Rucker, J.
On cross-motions for summary judgment the trial court deemed a vehicle forfeited and awarded the same to the Indianapolis Metropolitan Police Department. However the undisputed facts disclose the vehicle’s owner is entitled to possession. We therefore reverse the judgment of the trial court.
. . . .
As recounted earlier the State sought forfeiture of Sargent’s vehicle under the provisions of the Civil Forfeiture Statute which provides in relevant part:
The following may be seized: (1) All vehicles . . . if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of the following: . . . (B) Any stolen . . . or converted property . . . if the retail or repurchase value of that property is one hundred dollars ($100) or more.
I.C. § 34-24-1-1(a). Relying on the designated materials and seizing on the phrase “used or are intended for use” the State contended and the trial court agreed “there is no genuine issue of material fact and that Defendant Detona Sargent intended to use the subject 1996 Buick to facilitate the transportation of stolen property . . . .” App. at 1. Importantly, however, in addition to demonstrating that Sargent used or intended to use her vehicle to facilitate the transportation of stolen property, the State also carried the burden of demonstrating Sargent was “in possession” of the vehicle at the time. See I.C. § 34-24-1-1(a).
Although arising in a different context our jurisprudence on the issue of “possession” is rather straightforward: it can be either actual or constructive. Actual possession occurs when a person has direct physical control over the item. Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). When the State cannot show actual possession, it may nonetheless prevail on proof of constructive possession. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “A person constructively possesses [an item] when the person has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it.” Id. (citing Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g, 685 N.E.2d 698 (Ind. 1997)).
Here based on the Rule 56 materials presented to the trial court it is apparent that Sargent had neither actual nor constructive possession of her Buick vehicle at the time it was “used or intended for use” to “facilitate the transportation” of stolen property. I.C. § 34-24-1-1(a). At all relevant times Sargent was detained in the store and thus had no physical control over the vehicle. Indeed Sargent had not been in actual possession of her car since earlier in the day when she allowed a co-worker to use it on condition the worker would return so that Sargent could drive home at the end of her shift. As for constructive possession, even if one might infer that Sargent had the “intent” to maintain dominion and control over the car, the record makes clear that her detention made it impossible for her to have the “capability” to maintain such control.
Rush, C.J., and Dickson, J., concur.
David, J., dissents with separate opinion in which Massa, J., joins:
I respectfully dissent, as Detona Sargent had constructive possession of her 1996 Buick Century when she stole four iPhones from her employer on September 16, 2011. This Court has long held that, in order to prove constructive possession, the State must show that the defendant has both the intent and capability to maintain “dominion and control” over the property in question. See, for example, Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Though at the time of the thefts Sargent was not physically occupying her vehicle, she exerted “dominion and control” over the Buick, as evidenced by her instruction to her co-worker to return the vehicle by the end of her shift so she could drive home. Thus, she constructively possessed the Buick.
I disagree with the majority’s conclusion that “the record makes clear that her detention made it impossible for her to have the ‘capability’ to maintain such control.” Slip. op. at *5. Though true Sargent was detained, her detention did not terminate her constructive possession of the Buick, as it was not until the vehicle was towed away that she lost her capability to control it.
With the knowledge that Sargent constructively possessed her Buick at the relevant time, I turn to Indiana Code § 34-24-1-1(a)(1)(B) (2014), which, as the majority recounts, permits the forfeiture of a vehicle used or intended to be used by the person in possession of it to transport stolen property with a retail value of at least one hundred dollars. Because Sargent fully intended to use the Buick to transport stolen iPhones collectively valued at a retail price of approximately $1,200, and would have done so had security not intervened, I agree with the Court of Appeals and the trial court that § 34-24-1-1(a)(1)(B) allowed the State to seize the Buick— however ill-advised some may find this use of official discretion.
Massa, J., dissents with separate opinion:
Notwithstanding my admiration for the majority’s desire to do justice in this case, I fully join Justice David’s dissent. I write separately to offer an additional comment about discretion.
As Justice David notes, Ms. Sargent drove her car to work at Wal-Mart, where she then committed an employee theft of four cell phones. While at work, she loaned her car to a friend to run an errand. The friend returned the car, and it was in the Wal-Mart lot when Sargent was caught. There is, in my judgment, sufficient evidence that Sargent constructively possessed her car and that it was “intended for use . . . to transport” the phones, and thus technically eligible for forfeiture.
. . . .
This is not the first time in recent years that we have seen an almost comical deployment of law enforcement Weapons of Mass Destruction against pedestrian targets. In Miller v. State, 992 N.E.2d 791 (Ind. Ct. App. 2013), trans. denied 7 N.E.3d 993 (Ind. 2014), the prosecutor used the RICO statute1 against a common home burglar who stole a TV, computer, and credit cards, and subsequently tried, unsuccessfully, to use the cards at department, drug, and liquor stores on the same night. The Court of Appeals vacated the racketeering conviction, but in so doing may have created precedent that could frustrate future applications of the statute; the Attorney General certainly so argued without success in our Court. Oral Arg. Video Tr. at 33:34–36:38. [Footnote omitted.]
Our Constitution and statutes vest police and prosecutors with great power to initiate proceedings that can ultimately deprive liberty and divest property where certain crimes are proven. State and federal legislative bodies have provided the special tools of RICO and forfeiture largely to target organized crime [footnote omitted] and narcotics trafficking. [Footnote omitted.] These tools are not without their critics, and their misuse invites further scrutiny. [Footnote omitted.] Moreover, when authorities overreach, the judiciary is tempted to impose remedies that do justice in a particular case but may do harm to the law over time.
The answer, sometimes, to Rolfe’s truism about hard cases, is to not bring them in the first place.