Kirsch, J.
Olympic Financial Group, Inc. (“Olympic”) is a Money Services Business conducting business in several states, which involves physically transporting currency from these states to the location of Olympic’s bank by using couriers. Two such couriers were pulled over as part of a routine traffic stop. The officer told the men he would be issuing the driver a warning, but because of some inconsistent answers provided by the men, the officer asked for consent to search the vehicle, which the driver gave. During the search, the officer found a suitcase, and after the driver opened the suitcase, it was found to contain $709,880 in U.S. currency. No criminal charges were filed, but the State seized the cash and filed a motion to turn the money over to the federal government, which the trial court granted. Olympic now appeals, arguing that the search was unlawful and that, even if the search was lawful, the seizure of the cash was unlawful because the State failed to show a nexus between the cash and any crime.
We reverse and remand.
…
Olympic argues that the trial court erred in granting the Turnover Order because both the search and seizure were unlawful.
…
Olympic asserts that the trial court erroneously granted the State’s Turnover Order for several reasons. Specifically pertinent to our decision, Olympic contends that the seizure of the money was unlawful because there was no probable cause to support the seizure because there was no nexus between the money and any criminal activity. Because the seizure was unlawful, Olympic maintains that the trial court erred by issuing the Turnover Order, and therefore, Olympic is entitled to immediate reimbursement from the State.
The statute authorizing the turnover of seized property provides as follows:
Upon motion of the prosecuting attorney, the court shall order property seized under IC 34-24-1 transferred, subject to the perfected liens or other security interests of any person in the property, to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted by the United States Department of Justice.
Ind. Code § 35-33-5-5(j) (emphasis added). Our Supreme Court has held that “if the search or seizure of . . . property was unlawful, the turnover order must be reversed.” Membres v. State, 889 N.E.2d 265, 269 (Ind. 2008).
It is well established that “[t]he possession of large amounts of cash is not in and of itself illegal.” Brown v. Eaton, 164 N.E.3d 153, 159 (Ind. Ct. App. 2021), trans. denied. Recently, this court decided Lewis v. State, 125 N.E.3d 655 (Ind. Ct. App. 2019), which held that, under Indiana Code section 35-33-5-5(j), in order for property to be turned over to the federal government, “the State must show that the property was properly seized pursuant to Indiana Code chapter 34-24-1 — the forfeiture statutes.” Id. at 659. Therefore, in regards to turnover proceedings, the State must offer evidence beyond the mere possession of money — even large amounts of money — to provide probable cause to seize the cash.
…
As previously noted, this court stated that, under Indiana Code section 35-33-5- 5(j), to be turned over to the federal government, “the State must show that the money was properly seized pursuant to Indiana Code chapter 34-24-1 . . . .” Id. at 659. This court then noted that Indiana Code section 34-24-1-1(a)(2), provides that money may be seized by the State if it was: (A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute; (B) used to facilitate any violation of a criminal statute; or (C) traceable as proceeds of the violation of a criminal statute. We then concluded that “the General Assembly has reasonably decreed that for the State to seize cash and seek its forfeiture — or turnover — it must show a nexus between the cash and some sort of criminal activity.” Lewis, 125 N.E.3d at 659.
In looking for a nexus between the cash and criminal activity in Lewis, none was found: “there is no evidence whatsoever that a crime occurred. . . . The plain language of the statute requires the State to prove that the money is directly related to some sort of criminal activity. Here, there is a complete dearth of evidence in that regard.” Id. (emphasis original). We, therefore, reversed the grant of the turnover order because the State “wholly failed to prove that the cash was properly seized pursuant to Indiana Code chapter 34-24-1.” Id. at 659-60.
