with Jackson’s explanations as
the vehicle’s ownership, he declared a “live stop,”3 and Officer Stewart handcuffed
Jackson and placed him in the back of the cruiser next to the passenger. Moments
later, Officer Stewart observed Jackson moving around inside the vehicle and talking
to the passenger so he moved the passenger into another police cruiser. When Officer
Stewart later removed Jackson from the police cruiser, he observed 62 packets of
heroin, 31 packets of crack cocaine, and 1 packet of marijuana on the floor. (Trial
court op. at 1-2; N.T. at 39-40, 66-74.)



       3
         As this Court observed in Jackson I, “[p]ursuant to Section 6309.2(a) of the Vehicle Code,
75 Pa.C.S. §6309.2(a), when a police officer verifies that a person is operating a vehicle without a
valid driver's license or registration, he must immobilize the vehicle, have it towed and stored, and
notify the appropriate judicial authority.” 53 A.3d at 954 n.2.



                                                 3
               In response, Jackson testified that the confiscated money was left over
from student loan and bail refunds and that he was going to use it to purchase a car.
(Trial court op. at 6; N.T. at 110-15.)
               By order dated May 20, 2013, the trial court granted the
Commonwealth’s petition for forfeiture. In its opinion, the trial court explained that
it had examined the record from Jackson’s criminal trial, which reflected that Jackson
had moved to suppress the currency recovered from his pockets; the drugs recovered
from the police cruiser; and inculpatory statements he made while he was in the back
of the cruiser, and his motion had been granted only with respect to the incriminating
statements that he made without receiving Miranda4 warnings; the suppression court
denied Jackson’s motion to suppress the currency and drugs because there was
probable cause to arrest him. The trial court determined that it was bound by the
suppression court’s previous ruling. The trial court also noted that even if it were not
bound, after considering all the evidence and argument presented at the May 20, 2013
hearing, it would have ruled in the same manner as that of the suppression court.
(Trial court op. at 4-5.)
               Having determined that the currency and the drugs were not the
byproduct of an unlawful search or seizure, the trial court then concluded that the
Commonwealth established a sufficient nexus between the currency and unlawful
activity. Specifically, the trial court credited Officer Stewart’s testimony that the
drugs were found in the back of the cruiser where Jackson sat and that the only other
passenger was searched incident to arrest and all drugs were recovered from the
passenger’s person before he was placed in the cruiser. The trial court concluded that
it was a fair inference that the drugs in the cruiser belonged to Jackson and that the

      4
          See Miranda v. Arizona, 384 U.S. 436 (1966).



                                                4
presence of these drugs made it more probable than not that the currency in Jackson’s
pocket was drug-related. (Trial court op. at 5-6).
              Finally, the trial court concluded that Jackson failed to meet his burden
of establishing an innocent owner defense. In so concluding, the trial court found that
Jackson’s testimony was not credible because a year had passed between Jackson’s
receipt of the refunds and his arrest and that it would be impractical for an individual
to carry $8,603.00 as “pocket” money. The trial court also discredited any notion that
Jackson lawfully possessed the money to buy a vehicle. (Trial court op. at 6-7.)
              On appeal to this Court,5 Jackson argues that the police confiscated his
currency and the drugs in an unconstitutional manner and that both of these items
should have been excluded as evidence in the forfeiture proceedings.
              This Court has held:

              It is well settled that the Commonwealth may not
              permanently acquire derivative contraband which it has
              initially seized unconstitutionally.        Because of the
              underlying penal purpose of the forfeiture proceedings, the
              United States Supreme Court had long ago determined that
              the remedy for violations of the Fourth Amendment, the
              exclusionary rule, extends to forfeiture proceedings.

Jackson I, 53 A.3d at 957-58 (quoting Commonwealth v. McJett, 811 A.2d 104, 108
n. 5 (Pa. Cmwlth. 2002)). Therefore, “[o]nly where the government has independent,
unsuppressed evidence that the res is contraband is it entitled to proceed on the merits



       5
           This Court’s scope of review in an appeal from a forfeiture proceeding is limited to
determining whether the trial court’s findings were supported by substantial evidence and whether
the trial court abused its discretion or committed an error of law. Commonwealth v. Real Property
& Improvements Commonly Known as 5444 Spruce Street, Philadelphia, Pa., 832 A.2d 396, 398
(Pa. 2003).



