Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9

PAUL K. CHARLTON United States Attorney District of Arizona DAVID A. PIMSNER Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 007480 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America,
10

CR-04-0608-PHX-DGC Plaintiff, v. GOVERNMENT'S RESPONSE TO MOTION FOR RETURN OF PROPERTY Defendant.

11 12

James Wayne Smith,
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The United States of America, by and through its undersigned attorney, hereby responds to the James W. Smith's Motion for Return of Property and respectfully requests that the motion be denied for lack of jurisdiction. In support of its response, the government states as follows: I. FACTS On May 18, 2004, while traveling on Interstate 10 near Casa Grande, Arizona, James W. Smith was stopped for a traffic violation by Officer Telles, a uniformed patrol officer with the Arizona Department of Public Safety. Smith provided the officer with a suspicious story regarding his travel itinerary. The officer then conducted a records check of Smith. While waiting for a response, the officer ran his drug detection dog around the exterior of the vehicle. The dog alerted on the vehicle. During a subsequent search, the officer discovered and seized approximately $299,030.00 in United States currency concealed in the trunk. On May 18, 2004, Officer Telles provided Smith with a written Notice of Property Seizure & Pending Uncontested Forfeiture (See Exhibit A). On June 9, 2004, the Pinal County Attorney's Office filed an Initiation of Civil Forfeiture Proceedings in Pinal County Superior

Case 2:04-cr-00608-DGC

Document 26

Filed 04/03/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Court (See Exhibit B). On August 2, 2004, the Honorable William J. O' Neil, Superior Court Judge, ordered that the money be forfeited to the State of Arizona. The currency at issue was not seized by federal agents or ever in the possession of the United States government. II. POINTS AND AUTHORITIES A person aggrieved by an unlawful federal search and seizure may move the District Court for the return of property pursuant to Rule 41, Federal Rules of Criminal Procedure. However, the rule clearly relates to federal searches or by searches conducted by state law enforcement officers with direct federal authorization. See, United States v. Huffhines, 986 F.2d 306 (9th Cir. 1993). In the case at hand, there was no federal search or direct federal authorization for the search conducted by Officer Telles. Additionally, when the State has possession of the property, a motion for return of property is properly denied. See, United States v. White, 718 F.2d 260 (8th Cir. 1983). Accordingly, Smith's motion for return of property should be denied. III. CONCLUSION The currency was seized solely by a state officer and was the subject of a judicial forfieture order in Pinal County. Smith's cause of action, if any, should be directed to the State of Arizona and not the federal government. Accordingly, the government requests that the motion for return of property be denied. Respectfully submitted this 3rd day of April, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

2 Case 2:04-cr-00608-DGC Document 26 Filed 04/03/2006 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE
I hereby certify that on April 3, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: Peter B. Keller 115 West Washington Street Tucson, AZ 85701 [email protected] s/ David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

Case 2:04-cr-00608-DGC

Document 26

Filed 04/03/2006

Page 3 of 3