State v. $1,267.00

• Decision Date: 07 March 2006
• Docket Number: No. 99,377.,99,377.
• Citation: 131 P.3d 116
• Parties: STATE of Oklahoma, Timothy H. Harris, District Attorney, Plaintiff/Appellee, v. ONE THOUSAND TWO HUNDRED SIXTY-SEVEN DOLLARS ($1,267.00), Defendant/Appellant, Carl Demetrius Mitchell, Pro Se, Claimant/Appellant.
• Court: Oklahoma Supreme Court

Page 116

131 P.3d 116

STATE of Oklahoma, Timothy H. Harris, District Attorney, Plaintiff/Appellee, v. ONE THOUSAND TWO HUNDRED SIXTY-SEVEN DOLLARS ($1,267.00), Defendant/Appellant Carl Demetrius Mitchell, Pro Se, Claimant/Appellant.

No. 99,377.

Supreme Court of Oklahoma.

March 7, 2006.

COPYRIGHT MATERIAL OMITTED

On Certiorari to the Court of Civil Appeals, Div. II.

¶0 Invoking the terms of 63 O.S.2001 § 2501 et seq., the seizure-and-forfeiture provisions of the Uniform Controlled Dangerous Substances Act, the State of Oklahoma brought a forfeiture action against currency in claimant's possession which was found in close proximity to controlled dangerous substances. The District Court, Tulsa County, David L. Peterson, trial judge, gave summary judgment to the State. The Court of Civil Appeals reversed the judgment and remanded the cause for further proceedings.

On certiorari previously granted upon the State's petition.

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S JUDGMENT IS AFFIRMED.

Carl Demetrius Mitchell, pro se, Helena, OK, for Appellants.

Timothy H. Harris, District Attorney, Charles Creekmore, Assistant District Attorney, Tulsa, OK, for Appellee.

Scott Rowland, General Counsel, Brian Surber, Deputy General Counsel, Oklahoma City, OK, for amicus curiae, Oklahoma Bureau of Narcotics and Dangerous Drugs Control.

Suzanne McClain Atwood, Executive Director, Oklahoma City, OK, for amicus curiae, Oklahoma District Attorneys Association.¹

OPALA, J.

¶ 1 The dispositive issues on certiorari are: (1) Did the trial court err in refusing to consolidate two discrete claims to money seized in separate arrests? (2) Is summary process appropriate in statutory civil in rem forfeiture cases? (3) Is the trial court's judgment of forfeiture supported by a preponderance of the evidence? We answer the first question in the negative and the second and third questions in the affirmative.

I THE ANATOMY OF LITIGATION

¶ 2 By invoking the seizure-and-forfeiture provisions of the Uniform Controlled Dangerous Substances Act (Act)(63 O.S.2001 § 2-501 et seq.), the State of Oklahoma (State) sought on 24 September 2002 forfeiture of $1,267.00 seized in an arrest. Notice was sent to the property's owner, Carl Demetrius Mitchell (Mitchell or claimant). The State's claim to forfeiture rests on three grounds — the money was (1) used or intended to be used to facilitate a violation of the Act;² or (2) furnished or intended to be furnished in exchange for a controlled dangerous substance or was proceeds traceable to such an exchange;³ or (3) found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture, or distribution of forfeitable substances.⁴ The arrest resulted in a criminal prosecution in which Mitchell was charged with trafficking in illegal drugs, possession of a firearm after former conviction of a felony and driving without a seatbelt. After pleading nolo contendere, claimant was convicted of possession with intent to distribute.

¶ 3 According to the arresting officer's affidavit admitted as evidentiary material in summary process: (1) he brought about a traffic stop of a vehicle (on 14 May 2002) in which claimant was a passenger: (2) claimant exited from the car and began to run; (3) he appeared to be carrying something when he got out of the vehicle; (4) the officer chased claimant and observed him drop a small baggy; (4) during the chase he also observed that claimant was carrying additional baggies and a gun; (5) the claimant stopped when the officer pulled out a gun and ordered him to halt; (6) the officer retrieved the baggies that were found on claimant's person which contained tan rocks that he suspected of being cocaine; (7) the officer returned to the location where claimant dropped one of the baggies and noticed that it contained tan rocks that he also suspected of being cocaine; (8) when field tested, the tan rocks showed positive results for crack cocaine; (9) the total amount of cocaine seized was 37.10 grams, which is more than the amount required for a trafficking charge; (10) the officer also seized $1,267.00 which the claimant was carrying on his person; and (11) claimant was not legitimately or lawfully employed at the time of his arrest. The police department's forensic laboratory tested the tan substance and found it to weigh 31.85 grams and to contain cocaine (base)(a schedule II controlled substance).

