Hearing Examiner #: HE-03-MISC-062 Planning #: Incident #:03B-37697 Filing Date:10/09/2003 City Contact:Les Reardanz Hearing Date: 01/08/2004 Description: Forfeiture Hearing request of Sabir S. Kahn re seizure on 8/28/03 of $29; 300 US currency Decision Date: 02/10/2004 Decision Summary:Forfeited to BPD
This matter came before the Bellingham Hearing Examiner for hearing on the 8th day of January 2004 on the claim of Sabir S. Khan to $29,300 in U.S. currency seized by the Bellingham Police Department on August 28, 2003. The Bellingham Police Department was represented by Les Reardanz, Assistant City Attorney. Sabir Khan was represented by Ijaz Khan. Testimony was received from Bellingham Police Officers Crawford, Elmendorf, Woodward and Washington State Trooper Laughlin. Sabir Khan and Larry Kristoff appeared telephonically. In addition to the Bellingham Municipal Code the following documents were considered as part of the record: See Exhibit List.
I. FINDINGS OF FACT 1. On August 28, 2003 Bellingham Police officers seized two packages of U.S. currency, one containing $10,300 and the other containing $19,000. Notice of the Seizure and Forfeiture of this currency pursuant to RCW 69.50.505 was provided to Sabir S. Khan on September 3, 2003 by Police Chief Randall H. Carroll. By letter of counsel, Ijaz Khan, dated October 8, 2003 Sabir Khan requested a hearing regarding the forfeiture of the currency. The parties stipulated to the hearing date of January 8, 2004. 2. At the close of testimony Ijaz Khan requested additional time to submit affidavits from several witnesses. An additional week was allowed to submit additional written evidence and argument. Additional time, to January 22, 2004, was allowed to submit an affidavit from a witness residing in India. 3. Ijaz Khan submitted written statements from two individuals during the week following the hearing. Les Reardanz submitted a post-hearing brief and two police reports signed under penalty of perjury during the week following the hearing. Each party was allowed one additional week, to January 22, 2004, to respond to new material submitted after the hearing. No additional responses were received. 4. On August 28, 2003 Bellingham Police Detectives Crawford, Woodward, Lanham and Elmendorf of the Special Investigations Unit were working a drug detail at the Bellis Fair Mall in Bellingham. They were working an area referred to as the "zone" between the Food Court and the Red Robin restaurant. During such operations the detectives watched cars and behaviors of persons for indications of drug trafficking. In the experience of the detectives the Bellis Fair Mall, and the "zone" in particular are areas where drug trafficking occurs. The area is popular with drug traffickers for the exchange of money and/or drugs due to its ease of access and prominent location. 5. At approximately 4:30 p.m. on August 28th Detective Elmendorf observed a black BMW with British Columbia plates pull into the parking lot in the "zone". Two males got out of the vehicle and walked to the cinema/food court entrance of the mall. A black Ford Expedition parked near the BMW. One male got out of the Ford and walked up to the two males from the BMW. Detective Woodward followed these three individuals. The drivers of the two vehicles walked together while the other man sat in the food court. The two drivers were followed for about one hour. During this time they did not go into any stores, except the Penney's store used to exit the mall, and did not buy any items. One of the individuals, later identified as N.T., made a call at a pay phone. The other person made cell phone calls. N.T. exited the mall through the Penney's store. The other person went back to the food court and met a third person. These two individuals went outside the mall and sat on a wall, then walked over to the Ford Expedition and got in. Neither of these men had made purchases. 6. When contacted the two men indicated that they were friends and had driven to the mall together. They said they were waiting for N.T. but were going to leave because he didn't show up and they didn't know where he had gone. One of the men stated that he was unemployed and N.T. had asked him to drive to Bellingham with him from Canada. The two vehicles came across the border at the Peace Arch crossing at 3:32 and 3:36 p.m. Both men said they had no plans to pick up money during the trip. They denied knowledge of the money eventually found by the detectives. 7. Detective Crawford observed a person walk into the mall with a "Just Sports" bag and walk out without the bag. There is no Just Sports store in the Bellis Fair mall. 8. Mr. N.T. walked to the Red Robin restaurant from the Penney's exit, across the parking lot. He walked by the Ford Expedition, paused and looked inside the vehicle. He went into the restaurant. After about 5 or 10 minutes he came out by himself. He got into the front passenger seat of a white Dodge Caravan minivan parked about halfway between the restaurant and the food court entrance to the mall. Another man was in the driver's seat of the minivan. The minivan was then driven to the east side of the restaurant, no more than 200 yards from where it had been previously parked. 9. The minivan was driven by Larry Kristoff. He got a black duffel bag out of the back of the van then went back into the front seat of the vehicle. The occupants of the minivan were observed doing something in the center console area of the vehicle. Detectives approached the passenger side of the vehicle. They could observe a bundle of U.S. currency on the floorboard between the men. Mr. N.T. fumbled with a cell phone and tried to put it on the floor of the van. The occupants got out of the vehicle and talked to the detectives. 