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UNITED STATES v. $ 191

February 7, 1992

UNITED STATES OF AMERICA Plaintiff,
v.
$ 191,910 IN U.S. CURRENCY, Defendant, BRUCE R. MORGAN, Claimant.



The opinion of the court was delivered by: THELTON HENDERSON

ORDER

 By this action, the government seeks forfeiture of $ 191,910 in United States currency. The government claims that the money is traceable to a criminal transaction for either the purchase or sale of a controlled substance, in violation of 28 U.S.C. 881(a)(6). By previous order dated August 5, 1991, this Court denied the government's motion to dismiss for lack of standing, and granted in part claimant's motion to suppress. Claimant now moves for summary judgment, for substitution of the named defendant, for a protective order, and for deposit of the seized currency into an interest bearing account. The government moves for reconsideration of our August 5, 1991 Order and to reopen discovery.

 The motions came on for hearing on January 27, 1992 at 10:00 am. After considering the parties' written and oral arguments, and for the reasons stated below, we DENY the government's motion for reconsideration, DENY claimant's motion for substitution of named defendant, GRANT claimant's motion for summary judgment, and DENY AS MOOT claimant's motion for deposit of seized currency and for protective order and the government's motion to re-open discovery.

 FACTUAL BACKGROUND:

 On March 14, 1990, X-ray security personnel at San Diego Airport detected what appeared to be a large amount of currency in claimant's (Morgan's) carry-on luggage. Claimant was preparing to board a flight to Oakland. The X-ray security personnel reported this to the San Diego Harbor Police and identified Morgan to a San Diego Harbor police officer, who approached Morgan in the boarding area. Upon questioning, Morgan stated that he was a gemologist on a business trip to buy jade and that he needed large amounts of cash. Morgan was allowed to proceed to his flight. The officer later stated that at no time were there any facts that established probable cause to arrest Morgan, to further detain him or to seize his luggage.

 The police officer contacted an agent of the San Diego Narcotics Task Force who in turn called agent Buckwalter of the San Francisco International Drug Enforcement Agency, and informed him that Morgan was enroute to Oakland.

 After deplaning in Oakland, Morgan walked toward the rental car area in the Oakland Airport, where he was approached by Agent Buckwalter and another agent, who identified themselves and asked Morgan to answer a few questions. Morgan told the agents his name and provided them with identification and his plane ticket. He told them that he was a gem dealer traveling on business, that he had no narcotics on him and that he did have money that he was traveling with for business. He told them that he had $ 15,000 in cash and allowed the agents to look inside his bags. When asked about the contents of manila envelopes contained in his portfolio case, he told the agents that they contained brochures. Agent Buckwalter stated that Morgan then opened his soft-sided briefcase and revealed a manila envelope which Morgan stated contained $ 15,000 in cash. The envelope was sealed and addressed to an attorney in California.

 Based on Morgan's responses, Buckwalter seized Morgan's bags, and after a delay of at least two hours subjected the bags to a "dog sniff" for narcotics. Although the dog sniff was positive, a search later that evening revealed no drugs. However, the bags contained $ 191,910 in cash.

 On May 1, 1990, the government instituted the instant forfeiture proceeding for the $ 191,910, pursuant to 21 U.S.C. § 881(a)(6), on the grounds that the monies represented proceeds of narcotics sales or purchases.

 On August 5, 1991, we issued an order denying the government's motion to dismiss for lack of standing, and granting in part claimant's motion to suppress. We held that although Agent Buckwalter had reasonable suspicion to detain Morgan, but that the excessive duration of the detention of Morgan's bags before the dog sniff and the fact that the agents failed to comply with the Supreme Court's guidelines concerning the return of seized luggage rendered the seizure of invalid under the Fourth Amendment. We therefore ordered all tangible and intangible evidenced obtained from Morgan's luggage after it was detained by Agent Buckwalter at the Oakland Airport on March 14, 1990 suppressed as evidence in this action.

 DISCUSSION:

 I. MOTION TO RECONSIDER MOTION TO DISMISS

 The government's motion to reconsider basically asks this Court to simply reverse its previous denial of the government's motion to dismiss. Although the government: obviously believes that this Court was wrong, it presents in its present motion exactly the same argument that this Court rejected in August, 1991. The government cites no rule of civil procedure as a basis for such a motion for reconsideration, and clearly does not meet the requirements of Fed. R. Civ. P. 60, which provides for reconsideration in the event of mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, etc. This motion is DENIED.

 II. MOTION TO SUBSTITUTE NAMED DEFENDANT

 Claimant moves to substitute the named defendant in the forfeiture proceeding. He argues that because we ordered all tangible and intangible evidence seized from claimant's luggage suppressed, the contents of the luggage cannot be used at all and the government cannot refer to the currency in any way, not even in the title of the case. The motion is untimely; it was ...


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