SERRANO V. State Of Ind.
| Decision Date | 28 June 2010 |
| Docket Number | Cause No. 02D01-0808-PL-422,No. 02A03-0908-CV-362,02A03-0908-CV-362 |
| Parties | MARTIN SERRANO, Appellant-Defendant, v. STATE OF INDIANA and the CITY OF FORT WAYNE, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
GREGORY F. ZOELLER Attorney General of Indiana
KATHY BRADLEY Deputy Attorney General Indianapolis, Indiana
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable David Avery, Judge
MEMORANDUM DECISION-NOT FOR PUBLICATIONKIRSCH, Judge Martin Serrano appeals the trial court's judgment in favor of the State of Indiana and the City of Fort Wayne (collectively "the State") ordering the forfeiture of his truck, which was seized following a traffic stop. Serrano presents several issues for review, of which we find the following dispositive: whether sufficient evidence was presented to support the civil forfeiture of his truck.
We reverse.
FACTS AND PROCEDURAL HISTORY
Serrano and his wife, Maria, worked at the El Paraiso grocery store in Fort Wayne, Indiana. Serrano was the purchasing manager. The Fort Wayne Police Department received an anonymous tip that El Paraiso was receiving shipments of drugs from Chicago and therefore placed the store under surveillance. On the evening of July 10, 2008, Fort Wayne Police Department Detective Craig Wise observed Serrano's 2004 GMC silver pick-up truck parked in front of El Paraiso next to a box truck with Illinois license plates. Both trucks eventually drove to the back of the store, where they remained for approximately forty-five minutes. When the box truck drove away, the surveillance team followed and stopped the vehicle. While the box truck was stopped, Serrano drove by and "started speeding off." Tr. at 79. This aroused the suspicion of the surveillance team, and they decided to follow Serrano. They ran a check of his license plate and learned that the registered owner of the truck was named Martin Serrano, and that there was an outstanding warrant on a Martin Serrano. As police followed, Serrano weaved in and out of traffic and exceeded the speed limit. Eventually, Serrano was pulled over for speeding by an Indiana State Police Excise Unit and Officer Jason Fuhrman of the Fort Wayne Police Department. During the stop of Serrano's vehicle, a canine unit arrived, and Canine Officer Bach conducted a sniff test of Serrano's truck. Bach alerted, indicating the presence of narcotics.
Serrano was placed under arrest and transported to the police station because of the outstanding warrant. His truck was towed to the police station. It was determined after several hours that the subject of the outstanding warrant was a different Martin Serrano. Thereafter, Serrano was released, but his truck was not. The next day, after obtaining a search warrant, the police searched Serrano's truck and found a box of quarters worth approximately $500.00, as well as $51.00 in cash elsewhere in the truck. The box of quarters was covered in a residue that was later determined to be cocaine. The same kind of residue was found elsewhere in Serrano's truck.
Approximately one month later, Detective Wise interviewed Serrano. Serrano stated he was the only person who drives the 2004 GMC truck and that the quarters found in the truck with cocaine residue were his. When asked about the residue, Serrano claimed he sometimes "makes" drugs, which Serrano clarified as meaning that he used drugs. Tr. at 116.
On August 20, 2008, because of the presence of cocaine in the 2004 GMC truck, the State filed a complaint for forfeiture. The complaint sought forfeiture of Serrano's truck as well as $551.00 in U.S. currency. After a bench trial, the trial court entered judgment in favor of the State with respect to the truck and in favor of Serrano with respect to the currency. The trial court entered findings of fact and conclusions of law in support of its decision. Among other things, the court concluded that Serrano used his truck to transport orto facilitate the transportation of a controlled substance for the purpose of committing a drugrelated offense, specifically, possession of cocaine or a narcotic drug in violation of Indiana Code section 35-48-4-6. Serrano now appeals.
DISCUSSION AND DECISION
"Because forfeiture cases are civil in nature, we use the standard of review employed in other civil cases where an appellant questions the sufficiency of the evidence to support a verdict." $100 and A Black Cadillac v. State, 822 N.E.2d 1001, 1006 (Ind. Ct. App. 2005). We consider only the evidence most favorable to the judgment and any reasonable inferences that may be drawn therefrom. Id. We neither reweigh the evidence nor reassess the credibility of the witnesses. Id. Additionally, here, the trial court issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly erroneous. Cantrell v. Putnam County Sheriff's Dep't, 894 N.E.2d 1081, 1083 (Ind. Ct. App. 2008).
Serrano argues that the trial court erred in finding that his truck was subject to forfeiture because insufficient evidence was presented to satisfy the forfeiture statute. He specifically contends that the State failed to prove that the presence of the cocaine residue in his truck was not more than incidental or fortuitous. Because no nexus between the truck and his possession of the cocaine residue was shown, Serrano claims that his truck should not have been subject to forfeiture.
Forfeitures are not favored, and should be enforced "only when within both the letter and spirit of the law." United States v. One 1976 Ford Pick-up VINF14YUB03797, 769 F.2d 525, 527 (8th Cir. 1985). Indiana's forfeiture statute states in relevant part:
Ind. Code § 34-24-1-1. The State must demonstrate by a preponderance of the evidence that the property was subject to seizure. Ind. Code § 34-24-1-4(a).
In Katner v. State, 655 N.E.2d 345 (Ind. 1995), our Supreme Court concluded that the forfeiture statute "requires more than an incidental or fortuitous connection between the property and the underlying offense." Id. at 348-49. The Court further indicated that to establish an adequate nexus between the property sought in forfeiture and the underlying offense, the State must demonstrate by a preponderance of the evidence "that the property sought in forfeiture was used 'for the purpose of committing, attempting to commit, or conspiring to commit' an enumerated offense" under Indiana Code section 34-24-1-1. Id. at 349. The Court further held:
The underlying facts in Katner were that after a traffic stop and a violent altercation with the police, Katner was placed under arrest. When searching Katner's person incident to the arrest, police found a vial in his pocket containing a trace amount of cocaine, weighing less than.06 grams. The State sought forfeiture of the truck that Katner was driving at the time based upon the presence of that cocaine. The trial court entered judgment for the State and ordered the truck forfeited. This court reversed, and our Supreme Court affirmed our determination. Serrano contends that the facts of this case are sufficiently similar to those in Katner so as to justify the same result here. We agree.
In Katner, it was held that Katner's possession and transportation of cocaine residue was not sufficient to establish the required nexus between the truck and possession of the drug. In the instant case, only a "fine, misty residue" of cocaine was found in Serrano's truck. Tr. at 83. In fact, the amount of residue was so small that the chemist from the Indiana State Police Laboratory was not able to weigh it and had to rinse the baggie with a methanol rinse in order to obtain a sample portion for testing. Id. at 29-31. In Katner, the cocaine was in a vial; here, it was dispersed throughout the truck. We believe that this distinction was immaterial. Serrano was an admitted user of cocaine. Cocaine residue may have been on Serrano's clothing and dispersed in the truck when he entered it; there are a number of other ways in which cocaine residue may have been transferred to the interior ofhis truck that do not involve the transportation of cocaine. We, therefore, conclude that the State failed to demonstrate a nexus between Serrano's possession of cocaine residue and the use of his truck. The trial court erred in finding that Serrano's truck was subject to forfeiture.
Reversed.
Upon my conclusion that the evidence was sufficient to support civil forfeiture of Martin Serrano's truck, I respectfully dissent.
Serrano presents three issues upon appeal. Two of those issues-whether Serrano's truck was subject to forfeiture and the sufficiency of the evidence supporting...
To continue reading
Request your trial