IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

 :

v. : No. 1229 C.D. 2016

 : Argued: September 13, 2017

$301,360.00 U.S. Currency and :

One 2011 Lexus, RX350, :

VIN #2T2BK1BA48C081250 :

 :

Appeal of: Clarissa Vasquez :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: April 4, 2018

In this appeal, we examine the Commonwealth’s burden of proof to justify 

forfeiture of property under the Controlled Substances Forfeiture Act (Forfeiture

Act),2 when, at a traffic stop on a known drug route, no controlled substances were 

 

1 This case was argued before an en banc panel of the Court that included former Judge 

Joseph M. Cosgrove. Because Judge Cosgrove’s service on the Court ended January 1, 2018, this 

matter has been submitted on briefs to Judge Covey as a member of the panel.

2

42 Pa. C.S. §§ 6801–6802. We note that while this appeal was pending, the General 

Assembly repealed those sections of the Forfeiture Act by the Act of June 29, 2017, P.L. 247,

effective July 1, 2017. The Forfeiture Act is now codified at 42 Pa. C.S. §§ 5801-5808. However, 

the prior statute remains applicable in this appeal and is referenced herein as the Forfeiture Act. 
2

found and no arrests were made, although $301,360 in cash was found hidden in a

secret compartment in the vehicle. The Court of Common Pleas of Monroe County 

(trial court) found that the cash and vehicle had been used in illegal drug trafficking 

in violation of the Controlled Substance, Drug, Device and Cosmetic Act (Drug 

Act),3 based on 27 “indicators” of illegal activity. Although we agree that the 

presence of this cash, under the totality of the circumstances here, is highly 

suspicious, we cannot find that these suspicions are sufficient to establish the 

requisite substantial nexus between the cash and vehicle and violations of the Drug 

Act. We must therefore reverse. 

I. Background

On June 11, 2014, Enrique Laporte (Laporte) was driving west with his 

passenger, Zaida Lopez (Ms. Lopez), both New York residents, on Interstate 80 in 

Monroe County, Pennsylvania, in a 2011 Lexus RX3504(Lexus) later found to be 

titled in the name of Luis Lopez and registered to Clarissa Vasquez (Vasquez), when 

he was pulled over for tailgating. During the traffic stop, Pennsylvania State Police 

(PSP) Corporal Nicholas Cortes (Corporal Cortes) observed numerous indicators of 

criminal activity, including, inter alia, the overwhelming odor of air fresheners, 

various prayer cards in the dashboard area, Laporte’s tattoos,5the vehicle traveling 

on a known drug route, and the driver’s and passenger’s criminal histories and 

 

3 Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101-780-144. 

4 The vehicle’s identification number (VIN) is #2T2BK1BA48C081250.

5 Laporte’s tattoos included the following: one reading “Dirty Money” with money bags 

next to it; one of Yosemite Sam holding money bags; one of a gun; one reading “Money is the 

Root of all Evil”; one of Papa Smurf holding a gun; one of a figure surrounded by marijuana; and 

one that appeared to be of Santa Muerte. The trial court explained, based on Corporal Cortes’ 

testimony, that Santa Muerte is a so-called “narco saint” to whom one engaging in the trafficking 

of drugs or drug paraphernalia might pray for safe passage. (Trial Ct. Op. at 4.) 
3

inconsistent stories, which he opined connected Laporte and Ms. Lopez to illegal 

drug trafficking. Corporal Cortes sought permission to conduct a search of the 

Lexus. After Laporte consented to the search, Corporal Cortes and another trooper 

discovered thirteen vacuum-sealed and separately duct-taped packages containing 

the $301,360 (Cash) in a hidden compartment between the back seat and cargo area 

of the Lexus. PSP seized the Cash and Lexus. Laporte and Ms. Lopez denied 

ownership or knowledge of the Cash and signed currency disclaimer forms to that 

effect. Laporte received a warning for tailgating, and he and Ms. Lopez were 

released. It is undisputed that no drugs or drug paraphernalia were found in the 

vehicle, and no criminal charges were ever filed in relation to the seized Cash or 

Lexus. A week later, an ion scan of the Cash was performed and revealed trace 

amounts of four different controlled substances, including cocaine, heroin, procaine, 

and tetrahydrocannabinol (THC). An ion scan of the compartment revealed trace 

amounts of heroin and THC. 

The Commonwealth filed a petition for forfeiture and condemnation in 

September 2014. Vasquez, who was not present in the vehicle during the traffic

stop, challenged the forfeiture. Upon consent of Vasquez, the Commonwealth filed 

an Amended Petition for Forfeiture and Condemnation (Amended Petition) in 

December 2015, averring that the owner of both the Cash and Lexus was unknown 

but that the Lexus was registered to Vasquez at the time of the seizure and that 

Laporte and Ms. Lopez denied ownership or knowledge of the Cash and signed 

disclaimer forms to that effect. (Am. Petition ¶¶ 5(A)-(B), 7(G).) The 

Commonwealth maintained that the Cash was “furnished or intended to be furnished 

by any person in exchange for a controlled substance, in violation of the” Drug Act,

“was proceeds traceable to such an exchange,” or was “used or intended to be used 
4

to facilitate any violation of [the Drug] Act, or is otherwise subject to forfeiture under 

the [Drug Act].”

6

 (Am. Petition ¶ 8.) 

Vasquez filed an Answer and New Matter to the Amended Petition, admitting 

that the Lexus was registered to her at the time of the seizure and denying that the 

owner was unknown. She averred lawful ownership of the Lexus and the Cash and, 

accordingly, requested that all of the seized property be returned to her. 

In February 2016, the Commonwealth filed an Answer to the New Matter, 

acknowledging, inter alia, that PSP had not filed any criminal charges as a result of 

the seizure but denying that there was nothing illegal found in the Lexus, in that 

significant residual amounts of numerous controlled substances were discovered, 

through the use of ion scans, on the seized Cash and in the Lexus. In addition, the 

Commonwealth learned through discovery that the Lexus was titled in the name of 

Luis Lopez in September 2014 but registered to Vasquez. The matter was scheduled 

for trial. 

Prior to trial, Vasquez filed two motions in limine on March 21, 2016. In her 

first motion in limine, Vasquez argued that the forfeiture of the Cash and Lexus 

constitutes an excessive fine. (Reproduced Record (R.R.) at 22a-23a.) Vasquez’s 

second motion in limine sought to preclude the Commonwealth from presenting 

evidence, through the testimony of Staff Sergeant Jennifer Marsh of the 

Pennsylvania Army National Guard’s Counter Drug Joint Task Force (National 

Guard), who conducted the ion scans of the Cash and compartment and who had 

been deposed by Vasquez. Vasquez challenged Staff Sergeant Marsh’s 

qualifications as an expert and the methodologies used in scanning the Cash and 

 

6 These quoted provisions of the Forfeiture Act relate only to the forfeiture of money. See

42 Pa. C.S. § 6801(a)(6)(i)(A), (B). However, in its Amended Petition, the Commonwealth 

maintained that both the Cash and Lexus are subject to forfeiture. (See Am. Petition ¶ 8.) 
5

compartment, including, inter alia, Staff Sergeant Marsh’s use of only 

Pennsylvania’s casual contact level for cocaine found on currency in general 

circulation, her alleged failure to follow the same procedures utilized in conducting 

ion scans in banks, the absence of any evidence that the seized Cash was circulated 

in Pennsylvania, and possible cross-contamination. (Id. at 17a-21a.) The trial court 

did not rule on the motions in limine. 

