The “common sense” connections between drugs, cash and guns has long been used to create a self-proving circle of evidence against a defendant. After all, drugs are illegal. Selling drugs gets one cash. Drugs dealers use guns to protect their illegal drugs and money from other drug dealers and the police. When a cop finds drugs, cash and guns, what else could it be?
Then again, there may be no connection at all between drugs, cash and guns. But over the past few decades, the assumption has become so ingrained that it’s been universally enjoyed by police and prosecutors, such the mere mention has served to justify everything from no-knock nighttime warrants to seizures of cash from law-abiding citizens. Judges have similarly accepted the assumptions and shifted the burden to prove “innocence” to the defense, a negative burden that is almost impossible to prove.
But in the Western District of North Caroline, Chief Judge Martin Reidinger had enough.
At a traffic stop for overly tinted windows, a police officer smelled marijuana, and indeed found marijuana in the car. He also found a lot of cash, which was seized, on the theory that it was likely to be drug proceeds. No, said Chief Judge Martin Reidinger (W.D.N.C.) in U.S. v. Approximately $13,205.54 in U.S. Currency Seized from Rahkim Franklin: “[T]he totality of the evidence presented by the Government fails to establish by a preponderance of the evidence that the Defendant Currency seized during the August 21, 2018 traffic stop was proceeds traceable to an exchange for controlled substances within the meaning of 21 U.S.C. § 881(a)(6).” (Apparently the cash had been intended to be a down payment on a house.)
Notably, the stop was putatively based on “overly tinted windows,” a favorite for Whren pretext stops and almost invariably wrong, but close enough to give rise to the appearance of a colorable claim for the stop. Upon stopping the car, Deputy Wilmer Chavez-Perez smelled weed, and found some loose droppings on the carpet. Asking the driver if he had a weapon, Rahkim Franklin responded that he only had cash on him. He was on his way to the bank to deposit the cash, which had been put together to buy a house, but when he was denied a mortgage, was going to be used to pay off his car loan.
At this point, there are two pieces to the triad. There’s cash. And there’s a guy who smoked marijuana in his car. Nothing about smoking a joint, and the deputy finding some “shake” on the carpet suggests that this was a drug dealer rather than a fairly regular guy who smoked an occasional joint. This is not to say that smoking weed while driving isn’t foolish and dangerous, but what it is not is proof that the driver was a drug dealer. Until, that is, they also found cash.
But Franklin was able to proffer some evidence that the cash was legitimate, so the government played its ace in the hole.
In a footnote, the Government points out that Mr. Franklin also owns several firearms, which the Government contends “have long been recognized as being ‘tools of the drug trade.'” [Doc. 87 at 6 n.2 (quoting in part United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999)]. It is undisputed, however, that Mr. Franklin owned these firearms legally; he is not a convicted felon or an otherwise prohibited person. Further, none of Mr. Franklin’s firearms were subject to forfeiture by the Government.
The Government has not presented any evidence from which this Court could reasonably conclude that these firearms were owned for the purpose of furthering any criminal activity. For the Government to suggest that a citizen’s mere possession of firearms implicates that person in illicit drug trafficking is to strain credulity. The Government’s argument presents some Second Amendment considerations that counsel has apparently not considered.
This was the third leg of the triad, historically more than enough to overcome any lingering doubts of criminality. Drugs, Cash, Guns. What else could the driver be than a drug dealer? What else could the money be than drug proceeds? And this has been more than sufficient in thousands of cases to prevail.
Not this time. An outgrowth of Heller and McDonald is the recognition that the Second Amendment right to possess guns means that the otherwise lawful possession of firearms can’t be used to boostrap the other two pieces, cash and drugs, into proof that the driver must be a drug dealer. He’s not merely allowed to have guns. It’s his constitutional right to possess them. The exercise of a constitutional right cannot be used to prove criminality.
Curiously, Franklin did as much as humanly possible to create the appearance that he was a bit of a gangster on social media, and earned his “living” as a bit of a hustler without paying taxes.
Mr. Franklin engages in a number of cash-only money-making activities, including car detailing, dog breeding, and reselling luxury items and clothes that he purchases with a Neiman-Marcus credit card.
Mr. Franklin does not know what his annual income is, and he does not file tax returns.
Mr. Franklin uses social media and his connection to rappers in the hip-hop community to depict a lifestyle that enhances his status in the community and promotes his business activities.
For example, Mr. Franklin frequently posts photos on social media depicting him wearing luxury items, posing with motorcycles and automobiles, displaying firearms, and traveling to various locales, such as Greece, Italy, and Mexico.
Mr. Franklin admitted that many of the items depicted in these posts are borrowed or merely props, and that almost all of the designer clothing depicted in the photos were later sold for a profit.
And then comes the kicker.
Mr. Franklin’s grandmother pays for his housing, utilities, and food.
Despite a lifestyle that almost certainly failed to impress Judge Reidinger, the court refused to let the government connect the dots.
While Mr. Franklin’s business activities are unorthodox by conventional business school standards, and admittedly not in compliance with the tax laws, Mr. Franklin’s evidence is quite plausible. Importantly, the Government has presented nothing in an attempt to refute this evidence. The burden of proof is on the Government, and based on the competing evidence regarding Mr. Franklin’s sources of income, the Court finds and concludes that the Government has failed to meet its burden that Mr. Franklin’s evidence is untrue.
Franklin is hardly the poster boy for an upstanding citizen, but the court rejected the government’s contention that if there are drugs, cash and guns, that was close enough to invoke the standard assumptions that this was Franklin was a drug dealer and this was drug money forfeitable to the government.
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