Our present case presents an almost identical situation as in Lewis. Here, the seizure began when a traffic stop was conducted and after both Couriers’ driver’s licenses were found to be valid and in good standing. As in Lewis, the detective informed Driver that he would be issued a warning, and after issuing the warning, the detective asked Driver if there were any illegal narcotics or any large amounts of money in the vehicle. Detective Ibarra found Driver’s response to the question about the presence of money to be suspicious. As in Lewis, a K-9 unit alerted outside the vehicle, but no drugs or contraband were found in the vehicle, and the Couriers were neither arrested nor charged with any criminal offenses stemming from the incident.
The only fact distinguishing the present case from Lewis is the fact that, the day after it had been seized, the currency tested positive for drug residue after a pad test was administered. However, although the later-administered pad test showed the presence of drug residue, there is no evidence that, at the time of the traffic stop, the K-9 alerted to the suitcase, or the money contained within the suitcase. Additionally, the State provided a statement in the Probable Cause Affidavit that a pad test was done the day after the money was seized from the presence of the Couriers, but there is no evidence of how exactly the pad test was administered, including how many samples were taken from the currency and if there were multiple positive indications for the presence of drug residue. Further, courts have raised substantial questions as to the degree that a high percentage of all currency may be contaminated with drug residue. See, e.g., Illinois v. Caballes, 543 U.S. 405, 412 (2005) (Souter, J., dissenting) (noting “the pervasive contamination of currency by cocaine”); Muhammed v. Drug Enforcement Agency, 92 F.3d 648, 653 (8th Cir. 1996) (“it is well established that an extremely high percentage of all cash in circulation in America today is contaminated with drug residue”). Without knowing how many positive indications for drug residue were found on the currency, the mere presence of drug residue on currency in a suitcase in someone’s vehicle cannot on its own establish a nexus between the currency and criminal activity. For all these reasons, the mere fact that there was drug residue on the currency in this case does not distinguish this situation from Lewis. We, therefore, find that the holding in Lewis compels a reversal in this case.
…
Under the circumstances of the present case, the State has failed to prove that the cash was properly seized pursuant to Indiana Code chapter 34-24-1. Therefore, it has failed to show that it is entitled to a turnover order under Indiana Code section 35-33-5-5(j), and the trial court erred by granting the State’s motion. However, Olympic’s money has been turned over to the federal government, which is now in possession of it, and it is unclear whether the money has yet been subject to forfeiture proceedings. Given the circumstances of this case, especially the fact that there is no evidence whatsoever that a crime was committed, we do not believe that it is fair to require Olympic to undertake the process of retrieving its money from the federal government. Therefore, as in Lewis, we reverse and remand with instructions that the State reimburse Olympic instanter, and the State may then try to recoup that money from the federal government. Because we have decided this case pursuant to the turnover and forfeiture statutes, we need not consider Olympic’s arguments regarding the constitutionality of the search.
Reversed and remanded.
May, J., concurs.
Vaidik, J., concurs in result with separate opinion
Vaidik, J., concurring in result.
I concur in the majority’s reversal of the turnover order but not in its reliance on the standard set forth in Lewis v. Putnam County Sheriff’s Department, 125 N.E.3d 655 (Ind. Ct. App. 2019).
As the majority notes, the Lewis panel stated that “for the State to seize cash and seek its forfeiture—or turnover—it must show a nexus between the cash and some sort of criminal activity.” Id. at 659. The problem with this statement is that it fails to distinguish the standard for the forfeiture of property from the standard for the initial seizure of property that necessarily precedes the forfeiture. To initially seize property under the forfeiture statutes, there must be “probable cause to believe” there is a nexus between the property and certain criminal activity. See Ind. Code § 34-24-1-2(a), (b). To then be entitled to forfeiture of property, “the prosecuting attorney must show by a preponderance of the evidence” there is a nexus between the property and certain criminal activity. See Ind. Code § 34-24-1-4(a). Probable cause, of course, is a lower bar than a preponderance of the evidence. See Heaton v. State, 984 N.E.2d 614 (Ind. 2013).
