UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 05-cv-85-JM

Thirty-Eight Thousand Dollars

($38,000.00) in United States

Currency, More or Less, seized

from Alvin Drake

O R D E R

In this action, both the plaintiff and the claimant of the

defendant in rem United States Currency each move for summary

judgment. I find that there are numerous genuine issues of

material fact upon which a reasonable jury could find for either

side. Consequently, I deny both motions.

Standard of Review

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 1 of 9
2

in favor of either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248.

In ruling on a motion for summary judgment, the court 

construes the evidence in the light most favorable to the

nonmovant. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st

Cir. 2001). The party moving for summary judgment “bears the

initial responsibility of . . . identifying those portions of

[the record] which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). Once the moving party has met its burden,

the burden shifts to the nonmovant to “produce evidence on which

a reasonable finder of fact, under the appropriate proof burden,

could base a verdict for it; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v. Bristol

Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (citing Celotex,

477 U.S. at 323; Anderson, 477 U.S. at 249). Neither conclusory

allegations, improbable inferences, nor unsupported speculation

are sufficient to defeat summary judgment. Carroll v. Xerox

Corp., 294 F.3d 231, 236-37 (1st Cir. 2002).

In this case, both parties have moved for summary judgment. 

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 2 of 9
3

“Cross-motions for summary judgment do not alter the basic Rule

56 standard, but rather simply require [the court] to determine

whether either of the parties deserves judgment as a matter of

law on facts that are not disputed.” Adria Int’l Group, Inc. v.

Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001); see also

Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st

Cir. 2004). 

Facts

On January 21, 2005, at approximately 11:00 p.m., Sergeant

Christopher A. Ruel stopped Alvin Drake for illegal passing while

Drake was driving one of his company’s extended cab pickup

trucks. In his Declaration (document no. 22.2) and in his

investigation report (document no. 22.3), Ruel states that he

detected the smell of marijuana smoke coming out of the truck cab

as he approached the passenger side of the truck. Ruel states

that at first Drake denied having any marijuana, but that he then

got a half-smoked marijuana cigarette from the ashtray and handed

it to him (document no. 22.2).

In contrast, Drake denied ever smoking pot, growing it or

buying it at his deposition (document no. 26.1 at 76). Drake

testified that the marijuana joints in the truck “were found on

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 3 of 9
4

the floor,” they consisted of “two little pieces of charged [sic]

vegetation and some cigarette wrapping paper,” and he added that,

“I didn’t obtain them.” (Document No. 26.1 at 76).

The conflict between Ruel’s and Drake’s version of the

traffic stop continues. In his Declaration, Ruel states that:

I placed my left hand on Drake’s front pocket and felt

something cylindrical. Drake pulled away from me and

put his hand in his pocket. In response, I pushed

Drake against the truck, but Drake pulled something out

of his front pocket and threw it away. The object

struck the back of the cab of his truck and fell into

the rear bed of the truck. Drake continued to struggle

with me until I was forced to use my baton to force him

to the ground where I handcuffed him.

(Document No. 22.2, ¶ 5). At his deposition, Drake testified:

Q. Okay. Why did you at first tussle with Sergeant

Ruel, Mr. Drake, when all that happened?

A. I didn’t tussle.

Q. Is he making up any description?

A. Well, I’m going to tell you, they can make up a

pretty goddamn good story when they want to.

Q. And how much of the story do you contend is made

up?

A. I had rotator surgery. I asked him if he had to

cuff me, please cuff my hands in front of me. He

grabbed my left arm and shoved it up between my shoulder blades,

and it hurt and I spun around; and in the process of me spinning

around, that gentleman backed up and fell on his ass.

Now, with him laying on the ground, I said, well,

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 4 of 9
5

I know the drill, I laid on the ground. He got up, put

his frigging knee into my back and cuffed me.

That’s the truth of the whole story. But I

accepted responsibility for that.

Q. Okay. So there was no baton?

A. There was no baton, there was no nothing.

Q. And then what about the pill bottle?

A. That was baloney.

(Document No. 26.1 at 73-74). 

