State v. $5,500.00 in U.S. Currency

• Decision Date: 16 April 2009
• Docket Number: No. 08-07-00235-CV.,08-07-00235-CV.
• Citation: 296 S.W.3d 696
• Parties: The STATE of Texas, v. FIVE THOUSAND FIVE HUNDRED DOLLARS IN UNITED STATES CURRENCY.
• Court: Texas Court of Appeals

296 S.W.3d 696

The STATE of Texas, v. FIVE THOUSAND FIVE HUNDRED DOLLARS IN UNITED STATES CURRENCY.

No. 08-07-00235-CV.

Court of Appeals of Texas, El Paso.

April 16, 2009.

Dale D. Jensen, Asst. District Attorney-Civil Section, Dallas, TX, for Appellant.

Martin LeNoir, Dallas, TX, for Appellee.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

The State of Texas appeals from a judgment denying its petition for forfeiture of $5,500 alleged to be contraband. We reverse and remand.

FACTUAL SUMMARY

Officer Ken Fay is a narcotics investigator with the Irving Police Department. On March 4, 2005, a DEA agent, Henry Biddle, advised another narcotics investigator, Henry Schutt, that a confidential informant had told him that a 43-year-old white male known as "Tony" was dealing methamphetamine out of two storage stalls located at Carl Road and S.H. 183 in Irving. The informant said that Tony drove a blue Ford Ranger truck and kept the methamphetamine in a tool box in the bed of the truck. According to the informant, Tony received stolen property and merchandise purchased with stolen credit cards in exchange for the methamphetamine. Tony stored the stolen property in the two storage stalls. Investigator Schutt believed that the person known to the informant was Anthony Grazioso and he relayed this information to Sergeant Rubealcaba. Both Schutt and Rubealcaba knew that Grazioso drove a blue Ford Ranger truck and they knew him to be a methamphetamine dealer.

Based on this information, Fay began conducting surveillance on the two storage units at 10:30 p.m. that same day. He observed Grazioso at one of the two storage stalls securing the door. Grazioso appeared extremely nervous and overly cautious as he left. They did not stop Grazioso when he left the area.

On March 7, 2005 around midnight, Fay again observed Grazioso at the storage unit. When Grazioso left, Fay followed him in an unmarked unit and observed him commit two traffic violations. Fay instructed a police officer in a marked unit to initiate a traffic stop. Grazioso pulled into a parking lot of an apartment complex and stopped his truck. The officers determined that Grazioso had an outstanding parole violation warrant and arrested him. They also impounded Grazioso's car and towed it to the police station where Fay and other officers performed an inventory search. Fay found 190.7 grams of methamphetamine and a syringe containing .4 grams of methamphetamine in the tool box. He also found syringes, a digital scale, a glass methamphetamine pipe, and methamphetamine distribution baggies in the truck. Additionally, the officers found the keys to the two storage stalls and a lease agreement showing that Grazioso was the lessee of the two stalls. That same evening, K-9 Officer Carmack ran his K-9 Rocky at the storage stalls and Rocky alerted on Grazioso's storage stalls.

During the early morning hours of March 8, 2005, Fay prepared a search warrant affidavit for the two storage stalls detailing these facts and attached to it an "affidavit of qualifications" from Officer Carmack which established both his and Rocky's qualifications. But Carmack's signature was not notarized when Fay presented the affidavit to the magistrate at 5:30 a.m. on March 8. Despite the unsworn affidavit of qualifications, the magistrate issued a search warrant for the two storage stalls. Fay and other officers searched the two storage stalls and found stolen property, methamphetamine, marihuana, and $5,500 in U.S. currency inside of a drug ledger. Sometime on March 8 but after the search warrant had been executed, Fay had Carmack's affidavit of qualifications notarized.

The State filed a petition seeking forfeiture of the $5,500, three computers, and three firearms. Grazioso filed an answer claiming that he is the owner of the $5,500 and asserting that probable cause did not exist for seizure of the property. He did not contest seizure of the firearms and computers. Grazioso did not file a motion to suppress but he raised a number of objections during trial to the admissibility of the evidence seized during the inventory search and the execution of the search warrant. Further, the parties made the trial court aware that the suppression issues had been litigated in federal court.¹ The trial court found that the initial traffic stop was unlawful because probable cause did not exist to believe Grazioso had committed the offense of failure to maintain a single lane. It also found that Grazioso had lawfully parked the truck at his apartment complex, and therefore, the inventory search was invalid. The trial court determined that the portions of Fay's affidavit pertaining to the traffic stop and the inventory search had to be excluded from consideration. Additionally, the trial court found that Fay's statement that he had attached an affidavit of qualifications to his search warrant affidavit was false and made in reckless disregard of the truth, and therefore, the portion of the affidavit referring to the canine sniff had to be excluded from the search warrant affidavit. Having excluded much of Fay's affidavit, the trial court found that the affidavit did not state probable cause and ruled the evidence seized as a result of the search inadmissible. Accordingly, the trial court entered judgment denying the State's petition for forfeiture of the $5,500.