One month after Lewis, our Supreme Court addressed this important distinction in Hodges v. State, 125 N.E.3d 578 (Ind. 2019). The turnover order at issue in Hodges concerned cash believed to be related to drug dealing. The Court stated that “[t]he propriety of the turnover order depends on whether the seizure was supported by probable cause to believe the cash was proceeds of drug trafficking[.]” Id. at 581 (emphasis added). The Court held it was but clarified that the existence of probable cause to seize the cash (and then turn it over to federal authorities) did not mean forfeiture of the cash would be appropriate. Id. at 584. The Court explained:
Once the money is turned over, the government may either return the property or seek forfeiture. If it seeks forfeiture, the court overseeing that proceeding may assess any innocent explanations for the circumstances and determine who is entitled to the property. We decide only that the turnover from state to federal authorities is proper.
Id. Hodges, not Lewis, sets forth the proper standard for the initial seizure of property under the forfeiture statutes: probable cause to believe there is a nexus between the property and certain criminal activity.
That said, not even this lower standard was met in this case. For all the reasons laid out by the majority, I see no probable cause to believe the cash seized is related to criminal activity. Therefore, I join in the reversal of the turnover order.
I also agree that the State should be required to immediately return the seized funds to Olympic. The forfeiture statutes make clear that where, as here, the seizure of property is not supported by probable cause, the property must be “returned to the owner of record.” I.C. § 34-24-1-2(b). When the State turned the funds over to federal authorities before the time for appeal had run, it did so at its own peril.
Kirsch, J.
Olympic Financial Group, Inc. (“Olympic”) is a Money Services Business conducting business in several states, which involves physically transporting currency from these states to the location of Olympic’s bank by using couriers. Two such couriers were pulled over as part of a routine traffic stop. The officer told the men he would be issuing the driver a warning, but because of some inconsistent answers provided by the men, the officer asked for consent to search the vehicle, which the driver gave. During the search, the officer found a suitcase, and after the driver opened the suitcase, it was found to contain $709,880 in U.S. currency. No criminal charges were filed, but the State seized the cash and filed a motion to turn the money over to the federal government, which the trial court granted. Olympic now appeals, arguing that the search was unlawful and that, even if the search was lawful, the seizure of the cash was unlawful because the State failed to show a nexus between the cash and any crime.
We reverse and remand.
…
Olympic argues that the trial court erred in granting the Turnover Order because both the search and seizure were unlawful.
…
Olympic asserts that the trial court erroneously granted the State’s Turnover Order for several reasons. Specifically pertinent to our decision, Olympic contends that the seizure of the money was unlawful because there was no probable cause to support the seizure because there was no nexus between the money and any criminal activity. Because the seizure was unlawful, Olympic maintains that the trial court erred by issuing the Turnover Order, and therefore, Olympic is entitled to immediate reimbursement from the State.
The statute authorizing the turnover of seized property provides as follows:
Upon motion of the prosecuting attorney, the court shall order property seized under IC 34-24-1 transferred, subject to the perfected liens or other security interests of any person in the property, to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted by the United States Department of Justice.
Ind. Code § 35-33-5-5(j) (emphasis added). Our Supreme Court has held that “if the search or seizure of . . . property was unlawful, the turnover order must be reversed.” Membres v. State, 889 N.E.2d 265, 269 (Ind. 2008).
It is well established that “[t]he possession of large amounts of cash is not in and of itself illegal.” Brown v. Eaton, 164 N.E.3d 153, 159 (Ind. Ct. App. 2021), trans. denied. Recently, this court decided Lewis v. State, 125 N.E.3d 655 (Ind. Ct. App. 2019), which held that, under Indiana Code section 35-33-5-5(j), in order for property to be turned over to the federal government, “the State must show that the property was properly seized pursuant to Indiana Code chapter 34-24-1 — the forfeiture statutes.” Id. at 659. Therefore, in regards to turnover proceedings, the State must offer evidence beyond the mere possession of money — even large amounts of money — to provide probable cause to seize the cash.
