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Justices reverse forfeiture of truck

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The Indiana Supreme Court agreed with the lower appellate court that a man’s truck shouldn’t have been lost in a civil forfeiture action because the state didn’t prove any substantial connection between the truck and the commission of a crime.

Chief Justice Randall T. Shepard kicked off the unanimous opinion describing civil forfeiture as “a devise, a legal fiction, authorizing legal action against inanimate objects for participating in alleged criminal activity, regardless of whether the property owner is proven guilty of the crime – or even charged with a crime.” He delved into the roots of the action, in rem forfeiture, that go back to maritime law, and he also explained how civil forfeitures play a role in funding the state’s common school fund.

Out of those funds, the court may allow for law enforcement and the prosecutor to recoup expenses incurred related to the seizure, as well as expenses related to the criminal prosecution. Whether this process is in agreement with what the Indiana Constitution says regarding all forfeitures going into the common school fund is “an unresolved question,” the chief justice noted.

Currently, the Indiana General Assembly is debating Senate Bill 215, which would specify how much of forfeiture funds may go to sources outside of the school fund. A lawsuit was filed in August 2010 in Marion County against 78 prosecutors alleging they violated the law by not turning over seized assets from criminals to the common school fund. It was dismissed earlier this month.

In Martin Serrano v. State of Indiana and the City of Fort Wayne, No. 02S03-1104-CV-241, the justices focused on the first ground for forfeiture under Indiana Code 34-24-1-2 – “if the seizure is incident to lawful arrest, search, or administrative inspection” when examining Martin Serrano’s case. Serrano lost his truck in a forfeiture action based on the presence of cocaine residue found in the carpet of his truck and on a box of $500 in quarters. Police received an anonymous tip that the grocery store where he worked was receiving drug shipments from Chicago. Police pulled over Serrano’s truck after it left the grocery store because he was speeding and they thought he had an outstanding warrant.

While in custody, a canine officer alerted officers to the presence of narcotics and the truck was towed. Serrano was later released because the warrant was for a different Martin Serrano. But police got a search warrant for the truck the next day and found the drug residue in the car. Serrano admitted to using drugs and said he was the only person who drove the truck. Police also conducted trash pulls at Serrano’s home recovering bank receipts trying to prove he was making more money than he claimed and was involved in drug trade.

The trial court granted the state’s complaint for forfeiture of the truck. But this was an error, the justices concluded, because the state failed to prove that the truck was used or intended for use by Serrano to transport cocaine. Chief Justice Shepard cited Katner v. State, 655 N.E.2d 345 (Ind. 1995), in which the high court held that to sustain a forfeiture, the state must demonstrate that the property sought was used in one of the enumerated offenses under the statute.

“… the State’s evidence does not compel a conclusion that the presence of cocaine was anything more than ‘incidental or fortuitous,’” wrote the chief justice in reference to Katner. “The State presented no evidence or link to any drug transactions or trade other than the initial information from an anonymous informant that the grocery store was receiving large shipments of drugs. Serrano admitted he was a cocaine user, and without expounding, it seems apparent that there are numerous ways that cocaine residue may have made its way into the truck that do not involve the use of his vehicle in furthering the possession of cocaine.”

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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