IN: Seizure of only cash under SW for drugs and cash from drug sales was unreasonable and without PC

When police had a search warrant for a package that included cash for drug purposes in the particular description, the seizure of only cash wasn’t justified. Nothing showed that the money was related to crime. Hodges v. State, 2018 Ind. App. LEXIS 431 (Nov. 21, 2018):

P14 At the outset, we note United States Supreme Court Justice Clarence Thomas’ recent commentary on forfeiture:

Modern civil forfeiture statutes are plainly designed, at least in part, to punish the owner of property used for criminal purposes. … [C]ivil forfeiture has in recent decades become widespread and highly profitable. … And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture. … This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses.

Leonard v. Texas, 137 S.Ct. 847, 847-48 (2017) (Justice Thomas respecting the denial of certiorari) (emphasis added).

. . .

P18 The search warrant in this case authorized law enforcement officers to open and search the package for “Illegal Controlled substances (Marijuana, Methamphetamine, Cocaine, Heroin, MDMA) also records of drug trafficking and proceeds of drug trafficking, bulk cash smuggling, money laundering, involving the proactive attempts of concealing currency as listed in the affidavit; as well as money orders and gift cards.” (App. 23). Therefore, the only way in which the seizure of Hodges’ currency falls under the search warrant is if it can reasonably be concluded to be “proceeds of drug trafficking, bulk cash smuggling, [or] money laundering.”

P19 The trial court in this case correctly pointed out that although the search warrant in Bowman authorized the seizure of only the proceeds of drug trafficking, the search warrant in this case also included the proceeds of bulk cash smuggling or money laundering. The trial court then concluded that it did not need to determine whether the currency was connection to drug trafficking because there was evidence that it was the proceeds of bulk cash smuggling. Based on this alleged evidence of bulk cash smuggling, the trial court further concluded that the seizure of Hodges’ $60,990 was lawful.

P20 First, although the search warrant authorized law enforcement officers to search for the proceeds of drug trafficking, money laundering, and bulk cash smuggling, the State’s motion to transfer the seized money to the United States alleged only that the money had been confiscated as proceeds of narcotics trafficking and money laundering. The State’s motion no longer mentioned bulk cash smuggling.

P21 We further note that Indiana statutes include neither the offense nor the definition of bulk cash smuggling. Rather, bulk cash smuggling is a federal offense, which is codified at 31 [USC] § 5332. Specifically, this statute provides that it is unlawful to knowingly conceal more than $10,000 in currency or other monetary instruments on a person or in a container and to transport or attempt to transport this currency across the border of the United States with the intent to avoid currency reporting requirements.

P22 Even if we were to apply this definition of bulk cash smuggling to the facts of this case, we find absolutely no evidence that Hodges attempted to transport his money across the United States’ border with the intent to avoid currency reporting requirements. Rather, the parties agree that Hodges attempted to ship the currency from Illinois to California. Based on these facts, no reasonable person could conclude that the currency discovered in the parcel was the proceeds of bulk cash smuggling.

. . .

P25 As we explained in Bowman, 81 N.E.3d at 1131, where no evidence of unlawful activity was found in the parcel, and there has been no allegation that Hodges has been charged with any state or federal offenses in connection with the parcel, no reasonable person would conclude that the currency discovered in the parcel was the proceeds of bulk cash smuggling, drug trafficking, or money laundering. The seizure of the currency was therefore unlawful, and the trial court’s order granting the State’s motion to turn the currency over to the United States was erroneous. See id. We therefore reverse and remand this case with instruction to the trial court to order the return of the currency to Hodges.