Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Koontz, JJ., and Poff, Senior Justice 

HERBERT LEE, ET AL. 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 961029 February 28, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 In this appeal of a civil action for forfeiture 

initiated pursuant to Code § 18.2-249, we consider whether 

there is a "substantial connection" between the forfeited 

items and illegal drug activity. 

 The Commonwealth initiated this proceeding by filing an 

information for forfeiture against Herbert Lee, Pamela 

Denise Montague, $2,881 in United States currency, and a 

1987 Nissan Pathfinder. The Commonwealth alleged that the 

currency and the vehicle were items "used in substantial 

connection with or exchanged for, or traceable to an 

exchange for . . . cocaine." Lee and his sister, Montague, 

contested the forfeiture and the trial court, sitting 

without a jury, found that the currency and the vehicle were 

used by Herbert Lee in substantial connection with the 

possession of cocaine with the intent to distribute. The 

court entered a judgment approving forfeiture of the seized 

items. Lee and Montague appeal. 

 We will review the evidence and all reasonable 

inferences fairly deduced therefrom in the light most 

favorable to the Commonwealth, the prevailing party below. 

 On March 15, 1995, Chesterfield County detectives, Will 
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Morgan and Graham Powell, were involved in a surveillance 

operation and "an undercover" purchase of cocaine. About 

9:45 p.m., Powell entered the parking lot of a restaurant in 

Chesterfield County where he met Chance Taylor, who was 

operating a white van. Powell gave Taylor a quantity of 

cash and asked Taylor for some cocaine. Taylor stated that 

he "had to go to meet his man and get the drugs and bring 

them back to [Powell]." 

 Subsequently, Lee, operating the Nissan Pathfinder, 

drove his vehicle into the parking lot and "pulled up noseto-nose with the van." Lee alighted from the Pathfinder and 

met with Taylor. Then, Lee entered the Pathfinder and drove 

the vehicle from the parking lot to his apartment. Taylor 

gave the drugs to Powell. The drugs were tested and 

identified as cocaine. 

 On March 24, 1995, Powell made another purchase of 

cocaine from Taylor at the same parking lot. On this 

occasion, however, Powell used a pager to contact Taylor 

before the transaction. Taylor called Powell by telephone 

and informed him that Taylor would meet Powell in the 

parking lot in 20 minutes because Taylor "had to go to meet 

his man." When Taylor arrived at the parking lot, Taylor 

had already obtained the cocaine. Lee's Pathfinder was 

observed near the parking lot. 

 In May 1995, the police executed a search warrant of 
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Lee's apartment. The police seized a bag containing powder 

residue, the Nissan Pathfinder, a pistol, and $2,881 in 

currency. Lee admitted to the police officers that he sold 

"about eight to nine ounces a week of cocaine." The police 

also found records detailing drug transactions. The records 

of the drug transactions "correlate with the amounts [of 

cocaine] that were sold." Lee also informed the police 

officers that even though the Nissan Pathfinder was 

registered in Montague's name, "it was his vehicle, [and] he 

had it in her name for insurance purposes only, because the 

insurance was so high with his driving being a young . . . 

unmarried male, under 25." 

 The defendants argue that the Commonwealth failed to 

present sufficient evidence at trial that the currency and 

Pathfinder were used in substantial connection with, or 

derived from, the illegal sale of the cocaine and, 

therefore, a judgment should not have been entered in favor 

of the Commonwealth. The Commonwealth asserts that it 

presented evidence sufficient to permit the fact finder to 

find a substantial connection between the Pathfinder, the 

money, and the cocaine. 

 Code § 18.2-249, which permits the seizure of property 

used in connection with or derived from illegal drug 

transactions, states, in relevant part: 

 "A. The following property shall be subject to 

lawful seizure by any officer charged with 

enforcing the provisions of this article: (i) all 
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money . . . motor vehicles, and all other personal 

and real property of any kind or character, used 

in substantial connection with the illegal 

manufacture, sale or distribution of controlled 

substances or possession with intent to sell or 

distribute controlled substances . . . and (iii) 

all moneys or other property, real or personal, 

traceable to such an exchange, together with any 

interest or profits derived from the investment of 

such money or other property." 

(Emphasis added.) Code § 19.2-386.10 provides that the 

Commonwealth has the burden of proving that the property is 

subject to forfeiture and that the "proof of all issues 

shall be by a preponderance of the evidence." 

 We have not had an occasion to discuss the phrase 

"substantial connection" in the context of Code § 18.2-249. 

 However, federal appellate courts which have applied 21 

U.S.C. § 881, a federal civil forfeiture statute, have held 

that a "substantial connection" must exist between the 

property subject to forfeiture and the illegal drug 

activity. See United States v. Santoro, 866 F.2d 1538, 

1541-42 (4th Cir. 1989). These courts have also discussed 

the meaning of the phrase "substantial connection." For 

example, the United States Court of Appeals for the Fourth 

Circuit has stated: 

 "This standard is a common sense interpretation of 

the statute, which is consonant with the 

congressional intent that the instrumentalities of 

the drug trade be reached, while ensuring that 

property only fortuitously connected with drug 

trafficking be preserved." 