…
As previously noted, this court stated that, under Indiana Code section 35-33-5- 5(j), to be turned over to the federal government, “the State must show that the money was properly seized pursuant to Indiana Code chapter 34-24-1 . . . .” Id. at 659. This court then noted that Indiana Code section 34-24-1-1(a)(2), provides that money may be seized by the State if it was: (A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute; (B) used to facilitate any violation of a criminal statute; or (C) traceable as proceeds of the violation of a criminal statute. We then concluded that “the General Assembly has reasonably decreed that for the State to seize cash and seek its forfeiture — or turnover — it must show a nexus between the cash and some sort of criminal activity.” Lewis, 125 N.E.3d at 659.
In looking for a nexus between the cash and criminal activity in Lewis, none was found: “there is no evidence whatsoever that a crime occurred. . . . The plain language of the statute requires the State to prove that the money is directly related to some sort of criminal activity. Here, there is a complete dearth of evidence in that regard.” Id. (emphasis original). We, therefore, reversed the grant of the turnover order because the State “wholly failed to prove that the cash was properly seized pursuant to Indiana Code chapter 34-24-1.” Id. at 659-60.
Our present case presents an almost identical situation as in Lewis. Here, the seizure began when a traffic stop was conducted and after both Couriers’ driver’s licenses were found to be valid and in good standing. As in Lewis, the detective informed Driver that he would be issued a warning, and after issuing the warning, the detective asked Driver if there were any illegal narcotics or any large amounts of money in the vehicle. Detective Ibarra found Driver’s response to the question about the presence of money to be suspicious. As in Lewis, a K-9 unit alerted outside the vehicle, but no drugs or contraband were found in the vehicle, and the Couriers were neither arrested nor charged with any criminal offenses stemming from the incident.
The only fact distinguishing the present case from Lewis is the fact that, the day after it had been seized, the currency tested positive for drug residue after a pad test was administered. However, although the later-administered pad test showed the presence of drug residue, there is no evidence that, at the time of the traffic stop, the K-9 alerted to the suitcase, or the money contained within the suitcase. Additionally, the State provided a statement in the Probable Cause Affidavit that a pad test was done the day after the money was seized from the presence of the Couriers, but there is no evidence of how exactly the pad test was administered, including how many samples were taken from the currency and if there were multiple positive indications for the presence of drug residue. Further, courts have raised substantial questions as to the degree that a high percentage of all currency may be contaminated with drug residue. See, e.g., Illinois v. Caballes, 543 U.S. 405, 412 (2005) (Souter, J., dissenting) (noting “the pervasive contamination of currency by cocaine”); Muhammed v. Drug Enforcement Agency, 92 F.3d 648, 653 (8th Cir. 1996) (“it is well established that an extremely high percentage of all cash in circulation in America today is contaminated with drug residue”). Without knowing how many positive indications for drug residue were found on the currency, the mere presence of drug residue on currency in a suitcase in someone’s vehicle cannot on its own establish a nexus between the currency and criminal activity. For all these reasons, the mere fact that there was drug residue on the currency in this case does not distinguish this situation from Lewis. We, therefore, find that the holding in Lewis compels a reversal in this case.
…
Under the circumstances of the present case, the State has failed to prove that the cash was properly seized pursuant to Indiana Code chapter 34-24-1. Therefore, it has failed to show that it is entitled to a turnover order under Indiana Code section 35-33-5-5(j), and the trial court erred by granting the State’s motion. However, Olympic’s money has been turned over to the federal government, which is now in possession of it, and it is unclear whether the money has yet been subject to forfeiture proceedings. Given the circumstances of this case, especially the fact that there is no evidence whatsoever that a crime was committed, we do not believe that it is fair to require Olympic to undertake the process of retrieving its money from the federal government. Therefore, as in Lewis, we reverse and remand with instructions that the State reimburse Olympic instanter, and the State may then try to recoup that money from the federal government. Because we have decided this case pursuant to the turnover and forfeiture statutes, we need not consider Olympic’s arguments regarding the constitutionality of the search.
Reversed and remanded.
May, J., concurs.