                                               5
in a forfeiture case.”      Jackson I, 53 A.3d at 958 (quoting Commonwealth v.
$26,556.00 Seized From Polidoro, 672 A.2d 389, 392 (Pa. Cmwlth. 1996)).6
              Under Pennsylvania law, an arrest is “any act that indicates an intention
to take the person into custody and subjects him to the actual control and will of the
person making the arrest . . . .” Commonwealth v. Rodriquez, 614 A.2d 1378, 1384
(Pa. 1992) (citation omitted). The police must possess probable cause to effectuate a
warrantless arrest, and probable cause is present where “the facts and circumstances
known to the officer warrant a prudent man in believing that [an] offense has been
committed.” Commonwealth v. Lawson, 309 A.2d 391, 394 (Pa. 1973). “Probable
cause justifying a warrantless arrest is determined by the totality of the
circumstances,” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008), and
“[p]robable cause does not involve certainties, but rather the factual and practical
considerations of everyday life on which reasonable and prudent men act.”
Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005).
              When a police officer makes an arrest supported by probable cause, the
officer may conduct “a search of an arrestee’s person and the area within an arrestee’s
immediate control as a matter of course because of the ever-present risk in an arrest
situation that an arrestee may seek to use a weapon or to conceal or destroy
evidence.” Commonwealth v. Timko, 417 A.2d 620, 622 (Pa. 1980). This type of
search is commonly referred to as a search incident to arrest. Commonwealth v.
Thompson, 778 A.2d 1215, 1221-22 (Pa. Super. 2001).




       6
         Notably, this Court has addressed the constitutionality of searches and seizures in the
context of forfeiture proceedings. See, e.g., McJett, 811 A.2d at 108-09; Commonwealth v.
$16,208.38 United States Currency, 635 A.2d 233, 236-37 (Pa. Cmwlth. 1993).



                                               6
             Here, following a lawful traffic stop, Officers Stewart and Ruley smelled
a strong odor of marijuana emanating from the vehicle. Standing alone, this olfactory
observation gave the officers probable cause to arrest both Jackson and the passenger.
See Commonwealth v. Pullano, 440 A.2d 1226, 1127-28 (Pa. Super. 1982)
(concluding that officers had probable cause to arrest when they smelled marijuana
emanating from an apartment). In addition, during a traffic stop, an officer may order
both the driver and the passenger out of the vehicle as a matter of right.
Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super. 2007). When the passenger
in this case exited the vehicle, the officers observed a marijuana cigarette in plain
view. This is yet another factor establishing probable cause to believe that either
Jackson, the passenger, or both possessed marijuana on their persons or that
marijuana was located within the vehicle. See Commonwealth v. Stoner, 344 A.2d
633, 635 (Pa. Super. 1975) (“The marijuana which was in plain view was sufficient to
establish probable cause for the search of the car.”).      Because the officers had
probable cause to arrest Jackson, Officer Ruley was able to confiscate the currency in
Jackson’s pockets as a matter of right pursuant to a search incident to arrest. Finally,
Officer Stewart acted within his authority when he confiscated the drugs that Jackson
discarded in the cruiser because Jackson was detained lawfully at that time and the
drugs were laying in plain view. See Commonwealth v. Santiago, 736 A.2d 624, 633
(Pa. Super. 1999) (concluding that seizure of drugs in plain view was permissible
where officers were lawfully in an apartment). Therefore, we conclude that the trial
court and/or the suppression court did not err in failing to suppress the currency in
Jackson’s pockets or the drugs that were found in the cruiser.




                                           7
             Jackson also asserts that the trial court erred in failing to conduct a new
suppression hearing during the forfeiture proceedings. We disagree. In the criminal
law context, where multiple prosecutions or retrials have occurred,

             [A] decision by a suppression judge during the first
             prosecution can, upon the motion of the previous prevailing
             party, become part of the second prosecution. The party
             against whom this decision is being offered may offer any
             new evidence which was previously unavailable. Absent
             such new evidence the suppression judge in the second
             prosecution must adopt the findings and conclusions of the
             first judge, and incorporate them into the record.
             Thereupon, the party against whom the first decision is
             offered may have the validity of the decision reviewed on
             appeal.