Subsequently, the Commonwealth filed a Motion for Order of Forfeiture, 

acknowledging that Vasquez remained the only person who had sought return of the 

Cash and Lexus, characterizing Vasquez as “a sham claimant,” and averring that 

Laporte, Ms. Lopez, and Luis Lopez had not filed an answer or otherwise asserted 

any claim to the Cash or Lexus.

7

 (Motion for Order of Forfeiture, R. Item 49.) On

March 30, 2016, the trial court issued an order declaring that “[a]ll claims of right, 

title and interest of Enrique Laporte, Zaida Lopez and Luis Lopez in the . . . [Cash 

and Lexus] is . . . terminated, revoked and rendered null and void.” (Trial Ct. Order, 

Mar. 30, 2016, R. Item 49.) 

A Non-Jury Trial was held on April 6, 2016, at which the Commonwealth 

presented the testimony of Corporal Cortes and Staff Sergeant Marsh of the National 

Guard.

8

 It also presented eleven exhibits, which included a New York State 

Department of Motor Vehicles (DMV) record showing that the Lexus is registered 

 

7 We note that the January 4, 2016 rule to show cause was issued against Laporte and Ms. 

Lopez only, not Luis Lopez or Vasquez. (R. Item 34.) 

8 The Commonwealth also presented the testimony of Trooper Javier Garcia of the PSP 

Southeast Strike Force drug unit, who is fluent in Spanish, interviewed Laporte and Ms. Lopez, 

and explained the disclaimer forms to them; Trooper Thomas Winnberg of the PSP asset forfeiture 

unit, who maintained the chain of custody of the Cash; and Thomas Liszkiewicz, a fingerprint 

specialist with the Department of Homeland Security, Immigration and Customs Enforcement 

Forensic Laboratory, who processed a partial fingerprint belonging to Luis Lopez, which was 

found on a piece of duct tape on one of the packages found in the compartment. 
6

to Vasquez and titled in Luis Lopez’s name, and an excerpt from Vasquez’s 

deposition. Vasquez did not testify at trial, nor did she present any witnesses or 

evidence on her own behalf. 

Following the Non-Jury Trial, the trial court granted the Commonwealth’s 

Amended Petition. The trial court determined that the Commonwealth established 

a substantial nexus under the Forfeiture Act based upon evidence of 27 indicators of 

criminal activity, including the ion scan evidence, that caused it to believe that the 

Cash and Lexus were connected to illegal drug activity. (Trial Ct. Op. at 17-18.) 

Specifically, with regard to the Cash, the trial court found, based upon the totality of 

the circumstances, that the Cash was “furnished or intended to be furnished” by a 

person in exchange for controlled substances or “used or intended to be used to 

facilitate” violations of the Drug Act, stating further that it “would have to suspend 

all common sense, logic, and reason to find this [Cash] is not connected to violations 

of the [Drug] Act.” (Id. at 19.) Regarding the Lexus, the trial court relied upon the 

same circumstantial evidence as the Cash to “find a sufficient or substantial nexus 

between the [Lexus] and facilitation of a [Drug Act] violation.” (Id. at 20.) The trial 

court also determined that Vasquez failed to rebut the presumption of forfeiture by 

proving the innocent owner defense under Section 6802(j) of the Forfeiture Act, 42 

Pa. C.S. § 6802(j). 

Vasquez appealed,9 arguing, inter alia, that the trial court erred in: 

(1) determining that the Commonwealth met its burden of establishing a substantial 

nexus between the seized Cash and Lexus and a violation of the Drug Act; (2) finding 

 

9 Our review of a forfeiture appeal “is limited to determining whether the findings of fact 

made by the trial court are supported by substantial evidence, and whether the trial court abused 

its discretion or committed an error of law.” Commonwealth v. $6,425.00 Seized from Esquilin, 

880 A.2d 523, 529 (Pa. 2005). 
7

a rebuttable presumption in favor of forfeiture; and (3) not finding that the forfeiture 

of the Cash and Lexus violates the Eighth Amendment to the United States 

Constitution and Article I, Section 3 of the Pennsylvania Constitution as an 

“excessive fine.” 

II. Analysis

The Forfeiture Act authorizes the forfeiture of a vehicle which “in any manner 

. . . facilitate[s] the transportation, sale, receipt, possession or concealment of” 

controlled substances under the Drug Act. 42 Pa. C.S. § 6801(a)(4). The Forfeiture 

Act also permits the forfeiture of money that is: (1) “furnished or intended to be 

furnished by any person in exchange for a controlled substance in violation of” the 

Drug Act; (2) “proceeds traceable to such an exchange”; or (3) “used or intended to 

be used to facilitate any violation of” the Drug Act. 42 Pa. C.S. § 6801(a)(6)(i)(A)-

(B); Commonwealth v. $34,440.00 U.S. Currency (Falette), 174 A.3d 1031, 1039

(Pa. 2017). In a forfeiture proceeding involving either money or a vehicle, the 

Commonwealth bears the initial burden of establishing, by a preponderance of the 

evidence, that a substantial nexus exists between the property subject to forfeiture 

and a violation of the Drug Act.10 Commonwealth v. $6,425.00 Seized from Esquilin, 

880 A.2d 523, 529 (Pa. 2005). “A preponderance of the evidence is tantamount to 

a ‘more likely than not’ standard.” Id. The Commonwealth need not establish one 

 

10 Our Supreme Court recently reaffirmed that the Commonwealth may establish its initial 

burden of proving a substantial nexus between seized currency and illegal drug activity by relying 

solely upon the rebuttable presumption in Section 6801(a)(6)(ii) of the Forfeiture Act. Falette, 

174 A.3d at 1046. Section 6801(a)(6)(ii) provides that money “found in close proximity to 

controlled substances possessed in violation of” the Drug Act “shall be rebuttably presumed to be 

proceeds derived from the selling of a controlled substance in violation of” the Drug Act. 42 Pa. 

C.S. § 6801(a)(6)(ii). In this case, the Cash was not found in close proximity to any controlled 

substances, and therefore, the presumption does not apply. 
8

of the above bases for forfeiture with “evidence directly linking the seized property 

to illegal activity, nor is a criminal prosecution or conviction required to establish 

the requisite nexus.” Falette, 174 A.3d at 1039 (citing Esquilin, 880 A.2d at 529-

30). Instead, the Commonwealth may satisfy its burden of establishing a party’s 

involvement in illegal drug activity by circumstantial evidence. Id. at 1040.

However, the Commonwealth must establish more than the possibility or a mere 

suspicion of a nexus. Commonwealth v. Marshall, 698 A.2d 576, 578-79 (Pa. 1997). 

Once the Commonwealth has met its initial burden of establishing a substantial 

nexus between the seized property and illegal drug activity, the burden of proof shifts 

to the claimant to prove that he or she is the owner of the property, acquired the 

property lawfully, and did not use or possess the property unlawfully. 42 Pa. C.S. § 

6802(j). 