10. Detectives Crawford and Elmendorf talked separately with the two men. Mr. Kristoff said that the bag was just clothes. There were clothes in the bag, but also more stacks of currency. The currency was folded over and banded. There were two bundles with 20s, 50s and 100s. Kristoff told the detective the money came from winnings at the Nooksack Casino. He didn't know how much money was there and he had no documentation for the money. He then changed his story and said the money was given to him by Sabir Khan who was in the Red Robin. 11. Mr. N.T. told the detective that he had loaned Kristoff $10,000 and he was paying it back. He said that there might be $30,000 in the car. He then said he might want to talk to an attorney. 12. While the detectives were talking to Kristoff and N.T. the two men were trying to communicate with each other. One of them used a hand signal, moving a hand back and forth across his neck, which the detective interpreted to mean, "be quiet". 13. Sabir Khan came out of the Red Robin while the detectives were talking to Kristoff and N.T. and approached the minivan. Detective Elmendorf contacted him. He said that he had only known Kristoff for a few days. He said he had no idea of any money and that he hadn't given money to Kristoff. 14. Two-way radios were found on the floor of the minivan. Kristoff said he liked to talk to friends while driving. 15. The Dodge Caravan had been rented by Sabir Khan from Enterprise Rental in the Seattle area on August 26th. Sabir Khan told the detective that he rented the vehicle for Kristoff because Kristoff did not have a credit card. 16. Detectives called Washington State Patrol Trooper Laughlin to the scene with his K-9 Dixie. Trooper Laughlin has been with the K-9 drug dog since 1999. Dixie's deployments have been tracked and documented. The dog and handler have substantial training, certified in accordance with the Washington Administrative Code. Dixie has had 715 successful finds in 779 deployments. In 18 applications resulting in applications for warrants 17 found illegal drugs. In the 18th case the trooper was advised that subjects had been smoking marijuana prior to the dog alert. In five instances Dixie did not indicate when drugs were present. Dixie has been trained to indicate on all controlled substances but not to indicate on money in general circulation. The dog indicates that an item is contaminated by residue or odor of controlled substances. Dixie has not alerted on money in general circulation in numerous exercises. 17. Individuals involved in the drug trade commonly transfer residue of controlled substances from their hands to money during handling. 18. Dixie alerted to the presence of controlled substances on the bag which had held the currency found in the front of the minivan and on the three bundles of money that had been in the bag. A "Just Sports" bag was found in the rear of the minivan. This is the same kind of bag that was observed previously by Detective Crawford. This bag contained a large amount of currency. The dog alerted to this currency as well, indicating that the money had been in contact with controlled substances. After the dog alerted to the money Kristoff said that the money was "stinky money". The bag found in the rear of the vehicle was found inside a factory compartment. 19. Dixie was applied to the BMW and the Ford Expedition but did not indicate on either of those vehicles. 20. Trooper Laughlin's report, including a resume of experience and training for Dixie and the trooper, is Exhibit 7. 21. A total of $10,300 in U.S. currency was found in the front of the minivan. An additional $19,000 was found in the rear. The $10,300 stack of bundles included two $100 bills, 22 $50 bills, and 450 $20 bills. The $19,000 stack of bundles included 58 $100 bills, 48 $50 bills, 537 $20 bills, five $10 bills and two $5 bills. Photographs of the bundles are marked as Exhibit 5. 22. There is a $10,000 limit on the amount of currency that one person can carry across the Canadian border. Individuals in three vehicles could transport up to $30,000 across the border. 23. $29,300 is consistent with the market price for ten pounds of marijuana in the area south of Seattle. 24. The detectives have substantial experience with drug trafficking. 25. The following behaviors observed by the detectives are commonly associated with drug trafficking: meetings occurring in the "zone" area of the mall, use of pay phones even though individuals have cell phones with them, checking out vehicles that are intended to transport cash across the border, the use of a rental vehicle, bugs in the grille of the vehicle, possession of two-way radios, and possession of a large amount of cash, in small denominations, bundled and banded, with the odor or residue of controlled substances. It is typical that money used in drug transactions is found separate from the drugs. The money is not usually exchanged at the same time as the controlled substances. It is typical for marijuana to be transported south from Canada to California and for the money to be transported north to Canada. 26. Sabir Khan testified by telephone from his office in Federal Way. Mr. Khan lives in Kent, Washington. He states that he has no residence in Canada. He works as a tax preparer for Jackson Hewitt. Mr. N.T. is his cousin. Mr. Kristoff is a friend of Mr. N.T.. Khan met Kristoff through his cousin a few days prior to August 28. 27. Mr. Khan stated that a portion of the money was for investment in a company, Oracle Energy Corporation, which Larry Kristoff was promoting. He testified that the total investment in Oracle was $19,200. He said that he had $8,000 of his own money and other sums, $10,000, $8,000 and $3,000, were loaned by others. He also said he owed N.T. $10,000. 