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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

UNITED STATES OF AMERICA,

CASE NO. CIV. S-04-2397 WBS KJM

Plaintiff,

v. MEMORANDUM AND ORDER RE: 

MOTION FOR SUMMARY JUDGMENT

$50,000.00 IN U.S. CURRENCY

SEIZED FROM WASHINGTON MUTUAL

SAFE DEPOSIT BOX NUMBER

00027392676,

Defendant.

SHANE WELCH AND TIM JASON

ALLEN,

Claimants.

----oo0oo----

Claimants Shane Welch and Tim Jason Allen move for

summary judgment in response to the government’s civil forfeiture

proceedings, which were brought against claimants’ $50,000

pursuant to 21 U.S.C. § 881(a)(6). 

///

///

///

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2

I. Factual and Procedural Background

On June 22, 2004, officers of the Roseville Police

Department executed a state search warrant issued on June 21,

2004. (Compl. ¶ 5(a)). The warrant authorized the search of

Welch’s person, his cars, and his residence located at 1115 South

Bluff Drive, Roseville, California. (Id.; Pl.’s Opp’n to Mot. for

Summ. J. Attach. 1 (App. of Evidence, June 21, 2004 Search

Warrant)). The forced entry search of the residence began around

4:55 p.m. while Welch was not present. (Pl.’s Opp’n to Mot. for

Summ. J. Attach. 2 (Undisputed Facts) at 2). During the search,

officers discovered, among other things, two marijuana buds,

sheets listing names next to numbers (presumed by the police to

be pay/owe sheets), a receipt for a safety deposit box at

Washington Mutual, $1,342 in cash, a digital scale, gallon size

zip lock bags, and cups and bowls containing what officers

thought to be marijuana residue. (Pl.’s Opp’n to Mot. for Summ.

J. Attach. 1 (App. of Evidence, Property Record)). They also

found Welch’s May 30, 2004 pay stub from Ameriquest Mortgage

stating an annual salary of $27,000, (id.), and his tax returns

for 2002 and 2003, documenting Welch’s gross income: $15,529 in

2002 and $19,468 in 2003, (Compl. ¶ 5(c)). 

The officers finished their search before Welch

returned home. However, after being notified of Welch’s arrival

at the residence, Officers Michael Easter and Bryan Fritsch went

back around 11:01 p.m. to complete the search authorized under

the warrant. (Pl.’s Opp’n to Mot. for Summ. J. Attach. 1 (App.

of Evidence, Property Record and Easter Decl. at 2-3)). Officer

Fritsch initiated contact with Welch and assisted with Officer

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Easter’s search of Welch’s person and his 2001 Lexus. 

(Claimants’ Mot. for Summ. J. Ex. A at 16, 22, 39). Both Welch

and his vehicle were on a public street at the time of the

search. (Id. at 39). On Welch’s person and in his car, the

officers found: $4,758 in cash, 17 Vicodin tablets, a receipt for

the Lexus indicating that Welch paid $38,000 in cash for it, and

marijuana residual (in the trunk) (Compl. ¶¶ 5(d), (f)). The

officers also seized Welch’s keys, including a key for a safe

deposit box at Washington Mutual Bank. (Id. ¶ 5(i)).

Based on his experience as a narcotics investigator and

some of the evidence obtained while executing the June 21st

warrant, Officer Easter applied for and received a warrant to

search safe deposit box number 0002-0000739 0000267 6 at

Washington Mutual Bank in Citrus Heights, California. (Pl.’s

Opp’n to Mot. for Summ. J. Attach. 1 (App. of Evidence, June 23,

2004 Search Warrant No. 63-11110, Easter Aff.)). Officer

Easter’s affidavit did not mention the safe deposit box key, but

did refer to the cash, Vicodin, and Lexus receipt found on

Welch’s person. (Id.). The police executed this second warrant

for the safe deposit box on June 23, 2004 and, using the key

found during the June 22nd search, recovered the title to the

2001 Lexus and the $50,000 at issue in this civil forfeiture. 

(Compl. ¶¶ 5(g), (j)). Officer Fritsch’s drug detection dog,

Blax, alerted to the presence of an illegal substance when

presented with the Bank of America deposit bag containing the

$50,000. (Id. ¶ 5(j)).

On July 22, 2004, the Placer County District Attorney’s

Office filed a complaint, alleging that Welch violated Cal.

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Health & Safety Code §§ 11350, 11351, 11352, 11357(b) (covering

possession and sale of controlled substances). (Pl.’s Opp’n to

Mot. for Summ. J. Attach. 2 (Undisputed Facts) at 3). During the

ensuing state court proceedings, all evidence from the search of

Welch’s person and car was suppressed because the warrant did not

provide for nighttime service, as required by Cal. Penal Code §

1538.5. (Id. at 2). Consequently, the charges relating to

possession of the 17 Vicodin tablets were dismissed, leaving only

a misdemeanor marijuana possession charge. (Id. at 6-7). Welch

pled guilty to this count and paid a $100 fine. (Id. at 6).