We are aware that “the law generally disfavors forfeitures, requiring forfeiture 

statutes to be strictly construed,” Falette, 174 A.3d at 1039 (citing Commonwealth 

v. 1997 Chevrolet and Contents Seized from Young, 160 A.3d 153, 193 (Pa. 2017)), 

and that forfeiture cases “are fact sensitive cases.” Commonwealth v. $9,000 U.S. 

Currency (Collins), 8 A.3d 379, 384 (Pa. Cmwlth. 2010). 

A. Waiver

On appeal, Vasquez argues that the trial court erred in determining that the 

Commonwealth met its burden of establishing a substantial nexus between the seized 

Cash and Lexus and a violation of the Drug Act. In addition to challenging the 

Commonwealth’s evidence as a whole, Vasquez contends that the ion scan evidence 

is insufficient, as a matter of law, to sustain the Commonwealth’s burden. The 

Commonwealth responds that Vasquez waived her challenges to the ion scan 
9

evidence because she failed to object to that evidence at trial and did not ask the 

court to rule on the pending motion in limine in that regard. We, therefore, initially 

address whether Vasquez waived her challenges to the ion scan evidence. 

In its 1925(a) opinion, although it conceded that it did not rule on her motion 

in limine, the trial court determined that Vasquez waived her arguments with regard 

to the ion scan evidence because Vasquez did not object to that evidence at trial. 

(1925(a) Op. at 7-8.) While we agree with the trial court that, to the extent Vasquez 

sought to preclude Staff Sergeant Marsh’s testimony through the motion in limine, 

any argument in that regard is waived. The parties agreed to qualify Staff Sergeant 

Marsh as an expert for a limited purpose,she proceeded to testify, and Vasquez made 

no other objection to preclude her testimony. (R.R. at 135a-36a.) However, 

Vasquez has preserved her argument that the ion scan evidence is not sufficient to 

sustain the Commonwealth’s burden. Vasquez argues that the Commonwealth has 

not sustained its burden of establishing a substantial nexus between the seized 

property and a violation of the Drug Act with the testimony of Staff Sergeant Marsh. 

The record establishes that Vasquez challenged the sufficiency of the 

Commonwealth’s evidence throughout these proceedings. Initially, Vasquez 

successfully limited Staff Sergeant Marsh’s testimony to only her operation of the 

ion scanner device and the reading of the results. Then, at the close of the 

Commonwealth’s evidence, Vasquez raised numerous legal challenges to the ion 

scan evidence in support of her motion for compulsory nonsuit, which the trial court 

denied. (Id. at 193a-97a.) Accordingly, we conclude that Vasquez preserved her 

legal challenges to the sufficiency of the ion scan evidence, which are now properly 

before this Court. 
10

B. Substantial Nexus

1. Ion Scan Evidence

We next address whether the Commonwealth met its burden of demonstrating 

a substantial nexus with its ion scan evidence. Vasquez argues that the ion scan 

results are meaningless because the Commonwealth did not compare those results 

to any casual contact levels from any relevant geographic area. (Vasquez’s Br. at 

16 (quoting Collins, 8 A.3d at 387).) She further asserts that the ion scan was not 

conducted in a way that prevents a small number of bills from affecting the overall 

results and that the ion scan should have been conducted in the same manner as it 

would have been performed in a bank. The Commonwealth contends that the trial 

court properly accepted the ion scan evidence to establish the presence of controlled 

substances on the Cash and in the compartment. The Commonwealth submits that 

ion scan evidence should be admissible, generally, to prove the presence of 

controlled substances other than cocaine on seized currency and other items, and, in 

such situations, casual contact levels should not be required because data does not 

exist for substances not typically found on currency in general circulation. 

(Commonwealth’s Br. at 36.) The Commonwealth also maintains that the ion scans 

were properly conducted in accordance with established testing procedures. 

In its 1925(a) opinion, the trial court justified its reliance on the ion scan 

evidence on the basis that Staff Sergeant Marsh’s testimony was limited to her 

personal operation of the ion scanner and the results of the ion scan, which, the trial 

court stated, was all it considered. (1925(a) Op. at 9.) The trial court further 

explained its consideration of Staff Sergeant Marsh’s testimony stating that it “made 

no mention [in its initial Opinion] of ion scan data from other states, and did not take 

into account whether the currency had ever been circulated in Pennsylvania, as no 
11

comparison to the Pennsylvania ‘casual contact level’ was ever made at trial.” (Id.) 

It also noted the Commonwealth’s confirmation that Staff Sergeant Marsh had not 

been called to testify regarding casual contact levels. (Id.) 

Staff Sergeant Marsh testified that trace amounts11 of illicit substances are 

normally found on currency in general circulation, and those amounts vary by 

geographic region. (R.R. at 149a, 157a.) The average trace amount of a controlled 

substance found on cash in general circulation in a particular geographic region is 

known as the casual contact level. Because the casual contact level of an illicit 

substance may be found on currency in general circulation, the mere presence of this 

level on tested currency does not demonstrate a nexus to illegal activity. Collins, 8 

A.3d at 387. 

Furthermore, under our case law, in order for an ion scan to be relevant, and 

thus, admissible, the currency tested must be compared to the casual contact levels 

in the geographic region in which the currency was circulated. Id. at 388. In Collins, 

an ion scan revealed levels of cocaine on seized cash that were approximately three 

times higher than the casual contact level for cocaine on cash established in 

Pennsylvania. Id. at 382. However, the witness used the casual contact level for 

Pennsylvania, while the evidence showed that Collins was a West Virginia resident, 

the car was owned by his sister and was registered in New York, and he was driving 

from West Virginia to New York on an interstate highway when he was stopped by 

police. Id. at 388. The Court found there was no evidence that the seized money 

was ever circulated in Pennsylvania, thereby rendering the Pennsylvania casual 

contact level irrelevant. Id. Therefore, in Collins, the ion scan evidence was not 

sufficient to meet the Commonwealth’s burden. 

 

11 Staff Sergeant Marsh testified that an ion scan device is set to detect the presence of 

controlled substances on currency in parts per billion. (R.R. at 164a-65a.) 
12

In this case, Staff Sergeant Marsh testified on cross-examination that she used

only the 2014 casual contact level for cocaine in Pennsylvania, (R.R. at 161a-65a), 

although she did not testify what those casual contact levels were.12 However, the 

evidence established that Laporte and Ms. Lopez were New York residents, the 

Lexus was registered to another New York resident, Vasquez, and Laporte and Ms. 

Lopez were traveling from New York to Illinois on an interstate highway when they 

were pulled over. The Commonwealth did not present any evidence that the Cash 

was ever circulated in Pennsylvania, and Staff Sergeant Marsh testified that she 

could not speculate as to whether the Cash had ever been circulated in Pennsylvania. 

(R.R. at 161a.) Pursuant to Collins, ion scan evidence is irrelevant where the 

Commonwealth fails to compare the level of a controlled substance found on seized 

money with the casual contact level obtained from the relevant geographic area in 

question and prove that the money had ever been circulated in that region. Collins, 

8 A.3d at 388. Thus, the casual contact level for Pennsylvania is irrelevant here.13

Absent evidence of the casual contact levels from the relevant geographic areas, the 

ion scan test results are irrelevant and, thus, inadmissible.14 Accordingly, we 

 

12 As Vasquez points out, Staff Sergeant Marsh testified only to the percentages and types 

of controlled substances found, and not the casual contact levels of the relevant geographic areas. 