Commonwealth v. Lagana, 509 A.2d 863, 866 (Pa. 1986) (citation omitted).
             Here, Jackson did not proffer or present any previously unavailable
evidence at the forfeiture hearing with respect to suppression.          We conclude,
accordingly, that the trial court did not err in deeming itself bound by the suppression
court’s previous ruling. See Commonwealth v. Henderson, 520 A.2d 1372, 1373 (Pa.
1987) (concluding that “prior suppression court decisions could be given collateral
estoppel effect, unless the person against whom the decision was rendered alleged
new evidence not previously available.”).
             Next, Jackson contends that the Commonwealth failed to establish a
nexus between the currency and the drugs in the cruiser.

             In a forfeiture proceeding, the Commonwealth has the
             burden to establish, by a preponderance of the evidence,
             that a nexus between the property subject to forfeiture and
             an unlawful activity exists. Preponderance of the evidence
             is tantamount to a “more likely than not” standard. Proof
             by a preponderance of the evidence is often alluded to as a
             weighing of the evidence and a determination based upon
             which way the mythical scales are tipped.

                                            8
             The preponderance of the evidence standard does not
             require the Commonwealth to produce evidence directly
             linking seized property to illegal activity. For example,
             circumstantial evidence can be used to establish a party’s
             involvement in drug activity to support a forfeiture.
             Further, although in most cases drugs are present at the time
             of seizure, there is no requirement that drugs be present.

McJett, 811 A.2d 104 at 110 (citations omitted). If the Commonwealth establishes
the requisite nexus, the burden then shifts to the claimant to establish the innocent
owner defense, namely that the claimant owns the money; he lawfully acquired it;
and the money was not unlawfully used or possessed by him. 42 Pa.C.S. §6802(j).
             Here, we agree with the trial court that the evidence supports the
inference that Jackson possessed 62 packets of heroin, 31 packets of crack cocaine,
and 1 packet of marijuana and discarded these items onto the floor of the police
cruiser. Jackson’s possession of these drugs, coupled with the currency confiscated
from his pockets, makes it more likely than not that the currency was connected to the
narcotics. See Commonwealth v. $259.00 Cash U.S. Currency, 860 A.2d 228, 231
(Pa. Cmwlth. 2004) (en banc) (concluding that claimant’s possession of money at the
same time as his possession of the drugs was more than sufficient to establish the
required nexus). Therefore, we conclude that the Commonwealth has demonstrated
the requisite nexus between the currency and illegal activity.
             Finally, Jackson contends that the trial court’s ruling was against the
weight of the evidence because he had receipts demonstrating that he received
refunds for his bail and student loans.
             With respect to a weight claim,

             [O]ur role is not to consider the underlying question of
             whether the verdict was against the weight of the evidence.
             Rather, we are to decide if the trial court palpably abused its

                                           9
             discretion when ruling on the weight claim. When doing
             so, we keep in mind that the initial determination regarding
             the weight of the evidence was for the factfinder. The
             factfinder was free to believe all, some or none of the
             evidence. Additionally, a court must not reverse a verdict
             based on a weight claim unless that verdict was so contrary
             to the evidence as to shock one’s sense of justice.

Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007) (citations
omitted).
             Here, it was within the trial court’s discretion, as factfinder, to reject
Jackson’s evidence as not credible, in large part, because he received his refund
money over a year prior to his arrest. Therefore, we conclude that the trial court did
not err in determining that forfeiture was not against the weight of the evidence. See
Commonwealth v. Sanders, 42 A.3d 325, 332 (Pa. Super. 2012) (concluding that the
trial court did not abuse its discretion in denying weight claim: “This Court is not
permitted to reweigh . . . credibility determinations on appeal” and the factfinder’s
“decision to credit certain evidence and reject other testimony is appropriate”);
$259.00 Cash U.S. Currency, 860 A.2d at 232 (finding no merit to weight claim
where the claimant “produced supporting documentation in a monthly wage
statement obtained from his former employer” to establish that the money was
lawfully his and the trial court rejected this evidence as not credible).
             Accordingly, we affirm.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                            10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania           :
                                       :    No. 1315 C.D. 2013
            v.                         :
                                       :
William Jackson,                       :
                   Appellant           :


                                   ORDER


            AND NOW, this 11th day of August, 2014, the May 20, 2013 order of
the Court of Common Pleas of Philadelphia County is affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
