Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Poff, Senior Justice

HERBERT LEE, ET AL.
                    OPINION BY JUSTICE LEROY R. HASSELL, SR.
v.   Record No. 961029                     February 28, 1997

COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   William R. Shelton, Judge


     In this appeal of a civil action for forfeiture

initiated pursuant to Code § 18.2-249, we consider whether

there is a "substantial connection" between the forfeited

items and illegal drug activity.
     The Commonwealth initiated this proceeding by filing an

information for forfeiture against Herbert Lee, Pamela

Denise Montague, $2,881 in United States currency, and a

1987 Nissan Pathfinder.    The Commonwealth alleged that the

currency and the vehicle were items "used in substantial

connection with or exchanged for, or traceable to an

exchange for . . . cocaine."   Lee and his sister, Montague,

contested the forfeiture and the trial court, sitting

without a jury, found that the currency and the vehicle were

used by Herbert Lee in substantial connection with the

possession of cocaine with the intent to distribute.     The

court entered a judgment approving forfeiture of the seized

items.   Lee and Montague appeal.

     We will review the evidence and all reasonable

inferences fairly deduced therefrom in the light most

favorable to the Commonwealth, the prevailing party below.

     On March 15, 1995, Chesterfield County detectives, Will
Morgan and Graham Powell, were involved in a surveillance

operation and "an undercover" purchase of cocaine.   About

9:45 p.m., Powell entered the parking lot of a restaurant in

Chesterfield County where he met Chance Taylor, who was

operating a white van.    Powell gave Taylor a quantity of

cash and asked Taylor for some cocaine.   Taylor stated that

he "had to go to meet his man and get the drugs and bring

them back to [Powell]."
     Subsequently, Lee, operating the Nissan Pathfinder,

drove his vehicle into the parking lot and "pulled up nose-

to-nose with the van."    Lee alighted from the Pathfinder and

met with Taylor.   Then, Lee entered the Pathfinder and drove

the vehicle from the parking lot to his apartment.   Taylor

gave the drugs to Powell.   The drugs were tested and

identified as cocaine.

     On March 24, 1995, Powell made another purchase of

cocaine from Taylor at the same parking lot.   On this

occasion, however, Powell used a pager to contact Taylor

before the transaction.   Taylor called Powell by telephone

and informed him that Taylor would meet Powell in the

parking lot in 20 minutes because Taylor "had to go to meet

his man."   When Taylor arrived at the parking lot, Taylor

had already obtained the cocaine.   Lee's Pathfinder was

observed near the parking lot.

     In May 1995, the police executed a search warrant of




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Lee's apartment.   The police seized a bag containing powder

residue, the Nissan Pathfinder, a pistol, and $2,881 in

currency.   Lee admitted to the police officers that he sold

"about eight to nine ounces a week of cocaine."   The police

also found records detailing drug transactions.   The records

of the drug transactions "correlate with the amounts [of

cocaine] that were sold."    Lee also informed the police

officers that even though the Nissan Pathfinder was

registered in Montague's name, "it was his vehicle, [and] he

had it in her name for insurance purposes only, because the

insurance was so high with his driving being a young . . .

unmarried male, under 25."
     The defendants argue that the Commonwealth failed to

present sufficient evidence at trial that the currency and

Pathfinder were used in substantial connection with, or

derived from, the illegal sale of the cocaine and,

therefore, a judgment should not have been entered in favor

of the Commonwealth.   The Commonwealth asserts that it

presented evidence sufficient to permit the fact finder to

find a substantial connection between the Pathfinder, the

money, and the cocaine.

     Code § 18.2-249, which permits the seizure of property

used in connection with or derived from illegal drug

transactions, states, in relevant part:
     "A. The following property shall be subject to
     lawful seizure by any officer charged with
     enforcing the provisions of this article: (i) all



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     money . . . motor vehicles, and all other personal
     and real property of any kind or character, used
     in substantial connection with the illegal
     manufacture, sale or distribution of controlled
     substances or possession with intent to sell or
     distribute controlled substances . . . and (iii)
     all moneys or other property, real or personal,
     traceable to such an exchange, together with any
     interest or profits derived from the investment of
     such money or other property."


(Emphasis added.)   Code § 19.2-386.10 provides that the

Commonwealth has the burden of proving that the property is

subject to forfeiture and that the "proof of all issues

shall be by a preponderance of the evidence."
     We have not had an occasion to discuss the phrase

"substantial connection" in the context of Code § 18.2-249.

However, federal appellate courts which have applied 21

U.S.C. § 881, a federal civil forfeiture statute, have held

that a "substantial connection" must exist between the

property subject to forfeiture and the illegal drug

activity.   See United States v. Santoro, 866 F.2d 1538,

1541-42 (4th Cir. 1989).   These courts have also discussed

the meaning of the phrase "substantial connection."   For

example, the United States Court of Appeals for the Fourth

Circuit has stated:
     "This standard is a common sense interpretation of
     the statute, which is consonant with the
     congressional intent that the instrumentalities of
     the drug trade be reached, while ensuring that
     property only fortuitously connected with drug
     trafficking be preserved."