(Vasquez’s Br. at 17-18.) The trial court found Staff Sergeant Marsh’s testimony in that regard 

unusual, stating to counsel for the Commonwealth, “you did something a little bit different this 

time than you normally do . . . you didn’t have her testify to casual contact levels at all, correct?” 

(R.R. at 172a.) Counsel responded that the trial court was correct. 

13 As for the other drugs found on the Cash, Staff Sergeant Marsh also testified that there 

are no casual contact levels in Pennsylvania for those substances. (R.R. at 161a-62a, 164a, 170a.) 

14 We recognize that Staff Sergeant Marsh testified that, in her experience, she had never 

seen an ion scan alarm to the presence of these four substances on currency at the same time, as 

she did here. (R.R. at 145a.) While we are troubled by this testimony, its relevance suffers from 

the same infirmity as the other ion scan evidence. Without either casual contact evidence for the 

relevant geographic area, or evidence that, because the substance is not typically found on cash in 
13

conclude that the trial court erred in relying upon the ion scan evidence under these 

circumstances.15 See Commonwealth v. $17,182.00 U.S. Currency (King), 42 A.3d 

1217, 1220 (Pa. Cmwlth. 2012) (parties agreed that trial court correctly excluded ion 

scan evidence based on Collins because Commonwealth did not present any 

evidence that the seized money was ever circulated in Pennsylvania and evidence 

established that the relevant geographic area was New York); see also

Commonwealth v. $15,000 U.S. Currency (Williams), 31 A.3d 768, 775 n.6 (Pa. 

Cmwlth. 2011) (concluding that trial court correctly determined that ion scan 

evidence was irrelevant and inadmissible based on Collins because Commonwealth 

did not present any evidence that the seized money was ever circulated in 

Pennsylvania and evidence established that the relevant geographic areas were New 

York and New Jersey). 

2. Other Indicators of Illegal Activity

We next consider whether the remaining evidence upon which the trial court 

relied was sufficient to establish a nexus between the seized Cash and Lexus and 

illegal drug activity. Specifically, the trial court relied on the following indicators 

of illegal activity identified in Corporal Cortes’ testimony in finding a nexus: (1) 

multiple air fresheners/overwhelming odor; (2) prayer cards, including that of a 

known “narco saint”; (3) Laporte’s money and tattoos; (4) the Lexus’s occupants’ 

criminal histories; (5) their untruthful statements about their criminal histories; (6) 

the Lexus’s registration to an absent third party; (7) the recent registration of the 

 

general circulation in that geographic area, there is no data, this general statement is not sufficient 

to prove a substantial nexus between the Cash and a violation of the Drug Act. 

15 Due to our disposition on this issue, we need not consider Vasquez’s other arguments 

regarding the ion scan evidence. 
14

Lexus; (8) the Lexus’s presence on a known drug route; (9) inconsistent stories about 

where the driver lived; (10) where Laporte and Ms. Lopez were going; (11) how 

they met up with each other in Brooklyn; (12) Laporte’s repeated requests for 

Corporal Cortes to search the vehicle; (13) Ms. Lopez’s demeanor when the troopers 

were close to discovering the compartment; (14) the discreet location of the Cash; 

(15) the intricacy of the compartment;16 (16) the bundling of the Cash; (17) Laporte 

and Ms. Lopez’s denial about having any knowledge of the Cash or compartment; 

(18) the existence of Luis Lopez’s fingerprint on the duct tape; (19) Vasquez’s 

admission that she had the compartment installed; (20) Vasquez’s statement that no 

other person knew of the compartment; (21) Vasquez’s statement that no one else 

had access to the compartment; (22) Vasquez’s refusal to identify who built the

compartment; and (23) the New York State DMV record showing that Luis Lopez 

owned the vehicle and Vasquez was only the registrant. (Trial Ct. Op. at 17-18.) 

Vasquez argues that this remaining evidence creates, at most, only a suspicion of 

illegal activity, not a nexus, based on established case law. The Commonwealth 

responds that it met its burden of proving a substantial nexus between the Cash and 

Lexus and unlawful drug activity by a preponderance of the evidence. 

First, it is undisputed that no drugs or drug paraphernalia were found in the 

Lexus in which Laporte and Ms. Lopez were riding or on their persons, and no 

criminal charges have been filed in relation to the Cash or Lexus. Although not 

dispositive, such facts have been held to be probative of whether seized property was 

in fact contraband. Commonwealth v. Fontanez, 739 A.2d 152, 154 (Pa. 1999); 

Marshall, 698 A.2d at 579. Case law teaches us that when no drugs or drug 

paraphernalia are found and when no criminal charges are filed, establishing a nexus, 

 

16 We point out that Vasquez objected to Corporal Cortes’ testimony regarding the intricacy 

of the compartment, which the trial court sustained. (R.R. at 69a-70a.) 
15

even in the presence of other indicators, is difficult. In Marshall and Fontanez, 

similar cases to the instant matter, our Supreme Court reversed this Court which had 

upheld the forfeiture of large sums of money where no drugs or drug paraphernalia 

were found on or near the claimants and no criminal charges were filed. In Marshall, 

police seized $3,400 found in the back seat between seat cushions during a traffic 

stop for speeding. No drugs or drug paraphernalia were found in the vehicle or on 

the occupants, and no criminal charges were filed. The trial court found a nexus 

based on the appellant’s and driver’s inconsistent stories regarding ownership of the 

money, the money being bundled in a manner consistent with drug dealing, the cash 

being found between the seat cushions, the drug dog alerting on the money, and a 

finding that appellant’s testimony was not credible. Marshall, 698 A.2d at 578-79. 

This Court affirmed, and our Supreme Court reversed, holding that this evidence 

showed nothing more than a “suspicion of a possible nexus” between the money and 

illegal drug activity. Id. at 579. The Court explained that the bundling of the money 

“is equally consistent with an innocent person’s attempt to simplify and promote 

precision in the counting of lawfully obtained funds.” Id. With regard to the drug 

dog alert, the Court noted that “[a] completely innocent citizen . . . could have in his 

or her possession, at any time, currency that happened to be involved in a drug 

transaction at some unknown time in the past.” Id. Even considered along with the 

other factors relied upon by the trial court, the Supreme Court stated that residual 

presence of drugs on the money was not enough to prove the required nexus. Id. 

The Supreme Court also reversed this Court in Fontanez. In that case, the 

police stopped the appellant for a traffic violation and observed a paper bag on the 

floor of the vehicle that contained $2,650. A drug dog alerted at the car, but no drugs 

or drug paraphernalia were found, and no criminal charges were ever filed in relation 
16

to the money. The trial court granted the Commonwealth’s motion for forfeiture,

relying on the late hour of the stop, the location of the stop in an area known for drug 

activity, the large amount of money, the officer’s knowledge of appellant’s family, 

and appellant’s refusal to explain where he got the money. Fontanez, 739 A.2d at

154. This Court affirmed, and the Supreme Court reversed, concluding that those

factors, taken individually or in combination, were insufficient to sustain the 

Commonwealth’s burden of proving a nexus between the money and illegal drug 

activity. Id. at 154-55. The Court further observed that “a person stopped for a 

traffic violation has no obligation to respond to questions asked by an officer apart 

from statutory obligations to produce a driver’s license, registration, and proof of 

insurance” and that the “failure to give an explanation where none is required cannot 

be construed as evidence of wrongful conduct.” Id. at 155. 