28. Larry Kristoff testified by telephone from his office in Vancouver, B.C. He stated that he is in venture capital investor relations, currently working on oil and energy. He states he has been a contract worker for Oracle since 2000. He has known N.T. for five years. He traveled to Seattle in August 2003 with N.T. and met Khan. He states that N.T. was called back to Vancouver and he remained in the Seattle area with Khan. He states that N.T. asked him to pick up $10,000 for him for Oracle. He said that he takes a 10% commission. He states that Khan got a hotel room for him north of Seattle and rented a car for him. He had to pay Khan for the car rental. He says that Khan showed him a good time, and that they drove mostly around the Seattle area. He went to Bellingham with Khan, who was going to return the rental car. He was going to be picked up by N.T. to return to Vancouver. He states that he left Khan in the Red Robin to go shopping in the mall. N.T. got into the car in the parking lot. He says he got the duffel bag out of the back to show N.T. pictures of Khan with strippers. They were then approached by officers, who he says were quite pleasant and not threatening. He says he had money in his pocket that he won at the Casino and that he had already pulled out $1,500 for his commission. He was unaware of the additional $19,000 that was found in the car. He states that Oracle had been publicly traded for about eight years and was trading at 13 cents with 20,000 volume. 29. A Private Placement Subscription Agreement was presented, Exhibit 19. This agreement purports to be an agreement by Sabir Khan to purchase 175,000 units of securities issued by Oracle Energy Corporation for a purchase price of 15 cents CDN. per unit, for a total of $26,250 CDN. The agreement is dated August 15, 2003 and states that the purchase price is payable upon execution of the agreement. A Surrey, B.C. address and telephone number is listed on the agreement for the Subscriber, Sabir S. Khan. It indicates that it was accepted on August 15, 2003 by Oracle Energy Corporation. The signature for the authorized signatory of Oracle is illegible. The email address listed for the Issuer, Oracle Energy Corporation is nN.T.@oracleenergy.com. The signature for Sabir Khan on the Subscription agreement bears no resemblance to the signature of Sabir Khan on the car rental agreement for the Dodge Caravan, Exhibit 8. 30. Statements dated December 4, 2003 were submitted on behalf of Sabir Khan. These statements are purportedly from Sean Hansen, Mohammed Ali Khan and Manjit Chahil. In addition, a letter purportedly from Sheila Foster was submitted. The City objected to the admission of these statements at the hearing because they were not sworn or signed under penalty of perjury. Additional time was allowed for submission of sworn statements. Statements of Sean Hansen and Mohammed Ali Khan were resubmitted with the signature and stamp of a notary public. However, the statements were not sworn, declared under penalty of perjury, or even acknowledged. These statements are hearsay, and are not the sort of evidence normally relied on by reasonably prudent persons in the conduct of their affairs. None of these individuals have submitted a claim to the funds. 31. The chronology of events submitted on behalf of Mr. Khan is also not reliable evidence in this proceeding. It is a recitation of events prepared by counsel, but contains many statements that are not supported by evidence in the record. 32. The testimony of Sabir Khan that the money found in the minivan was loaned to him by other individuals or received by his wife in a drawing, and was intended for an investment in Oracle Energy Corporation, is not credible given his statements to the detectives denying knowledge of the money and denying that he had given any money to Kristoff, Kristoff's lack of knowledge regarding the $19,000 found in the "Just Sports" bag, the lack of any documentation of the loans, and the circumstances surrounding the purported subscription agreement set forth above. 33. Two police reports were submitted on January 15, 2004 on behalf of the Bellingham Police Dept., Exhibits 17 and 18. Khan objects to the admission of these reports after the hearing. However, at Khan's request the record was left open until January 15th for the submission of sworn statements. An additional week was allowed for response to these submissions. These reports are signed under penalty of perjury by a Tukwila police officer and a Washington State Trooper. These reports describe two incidents, in December 2002 and January 2003, in which Sabir Khan was arrested for possession of controlled substances, specifically marijuana and cocaine. In one of the incidents cash in the amount of $9,920 was seized from Mr. Khan. At the hearing Ijaz Khan stated that there was no prior history of illegal drug transactions and elicited testimony from a detective that he did not know of any U.S. criminal record for Sabir Khan or prior drug dealing history for him. Clearly the detectives did not utilize information regarding past drug transactions in determining probable cause for the seizure. However, this information is relevant rebuttal evidence. The reports which are signed under penalty of perjury are reliable and are the type of evidence that is ordinarily relied upon by reasonably prudent persons in the conduct of their affairs. 34. RCW 69.50.505(a)(7) provides that all moneys furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter and all monies used or intended to be used to facilitate any violation of this chapter are subject to seizure and forfeiture and no property interest exists in them.