The United States Drug Enforcement Agency adoptively

seized the $50,000 from Welch’s safe deposit box on July 22,

2004, pursuant to 21 U.S.C. § 881(a)(6) (permitting the

government to seize and forfeit money “furnished or intended to

be furnished by any person in exchange for a controlled

substance”). (Compl. ¶ 3). The government, as plaintiff in this

case, filed suit on November 10, 2004 for forfeiture in rem to

establish its right to the money. (Id.). Claimants objected to

the forfeiture and have filed the instant motion for summary

judgment to divest the government of the $50,000. 

II. Discussion

In their motion for summary judgment, claimants argue

that the evidence used to secure the search warrant for the safe

deposit box was obtained through an illegal search and seizure. 

(Claimants’ P. & A. in Supp. of Mot. for Summ. J. at 4). Based

on that, they conclude that neither the evidence supporting that

warrant nor the fruits of the search it authorized could be used

to establish probable cause in this civil forfeiture case. (Id.

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 Untainted evidence from the 4:55 p.m. search includes: 1

“two guns, [$1,342] in cash, pay/owe sheets, electronic scales,

drug packaging material, . . . bank statements and records

5

at 3-4). 

However, this court finds that the currency was not

illegally seized, regardless of legality of the 11:01 p.m. search

of Welch and his car. As the government correctly notes, “[t]he

mere inclusion of tainted evidence in an affidavit does not, by

itself, taint the warrant or the evidence seized pursuant to the

warrant.” United States v. Vasey, 834 F.2d 782, 788 (9th Cir.

1987). Instead, the Ninth Circuit directs reviewing courts to

“excise the tainted evidence and determine whether the remaining,

untainted evidence would provide a neutral magistrate with

probable cause to issue a warrant.” Id. 

Here, even if the court strikes references to the

$4,758 and the Vicodin tablets found in Welch’s pockets, the

receipt for his Lexus, and his statement that “he had stopped

‘Big time’ drug dealing one month ago,” the affidavit would still

provide sufficient support for the magistrate’s finding of

probable cause to search the safe deposit box. (Pl.’s Opp’n to

Mot. for Summ. J. Attach. 1 (App. of Evidence, Easter Aff. for

Warrant No. 63-11110 at 2-3)). The portions documenting Officer

Easter’s extensive experience as a narcotics investigator, the

June 21st warrant (incorporated as an attachment) authorizing a

search of Welch’s person, car, and home for evidence of marijuana

sales, and the evidence recovered pursuant to the 4:55 p.m.

execution of that warrant are untainted by the allegedly illegal

11:01 p.m. search. (See id.). Although “the quantity of drugs 1

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showing numerous deposits in even dollar amounts such as $1,000,

$300, and $500, and a receipt for a safe deposit box in the name

of Shane Welch held at Washington Mutual Bank.” (Pl.’s Opp’n to

Mot. for Summ. J. Attach. 1 (App. of Evidence, Easter Aff. in

Supp. of Warrant No. 63-11110)) (emphasis added)).

 The fact that the police used the key, arguably the fruit 2

of an illegal search, to open the safe deposit box is irrelevant. 

Pursuant to the June 23rd warrant, issued upon a finding of

probable cause, the officers had a right to open the box. Use of

the key merely permitted them to do so without damaging the

container. Speight v. United States, 671 A.2d 442, 453 n.12

(D.C. 1996).

6

located on Welch” and “his statement that he was involved in

selling in the past” were obtained during the later search, the

same cannot be said for “all the indications that he was involved

in the sale[] of controlled substances.” (Id.). These

indications included both the pre-search information that served

as the basis for the initial June 21st warrant as well the

evidence obtained during the execution of that warrant. 

Moreover, the evidence used to identify the place to be searched

authorized by the June 23rd warrant--the safe deposit box receipt

and not the key--was uncovered during the initial phase of the

search June 22nd search. (Id.). Claimants have not challenged 2

the legality of the 4:55 p.m. search. (Id.). 

In their reply memorandum, claimants do not dispute, or

even address, the government’s arguments that the allegedly

tainted evidence could be excised from the affidavit supporting

the June 23rd warrant. They argue instead that because “[t]he

second warrant contained evidence that was tainted by an illegal

search,” the government did not have probable cause to seize the

$50,000. (Claimants’ Reply at 3 (emphasis added)). 

Unfortunately for claimants, as discussed above, the law does not

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automatically void warrants based on affidavits that merely

contain tainted evidence. If, as here, the court can purge the

tainted evidence and still find grounds for probable cause in

what remains of the affidavit, the validity of the warrant will

be upheld.

III. Conclusion

Claimants’ motion for summary judgment is founded on

their assumptions that (1) the evidence found after 10 p.m. on

June 22, 2004 was illegally seized and (2) this evidence was

essential to the magistrate’s determination of probable cause for

the warrant issued to search the safe deposit box. In light of

this court’s determination that evidence obtained while executing

the June 23rd warrant for the safe deposit box was not illegally

seized, there is no merit to claimants’ argument.

IT IS THEREFORE ORDERED that claimants’ motion for

summary judgment be, and the same hereby is, DENIED. 

DATED: October 4, 2005

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