In a subsequent discussion of Marshall and Fontanez, our Supreme Court 

recognized that both of those cases suffered from a “drug nexus deficiency that

controlled the outcome” because no drugs or drug paraphernalia were found. See 

Esquilin, 880 A.2d at 534. 

More recently, in Collins, this Court reached a similar result. In that case, an 

officer stopped the appellant on an interstate highway, and after the appellant 

consented to a search of the vehicle, the officer found $9,000 in the glove box and 

driver’s side door. No drugs or drug paraphernalia were found, and no criminal 

charges were filed against the appellant. The trial court found a nexus between the 

money and illegal drug activity based on the bundling of the money, the drug dog’s 

alert to the glove box, and the ion scan results. This Court distinguished the case 

from Marshall and Fontanez on the basis that those cases did not involve ion scan 

results. However, we determined that the ion scan evidence was inadmissible and 
17

that the remaining evidence was insufficient to establish the required nexus. Collins, 

8 A.3d at 388. The Court also noted that it is not illegal to carry cash and rejected 

the notion that “the presence of a large sum of cash coupled with alleged 

inconsistencies or lack of information in a person’s ‘story’ are enough to meet [the 

Commonwealth’s] burden of proof.” Id. 

One year later in Williams, 31 A.3d at 775, police executed a traffic stop of a 

vehicle rented by an absent third party on Interstate 80 for speeding. Police searched 

the rental vehicle and found $15,000 underneath the back seat. No drugs or drug 

paraphernalia were found. Like in Collins, the Commonwealth presented ion scan 

evidence; however, based on the holding in Collins, the trial court excluded those 

results. Consequently, the Commonwealth was forced to rely on the driver’s and 

passenger’s criminal histories, the driver’s previous involvement in a similar seizure, 

the discrete placement of the money in the vehicle, how it was bundled, the driver’s

and passenger’s convoluted stories about their trip and the vehicle, the 

overwhelming smell of marijuana found on the money, the drug dog’s alert, and the 

driver’s and passenger’s inconsistent stories about where the money came from. Id.

at 774. The trial court determined that the Commonwealth established its burden of 

proving a substantial nexus based on the totality of the circumstances. This Court 

reversed, concluding that, like in Marshall and Collins, the evidence was insufficient 

to establish the required nexus. Id. at 775-76. 

Most recently in King, 42 A.3d at 1218, police conducted a routine traffic stop 

on Interstate 80, and a search of the vehicle revealed $17,182 in the center console 

of the vehicle. No drugs or drug paraphernalia were found, and no criminal charges 

were filed. The trial court concluded that the Commonwealth established a nexus, 

based on the totality of the circumstances, namely the driver’s use of a single key, 
18

the vehicle being registered to someone other than the driver, the driver’s drugrelated criminal history, the vehicle traveling on a known drug route, a drug dog’s

alert, and the bundling of the money. Id. at 1219. This Court reversed based on 

Marshall and Fontanez, concluding that the evidence was “equally consistent with 

innocent behavior.” Id. at 1222. 

In the instant matter, the Commonwealth’s remaining evidence is similar to 

the evidence found to be insufficient to establish a nexus in Fontanez, Marshall,

King, Williams, and Collins. Here, Laporte and Ms. Lopez were pulled over for 

tailgating, a minor traffic violation, on Interstate 80. No drugs or drug paraphernalia 

were found in the Lexus or on the occupants, and no criminal charges have been 

filed in relation to the seized Cash, which are facts that are probative of whether 

seized money is contraband subject to forfeiture. Fontanez, 739 A.2d at 154-55; 

Marshall, 698 A.2d at 578-79. This case, thus, suffers from the “drug nexus 

deficiency” recognized by our Supreme Court in Esquilin, 880 A.2d at 534. 

Regarding Laporte and Ms. Lopez’s inconsistent stories about their trip, and 

as our Supreme Court has explained, they were under no obligation to respond to 

Corporal Cortes’ questions and their failure to provide an explanation where none 

was required is not indicative of illegal drug activity. Fontanez, 739 A.2d at 155. 

While both Laporte and Ms. Lopez have criminal histories, we held in Williams that 

“prior criminal history is not dispositive on the issue of whether money seized is 

related to illegal drug activity.” Williams, 31 A.3d at 775 (citing Collins, 8 A.3d at 

388). Further, their criminal histories are of questionable weight here where it is 

Vasquez claiming ownership of the seized property, not Laporte or Ms. Lopez. 

Moreover, the bundling of the Cash, the vehicle’s registration to an absent third 

party, the large amount of money, the discrete location of the Cash, and the vehicle’s 
19

traveling on a known drug route have all been held insufficient to establish the 

required nexus based on the above established precedent. See generally Fontanez,

Marshall, King, Williams, and Collins. We also do not believe that the recent 

registration of the Lexus, the $900 in Laporte’s pocket, Ms. Lopez’s change in 

demeanor as state troopers vigorously searched the Lexus, the existence of Luis 

Lopez’s partial fingerprint on one of the duct-taped packages, or Vasquez’s 

statements in her deposition about having the compartment installed are dispositive, 

as these observations are “equally consistent with innocent behavior.” King, 42 A.3d 

at 1222; see Marshall, 698 A.2d at 579. Finally, the Commonwealth has not pointed 

to any authority, and we can find none, suggesting that the presence of multiple air 

fresheners and their overwhelming odor,17 the existence of religious prayer cards in 

a vehicle, or a person’s tattoos are indicative of illegal drug activity. Thus, this

remaining evidence is inadequate to meet the Commonwealth’s burden of proof. 

Because the Commonwealth has not met its burden of proof, our analysis 

ends, and we need not consider whether Vasquez has shown she is an owner, 

innocent or otherwise, who is entitled to return of the property, as the dissent 

contends. 

Section 6802(j) of the Forfeiture Act provides: 

(j) Owner’s burden of proof.--At the time of the hearing, if the 

Commonwealth produces evidence that the property in question 

was unlawfully used, possessed or otherwise subject to forfeiture

under section 6801(a) or 6801.1(a), the burden shall be upon the 

claimant to show:

 

17 In fact, this Court has held that even the strong odor of marijuana in a bag containing a 

large amount of money creates only a suspicion of a nexus between cash and illegal drug activity 

and that “it is equally possible that the money seized was lawfully obtained.” Williams, 31 A.3d 

at 776. 
20

(1) That the claimant is the owner of the property or the holder of a 

chattel mortgage or contract of conditional sale thereon.

(2) That the claimant lawfully acquired the property.

(3) That it was not unlawfully used or possessed by him. In the event 

that it shall appear that the property was unlawfully used or 

possessed by a person other than the claimant, then the claimant 

shall show that the unlawful use or possession was without his 

knowledge or consent. Such absence of knowledge or consent must 

be reasonable under the circumstances presented.

42 Pa. C.S. § 6802(j) (emphasis added). 

Under the plain terms of the Forfeiture Act, the burden does not shift to a 

claimant to show lawful ownership unless the Commonwealth first satisfies its 

burden, which it did not do here. 

