Bradford, J.
In December of 2016, Eric Butler was pulled over while driving his 2004 Pontiac Grand Prix (“the Car”), and a search revealed thirty-four grams of marijuana, approximately forty-six grams of heroin, and $236 in cash. The State, the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Law Enforcement Agency (collectively, “Appellees”), filed a civil forfeiture action against Butler, $236.00 in U.S. Currency, and one 2004 Pontiac Grand Prix (collectively, “Appellants”).
While the civil forfeiture action was pending, the United States District Court for the Southern District of Indiana found Indiana’s civil-forfeiture scheme to be unconstitutional in several respects. Effective July 1, 2018, several amendments took effect which were intended to cure the constitutional infirmities in Indiana’s civil forfeiture laws (“the 2018 Amendments”). When the trial court entered judgment in favor of Appellants based on the old statutes, Appellees refiled pursuant to the amended statutes. In December of 2018, the trial court entered summary judgment in favor of Appellees. Appellants argue that the trial court erroneously entered summary judgment in favor of Appellees and abused its discretion in failing to award Appellants attorney’s fees. Because Appellants have failed to establish that the trial court erred in concluding that the 2018 Amendments cured the constitutional defects in Indiana’s civil-forfeiture statutes and have waived any claim regarding attorney’s fees in the trial court, we affirm. Moreover, we decline Appellants’ request for an award of appellate attorney’s fees.
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On August 18, 2017, the United States District Court for the Southern District of Indiana ruled Indiana’s statutory forfeiture scheme unconstitutional. See Washington v. Marion Cty. Prosecutor, et al., 264 F. Supp. 3d 957, 961, 975–80 (S.D. Ind. 2017). …
Effective July 1, 2018, the 2018 Amendments took effect, which were an apparent attempt to address the due-process problems identified by the district court in Washington. See Ind. P.L. 47-2018, §§ 1-2. …
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Appellants contend that the 2018 Amendments do not apply to this case because the initial seizure of the Car occurred in December of 2016. We interpret this as a challenge on the ground that use of the amended chapter 34-24-1 to seize the Car would amount to an impermissible ex post facto law.
Without addressing the question of whether the 2018 Amendments cured the constitutional infirmities identified by the Washington court, we have little hesitation in at least concluding that the 2018 Amendments were all procedural in nature. To summarize, the amended statutes (1) now require a prosecutor to file a probable-cause affidavit within seven days of the seizure and the trial court to make a probable-cause determination, (2) now allow owners who were not in possession of the property when it was seized to file a petition for provisional release of their property, and (3) significantly shorten the amount of time permitted between the seizure of the vehicle and the filing of the forfeiture complaint. See Ind. Code § 34-24-1-2(b), -2(d), -3(a). The 2018 Amendments do nothing to create, define, or regulate the State’s inherent power to seize property from citizens under certain circumstances; they affect only the procedures for enforcing that right and/or obtaining redress. Because the 2018 Amendments are procedural in nature, we conclude that applying them to the seizure of the Car does not constitute an ex post facto law.
The next question is whether the 2018 Amendments cured the constitutional infirmities of chapter 34-24-1 as identified by the Washington court. As Appellees point out, however, Appellants do not even claim, much less develop an argument, that the 2018 Amendments failed to adequately address the defects identified by the district court. For a question of this importance, i.e., the constitutionality of Indiana’s civil forfeiture statutes, we are not inclined to supply one side with its argument. See, e.g., Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012) …
Moreover, again because Appellants did not advance this claim in the trial court either, the record is inadequately developed. In Washington, the Seventh Circuit Court of Appeals declined to address the question of whether the 2018 Amendments repaired Indiana Code chapter 34-24-1 because the district court had not yet had an opportunity to address the question or develop a record. Because we are faced with similar circumstances, we will follow the same path and decline to address a constitutional question that was not raised or argued to the trial court or addressed by it, much less with an adequately-developed record. We will diverge from the Seventh Circuit Court of Appeals, however, in that we will not remand for further proceedings on the effect of the 2018 Amendments; Butler, unlike Washington, had the opportunity to raise the issue but did not. It is well-settled that “[f]ailure to raise an issue before the trial court will result in waiver of that issue.” Heaphy v. Ogle, 896 N.E.2d 551, 555 (Ind. Ct. App. 2008). Because the argument has been waived, we express no opinion whatsoever on the question of whether the 2018 Amendments cured the constitutional defects of Indiana Code chapter 34-24-1. Butler has failed to carry his burden to establish that the seizure of the Car was in any way improper.
Appellants are seemingly requesting an award of both trial attorney’s fees and appellate attorney’s fees. To the extent Appellants rely on Indiana Code section 34-52-1-1, this claim is waived because it is raised for the first time on appeal. See, e.g., Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004); Evans v. Tuttle, 645 N.E.2d 1119, 1121 (Ind. Ct. App. 1995) (applying this rule specifically to a challenge regarding attorney’s fees). Second, a trial court in a civil action may award attorney’s fees “to the prevailing party[,]” see Ind. Code § 34-52-1-1(b), and Appellants did not prevail below.
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We conclude that this is not a case where an award of appellate attorney’s fees is warranted. Appellees presented a legal argument explaining why Washington did not prohibit the forfeiture of the Car, which forfeiture was proceeding under the newly-amended statutes that had been passed in response to Washington. …
We affirm the judgment of the trial court and decline Appellants’ request for appellate attorney’s fees.
Crone, J., and Tavitas, J., concur.