Metropolitan News-Enterprise


Monday, December 9, 2013


Page 1


C.A. Says Police May Not Initiate Asset Forfeitures


By JUSTIN LEVINE, Staff Writer


Police agencies may not initiate asset forfeiture proceedings, which must instead be only undertaken by the prosecuting agencies of the appropriate jurisdiction, the Fifth District Court of Appeal has ruled.

The court also held that strict compliance with notice requirements is necessary in order to lawfully uphold a forfeiture.

The decision was handed down in response to an appeal by Adolfo Cuevas who had been parked at a Tulare shopping mall with his friend when local police approached and questioned them in response to their car alarm, which had gone off. During a search, the officers seized approximately $7,014.37 in cash that was in Cuevas’s pockets.

They also seized $5,862.62 from his friend’s pocket and an additional $3,990 that was found behind the car’s dashboard.

After transporting him to the Tulare police station, police discovered trace amounts of methamphetamine on a five-dollar bill that had been in Cuevas’ possession. Based on that discovery, police gave him a “Notice of Nonjudicial Forfeiture Proceedings” form which indicated that $16,871.99 had been seized at the police station address of 260 South M Street due to, “violations of California Health and Safety Code Section(s) 11379 H & S.”

Cuevas then signed a “Disclaimer of Ownership” form from the department, notifying them that he had no ownership claim on the $5,862.62 and $3,990 amounts that were respectively seized from his friend and the car. He was later charged with unlawful possession of a controlled substance in violation of Health and Safety Code § 11377(a).

Approximately five months after the seizures, the district attorney placed a notice of  forfeiture in a local paper indicating that police had seized “$16,871.99” from “260 S. M St.” based on the violation of Health and Safety Code “section 11379.”

Shortly more than one month later, the Tulare County District Attorney’s Office executed a declaration of nonjudicial forfeiture over the sums, again describing “$16,871.99 in U.S. Currency” seized from the police department address for violation of “Section 11379.”

After the forfeiture was declared, the case against Cuevas was dismissed and he then filed a motion to compel the return of his $7,014.37. The trial court denied his motion on the basis that the money “was subject to a civil forfeiture proceeding.”

Based on a petition for a writ of mandate that Cuevas filed, the Court of Appeal directed the trial court to vacate its order denying the motion to return the money, ruling that the forfeiture proceeding was “invalid in the first instance” since it was initiated by police, rather than prosecutors, along with the fact that the notice to Cuevas was defective.

Writing for a unanimous panel, Justice Rosendo Peña Jr. said that the forfeiture-initiation and notice procedures found in Health and Safety Code § 11488.4 expressly require that they be carried out by either the office of the Attorney General or district attorney and such duties could therefore not be delegated to police or any other outside agency.

“It is well settled that statutes imposing forfeitures are disfavored and, thus, those statutes are to be strictly construed in favor of the persons against whom they are sought to be imposed,” he said.

Peña also said that even if prosecutors were allowed to delegate forfeiture proceedings to police, the attempt at forfeiture in Cuevas’s case would still fail due to facial defects in the notice to him which he described as “fatal flaws” in light of the strict construction applied to forfeiture statutes.

Peña concluded that the forfeiture reference to the total sum of $16,871.99 was defective since Cuevas had expressly disclaimed ownership of the other sums that were seized and only claimed an interest in the $7,014.37 taken from his person. He said that this disparity ran afoul of § 11488.4(j)(2) which requires the notice to include an “appraised value” of the seized property.

“Providing only the entire amount seized is an ambiguity that can impede a potential claimant, particularly if he be among more than one, from identifying the proceeding in which he might claim an interest,” he wrote.

The opinion also concluded that the notice failed to comport with the statutory requirement for the notice to include the “place of seizure,” since it erroneously listed the address of the police station, rather than the shopping mall where the money was first taken.

Furthermore, said Peña, the notice failed to allege the proper violation with respect to the forfeited property as required by § 11488.4(j)(4).

Peña wrote:

“Here, the notice was completed by a peace officer rather than a prosecutor. Hence, the notice only references the violation of the law that permitted seizure by the law enforcement officer, section 11379. The notice did not allege a violation with respect to forfeiture. Because a law enforcement agency is not a prosecuting agency, it does not ‘allege’ violations of law in the context intended by the statute.

Moreover, when the complaint of the Tulare County District Attorney was filed…it alleged petitioner had committed a violation of section 11377, subdivision (a), or possession of methamphetamine. However, possession of a controlled substance under section 11377 is not an offense listed in the forfeiture statutes.”

He also said that because the notice by publication contained the same informational defects, the publication requirement was likewise not properly met.

Peña said that since Cuevas was not a defendant in a criminal proceeding, he still had standing to claim back his property in accordance with § 11488.4(g) and that the trial court should schedule a new hearing on his motion to recover it.

The case is Cuevas v. Superior Court (People), 13 S.O.S. 6208.


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