The dissent argues that the question is not whether Vasquez is an “innocent”

or lawful owner, but whether she is the owner at all. There is no threshold 

requirement that a claimant demonstrate ownership. To hold that there is such a 

requirement would render portions of the Forfeiture Act a nullity because the 

Commonwealth could seize property and keep it whether it is a product of illegal 

conduct or not. 

Section 6801(b) of the Forfeiture Act states, in relevant part: “Property 

subject to forfeiture under this chapter may be seized by the law enforcement 

authority upon process issued by any court of common pleas having jurisdiction over 

the property.” 42 Pa. C.S. § 6801(b) (emphasis added). In exceptional 

circumstances, seizure “without process” is authorized. 42 Pa. C.S. § 6801(b)(1)-

(4). However, a lawful seizure is dependent upon the property being “subject to 

forfeiture under this chapter.” Once the property is determined not “subject to 

forfeiture” the seizure ends.
21

Our appellate jurisprudence confirms that when a forfeiture petition is denied, 

the seized property must be returned. Even in a case where it was alleged that the 

registered owner of the seized property was a “sham owner,” “the trial court was 

required to return the vehicle to the registered owner . . . . Irrespective of who the 

real owner was, without evidence that the vehicle was subject to forfeiture, the 

vehicle could not be awarded to the Commonwealth.” Commonwealth v. One 1985 

Dark Blue Mercedes Benz Car, 571 A.2d 482, 485 (Pa. Super. 1990). 

With respect to cash, it has long been understood that the “fungible nature of 

currency necessarily raises an inference that the possessor is the lawful owner . . . .” 

Commonwealth v. Younge, 667 A.2d 739, 743 (Pa. Super. 1995). There are two 

possibilities:

[E]ither appellant is a bailee, or he is, as inferred by the Commonwealth 

and the trial court, an “un lawful” possessor, having come to possess 

the cash by some undetermined illegal means. However, if appellant 

were a bailee, he would have to answer to his bailor, not the 

Commonwealth, for care of the currency. If appellant was in fact an 

unlawful possessor, then the cash constitutes derivative contraband, and 

would be subject to forfeiture as such. Rule 324(b).[18] It would appear 

that the Commonwealth, by avoiding a forfeiture proceeding in which 

it concedes it could not prevail, hopes to accomplish indirectly what it 

could not accomplish directly: it seeks to avoid returning the cash 

without producing any evidence that the money does not belong to 

appellant, and without producing any evidence that the cash is 

derivative contraband and subject to forfeiture.

Id. at 746-47 (emphasis in original). 

In short, the burden of “proving lawful ownership of the property” never shifts 

to the claimant where “the Commonwealth has failed to meet its burden of 

 

18 Pennsylvania Rule of Criminal Procedure 324 was renumbered to Rule 588 effective 

April 1, 2001. See Pa.R.Crim.P. 588, Note.
22

establishing a nexus between the seized [cash] and illegal drug activity[.]” Williams, 

31 A.3d at 776. 

Here, the Commonwealth has failed to prove that the vehicle or the currency 

was used or was intended to be used in violation of the Drug Act. The 

Commonwealth cannot continue to hold this property. If the claimant is a bailee, 

then she “[will] have to answer to [her] bailor, not the Commonwealth, for care of 

the currency.

19

 Younge, 667 A.2d at 747. The burden on a claimant to prove 

ownership arises only after the forfeiture is granted.20

 

19 The dissent contends the bailor/bailee analogy is incomplete because the bailor is not 

identified. The analogy is a hypothetical and assumes there is a third person who is the owner of 

the property, i.e. bailor. Whether there is, however, is immaterial to our analysis here because the 

Commonwealth failed to meet its burden and show a substantial nexus between the vehicle and 

cash and a violation of the Drug Act. 

20 The dissent stresses that the trial court found that Vasquez was only a registrant and not 

the owner and that she should be compelled to establish that she has a “legally-enforceable 

ownership or possessory interest in the seized property” before the vehicle and cash are released 

to her. (Dissenting Op. at 5.) Again, because the Commonwealth did not meet its burden, the 

owner/registrant distinction is without difference to our analysis. However, under either New York 

or Pennsylvania law, Vasquez has, at a minimum, a possessory interest in the vehicle because she 

is its registrant. New York’s Vehicle and Traffic Law defines a vehicle “owner” as:

[a] person, other than a lien holder, having the property in or title to a vehicle . . . . 

The term includes a person entitled to the use and possession of a vehicle . . . 

subject to a security interest in another person and also includes any lessee or 

bailee of a motor vehicle . . . having the exclusive use thereof, under a lease or 

otherwise, for a period greater than thirty days.

N.Y. Veh. & Traf. Law § 128 (McKinney 2018) (emphasis added). Likewise, the 

Pennsylvania Vehicle Code defines a vehicle “owner” as:

[a] person, other than a lienholder, having a property right in or title to a vehicle. 

The term includes a person entitled to the use and possession of a vehicle

subject to a security interest in another person, but excludes a lessee under a lease 

not intended as security.

75 Pa. C.S. §102 (emphasis added). 
23

III. Conclusion

We agree that finding such a large amount of cash in a vehicle traveling on a 

known drug route, under these circumstances, is highly suspicious. However, while 

we are suspicious that there may have been a violation of the Drug Act, under our 

precedent, Fontanez, Marshall, King, Williams, and Collins, these circumstances do 

not demonstrate a substantial nexus between the Cash and Lexus and a violation of 

the Drug Act. Here, where no drugs or drug paraphernalia were found and no 

criminal charges were filed, and where the type of evidence presented by the 

Commonwealth has been held insufficient to form a substantial nexus under 

established precedent, we must similarly conclude that the Commonwealth has not 

established anything more than the suspicion of a possible nexus between the Cash 

and Lexus and a violation of the Drug Act. This, simply, is insufficient to support a 

forfeiture of the Cash and Lexus under the law.21 

 

The New York Court of Appeals has explained that, “due process requires that an innocent 

co-owner be given the opportunity to demonstrate that his or her present possessory interest in a 

seized vehicle outweighs the City’s interest in continuing impoundment.” Prop. Clerk of Police 

Dep’t of City of New York v. Harris, 878 N.E. 2d 1004, 1005 (N.Y. 2007). An individual can 

accomplish this by demonstrating, in relevant part, that he or she “is a registered and/or titled coowner.” Id. at 1012 (emphasis added). Therefore, “ownership” is not so narrowly defined. 

In addition, Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. 

§§ 1701-1799.7, “require[s] each motor vehicle registrant [to] certify that the registrant is 

financially responsible at the time of registration or renewal thereof.” 75 Pa. C.S. § 1786(b) 

(emphasis added). If the Commonwealth requires a registrant to maintain insurance, the registrant 

must have some enforceable interest in the vehicle. 

Finally, it is noteworthy this is not a case where Vasquez sought to intervene on her own 

behalf. Rather, the Commonwealth brought her into the action by having her served with a Rule 

to Show Cause. Therefore, the Commonwealth considered Vasquez’s interest in the cash and/or 

vehicle sufficient to require that she be given notice as an owner under the statute.