Vaidik, J., concurs in result with separate opinion
Vaidik, J., concurring in result.
I concur in the majority’s reversal of the turnover order but not in its reliance on the standard set forth in Lewis v. Putnam County Sheriff’s Department, 125 N.E.3d 655 (Ind. Ct. App. 2019).
As the majority notes, the Lewis panel stated that “for the State to seize cash and seek its forfeiture—or turnover—it must show a nexus between the cash and some sort of criminal activity.” Id. at 659. The problem with this statement is that it fails to distinguish the standard for the forfeiture of property from the standard for the initial seizure of property that necessarily precedes the forfeiture. To initially seize property under the forfeiture statutes, there must be “probable cause to believe” there is a nexus between the property and certain criminal activity. See Ind. Code § 34-24-1-2(a), (b). To then be entitled to forfeiture of property, “the prosecuting attorney must show by a preponderance of the evidence” there is a nexus between the property and certain criminal activity. See Ind. Code § 34-24-1-4(a). Probable cause, of course, is a lower bar than a preponderance of the evidence. See Heaton v. State, 984 N.E.2d 614 (Ind. 2013).
One month after Lewis, our Supreme Court addressed this important distinction in Hodges v. State, 125 N.E.3d 578 (Ind. 2019). The turnover order at issue in Hodges concerned cash believed to be related to drug dealing. The Court stated that “[t]he propriety of the turnover order depends on whether the seizure was supported by probable cause to believe the cash was proceeds of drug trafficking[.]” Id. at 581 (emphasis added). The Court held it was but clarified that the existence of probable cause to seize the cash (and then turn it over to federal authorities) did not mean forfeiture of the cash would be appropriate. Id. at 584. The Court explained:
Once the money is turned over, the government may either return the property or seek forfeiture. If it seeks forfeiture, the court overseeing that proceeding may assess any innocent explanations for the circumstances and determine who is entitled to the property. We decide only that the turnover from state to federal authorities is proper.
Id. Hodges, not Lewis, sets forth the proper standard for the initial seizure of property under the forfeiture statutes: probable cause to believe there is a nexus between the property and certain criminal activity.
That said, not even this lower standard was met in this case. For all the reasons laid out by the majority, I see no probable cause to believe the cash seized is related to criminal activity. Therefore, I join in the reversal of the turnover order.
I also agree that the State should be required to immediately return the seized funds to Olympic. The forfeiture statutes make clear that where, as here, the seizure of property is not supported by probable cause, the property must be “returned to the owner of record.” I.C. § 34-24-1-2(b). When the State turned the funds over to federal authorities before the time for appeal had run, it did so at its own peril.
Kirsch, J.
Olympic Financial Group, Inc. (“Olympic”) is a Money Services Business conducting business in several states, which involves physically transporting currency from these states to the location of Olympic’s bank by using couriers. Two such couriers were pulled over as part of a routine traffic stop. The officer told the men he would be issuing the driver a warning, but because of some inconsistent answers provided by the men, the officer asked for consent to search the vehicle, which the driver gave. During the search, the officer found a suitcase, and after the driver opened the suitcase, it was found to contain $709,880 in U.S. currency. No criminal charges were filed, but the State seized the cash and filed a motion to turn the money over to the federal government, which the trial court granted. Olympic now appeals, arguing that the search was unlawful and that, even if the search was lawful, the seizure of the cash was unlawful because the State failed to show a nexus between the cash and any crime.
We reverse and remand.
…
Olympic argues that the trial court erred in granting the Turnover Order because both the search and seizure were unlawful.
…
Olympic asserts that the trial court erroneously granted the State’s Turnover Order for several reasons. Specifically pertinent to our decision, Olympic contends that the seizure of the money was unlawful because there was no probable cause to support the seizure because there was no nexus between the money and any criminal activity. Because the seizure was unlawful, Olympic maintains that the trial court erred by issuing the Turnover Order, and therefore, Olympic is entitled to immediate reimbursement from the State.