FORFEITURE

The State raises five issues challenging the trial court's conclusion that probable cause did not exist for the seizure of the money because it had been unlawfully seized. It argues that the evidence is legally and factually insufficient to support the trial court's finding of fact that: (1) Grazioso parked his truck in a parking space near his apartment; (2) the searches of Grazioso and his truck were illegal because they were the product of an illegal arrest; (3) the inventory search of Graziozo's truck was illegal; and (4) the affidavit supporting the search warrant was insufficient. To the extent the challenged factual findings are actually conclusions of law, the State alternatively contends that the trial court incorrectly applied the law to the facts. The State does not assert on appeal that the exclusionary rule² does not apply to civil forfeiture proceedings. Therefore, we assume that the rule applies and address only the issues raised by this appeal.

Forfeiture proceedings under Chapter 59 are civil in nature. Tex.Code Crim. Proc.Ann. art. 59.05(a), (b)(Vernon 2006); One 1995 Dodge Pickup, Bearing Texas License Plate #2NJ-TM, V.I.N. 1B7HC16Y9SS379939 v. The State of Texas, 119 S.W.3d 306, 307 (Tex.App.-Waco 2003, no pet.). Property which meets Section 59.01's definition of contraband is subject to seizure and forfeiture. Tex.Code Crim.Proc.Ann. art. 59.02(a). Pertinent to this appeal, contraband is defined as "property of any nature, including real, personal, tangible, or intangible, that is used or intended to be used in the commission of any felony under Chapter 481, Health and Safety Code." Tex.Code Crim. Proc.Ann. art. 59.01(2)(B)(i)(Vernon Supp. 2008). It is also defined as the proceeds gained from the commission of a felony listed in Paragraphs (A) or (B) of Section 59.01(2). Tex.Code Crim.Proc.Ann. art. 59.01(2)(C). Conviction of an underlying felony is not required under the forfeiture statute. Tex.Code Crim.Proc.Ann. art. 59.05(d).

In a forfeiture proceeding under Chapter 59, the State has the burden of proving by a preponderance of evidence that the property is subject to seizure. Tex.Code Crim.Proc.Ann. art. 59.05(b). The State is required to show that probable cause exists for seizing the property. Tex. Const. art. I, § 9; State v. $11,014.00, 820 S.W.2d 783, 784 (Tex.1991). To do this, the State must prove that there is a substantial connection between the property and the illegal activity. See $11,014.00, 820 S.W.2d at 784. This is accomplished when the State proves that it is more reasonably probable than not that the seized currency was either intended for use in, or derived from, a violation of the offenses listed in the forfeiture statute. See Antrim v. State, 868 S.W.2d 809, 812 (Tex.App.-Austin 1993, no writ).

Standards of Review—Validity of the Initial Traffic Stop and the Inventory Search

Although the State articulates its issues on appeal as traditional challenges to the sufficiency of the evidence supporting the trial court's factual findings and to the propriety of the trial court's legal conclusions, we apply a different standard when considering the trial court's ruling on a motion to suppress evidence as it concerns the admissibility of evidence.³ There are three distinct suppressions issues in this case: (1) the validity of the initial traffic stop; (2) the validity of the inventory search; and (3) the sufficiency of the search warrant affidavit. The first two issues involve mixed questions of law and fact. The Texas Supreme Court has determined that we review mixed questions of law and fact arising in the civil forfeiture context under an abuse of discretion standard. See State v. $217,590.00 in United States Currency, 18 S.W.3d 631, 633-34 (Tex.2000)(stating that abuse of discretion standard of review applies to trial court's determination that a person's consent to search was not valid). In applying this standard, a reviewing court does not engage in its own factual review, but decides whether the record supports the trial court's resolution of factual matters. Id.; see Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). When, as in this case, the court issues findings of fact, we determine first whether the trial evidence, viewed in the light most favorable to the trial court's ruling, supports these fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). We then review the trial court's legal ruling de novo unless the trial court's supported-by-the-record explicit fact findings are also dispositive of the legal ruling. Id. The...