21 Because we conclude that the Commonwealth failed to meet its burden of proving a 

substantial nexus between the seized property and illegal drug activity, we need not address 

Vasquez’s remaining arguments.
24

Accordingly, we reverse the order of the trial court. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

 :

v. : No. 1229 C.D. 2016

 :

$301,360.00 U.S. Currency and :

One 2011 Lexus, RX350, :

VIN #2T2BK1BA48C081250 :

 :

Appeal of: Clarissa Vasquez :

O R D E R

NOW, April 4, 2018, the May 19, 2016 Order of the Court of Common Pleas 

of Monroe County, entered in the above-captioned matter, is hereby REVERSED. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. : No. 1229 C.D. 2016

: Argued: September 13, 2017

$301,360.00 U.S. Currency and :

One 2011 Lexus, RX350, :

VIN #2T2BK1BA48C081250 :

:

Appeal of: Clarissa Vasquez :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

DISSENTING OPINION

BY JUDGE BROBSON FILED: April 4, 2018

The majority’s opinion is faithful to precedent on the burden faced by 

the Commonwealth when seeking forfeiture under the Controlled Substances 

Forfeiture Act (Forfeiture Act).2 Under that precedent, and despite what common 

sense might otherwise suggest, I am compelled to agree that the Commonwealth 

failed to establish, as a matter of law, a “substantial nexus” between illegal drug 

activity and the 2011 Lexus RX350 (Vehicle) and the $301,360 in vacuum-sealed 

 

1 This case was argued before an en banc panel of the Court that included former Judge 

Joseph M. Cosgrove. Because Judge Cosgrove’s service on the Court ended January 1, 2018, this 

matter has been submitted on briefs to Judge Covey as a member of the panel.

2

42 Pa. C.S. §§ 6801-6802, repealed and replaced by the Act of June 29, 2017, P.L. 247, 

effective July 1, 2017. 
PKB-2

and separately duct-taped packages discovered in a sophisticated, after-market 

hidden compartment in the trunk area of the Vehicle (Cash). I write separately, 

however, because the factual findings of the Court of Common Pleas of Monroe 

County (Common Pleas), the evidence produced at trial, and the procedural history 

of this case raise lingering issues regarding disposition of the Vehicle and the Cash 

that Common Pleas should address on remand.

The record in this case shows, as the majority notes, that Appellant 

Clarissa Vasquez (Vasquez) is not the owner of the Vehicle. That status was 

reserved to Luis Lopez (Mr. Lopez). Mr. Lopez, however, did not appear to contest 

the forfeiture of the Vehicle and the Cash. The record also shows that Vasquez was 

not in possession of either the Vehicle or the Cash at the time of the seizure. Enrique 

A. Laporte (Laporte) and Zaida Lopez (Ms. Lopez) were in possession. Like Mr. 

Lopez, neither Laporte nor Ms. Lopez appeared to contest the forfeiture of the 

Vehicle and the Cash. In terms of ownership of the Cash, the only evidence tying 

the Cash to any individual is a single fingerprint of Mr. Lopez found on the duct tape 

that bound the Cash. (Trial Ct. Op. at 9; Trial Tr. at 151-65.) In the absence of any 

claim to the Vehicle and/or Cash by these three individuals, Common Pleas, at the 

request of the Commonwealth, entered an order, which provided, inter alia:

All claims of right, title and interest of Enrique 

Laporte, Zaida Lopez and Luis Lopez in the 

above-captioned defendant/property is hereby declared to 

be terminated, revoked and rendered null and void. The 

defendant/property [Vehicle and Cash] as it relates to 

Enrique Laporte, Zaida Lopez, and Luis Lopez is hereby 

declared to be forfeited to the Office of Attorney 

General . . . .

(March 30, 2016 Order, C.R., No. 49.)
PKB-3

Turning to Vasquez, the Commonwealth alleged in its Amended 

Petition for Forfeiture and Condemnation (Forfeiture Petition) that the Vehicle was 

registered to Vasquez, but that the owner of the Vehicle was unknown. (Reproduced 

Record (R.R.) at 2a.) Apparently, the State of New York allows the title owner of a 

vehicle to confer on another driver(s) the status of registrant. 

(https://dmv.ny.gov/registration/register-and-title-vehicle (“Registrations don’t 

need to be in the owner’s name, or for only one person.”) (last accessed 

Jan. 29, 2018). Vasquez alleged in her answer to the Commonwealth’s Forfeiture 

Petition, under the heading of “new matter,” inter alia, that she “is the lawful owner 

of the subject property.” (R.R. at 10a, ¶ 9.) The Commonwealth, however, denied 

this averment. (C.R., No. 30 at 1, ¶ 9.) During trial, Common Pleas admitted into 

evidence Plaintiff’s Ex. 11, a record of the New York Department of Motor Vehicles, 

confirming that Mr. Lopez, and not Vasquez, was the owner of the Vehicle.

Common Pleas issued an Opinion and Order on May 19, 2016 

(Opinion), granting the Forfeiture Petition. In its Opinion, Common Pleas stated the 

following with respect to Vasquez’s claim of ownership in the Cash:

At trial, [Vasquez] rested without presenting any evidence 

or testimony, a fact confirmed when asked by the Court 

whether they [sic] were presenting no evidence. We are 

left to rely on her unsubstantiated claim in her Answer 

with New Matter that she is the lawful owner of the 

currency, obtained it lawfully, and that the currency was 

not unlawfully used or possessed. Without any evidence 

or testimony to that effect, we cannot find [Vasquez] has 

met her burden to rebut the presumption of forfeiture.

(Opinion at 21.) With respect to the Vehicle, Common Pleas found that the Vehicle 

is owned by Mr. Lopez, but registered to Vasquez. (Opinion at 9.) The order 

terminating Mr. Lopez’s ownership interest in the Vehicle raises a legal question 

under New York law as to whether Vasquez’s interest as a registrant, conferred by 
PKB-4

Mr. Lopez as the Vehicle’s owner, remained legally enforceable at the time of trial 

in this matter.3

The undisputed record evidence and the factual findings by Common 

Pleas raise a substantial question in my mind over whether Vasquez had the requisite 

interest in the Vehicle and the Cash to contest the Commonwealth’s Forfeiture 

Petition. See, e.g., Commonwealth v. Wingait Farms, 659 A.2d 584 (Pa. 

Cmwlth. 1995) (affirming dismissal of wife’s challenge to forfeiture of husband’s 

property for lack of standing), aff’d, 690 A.2d 222 (Pa.), cert. denied, 522 U.S. 831 

(1997). Although the Commonwealth raised Vasquez’s standing in its Pre-Trial 

Memorandum (C.R., No. 41), it did not pursue a pretrial ruling on this question. 

Instead, it proceeded to present its case on the question of nexus. Nonetheless, even 

if Vasquez asserted a colorable claim of ownership in the seized property pretrial, 

 

3

In footnote 20, the majority contends that because the Commonwealth provided notice to 

Vasquez of the forfeiture, “the Commonwealth considered Vasquez’s interest in the cash and/or 

vehicle sufficient to require that she be given notice as an owner under the statute.” The majority’s 

statement ignores the actual allegations in the Forfeiture Petition. There, the Commonwealth 

clearly alleges that the “owner(s)” of the Cash and the Vehicle is “unknown.” (R.R. at 2a.) Yes, 

the Commonwealth provided Vasquez notice of the Forfeiture Petition, but it did not do so because 

it was conceding that she was the “owner.” Rather, in the Forfeiture Petition, Vasquez is identified 

only as “registrant” of the Vehicle. The Commonwealth does not allege in the Forfeiture Petition 

that Vasquez had any interest in the Cash.