II. CONCLUSIONS OF LAW 1. Forfeiture proceedings are governed by RCW 34.05. 2. The Bellingham Police Department is required to establish by a preponderance of the evidence that the currency seized is subject to forfeiture under RCW 69.50.505. 3. The Bellingham Police Department had probable cause to seize the bundles of currency, totaling $29,300, in this case. 4. The Department established a prima facie case to establish that the currency is subject to forfeiture. The claimant's Motion to Terminate Proceedings is denied. 5. The Department has established, by a preponderance of the evidence, that the currency was furnished, or intended to be furnished in exchange for a controlled substance in violation of RCW 69.50, and that it is subject to forfeiture. The evidence supporting this conclusion includes the totality of circumstances, including: a) a large amount of currency in small denominations, bundled and banded in a manner consistent with drug trafficking, in an amount consistent with the price of approximately ten pounds of marijuana; b) the only person to claim the property, Sabir Khan, denied any knowledge of the money to the detectives at the scene of the seizure and denied that he had given any of the money to Mr. Kristoff; c) inconsistencies in the stories told to police by Mr. Khan, Mr. Kristoff and Mr. N.T. regarding the money; d) Mr. Khan's testimony that the money was intended for an investment in Oracle Energy Corporation is not credible, nor is his story plausible; e) a drug dog with sophisticated training, shown to be reliable in alerting to the presence of controlled substances, without indicating drugs on money in general circulation, indicated the presence of controlled substances on the money and the bags in which they were contained; f) the observation of a man entering the mall with a "Just Sports" bag and leaving without it prior to the discovery of the currency, together with the discovery of $19,000 of the currency in a "Just Sports" bag, when no Just Sports store is located in the mall; g) the presence of multiple individuals and multiple vehicles, including a rental van, meeting in an area of the mall known to detectives as a high drug trafficking area, and suspicious behavior of these individuals, including meeting and walking through the mall without making any purchases or entering stores, using pay phones, the presence of two-way radios in the van, and Mr. N.T. surveying one of the vehicles that had come to the mall from Canada, all in a manner consistent with drug trafficking; h) the concealment of the $19,000 bundles in a rear compartment, unknown to Mr. Kristoff; and i) the experience of the detectives that money and drugs are rarely found together in drug transactions. The evidence detailed in the two police reports in which Mr. Khan was observed in possession of marijuana and cocaine, as well as a substantial amount of cash, also supports, but is not necessary to arrive at, this conclusion. 6. Direct evidence linking the seized money to a specific drug transaction is not required in order to establish that money is subject to forfeiture. Circumstantial evidence, of the kind presented in this proceeding, is sufficient to establish that the money was furnished, or intended to be furnished, in exchange for controlled substances. 7. Any Finding of Fact that should be denominated a Conclusion of Law shall be deemed to be a Conclusion of Law. Any Conclusion of Law that should be denominated a Finding of Fact shall be deemed to be a Finding of Fact.
III. ORDER The U.S. currency in the total amount of $29,300 seized on August 28, 2003 from the Dodge Caravan minivan rented by Sabir S. Khan is subject to forfeiture and is deemed forfeited to the Bellingham Police Department, pursuant to RCW 69.50.505. Sabir S. Khan has no property interest in said currency. Reconsideration and appeal of this decision are governed by RCW 34.05. Any request for reconsideration must be filed and served within 10 days of this order. Any appeal must be filed in Superior Court and served on all parties within 30 days of this order.
I'm wondering if there is defamation case here. Some think a message board is the wild west. But you can get a subpoena to appear in court for posting flat out lies about a person, nevermind slander a person. Even if it is under an alias "buttholesurfer99" on a message board... JMHO.
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