United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
United States of America (“Plaintiff” or the
“Government”) brought a civil forfeiture
proceeding against $240, 100.00 in U.S. currency (the
“Defendant Property”). (Doc. 1.) Claimant Shunika
Hemingway Henderson (“Claimant”) filed a Verified
Notice of Claim and Answer. (Docs. 5, 6.) Presently before
the court is the Government's Motion for Summary
Judgment. (Doc. 25.) Claimant has responded in opposition
(Doc. 29), and the Government has replied (Doc. 30). For the
reasons that follow, the motion will be granted.
following facts are presented in the light most favorable to
Durham Police Department (“DPD”) began making
controlled purchases of small quantities of crack cocaine
from Anthony Henderson (“Henderson”),
Claimant's husband, beginning in 2011. (Pl.'s Br. in
Supp. of Summ. J. (“Pl.'s Br.”), GE A,
Declaration of David M. Walker (“Walker Decl.”)
(Doc. 26-2) ¶ 4.) In April 2014, a DPD officer used a
confidential informant to make two controlled purchases of
$20 worth of crack cocaine from Henderson at his body shop
business in Durham. (Pl.'s Br., GE B, Declaration of
Brian T. Black (“Black Decl.”) (Doc. 26-3) ¶
3.) On May 1, 2014, DPD officers executed a search warrant
for the body shop. (Id. ¶ 4.) DPD officers
searched Henderson and found a set of keys in his pockets,
which were used to unlock the office in the business.
(Id. ¶ 5.) DPD officers also found a single key
in Henderson's pocket that fit the lock to a locked
drawer of a desk in the office. (Id. ¶ 7.)
Inside the drawer was a loaded 9mm Taurus handgun, various
pill bottles, and two plastic bags containing a substance
that later tested positive for crack cocaine. (Id.
¶ 5; Walker Decl. (Doc. 26-2) ¶ 14.) The five
employees present on the premises were also searched and none
of their keys were found to fit the drawer's lock. (Black
Decl. (Doc. 26-3) ¶ 7.)
the search of the body shop, DPD officers also brought a
certified narcotics detection canine to perform an exterior
sniff of a Ford F-150 truck parked in the business parking
lot. (Pl.'s Br., GE C, Declaration of Kelly Stewart
(“Stewart Decl.”) (Doc. 26-4) ¶¶ 1, 4.)
The truck had been seen at Henderson's residence earlier
that day. (Black Decl. (Doc. 26-3) ¶ 4.) The canine
positively alerted to the presence of an illegal narcotic
odor on the passenger side door of the truck. (Stewart Decl.
(Doc. 26-4) ¶ 4.)
May 1, 2014, DPD officers executed a search warrant for
Henderson's residence. During the search, Claimant
arrived at the residence with her attorney. (Pl.'s Br. at
4; Black Decl. (Doc. 26-3) ¶¶ 8, 9.) DPD officers
located a safe in the master bedroom closet. (Id.
¶ 9.) Inside the safe, officers found $240, 100.00 in
U.S. currency, all of which was in $100 bills wrapped in
rubber bands. (Id. ¶ 10; Pl.'s Br., GE H,
Deposition of Shunika Hemingway Henderson
(“Claimant's Dep.”) (Doc. 26-9) at
Officers seized and sealed the $240, 100.00 in currency in
front of Claimant and her attorney; it was later taken to the
Raleigh DEA Office where it was secured. (Walker Decl. (Doc.
26-2) ¶ 19.)
April 11, 2016, Henderson pleaded guilty in Durham County
Superior Court to possession with intent to distribute, in
violation of N.C. Gen. Stat. § 90-95(a)(1). (Pl.'s
Br., GE L, Doc. 26-13 at 3.) Henderson received a suspended
sentence for twelve months of supervised probation.
(Id. at 4.) He was also ordered to “forfeit
all seized property and contraband.” (Id.)
tax years 1999 through 2010, Henderson reported income
ranging from $11, 586 to $33, 734. (Pl.'s Br., GE I (Doc.
26-10) at 6, 9, 14.) In 2001 and 2002 Henderson filed jointly
with Claimant wherein the total income reported was $34, 249
and $37, 219. (Id. at 6.) Henderson's income
came from his business, rental properties, and interest.