Id. at 1542; accord United States v. Two Tracts of Real 
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Property, 998 F.2d 204, 211 (4th Cir. 1993); United States

v. $95,945.18, U.S. Currency, 913 F.2d 1106, 1110 (4th Cir. 

1990); United States v. Schifferli, 895 F.2d 987, 990 (4th 

Cir. 1990). The "substantial connection" test requires that 

the property subject to forfeiture must have more than an 

incidental or fortuitous connection to the criminal 

activity. Schifferli, 895 F.2d at 990. 

 We are of opinion that a common sense interpretation of 

the phrase "substantial connection" contained in Code 

§ 18.2-249 is consistent with the General Assembly's intent 

to remove from drug traffickers the instrumentalities 

employed in the furtherance of the drug trade rather than 

property only incidentally or fortuitously associated with 

such criminal activity. Applying this standard, we hold 

that the Commonwealth established by a preponderance of the 

evidence a substantial connection between Lee's drug 

activity and the Nissan Pathfinder and the cash. 

 According to Lee's statements to the detectives, he 

considered himself to be the "owner" of the vehicle that was 

registered in his sister's name. The evidence reveals that 

Lee was a co-owner of the Pathfinder before 1994 and that 

his name appears on the bill of sale. Lee admitted that he 

sold "eight to nine ounces" of cocaine each week. On both 

occasions when Powell gave Taylor cash to purchase the 

cocaine, Taylor told Powell that Taylor "had to go to meet 
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his man and get the drugs." The fact finder was entitled to 

infer that Lee was "the man" who provided the drugs to 

Taylor and that, on March 15, 1995, Lee used the Pathfinder 

to transport himself and the drugs to the parking lot where 

the illegal transaction occurred. 

 As we have already mentioned, Lee admitted that the 

large amount of cash found in the apartment belonged to him 

and that he sold "eight to nine ounces" of cocaine weekly. 

A pistol, baggies, and records of drug transactions, which 

correlate to the quantity of drugs that Lee sold weekly, 

were also found in his apartment. This evidence is 

sufficient to establish a substantial connection between the 

money and Lee's illegal drug trafficking activities. 

 Accordingly, we will affirm the judgment of the trial 

court. 

Affirmed.

JUSTICE KOONTZ, with whom JUSTICE KEENAN joins, concurring 

in part and dissenting in part. 

 I concur with the majority's determination that the 

Commonwealth established by a preponderance of the evidence the 

statutorily required substantial connection between Herbert Lee's 

illegal drug activity and his Nissan Pathfinder vehicle, thus 

permitting forfeiture of the vehicle. In my view, however, the 

Commonwealth failed to carry its burden of proving by a 

preponderance of the evidence that the $2,881 seized was subject 

to forfeiture. Code § 19.2-386.10(A). Accordingly, I 
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respectfully dissent. 

 The material facts are not in dispute. Lee admittedly sold 

"about eight to nine ounces a week of cocaine" and the records of 

drug transactions found by the police in his apartment are 

consistent with that admission. These facts provoke an intuitive 

suspicion that the $2,881 also found in Lee's apartment was 

related to Lee's drug dealing. However, the Commonwealth was 

required to prove that this cash was either actually "used in 

substantial connection with the . . . sale or distribution of 

controlled substances" or "traceable to such an exchange." 

Code § 18.2-249. 

 During the search of Lee's apartment, the police found $42 

in the top right drawer of the dresser in Lee's bedroom and the 

remaining $2,839 in a lock box above the cabinets in his kitchen. 

 The record does not establish that either location where cash 

was found had any direct relationship to the records of drug 

transactions or the other items frequently associated with drug 

transactions also found inside the apartment. Nor was any of the 

cash identified as having been used to make the undercover 

purchases of cocaine which led to the subsequent forfeiture 

action. Thus, the Commonwealth's evidence did not connect or 

trace, in any substantial way, either of the two sums of cash to 

the sale or distribution of controlled substances. 

 These sums are not so large as to necessarily exclude the 

possibility that Lee obtained them from legal activity. 
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Moreover, the Commonwealth produced no evidence to show that 

these sums are inconsistent with Lee's other sources of income as 

established by Lee and his witnesses. The trial court must 

determine the weight of the testimony and the credibility of the 

witnesses, but it "may not arbitrarily disregard uncontradicted 

evidence of unimpeached witnesses which is not inherently 

incredible and not inconsistent with facts in the record." 

Cheatham v. Gregory, 227 Va. 1, 4, 313 S.E.2d 368, 370 (1984). 

 The forfeiture of money gained from illegal drug sales is a 

valuable tool in the important and continuing effort to eliminate 

such activity, but the law is not well served if we permit a 

forfeiture of property merely suspected of having a substantial 

connection to the illegal transactions. See Code § 8.01-680; see

also Hankerson v. Moody, 229 Va. 270, 274-75, 329 S.E.2d 791, 794 

(1985) ("A court may not base its findings on a suspicion which 

is contrary to the undisputed positive testimony"). For these 

reasons, I would reverse the trial court's judgment of forfeiture 

of the cash seized from Lee.