As the majority notes, the Commonwealth filed the Forfeiture Petition in December 2015. 

At that time, Mr. Lopez, who conferred upon Vasquez “registrant” status with respect to the 

Vehicle, still owned the Vehicle. Accordingly, at that time, Vasquez had an interest in the Vehicle

under New York law. It was only later, when Common Pleas issued its unappealed March 30, 2016 

Order, that Mr. Lopez’s ownership interest in the Vehicle was extinguished. The question that the 

majority does not answer is what effect the order extinguishing Mr. Lopez’s ownership interest in 

the Vehicle had on Vasquez’s registrant status under New York law. Instead, the majority simply 

claims that “this distinction is without difference to our analysis.” (Maj. Op. at 23 n.20.) Clearly, 

“registrant” and “owner” are different under New York law. The majority assumes that they are 

the same, which I respectfully suggest is error.
PKB-5

such that she could force the Commonwealth to establish its burden, the evidence 

adduced during trial and Common Pleas’ factual findings leave doubt as to whether 

she is the proper party to whom the Cash and Vehicle should be returned.

While it may be true that under the Forfeiture Act, a mere claim of a 

right of possession (unless standing is challenged pretrial) is sufficient to trigger a 

hearing on a forfeiture petition, 42 Pa. C.S. § 6802(i), that does not also mean that 

the mere allegation in the filed claim is sufficient to establish conclusively that right 

of possession, such that the Commonwealth must release the seized property to any 

such claimant should it fail to satisfy the substantial nexus inquiry.4 Where, as here, 

after the Commonwealth fails to satisfy its burden on the forfeiture petition, the 

claimant’s ownership or right of possession in the seized property remains in doubt,

the claimant should be compelled to establish to the court’s satisfaction that which 

she alleged—i.e., a legally-enforceable ownership or possessory interest in the 

seized property—before the court-ordered release of that property to the claimant.

The majority rejects this approach, mischaracterizing my position and 

relying on precedent that is inapposite. Contrary to the majority’s characterization, 

I am not requiring Vasquez to prove that she is an “innocent” owner. A claimant 

need not prove that she is an “innocent” owner unless the Commonwealth firsts 

 

4

“Upon the filing of a claim for the property setting forth a right of possession, the case 

shall be deemed at issue and a time shall be fixed for the hearing.” 42 Pa. C.S. § 6802(i). The 

majority, in response to this dissent, claims that “[t]here is no threshold requirement that a claimant 

demonstrate ownership.” (Maj. Op. at 21.) While this is true by the strictest of interpretations, 

I will assume that the majority does not interpret this language as allowing someone to file a 

specious ownership claim, simply taking the gamble that the Commonwealth might fail to prove 

the requisite nexus to shift the burden in the forfeiture proceeding. Here, Vasquez alleged in her 

answer to the Forfeiture Petition that she was the “lawful owner” of the Vehicle. This proved false 

at trial, as found by Common Pleas. If the allegation of ownership ultimately proves false, there 

appears to me to be no legal, let alone rational, basis to return unlawfully-seized property to a 

person who files a false claim.
PKB-6

meets its burden of proof. Commonwealth v. $15,000 U.S. Currency (Williams), 

31 A.3d 768, 776 (Pa. Cmwlth. 2011). In Williams, the seized cash was found in a 

rental car rented in the name of the claimant, although the claimant was not in the 

vehicle when police seized the cash. The claimant, however, appeared to contest the 

forfeiture. There was no question in Williams as to whether claimant was, indeed, 

the “owner” of the cash. Indeed, unlike Vasquez here, the claimant in Williams

actually testified during the forfeiture proceeding about the source of the cash and 

her claim to it. The Commonwealth never contested her ownership claim; rather, it 

questioned only whether she established that she was an “innocent” owner. 

Ultimately, however, this Court ruled that because the Commonwealth failed to

prove nexus, the claimant in Williams did not have to prove that she was, in fact,

“innocent.” As her ownership was not in doubt, the cash had to be returned to her 

(and not someone else).

The facts here, however, are materially different. As noted above, 

Vasquez alleged in her answer to the Commonwealth’s Forfeiture Petition that she 

was the lawful owner of the Vehicle and the Cash. As for the Vehicle, Common 

Pleas, based on substantial evidence of record, found that she was not the owner of 

the Vehicle. As for the Cash, unlike the claimant in Williams, Vasquez presented no 

evidence at the hearing to corroborate her bald assertion of ownership. Indeed, as 

noted above, Common Pleas expressly rejected the “unsubstantiated claim” of 

ownership of the Cash in Vasquez’s answer, particularly in light of the fact that the 
PKB-7

only evidence tying the Cash to any individual was a single fingerprint of not 

Vasquez, but of Mr. Lopez.

5

In light of Common Pleas’ factual findings, the question is not whether 

Vasquez is “innocent,” it is whether she is an owner of the Vehicle, the Cash, or 

both. While I agree with the majority that the seizure here has ended due to a lack 

of nexus, the majority cites to no court opinion or statute that compels the 

Commonwealth to return improperly seized property to anyone other than the 

possessor from whom it was seized, the property’s owner, or some other person who 

has a right of possession.

6

 While in most forfeiture cases the claimant’s entitlement 

to return of the seized property is never at issue, the facts in this case are unique: 

(1) the interests of the possessors of the Vehicle and the Cash at the time of seizure 

as well as the Vehicle’s owner have been extinguished by an unappealed order of 

court; (2) Vasquez’s allegation of ownership in the Vehicle set forth in her answer 

to the Forfeiture Petition proved false; and (3) Vasquez presented no evidence to 

support her allegation of ownership in the Cash. The status of Vasquez’s interest as 

a mere named “registrant” of the Vehicle, but not the Vehicle’s owner, under New 

 

5 The majority’s claim that Vasquez was a “bailee” accountable to her “bailor” has no 

record support. A “bailee” is “one to whom goods are entrusted by a bailor.” Black’s Law 

Dictionary 141 (6th ed. 1990). There is no dispute that Vasquez was not in possession of either the 

Cash or the Vehicle at the time of seizure. To the extent, then, there was a bailment in this case, 

the bailees were Laporte and Ms. Lopez, not Vasquez. A more appropriate question given the 

facts of this case is who was the bailor? The majority does not answer this question, rendering its 

bailment analogy, at best, incomplete.

6 At page 21, the majority suggests that my approach allows the Commonwealth to keep 

seized property “whether it is a product of illegal conduct or not.” To be clear, that is not my 

position. At this point, the seizure has ended and the forfeiture has failed. What is now at issue is 

what to do with the Vehicle and the Cash. The Commonwealth’s retention of the property under 

the Forfeiture Act is not an option.
PKB-8

York law is unclear, particularly in light of the court order extinguishing Mr. Lopez’s 

ownership interest.

For these reasons, in addition to reversing the May 19, 2016 Order, 

I would remand this matter to Common Pleas for further proceedings and a decision 

on the appropriate disposition of the Cash and the Vehicle. Vasquez may have been 

successful in her challenge of the forfeiture, but she has not yet established that she 

is entitled to the Cash and the Vehicle.

 

 P. KEVIN BROBSON, Judge

Judge Covey joins in this dissenting opinion.