The statute authorizing the turnover of seized property provides as follows:
Upon motion of the prosecuting attorney, the court shall order property seized under IC 34-24-1 transferred, subject to the perfected liens or other security interests of any person in the property, to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted by the United States Department of Justice.
Ind. Code § 35-33-5-5(j) (emphasis added). Our Supreme Court has held that “if the search or seizure of . . . property was unlawful, the turnover order must be reversed.” Membres v. State, 889 N.E.2d 265, 269 (Ind. 2008).
It is well established that “[t]he possession of large amounts of cash is not in and of itself illegal.” Brown v. Eaton, 164 N.E.3d 153, 159 (Ind. Ct. App. 2021), trans. denied. Recently, this court decided Lewis v. State, 125 N.E.3d 655 (Ind. Ct. App. 2019), which held that, under Indiana Code section 35-33-5-5(j), in order for property to be turned over to the federal government, “the State must show that the property was properly seized pursuant to Indiana Code chapter 34-24-1 — the forfeiture statutes.” Id. at 659. Therefore, in regards to turnover proceedings, the State must offer evidence beyond the mere possession of money — even large amounts of money — to provide probable cause to seize the cash.
…
As previously noted, this court stated that, under Indiana Code section 35-33-5- 5(j), to be turned over to the federal government, “the State must show that the money was properly seized pursuant to Indiana Code chapter 34-24-1 . . . .” Id. at 659. This court then noted that Indiana Code section 34-24-1-1(a)(2), provides that money may be seized by the State if it was: (A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute; (B) used to facilitate any violation of a criminal statute; or (C) traceable as proceeds of the violation of a criminal statute. We then concluded that “the General Assembly has reasonably decreed that for the State to seize cash and seek its forfeiture — or turnover — it must show a nexus between the cash and some sort of criminal activity.” Lewis, 125 N.E.3d at 659.
In looking for a nexus between the cash and criminal activity in Lewis, none was found: “there is no evidence whatsoever that a crime occurred. . . . The plain language of the statute requires the State to prove that the money is directly related to some sort of criminal activity. Here, there is a complete dearth of evidence in that regard.” Id. (emphasis original). We, therefore, reversed the grant of the turnover order because the State “wholly failed to prove that the cash was properly seized pursuant to Indiana Code chapter 34-24-1.” Id. at 659-60.
Our present case presents an almost identical situation as in Lewis. Here, the seizure began when a traffic stop was conducted and after both Couriers’ driver’s licenses were found to be valid and in good standing. As in Lewis, the detective informed Driver that he would be issued a warning, and after issuing the warning, the detective asked Driver if there were any illegal narcotics or any large amounts of money in the vehicle. Detective Ibarra found Driver’s response to the question about the presence of money to be suspicious. As in Lewis, a K-9 unit alerted outside the vehicle, but no drugs or contraband were found in the vehicle, and the Couriers were neither arrested nor charged with any criminal offenses stemming from the incident.
The only fact distinguishing the present case from Lewis is the fact that, the day after it had been seized, the currency tested positive for drug residue after a pad test was administered. However, although the later-administered pad test showed the presence of drug residue, there is no evidence that, at the time of the traffic stop, the K-9 alerted to the suitcase, or the money contained within the suitcase. Additionally, the State provided a statement in the Probable Cause Affidavit that a pad test was done the day after the money was seized from the presence of the Couriers, but there is no evidence of how exactly the pad test was administered, including how many samples were taken from the currency and if there were multiple positive indications for the presence of drug residue. Further, courts have raised substantial questions as to the degree that a high percentage of all currency may be contaminated with drug residue. See, e.g., Illinois v. Caballes, 543 U.S. 405, 412 (2005) (Souter, J., dissenting) (noting “the pervasive contamination of currency by cocaine”); Muhammed v. Drug Enforcement Agency, 92 F.3d 648, 653 (8th Cir. 1996) (“it is well established that an extremely high percentage of all cash in circulation in America today is contaminated with drug residue”). Without knowing how many positive indications for drug residue were found on the currency, the mere presence of drug residue on currency in a suitcase in someone’s vehicle cannot on its own establish a nexus between the currency and criminal activity. For all these reasons, the mere fact that there was drug residue on the currency in this case does not distinguish this situation from Lewis. We, therefore, find that the holding in Lewis compels a reversal in this case.
