U.S. Currency in Amount of $26,980.00, In re

• Citation: 193 Ariz. 427,973 P.2d 1184
• Decision Date: 25 June 1998
• Docket Number: CA-CV,No. 2,2
• Parties: , 272 Ariz. Adv. Rep. 35 In re UNITED STATES CURRENCY IN THE AMOUNT OF $26,980.00 97-0119.
• Court: Court of Appeals of Arizona

Page 1184

973 P.2d 1184

193 Ariz. 427, 272 Ariz. Adv. Rep. 35

In re UNITED STATES CURRENCY IN THE AMOUNT OF $26,980.00

No. 2 CA-CV 97-0119.

Court of Appeals of Arizona Division 2, Department B.

June 25, 1998.

Review Denied March 23, 1999.

Barbara LaWall, Pima County Attorney By Thomas J. Rankin, Tucson, for Appellant State of Arizona.

John D. Kaufmann, Tucson, for Claimant/Appellee.

Grant Woods, The Attorney General By Cameron H. Holmes, Phoenix, for Amicus Curiae State of Arizona.

OPINION

PELANDER, Presiding Judge.

¶1 In this civil in rem forfeiture action, the state appeals from the trial court's summary judgment in favor of claimant Beverly Gilbert. We reverse and remand.

BACKGROUND

¶2 Gilbert stipulated that all of the factual allegations in the state's forfeiture complaint were true for purposes of her summary judgment motion. Although the facts are undisputed, we view them and reasonable inferences therefrom in the light most favorable to the party against whom summary judgment was entered. Southwest Auto Painting & Body Repair v. Binsfeld, 183 Ariz. 444, 904 P.2d 1268 (App.1995). On August 8, 1996, a package addressed to Gilbert arrived via Federal Express at the University of Arizona's (UA) Sociology Department. The package indicated a Professor Timothy Walters of Hofstra University in New York as the sender and listed his return address and phone number. Gilbert, a UA Sociology Department mailroom employee whose job did not include handling incoming mail, was off work that day. Before the package arrived, Gilbert telephoned the UA employee who received incoming mail and told her that she (Gilbert) was expecting a package. After the package was delivered to the Sociology Department, an unidentified man called, asked if the package had arrived, and indicated he would come in to pick it up, but was told that he would not be allowed to do so.

¶3 Suspicious of the package, the UA employee opened it, found a large sum of cash inside, and notified UA police. A UA police officer examined the opened package, notified MANTIS, ¹ and took the package from the Sociology Department to the UA police office, where he met with a MANTIS officer. MANTIS officers attempted to locate and communicate with the sender of the package, but discovered that the return address and phone number were fictitious. ² MANTIS officers then took the package to Gilbert's home, where she gave a recorded statement denying ownership of the money or knowledge of the sender, and signed a disclaimer form. Approximately one month later, after the state had served her with a notice of pending forfeiture pursuant to A.R.S. § 13-4307, Gilbert filed a claim of exemption from forfeiture pursuant to A.R.S. § 13-4304. Gilbert claimed ownership of the money as a return on a capital investment in Timothy Walters' construction business.

¶4 A few weeks later, the state filed this action in accordance with the Arizona statutes governing forfeiture proceedings, A.R.S. §§ 13-4301 through 13-4315. Relying on A.R.S. §§ 13-3413 and 13-2314, the state contended the $26,980 found inside the package was subject to forfeiture because it was used or intended to be used to facilitate the commission of various marijuana or narcotics-related offenses. The trial court denied Gilbert's motion to dismiss under Rule 12(b)(6), Ariz.R.Civ.P., 16 A.R.S. After the parties conducted some discovery and disclosure, however, the trial court granted Gilbert's motion for summary judgment and vacated the forfeiture trial date. In so ruling, the court concluded that the law enforcement officers had seized the package without a warrant from the UA Sociology Department, that the officers' "assertion of control over the package and its contents constituted a seizure within the meaning of the 4th and 14th Amendments," and that "the currency considered in conjunction with the nature of packaging, the incorrect sender's telephone number and the locale of both the sender and the recipient, can not [sic] sustain the long leap from reasonable suspicion to a finding of probable cause as required by A.R.S. § 1-4305(A)(3)(c)." This appeal followed the trial court's entry of judgment in Gilbert's favor in the amount of $26,980, plus interest at the legal rate from the date of seizure forward. ³

DISCUSSION

¶5 Because the trial court granted summary judgment on essentially undisputed facts, we determine only if the trial court correctly applied the law to the facts. St. Luke's Health Sys. v. State, 180 Ariz. 373, 884 P.2d 259 (App.1994). We review de novo mixed questions of law and fact and pure questions of law, including matters of statutory interpretation and constitutional issues. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966); In re $315,900.00 in United States Currency, 183 Ariz. 208, 902 P.2d 351 (App.1995). A determination of probable cause in the forfeiture context also is a question of law subject to our de novo review. Id.