Id. at 1542; accord United States v. Two Tracts of Real




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Property, 998 F.2d 204, 211 (4th Cir. 1993); United States

v. $95,945.18, U.S. Currency, 913 F.2d 1106, 1110 (4th Cir.

1990); United States v. Schifferli, 895 F.2d 987, 990 (4th

Cir. 1990).    The "substantial connection" test requires that

the property subject to forfeiture must have more than an

incidental or fortuitous connection to the criminal

activity.     Schifferli, 895 F.2d at 990.

     We are of opinion that a common sense interpretation of

the phrase "substantial connection" contained in Code

§ 18.2-249 is consistent with the General Assembly's intent

to remove from drug traffickers the instrumentalities

employed in the furtherance of the drug trade rather than

property only incidentally or fortuitously associated with

such criminal activity.    Applying this standard, we hold

that the Commonwealth established by a preponderance of the

evidence a substantial connection between Lee's drug

activity and the Nissan Pathfinder and the cash.
     According to Lee's statements to the detectives, he

considered himself to be the "owner" of the vehicle that was

registered in his sister's name.     The evidence reveals that

Lee was a co-owner of the Pathfinder before 1994 and that

his name appears on the bill of sale.    Lee admitted that he

sold "eight to nine ounces" of cocaine each week.    On both

occasions when Powell gave Taylor cash to purchase the

cocaine, Taylor told Powell that Taylor "had to go to meet



                               -5-
his man and get the drugs."   The fact finder was entitled to

infer that Lee was "the man" who provided the drugs to

Taylor and that, on March 15, 1995, Lee used the Pathfinder

to transport himself and the drugs to the parking lot where

the illegal transaction occurred.

     As we have already mentioned, Lee admitted that the

large amount of cash found in the apartment belonged to him

and that he sold "eight to nine ounces" of cocaine weekly.

A pistol, baggies, and records of drug transactions, which

correlate to the quantity of drugs that Lee sold weekly,

were also found in his apartment.   This evidence is

sufficient to establish a substantial connection between the

money and Lee's illegal drug trafficking activities.
     Accordingly, we will affirm the judgment of the trial

court.

                                                   Affirmed.
JUSTICE KOONTZ, with whom JUSTICE KEENAN joins, concurring
in part and dissenting in part.


     I concur with the majority's determination that the

Commonwealth established by a preponderance of the evidence the

statutorily required substantial connection between Herbert Lee's

illegal drug activity and his Nissan Pathfinder vehicle, thus

permitting forfeiture of the vehicle.     In my view, however, the

Commonwealth failed to carry its burden of proving by a

preponderance of the evidence that the $2,881 seized was subject

to forfeiture.   Code § 19.2-386.10(A).   Accordingly, I


                              -6-
respectfully dissent.

     The material facts are not in dispute.     Lee admittedly sold

"about eight to nine ounces a week of cocaine" and the records of

drug transactions found by the police in his apartment are

consistent with that admission.    These facts provoke an intuitive

suspicion that the $2,881 also found in Lee's apartment was

related to Lee's drug dealing.     However, the Commonwealth was

required to prove that this cash was either actually "used in

substantial connection with the . . . sale or distribution of

controlled substances" or "traceable to such an exchange."

Code § 18.2-249.
     During the search of Lee's apartment, the police found $42

in the top right drawer of the dresser in Lee's bedroom and the

remaining $2,839 in a lock box above the cabinets in his kitchen.

The record does not establish that either location where cash

was found had any direct relationship to the records of drug

transactions or the other items frequently associated with drug

transactions also found inside the apartment.    Nor was any of the

cash identified as having been used to make the undercover

purchases of cocaine which led to the subsequent forfeiture

action.   Thus, the Commonwealth's evidence did not connect or

trace, in any substantial way, either of the two sums of cash to

the sale or distribution of controlled substances.

     These sums are not so large as to necessarily exclude the

possibility that Lee obtained them from legal activity.




                             -7-
Moreover, the Commonwealth produced no evidence to show that

these sums are inconsistent with Lee's other sources of income as

established by Lee and his witnesses.   The trial court must

determine the weight of the testimony and the credibility of the

witnesses, but it "may not arbitrarily disregard uncontradicted

evidence of unimpeached witnesses which is not inherently

incredible and not inconsistent with facts in the record."

Cheatham v. Gregory, 227 Va. 1, 4, 313 S.E.2d 368, 370 (1984).
     The forfeiture of money gained from illegal drug sales is a

valuable tool in the important and continuing effort to eliminate

such activity, but the law is not well served if we permit a

forfeiture of property merely suspected of having a substantial

connection to the illegal transactions.   See Code § 8.01-680; see

also Hankerson v. Moody, 229 Va. 270, 274-75, 329 S.E.2d 791, 794

(1985) ("A court may not base its findings on a suspicion which

is contrary to the undisputed positive testimony").   For these

reasons, I would reverse the trial court's judgment of forfeiture

of the cash seized from Lee.




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