…
Under the circumstances of the present case, the State has failed to prove that the cash was properly seized pursuant to Indiana Code chapter 34-24-1. Therefore, it has failed to show that it is entitled to a turnover order under Indiana Code section 35-33-5-5(j), and the trial court erred by granting the State’s motion. However, Olympic’s money has been turned over to the federal government, which is now in possession of it, and it is unclear whether the money has yet been subject to forfeiture proceedings. Given the circumstances of this case, especially the fact that there is no evidence whatsoever that a crime was committed, we do not believe that it is fair to require Olympic to undertake the process of retrieving its money from the federal government. Therefore, as in Lewis, we reverse and remand with instructions that the State reimburse Olympic instanter, and the State may then try to recoup that money from the federal government. Because we have decided this case pursuant to the turnover and forfeiture statutes, we need not consider Olympic’s arguments regarding the constitutionality of the search.
Reversed and remanded.
May, J., concurs.
Vaidik, J., concurs in result with separate opinion
Vaidik, J., concurring in result.
I concur in the majority’s reversal of the turnover order but not in its reliance on the standard set forth in Lewis v. Putnam County Sheriff’s Department, 125 N.E.3d 655 (Ind. Ct. App. 2019).
As the majority notes, the Lewis panel stated that “for the State to seize cash and seek its forfeiture—or turnover—it must show a nexus between the cash and some sort of criminal activity.” Id. at 659. The problem with this statement is that it fails to distinguish the standard for the forfeiture of property from the standard for the initial seizure of property that necessarily precedes the forfeiture. To initially seize property under the forfeiture statutes, there must be “probable cause to believe” there is a nexus between the property and certain criminal activity. See Ind. Code § 34-24-1-2(a), (b). To then be entitled to forfeiture of property, “the prosecuting attorney must show by a preponderance of the evidence” there is a nexus between the property and certain criminal activity. See Ind. Code § 34-24-1-4(a). Probable cause, of course, is a lower bar than a preponderance of the evidence. See Heaton v. State, 984 N.E.2d 614 (Ind. 2013).
One month after Lewis, our Supreme Court addressed this important distinction in Hodges v. State, 125 N.E.3d 578 (Ind. 2019). The turnover order at issue in Hodges concerned cash believed to be related to drug dealing. The Court stated that “[t]he propriety of the turnover order depends on whether the seizure was supported by probable cause to believe the cash was proceeds of drug trafficking[.]” Id. at 581 (emphasis added). The Court held it was but clarified that the existence of probable cause to seize the cash (and then turn it over to federal authorities) did not mean forfeiture of the cash would be appropriate. Id. at 584. The Court explained:
Once the money is turned over, the government may either return the property or seek forfeiture. If it seeks forfeiture, the court overseeing that proceeding may assess any innocent explanations for the circumstances and determine who is entitled to the property. We decide only that the turnover from state to federal authorities is proper.
Id. Hodges, not Lewis, sets forth the proper standard for the initial seizure of property under the forfeiture statutes: probable cause to believe there is a nexus between the property and certain criminal activity.
That said, not even this lower standard was met in this case. For all the reasons laid out by the majority, I see no probable cause to believe the cash seized is related to criminal activity. Therefore, I join in the reversal of the turnover order.
I also agree that the State should be required to immediately return the seized funds to Olympic. The forfeiture statutes make clear that where, as here, the seizure of property is not supported by probable cause, the property must be “returned to the owner of record.” I.C. § 34-24-1-2(b). When the State turned the funds over to federal authorities before the time for appeal had run, it did so at its own peril.