¶6 Based on its ruling that the law enforcement officers violated Gilbert's Fourth Amendment rights by seizing the package without a warrant from the UA Sociology Department, the trial court precluded the state's attempted forfeiture of the package contents and awarded the cash to Gilbert. We disagree with the trial court's analysis and conclusion for several reasons. Assuming without deciding that the Fourth Amendment exclusionary rule applies to seizures for forfeiture, ⁴ and that the officers seized the package by taking it from the Sociology Department, we find no constitutional violation in this particular case. ⁵

¶7 A seizure for Fourth Amendment purposes " 'occurs when there is some meaningful interference with an individual's possessory interests in that property.' " Garmon v. Foust, 741 F.2d 1069, 1072 (8th Cir.1984), quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, 94 (1984). See also State v. Peters, 189 Ariz. 216, 941 P.2d 228 (1997). The state argues no meaningful interference occurred because "the government agents delivered the package to [Gilbert] before she took any steps to obtain possession of the package." As the state points out, Gilbert never possessed the package, sought to gain possession of it, or made any claim to its contents until approximately four weeks after she had expressly denied any knowledge of the package and sender and had disclaimed ownership of or interest in its contents. Nonetheless, the officers arguably interfered with Gilbert's possessory interests in the package, and therefore seized it for Fourth Amendment purposes, when they removed it from the Sociology Department and then from the UA campus. That seizure, however, was reasonable and justified here.

¶8 Reasonable suspicion may authorize and support a temporary detention of property for investigative purposes. Garmon. See also United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970); United States v. Lux, 905 F.2d 1379 (10th Cir.1990). As Gilbert conceded in her stipulation, the officers in this case were aware that a substantial amount of cash, packaged elaborately and deceptively, had been delivered to a university employee who was not responsible for receiving her department's mail, and that the package's origin and destination cities were known to law enforcement as drug proceeds exportation and importation sites. They were also aware that a suspicious phone call had been made by an unidentified third person seeking to retrieve the package. Considering the totality of the circumstances, see Lux, the officers had a reasonable suspicion of criminal activity when they removed the package from the UA and temporarily detained it for further investigation. Accordingly, we find no unconstitutional interference with Gilbert's possessory interest in the property arising from those actions.

¶9 Contrary to Gilbert's argument that "[w]arrantless seizure is not permitted by statute," the applicable forfeiture statutes do not require a warrant for all seizures, nor do they automatically invalidate forfeiture claims stemming from warrantless seizures. Rather, A.R.S. § 13-4305(A)(3)(c), which the trial court cited, provides: "Property subject to forfeiture under this chapter may be seized for forfeiture by a peace officer ... [b]y making a seizure for forfeiture without court process if ... [t]he peace officer has probable cause to believe that the property is subject to forfeiture." "Seizure for forfeiture" does not occur until an officer has seized property and the government has asserted that "the property is subject to forfeiture." A.R.S. § 13-4301(8).

¶10 It was only after the officers had discovered the fictitious sender's name, address, and phone number, and after Gilbert had denied any knowledge of the package or sender and had disclaimed any interest in the cash, that the state first asserted its forfeiture claim. Denials, disclaimers, and abandonment are relevant factors in evaluating whether there is probable cause for the seizure and forfeiture of property. See United States v. $83,310.78 in United States Currency, 851 F.2d 1231 (9th Cir.1988); United States v. $364,960.00 in United States Currency, 661 F.2d 319 (5th Cir.1981). At the time the property was "seized for forfeiture" in this case, the officers had probable cause to believe that the property was subject to forfeiture. See United States v. $215,300.00 in United States Currency, 882 F.2d 417 (9th Cir.1989); United States v. $83,310.78. The lack of a warrant does not automatically defeat the state's forfeiture claim, nor does it entitle Gilbert to the money.

¶11 The trial court's ruling also is contrary to Arizona's current statutory framework governing civil in rem forfeiture actions. Under that framework, whether the property is ultimately determined to be subject to forfeiture does not depend on a showing or finding that there was probable cause at the time the property initially was seized. As...