(Doc. 26-10.) Henderson did not provide more recent tax
returns, but testified that his recent income “probably
just went up a little bit.” (Pl.'s Br., GE G,
Deposition of Anthony Henderson (“Henderson
Dep.”) (Doc. 26-8) at 12.)
reported income from 2008 to 2014 ranged between $28, 940 and
$36, 850. (Pl.'s Br., GE J (Doc. 26-11).) Her job as a
probation/parole officer has been her only source of income
since 2004. (Pl.'s Br., GE F, Interrogatories Directed to
Claimant (Doc. 26-7) at 9.)
addition to Henderson's reported income, he testified he
earned money landscaping and doing “side tows”
towing cars, but he could not estimate how much he earned or
present any documentation to evidence this income. (Henderson
Dep. (Doc. 26-8) at 4-10.) Claimant stated in her
Interrogatories that in addition to Henderson's body shop
business, Henderson was moonlighting by painting cars. (Doc.
26-7 at 7.) Henderson testified he put some of these earnings
in the bank and some he put in the safe or gave to Claimant
to put in the safe. (Henderson Dep. (Doc. 26-8) at 17.)
Henderson testified that he did not make any money from
selling drugs. (Id. at 28-29.)
time of Henderson's arrest, Claimant was driving a BMW 7
Series, with a current tax value estimated at $23, 530.
(Id. at 33; Doc. 26-7 at 11.) Henderson testified
that he purchased the BMW using insurance money from a
totaled Mercedes, money from selling another Mercedes, and
cash from his business. (Henderson Dep. (Doc. 26-8) at
34-39.) Henderson testified that Claimant never asked him
where the cash came from. (Id. at 39.)
also owned a 2004 Cadillac Escalade, a 2009 BMW 7 Series, and
a 2011 Ford F-150. (Id. at 14, 41-42.) He testified
he paid for these with money saved from either his body shop,
landscaping, or towing. (Id. at 15.) As for other
household expenses, Henderson testified that he and his wife
split the mortgage (id. at 31-32), and that he also paid for
groceries, kids' clothes, and dental bills (id. at 41).
testified that Henderson had paid the full $1, 900 monthly
mortgage since 2009. (Claimant's Dep. (Doc. 26-9) at
23-24.) Claimant also testified that since approximately
2008, Henderson paid household expenses such as food,
necessities, kids' clothes, utility bills, and the full
mortgage, as well as paying approximately $600 per month in
child support to another woman. (Id. at 6-7, 20-21.)
Claimant testified that her expenses exceed her income.
(Id. at 56.)
testified that he bought the safe. (Henderson Dep. (Doc.
26-8) at 24.) However, he testified that Claimant was also
putting money in the safe. (Id. at 20-21, 30.)
Claimant testified that she bought the safe but she never
used it and never put any money into it. (Claimant's Dep.
(Doc. 26-9) at 27-28, 44.) She further testified she saw the
safe open only once or twice in the early 2000s.
(Id. at 29.) She testified she never questioned
Henderson about the safe or asked how much money was in it.
(Id. at 30-31, 39, 45.) Claimant was aware that
Henderson had nice cars and that he paid for them with cash
but this did not cause her any concern and she did not ask
him where the cash came from. (Id. at 47-51.)
was a probation/parole officer in Durham from 2004 to 2013,
and has been a supervising officer since 2013. (Id.
at 9-10.) During that time, she has supervised drug offenders
and is familiar with the drug scene in Durham. (Id.
at 11.) She is aware that cocaine is a big issue in Durham,
and she has supervised parolees who sold crack cocaine.
(Id. at 12-13.) Claimant has performed searches of
parolees when something triggered suspicion, such as the
parolees being around a certain crowd or if the parolees were
wearing expensive things even though they were not working.
(Id. at 15, 17.)
testified that she would go to the body shop every day up
until Henderson was arrested. (Id. at 34.) The body
shop was in a drug-infested area, and Claimant believed some
of the employees may have had a chemical addiction but she
never expressed any concerns about it to Henderson.
(Id. at 35-38.)
and Henderson separated on May 19, 2014, following his
arrest. (Id. at 26-27.) They are not divorced, nor
is there any agreement regarding ...