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In re United States Currency in the Amount of $2612/21/2000
ing on the issue of probable cause for seizure. Substantively, it involved issues wholly unrelated to those presented here. To the extent Pima County contends that footnote six of that opinion details facts that automatically or necessarily support a finding that the funds were subject to forfeiture, it is incorrect. That footnote relates to our rejection of the trial court's restrictive consideration of only the facts known to the officers at the time of seizure rather than consideration of all facts existing at the time of the hearing. 193 Ariz. 427, , 973 P.2d 1184, . The footnote simply sets forth evidence the trial court did not consider; it in no way suggests that such evidence, regardless of other evidence, would be sufficient to establish the nexus element required to subject the funds to forfeiture. See id. at , 973 P.2d at .
Pima County also relied at oral argument on the fact that the package originated in New York. However, it offers nothing to support its hypothesis that funds sent from an individual in New York in 1996 were somehow related to Gilbert's husband's 1992 convictions merely because those convictions involved individuals from New York. Pima County concedes it had no direct evidence tracing the funds to Gilbert's husband's illegal activities. And it does not dispute his testimony in this case that he received a total of approximately $500 for his involvement in the offenses for which he was convicted, far less than the $26,980 involved here. In addition, Pima County has not alleged Gilbert or her husband committed any drug offenses after 1991.
Without tracing the seized funds to a drug-related or racketeering offense, Pima County essentially contends that Gilbert's internally inconsistent and largely undocumented explanations of the source of the seized money constitute sufficient circumstantial evidence that the funds were the proceeds of marijuana trafficking. The trial court noted that, to some extent, Gilbert lacked credibility. But, contrary to the state's argument, the trial court did not necessarily find a "lack of credibility" in all aspects of Gilbert's testimony. Rather, before noting the credibility gap, the court found that Gilbert had carried her burden on the issue of ownership, implicitly embracing some of her testimony. Moreover, the trial court found the suspicious circumstances and implausibilities in Gilbert's and her husband's testimony insufficient to satisfy Pima County's burden of proving that the funds were traceable to a drug or racketeering offense. "There is no doubt that [claimant's] possession of the currency and the legality of its source(s) . . . are highly suspicious. Surmise and supposition, however, are not enough."
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