Forfeiture of Fourteen Thousand Six Hundred Thirty Nine Dollars ($14,639) in U.S. Currency in Various Denominations and Two (2) Digital Pagers, In re

• Decision Date: 13 July 1995
• Docket Number: No. 15525,15525
• Citation: 902 P.2d 563,1995 NMCA 88,120 N.M. 408
• Parties: In re FORFEITURE OF FOURTEEN THOUSAND SIX HUNDRED THIRTY NINE DOLLARS ($14,639) IN UNITED STATES CURRENCY IN VARIOUS DENOMINATIONS AND TWO (2) DIGITAL PAGERS. ALBUQUERQUE POLICE DEPARTMENT, Petitioner-Appellant, v. Toby Orlando MARTINEZ, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 563

902 P.2d 563

120 N.M. 408

In re FORFEITURE OF FOURTEEN THOUSAND SIX HUNDRED THIRTY NINE DOLLARS ($14,639) IN UNITED STATES CURRENCY IN VARIOUS DENOMINATIONS AND TWO (2) DIGITAL PAGERS ALBUQUERQUE POLICE DEPARTMENT, Petitioner-Appellant, v. Toby Orlando MARTINEZ, Respondent-Appellee.

No. 15525.

Court of Appeals of New Mexico.

July 13, 1995.

Certiorari Denied Aug. 24, 1995.

[120 N.M. 409] Sharon D. Walton, Albuquerque, for petitioner-appellant.

Todd Hotchkiss, Timothy M. Padilla & Associates, P.C., Armand T. Carian, Albuquerque, for respondent-appellee.

OPINION

FLORES, Judge.

The Albuquerque Police Department (the Department) appeals from the trial court's order and judgment setting aside a default judgment in favor of the Department, ordering the return of certain seized property to Respondent (Martinez), and in essence dismissing the forfeiture case. The Department raises several issues on appeal, contending that the trial court erred (1) by dismissing the forfeiture petition (a) when there was no motion to dismiss before the court; (b) without requiring Martinez to answer; and (c) without allowing legal briefing on the issues; (2) by applying the exclusionary rule to the civil forfeiture case; and (3) by applying the order from the criminal proceeding to the civil forfeiture case. We affirm the trial court on these issues but grant the Department's request to remand for a determination of the existence of residual evidence to support the forfeiture action.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 22, 1993, two of the Department's police officers were dispatched to an accident within the City of Albuquerque. Upon their arrival at the scene, the officers observed a vehicle which had struck a tree. Martinez was the driver of the vehicle. The vehicle could not be driven after the accident; therefore, the Department's personnel sought to inventory the vehicle prior to having the vehicle towed. In the process of conducting the inventory, a police service aide saw a blue, bulky duffle bag on the passenger seat of the vehicle. He opened the duffle bag and observed a clear zip-lock bag containing several smaller zip-lock bags with a white powdery substance and a box of syringes. When the bag was later searched, the officers found eight individually packaged ounces of cocaine and $14,000 packaged in bundles of one thousand dollars. While at the scene, officers also saw Martinez drop several items, among which were a piece of plastic containing a black substance which later field-tested positive for opiate (heroin) and a clear plastic zip-lock bag containing a white powdery substance which field-tested positive for cocaine. Martinez was placed under arrest on a felony drug charge. He was then searched incidental to the arrest and four syringes full of brown liquid, a paper bindle containing a white powder residue, two digital pagers, and $639 were found on his person. In addition, Martinez, after receiving his Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), admitted that he had recently bought some cocaine and that he usually bought cocaine for the purpose of selling it.

On February 10, 1993, eighteen days after the accident and arrest of Martinez, the Department filed a petition for forfeiture of the $14,639 and the two digital pagers earlier seized by the Department. Martinez was not personally served with the petition for forfeiture, but instead was served by publication. Martinez failed to file a responsive pleading to the petition for forfeiture, and after more than thirty days had passed from publication, the trial court entered a default judgment against Martinez, forfeiting the money and the two digital pagers to the Department.

