In In re $15,379 IN U.S. Currency, No. 2 CA-CV 2015-0166 (12/22/16), the Arizona Court of Appeals held that a trial court erred when it refused to order a County Attorney to return currency which had been seized from an appellant after the civil forfeiture proceeding in which the County Attorney sought to forfeit the currency had been dismissed.
The facts were, a Pinal County Sheriff’s deputy seized over $15,000 in currency from a vehicle driven by the appellant’s husband, who was also transporting a sizeable load of marijuana. Appellant filed a claim in the trial court seeking the return of the currency. Due to defects in the resulting forfeiture action, the trial court determined it lacked jurisdiction over the proceeding and ordered the currency returned to appellant with one qualification, namely, that the currency ($15,379) be returned “to the extent that it is not being held as evidence in any criminal matter.”
Thereafter the State refused to return the currency to the appellant.
The State did not contradict appellant’s assertion that actual currency was rarely used as evidence in a criminal trial and the usual practice was to take a photograph of the currency and use the photograph as evidence.
The appellant appealed the trial court’s refusal to order immediate return of the currency and in doing so contended the state had no legitimate basis for the refusal to issue “payment” or return of the currency.
On appeal the court of appeals ordered the currency be returned to the appellant. In doing so the court of appeals said property not subject to forfeiture must be returned unless the property is contraband and the possession of which is otherwise illegal.
The Illegal government possession of a person’s property violates the Fourteenth Amendment’s Due Process Clause or article II, § 4 of the Arizona Constitution. The State may legally retain a person’s otherwise lawful property as possible evidence in a criminal case, however, the Government’s retention of the property is subject to a test of reasonableness. Citing Federal case law the court of appeals said that a procedural due process framework “, applies to motions to return seized property which means, “at minimum, that a trial court must subject the state’s asserted need for property ‘to scrutiny for reasonableness,’ ‘weighing the competing interests . . . in light of less drastic means.” “If the [state]’s sole interest in retaining . . . currency is for its use as evidence, the court should consider whether this purpose would be equally well served by the alternatives to holding the money itself. ‘”
Applying these principles to the facts of the case the court of appeals said the State had not demonstrated why it needed to retain the actual currency as evidence and therefore the State’s retention of the currency was not reasonable. The court of appeals therefore reversed the trial court’s decision refusing to order the State to return the currency to the appellant.
The decision may be found at:
https://www.appeals2.az.gov/Decisions/CV20150166Opinion.pdf
Click HERE to read my recent blog post on civil forfeiture proceedings in Arizona.
Gordon Thompson
For more information about Arizona dui and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions. Website: https://GordonThompsonAttorney.net