¶ 4 Before the State had filed the Notice of Seizure and Forfeiture, Mitchell wrote a letter to the trial judge on 20 September 2002 requesting the release of $1,877.00. The letter referred to money seized in two separate arrests — the 2002 arrest⁵ from which this forfeiture arose as well as another disconnected arrest in 2001.⁶ The property seized in the earlier arrest had been forfeited by order entered 26 February 2002.

¶ 5 The State filed its forfeiture case against the $1,267.00 on 24 September 2002 and served notice on the claimant. Instead of filing a verified answer, the claimant moved for summary judgment. He claimed that summary judgment is appropriate because the State cannot prove by a preponderance of the evidence that the money was either acquired, intended to be used or traceable to a violation of the Act.⁷ He claims that his burden is to demonstrate there exists no dispute over the currency's illegal use while the State's burden is to present evidentiary material that would furnish at the least inferential support for forfeiture.⁸ The trial court denied claimant's motion. The State later filed its own motion for summary judgment. The claimant's response to that motion included a counter-motion for summary judgment.

The State's Argument for Summary Adjudication

¶ 6 According to the State's motion for summary judgment the undisputed facts of this case strongly establish probable cause that the money in contest was used for an illegal transaction. When the claimant was arrested he had drugs in his possession as well as a large amount of cash, rather than mere drug paraphernalia and drug residue. The State argues that the close proximity of the drugs to the money creates a statutory presumption there was no likely source for the money other than a violation of the Act.⁹ The State claims that once this presumption has been raised by a preponderance of the evidence, the burden shifts to claimant to demonstrate the money's acquisition was not contrary to the Act. Because claimant did not meet this statutory burden, the State concludes that its quest for summary relief is legally established.

Claimant's Counter-Motion For Summary Relief

¶ 7 Mitchell's response with counter-motion for summary judgment notes that the State's forfeiture claim rests on three grounds.¹⁰ He argues due process dictates that a claimant should not have to guess what violation of the Act the State relies on to support a statutory forfeiture. Mitchell urges that if the State relies on the first ground, it has the burden to show a nexus between the currency and the Act's violation. According to Mitchell the State has neither pleaded nor proven any violation of the Act to be a source of the money. He urges the trial court to construe the statute in the same manner as was done in State ex rel. Dept. of Public Safety v. 1985 GMC Pickup, Serial No. 1GTBS14EOF2525894, OK Tag No. ZPE852.¹¹ There the court held mere possession of a controlled dangerous substance does not trigger the forfeiture provisions of § 2-503(A)(4). He relies on statements in 1985 GMC Pickup that forfeiture is penal in nature and therefore the Eighth Amendment's Excessive Fines Clause applies to any forfeiture under statutes similar to that in controversy here. According to Mitchell, the legislature did not intend that close proximity of currency to controlled dangerous substances would alone be a basis for forfeiture. He argues that to be forfeitable under § 2-503(A)(7)¹² the money must be in close proximity to controlled dangerous substances which are possessed in connection with manufacturing, importation or distribution of forfeitable substances. Mitchell further argues that the State's reliance on the arresting officer's affidavit that merely recites the money constituted one of many items located or found during a search following a routine traffic stop is insufficient to support an inference of the money's actual use in violation of the law.

¶ 8 The State responds that Mitchell's argument confuses the two forfeiture cases claimant insists on intermixing. In the first criminal case, he was convicted of simple possession, but in the second case from which this forfeiture arose, he was arrested for trafficking and convicted of possession with intent to distribute. According to the arresting officer's affidavit the plastic bags that Mitchell dropped while being chased by the officer contained more cocaine than was needed to support a charge of trafficking. The State argues that claimant's continued reference to the first arrest and to the ensuing forfeiture of money ($505.00) is irrelevant and beyond the trial court's cognizance in this, the second, forfeiture.

¶ 9 Confining itself to the evidence of the second arrest, the trial court gave summary judgment to the State and overruled Mitchell's quest for like relief. Rejecting Mitchell's efforts at consolidation of both seizures of cash, the trial court ruled the only amount of money at issue before the court is the amount ($1,267.00) seized in the second arrest. Mitchell brought this appeal. The Court of Civil Appeals (COCA) reversed and remanded the cause for further proceedings.

The Court of Civil Appeals' Reversal

¶ 10 According to COCA: (a) summary process is inappropriate in a forfeiture proceeding authorized by 63 O.S.2001 § 2-503¹³ and 63 O.S.Supp.2002 § 2-506;¹⁴ (b) the forfeiture statutes are penal in nature and subject to constitutional...