On November 10, 1993, Martinez filed a motion to set aside the default judgment and for return of the seized property. In support of his motion, Martinez alleged that the default judgment should be set aside because he had never been properly served with the petition for forfeiture and that the property seized should be returned to him because of an order entered by District Court Judge Dal Santo in a related criminal proceeding, releasing all evidence seized, except contraband, unless such evidence had been legally forfeited. In this regard, we note that as a result of this incident, Martinez was also indicted on various felony counts. In the criminal case, Martinez filed a motion to suppress the evidence seized by the Department. On August 26, 1993, Judge Dal Santo held a hearing on Martinez's motion. At the hearing, and throughout the criminal proceedings, the State was represented by the district attorney's office. On September 21, 1993, Judge Dal Santo entered an order granting Martinez's motion. The judge ruled that the search of the closed duffle bag found inside the vehicle as part of a warrantless search was unreasonable and in violation of state and federal constitutional requirements and suppressed the evidence seized. (This order was not appealed, and we express no view on the merits.) As a result of this order, the district attorney's office, on September 28, 1993, filed a nolle prosequi in the criminal case. Thereafter, on October 25, 1993, pursuant to Martinez's motion, Judge Dal Santo entered an order releasing to Martinez "all evidence, except contraband, unless said evidence has been forfeited by a District Court Judgement."

Meanwhile, in the forfeiture case, the Department, on November 23, 1993, filed a response to Martinez's motion to set aside the default judgment and for return of property. On January 10, 1994, the trial court held a hearing on the motion. The trial court, after reviewing the pleadings and considering the arguments of counsel as well as taking judicial notice of the related criminal proceedings, entered an order and judgment setting aside the default judgment and, in essence, dismissing the forfeiture petition, concluding that it was bound by Judge Dal Santo's order in the criminal case releasing the seized property. The Department appeals from the order and judgment setting aside the default judgment and dismissing the forfeiture case.

II. DISCUSSION

A. Dismissal of Forfeiture Petition

The Department argues that the trial court erred by dismissing the petition for forfeiture when there was no motion to dismiss before the court. We do not agree.

As previously stated, the trial court dismissed the forfeiture petition based on Judge Dal Santo's order in the criminal case. Judge Dal Santo's order specifically provided that all evidence, except contraband, be released, "unless said evidence has been forfeited by a District Court Judgement." It appears that Judge Dal Santo, in ordering the release of the property, did so pursuant to SCRA 1986, 5-212(D) (Repl.1992). However, Judge Dal Santo did not enter the order releasing the property until five months after default judgment in the forfeiture proceeding. Therefore, the Department asserts that at the time of Judge Dal Santo's order, the property had already been forfeited by the prior entry of default judgment in favor of the Department. As such, the money and the digital pagers could not be released to Martinez because they were being held by the Department as property which was subject to forfeiture or had been forfeited. Consequently, the Department contends that once the trial court set aside the default judgment, the petition for forfeiture remained pending subject to an answer being filed by Martinez, and the property, at that time, was deemed to be in the lawful custody of the Department.

We agree with the Department that, insofar as the trial court did nothing more than grant the motion to set aside the default judgment, the forfeiture action was still pending. Yet Martinez in his motion to set aside the default judgment also moved for the return of the property and asked the court to enforce Judge Dal Santo's order. Thus, Martinez was essentially seeking dismissal of the petition for forfeiture. Martinez's motion and brief adequately placed the Department and the trial court on notice of the arguments that he would raise at the hearing. The motion is entitled "Motion to Set Aside Default Judgment ... and Motion for Return of Property." The motion requested that "the forfeited property be returned to Defendant pursuant to Judge Dal Santo's order." Furthermore, his memorandum in support of the motion relies on In re One 1967 Peterbilt Tractor, 84 N.M. 652, 506 P.2d 1199 (1973), and asserts that Judge Dal Santo's order operates as collateral estoppel in the forfeiture proceeding. By (1) concluding that the Department was collaterally estopped from relitigating the unconstitutionality of the search, (2) excluding the evidence that resulted from the search, and (3) releasing the property to Martinez, the trial court simply granted the relief sought by the motion. Therefore, we conclude that Martinez's motion, although not explicitly stated as such, constituted a motion to dismiss. To rule otherwise would defeat the goals of judicial economy since remanding for technically proper procedures would lead to the same result. See Gracia v. Bittner, 120 N.M. 191, 197-98, 900 P.2d 351, 357-58 (1995).

The Department next argues that the trial court erred by dismissing the forfeiture petition without requiring Martinez to answer the petition. The fact that Martinez failed to answer the petition is not fatal to the trial court's decision to dismiss the petition for forfeiture. Admittedly, the Rules of Civil Procedure apply to forfeiture proceedings under the Controlled Substances Act. NMSA 1978, § 30-31-35(C) (Repl.Pamp.1989). Although the Rules of Civil Procedure require a complaint and an answer to be filed, SCRA 1986, 1-007(A) (Repl.1992), a motion to dismiss for failure to state a claim, SCRA 1986, 1-012(B)(6) (Repl.1992), can be filed in lieu of an answer. Since we have determined that Martinez's motion substantively...