The Government asserts that “a veritable traveling pharmacy”

of illegal substances was found in Drake’s pickup truck after his

arrest, including marijuana, methamphetamines, “crack” cocaine,

and prescription painkillers containing oxycodone and Diazepam,

none of which were prescribed to Drake (document no. 22.2, ¶¶ 8-

10). But Drake testified that the pickup truck was used by

multiple people before January 21, 2005 (document no. 26.1 at 76

and 78-79). There is evidence in the record showing that

identified persons have claimed ownership of certain of the

prescription drugs, crack pipes and the methamphetamines that was

found in the truck (id. at 80). In addition, a gun and

ammunition that was found in the truck has been identified as

belonging to another identified person who used the pickup truck

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 5 of 9
6

(document no. 26.2).

The Government cites evidence that the currency that was

seized from the truck, which was located in a brown paper bag

without any controlled substances, consisted of bills that

appeared to be fairly new and crisp, thereby disputing Drake’s

claim that he had accumulated it over time (document no. 22.2, ¶

11). Drake responds, however, that there are no references to

the condition of the currency in the contemporaneous reports, and

that there is no dispute that the currency was deposited in a

bank on March 25, 2005. Therefore, it is no longer available for

inspection. The government emphasizes the significance of K9

Rambo’s positive narcotics alert to the seized currency as a

factor warranting judgment in its favor, but Drake disputes the

probative value of that evidence including because the alert

occurred several days after the traffic stop. 

Finally, the Court notes that the Government cites as

another factor supporting the entry of judgment in its favor is

that Drake was mistaken as to how much cash was in the truck at

the time of the traffic stop, and that Drake’s explanations for

having such a large amount of cash with him when he was stopped

have been inconsistent. Drake responds that his initial claim --

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 6 of 9
7

that he intended to hide the money because he did not want his

former wife to get it in their divorce -- has been fundamentally

consistent. Drake alleges that he has been in the logging

business for the last twenty years (document no. 26.1 at 6), that

his customers usually pay him in cash, that he has cashed rather

than deposited checks that he has received (id. at 33), that he

has made large purchases using cash (id. at 48), and that it was

not uncommon for him to carry $10,000 to $15,000 at any time (id.

at 25). Drake’s former wife testified at her deposition that

many people paid Drake in cash for cord wood (document no. 26.8

at 8), that she threatened to take everything that Drake had in

the divorce on the night of the traffic stop (id. at 6-9), and

that she was not surprised to learn that Drake had that $38,000

with him when he was stopped (id. at 8). 

Discussion

After considering the motions for summary judgment, drawing

all reasonable inferences in favor of the non-moving party with

respect to each motion, the Court finds that there are numerous

genuine issues as to material fact that prevent the entry of

summary judgment for either party. There are genuine issues as

to what transpired during the traffic stop, including whether

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 7 of 9
8

Drake attempted to throw away an object containing controlled

substances. There is a genuine dispute as to whether the

controlled substances that were found in the pickup truck after

the traffic stop belonged to Drake. And, there is a genuine

dispute as to the credibility of Drake’s explanation for having

had such a large amount of cash with him on the night of the

traffic stop. Without going into to further detail, the Court

finds that the above-cited examples are just the beginning of the

disputed issues of material fact in this case. Indeed, virtually

every material fact in this case is disputed. It is unnecessary

to write an opus to address what should be apparent to counsel --

this is not an appropriate case for summary judgment.

Conclusion

For the reasons set forth above, the Court finds that

neither party is entitled to summary judgment, and therefore

denies both the Claimant’s motion (document no. 21), and the

Plaintiff’s motion (document no. 22).

SO ORDERED.

 /s/ James R. Muirhead 

James R. Muirhead

United States Magistrate Judge

Date: July 21, 2006

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 8 of 9
9

cc: Jean B. Weld, Esq.

Robert J. Rabuck, Esq.

David H. Bownes, Esq. 

Case 1:05-cv-00085-JM Document 57 Filed 07/21/06 Page 9 of 9