                                                                                  FILED
                                                                             Aug 16 2017, 12:45 pm

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Gary M. Selig                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Frances Barrow
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert Bowman, Tommy                                       August 16, 2017
Maurry, and Jacob Murphy, et                               Court of Appeals Case No.
al.,                                                       49A02-1606-MI-1463
Appellants-Respondents,                                    Appeal from the Marion Superior
                                                           Court
        v.                                                 The Honorable Marc T.
                                                           Rothenberg, Judge
State of Indiana,                                          Trial Court Cause Nos.
Appellee-Petitioner                                        49G02-1602-MI-4868
                                                           49G02-1602-MI-4926



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017                            Page 1 of 8
[1]   Two parcels being shipped from one state to another caught the attention of a

      detective. The only articulated reasons for suspicion were: the parcels were

      being shipped to California; they were sent priority overnight; they were heavily

      taped; and they were each sent to the same recipient. After a K-9 unit gave

      positive alerts on both parcels, a search warrant was obtained. The only thing

      inside the parcels was cash, which was seized by the State as proceeds of drug

      trafficking. None of the individuals have ever been investigated for or charged

      with any crimes in connection with this case. The State now seeks to turn the

      seized cash over to the federal government.


[2]   Jacob Murphy, Robert Bowman, and Tommy Maurry (collectively, the

      Appellants) appeal the trial court’s order granting the State’s motion to transfer

      approximately $30,000 to the United States. The Appellants argue that the

      seizure of the money exceeded the scope of the search warrants, meaning that

      the seizure was unlawful and the money may not be turned over to the federal

      government. We agree, and reverse and remand with instructions to order the

      return of the money to the Appellants.


                                                      Facts
[3]   On November 20, 2015, Indianapolis Metropolitan Police Detective Brian

      Thorla was visually inspecting parcels at a local shipping company. Several

      parcels came to the detective’s attention, including the two that are at issue in

      this case. One parcel was sent by Bowman in Illinois to Murphy in California;

      the second was sent by Maurry in Illinois to Murphy in California. Appellants’


      Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017   Page 2 of 8
      App. Vol. II p. 17, 23. The parcels drew Detective Thorla’s attention because

      they were paid for priority overnight, heavily taped, and addressed to the same

      recipient in California, which is known by law enforcement “to be a source

      state for the importation/exportation of controlled substances . . . .” Id.

      Detective Thorla conducted a dog sniff of the parcels; the K-9 unit gave positive

      alerts on both parcels, indicating the presence of the odor of controlled

      substances.


[4]   Detective Thorla sought and received search warrants for both parcels. The

      warrants authorized law enforcement to open and search the parcels “for

      controlled substances, records of drug trafficking, and proceeds of drug

      trafficking.” Id. at 20, 26. Law enforcement opened and searched both parcels.

      They found no controlled substances or records of drug trafficking, but one

      parcel contained currency in the amount of $15,000 and the other contained

      currency in the amount of $15,300. Law enforcement seized the currency. No

      criminal charges were ever brought against any of the Appellants with respect

      to this matter, nor is there any indication that the Appellants have been the

      subject of any criminal investigation by Indiana or federal law enforcement

      authorities.


[5]   On February 11, 2016, the State filed motions to transfer the currency at issue

      to the United States.1 The Appellants objected, arguing that the seizure of the



      1
       There are two separate underlying causes below—one for each of the two parcels. The causes have been
      consolidated.

      Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017                   Page 3 of 8
      currency exceeded the scope of the search warrant. Following a hearing, on

      June 7, 2016, the trial court issued an order granting the State’s motions. In

      pertinent part, the trial court found as follows:


              2.       The appearance of the parcels, the excessive taping, the
                       type of shipping and payment, the multiple parcels to the
                       same destination in a known import state of controlled
                       substances, and the positive K9 alert to the presence of the
                       odor of controlled substances and all reasonable inferences
                       drawn there from is probable cause to authorize the
                       seizure of “proceeds of drug trafficking” located during a
                       search of the parcel.


              3.       The specificity requirement regarding the items to be
                       seized in a search warrant does not require an exact
                       description or an itemized list of items but rather must
                       describe the nature of the items to be seized and must be
                       specific enough to remove discretion from the executing
                       officers.


                                                        ***


              5.       There is probable cause to justify the seizure of United
                       States Currency located in the parcels as proceeds of drug
                       trafficking within the scope of the warrant.


      Appealed Order p. 4-5. The trial court stayed its order pending this appeal.


                                    Discussion and Decision
[6]   The Appellants do not argue that the search was unlawful, nor do they dispute

      that, if the money was properly seized, it may properly be turned over to the


      Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017      Page 4 of 8
      United States. Instead, the Appellants argue that the seizure of the money went

      beyond the scope of the search warrant, that the seizure was therefore unlawful,

      and that, as a result, the money may not be turned over to the federal

      government. This presents a question of law, to which we apply a de novo

      standard of review. E.g., Membres v. State, 889 N.E.2d 265, 268 (Ind. 2008).


[7]   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). Our Supreme Court has held that “if the search or

      seizure of . . . property was unlawful, the turnover order must be reversed.”

      Membres, 889 N.E.2d at 269.


[8]   What we must determine, therefore, is whether the seizure of this currency was

      unlawful. A search warrant must describe “with particularity . . . the items to

      be seized.” Pavey v. State, 764 N.E.2d 692, 702 (Ind. Ct. App. 2002). This

      requirement “restricts the scope of the search, authorizing seizure of only those

      things described in the warrant . . . .” Id. An exact description is not required,

      but the items to be searched for must be described with some specificity.

      Overstreet v. State, 783 N.E.2d 1140, 1158 (Ind. 2003).



      Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017   Page 5 of 8
[9]    Here, the search warrants authorized law enforcement to open and search the

       parcels “for controlled substances, records of drug trafficking, and proceeds of

       drug trafficking.” Appellants’ App. Vol. II at 20, 26. The only way in which

       the seizure of the currency at issue falls under the search warrant, therefore, is if

       it can reasonably be concluded to be “proceeds of drug trafficking.” Id. The

       State focuses primarily on whether currency constitutes “proceeds,” but that

       narrows the question too much. Instead, we must determine whether this

       money was proceeds of drug trafficking. In other words, the search warrant did

       not (and could not) authorize the seizure of any and all currency; instead, that

       currency must be found to be “derived directly or indirectly from, produced

       through, or realized through” drug trafficking. Appellants’ App. Vol. II p. 15. 2


[10]   The only evidence in the record supporting such a conclusion is as follows:


           •    The parcels were being shipped to California.
           •    The parcels were being sent to the same recipient.
           •    The parcels were heavily taped.
           •    The parcels were shipped priority overnight.
           •    A K-9 unit alerted to the two parcels.

       We can easily dispense with the first four pieces of evidence. We are confident

       that a voluminous number of parcels meeting those criteria and having nothing




       2
         The State argues that because this case arises under the turnover statute as opposed to the forfeiture statute,
       we need not consider whether there is a nexus between the seized property and any applicable offenses.
       Appellee’s Br. p. 10. This argument misses the point. The language of the search warrant itself requires that we
       consider whether the currency at issue was reasonably considered to be the proceeds of drug trafficking.
       Therefore, we must address the relationship between the money and drug trafficking to determine the
       lawfulness of the seizure.

       Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017                           Page 6 of 8
       to do with drug trafficking are shipped in this country every day. If all money

       shipped in heavily taped parcels mailed to California via priority overnight mail

       could be seized as proceeds of drug trafficking, many last-minute gift recipients

       at holiday and birthday time would be sorely disappointed (and surprised).


[11]   So, we are left with the fact that a K-9 unit gave positive alerts on both parcels

       at issue. The very most that this fact means is that at some point, someone

       handling the parcels transferred an odor of controlled substances to them. It

       may have been Bowman and Maurry, who sent the parcels, or it may have been

       any number of individuals involved with the handling of the parcels in transit.3

       And any of those individuals could conceivably have possessed and/or used the

       unidentified controlled substance either legally or illegally, with or without an

       intent to commit drug trafficking. But no controlled substances or evidence of

       controlled substances were actually found in the parcels, so there is simply no

       way to know.


[12]   No drugs were found in the parcels. No drug paraphernalia was found in the

       parcels. No evidence of drug trafficking or any unlawful activity was found in

       the parcels. None of the Appellants have been charged with any state or federal




       3
         We also note that it is well accepted that a great majority of United States currency (as well as the currency
       of other nations) is contaminated by drug residue, leading us to place even less credence on a positive alert
       from a K-9 unit alone with absolutely no other evidence suggesting drug trafficking. See, e.g., Madison Park,
       90 percent of U.S. bills carry traces of cocaine, CNN (Aug. 17, 2009),
       http://www.cnn.com/2009/HEALTH/08/14/cocaine.traces.money; David Biello, Cocaine Contaminates
       Majority of U.S. Currency, Scientific American (Aug. 16, 2009),
       https://www.scientificamerican.com/article/cocaine-contaminates-majority-of-american-currency/.

       Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017                           Page 7 of 8
       offenses in connection with the parcels; indeed, there is no indication that they

       have even been under investigation. Under these circumstances, we find that

       the seizure of the currency in the parcels exceeded the scope of the search

       warrant—no reasonable person would conclude, based on these facts, that the

       currency was the proceeds of drug trafficking. Because the seizure was

       unlawful, the trial court’s order granting the State’s motion to turn the currency

       over to the United States was erroneous, and we reverse.


[13]   The judgment of the trial court is reversed and remanded with instructions to

       order the return of the currency to the Appellants.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017   Page 8 of 8
