 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                     ATTORNEYS FOR APPELLEE:

KELVIN L. HAMPTON                                     GREGORY F. ZOELLER
Pendleton, Indiana                                    Attorney General of Indiana

                                                      IAN MCLEAN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana
                                                                                    FILED
                                                                                Feb 22 2013, 9:18 am

                                IN THE                                                  CLERK
                                                                                      of the supreme court,

                      COURT OF APPEALS OF INDIANA                                     court of appeals and
                                                                                             tax court




KELVIN L. HAMPTON,                                    )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )       No. 84A04-1209-CR-483
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                        APPEAL FROM THE VIGO SUPERIOR COURT
                            The Honorable David R. Bolk, Judge
                              Cause No. 84D03-0302-FA-530


                                          February 22, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Kelvin L. Hampton appeals the denial of his request for return of currency and a

photograph, which were seized during a search of his residence. Hampton presents the

following restated issue for review: Did the trial court err in refusing Hampton’s request for

the return of currency and a photograph that were seized during a search of his residence?

       We reverse and remand.

       The facts underlying this appeal commenced in 2006, when Hampton was the target of

a controlled buy orchestrated by the Vigo County Drug Task Force and utilizing a

confidential informant (C.I.). Those facts were summarized by a different panel of this court

as follows:

       On February 18, 2003, and February 26, 2003, the Vigo County Drug Task
       Force (“VCDTF”) orchestrated controlled cocaine sales via a confidential
       informant. Agents of the VCDTF searched their informant before and after
       each transaction, and monitored his activities with audio and video equipment.
        On both February 18, 2003, and February 26, 2003, Hampton sold cocaine to
       the VCDTF’s informant, who paid $40 for each transaction. Both controlled
       buys took place within 1,000 feet of a school.
              After the transactions, police executed a search warrant at Hampton’s
       residence and discovered cocaine, an electronic scale, drug paraphernalia, and
       evidence of the manufacturing of cocaine. Hampton was arrested. Officer
       Charles Burris testified that Hampton, upon arrest, admitted to “dealing crack
       cocaine out of that residence.” Tr. p. 308.
              Hampton’s trial commenced on May 10, 2005. … On May 12, 2005,
       the jury found Hampton guilty on both counts of Class A felony dealing in
       cocaine. … On June 6, 2005, the court sentenced Hampton to concurrent
       terms of forty (40) years for each count.

Hampton v. State, No. 84A04-0507-CR-381 (Ind. Ct. App. May 10, 2006), slip op. at 2-3

(some internal citations to authority omitted). Those convictions were affirmed by this court

upon direct appeal. See Hampton v. State, No. 84A04-0507-CR-381. The denial of

Hampton’s subsequent petition for post-conviction relief was affirmed in an unpublished

                                              2
decision. See Hampton v. State, No. 84A01-0908-PC-389 (Ind. Ct. App. February 8, 2010),

trans. denied.

       On April 28, 2011, Hampton filed a Verified Motion for Return of Defendant’s

Property. Hampton sought the return of $146 in one-dollar bills and a photo of Hampton and

another person, bearing an inscription or signature. Those items were among others seized

pursuant to a search warrant that was executed several days after the aforementioned

controlled buys. The facts relevant to those items as they relate to this appeal are that

VCDTF agents arranged two controlled buys with Hampton using a confidential informant.

With respect to each buy, VCDTF agents provided the informant with two twenty-dollar bills

that had been photocopied for later identification. During the second sale, the C.I. was

present when Hampton also sold crack cocaine to another person at Hampton’s house at the

same time. According to the C.I., Hampton retrieved the crack cocaine out of “a big bag of

cocaine” that was “bigger than [the C.I.’s] hand.” Trial Transcript at 227. When a search

warrant was executed several days later, police seized a wad of 146 one-dollar bills and a

photo of Hampton and another person. The photo bore an autograph, presumably of the other

person depicted in the photo.

       Upon receipt of Hampton’s motion for return of these items, the trial court ordered the

State to file a written response within ten days. On July 7, 2011, the trial court granted

Hampton’s motion, noting that the State had failed to file a response. Later, however, the

court reversed that ruling. On July 5, 2012, the court ruled on a motion submitted by

Hampton to compel enforcement of the court’s July 7, 2011 order. The court set aside its


                                              3
previous order, citing the following rationale:

             2.      That the property sought to be returned is One Hundred Forty-
       Six Dollars ($146.00) in U.S. currency and one (1) signature photo.

             3.     That Defendant submitted a letter dated May 29, 2012 from Lt.
       Edward Tompkins, Terre Haute Police Department, indicating that the Terre
       Haute Police Department did not possess the items.

              4.     That the Court reviewed the evidence admitted in the underlying
       case and identified a photocopy of One Hundred Forty-Six Dollars ($146.00)
       in U.S. Currency that was photocopied and admitted into evidence and a
       photograph that was signed and admitted into evidence.

              5.    That Defendant did not indicate in his underlying Motion that the
       items sought had been admitted into evidence (photocopies of currency) at
       trial.

            6.     Defendant is certainly NOT entitled to return of Drug Task Force
       money that was used to purchase illegal drugs from him.

              7.    Further, since the photograph was introduced into evidence, the
       same is being held by the Court along with other evidence admitted at trial.

                     Therefore, the Court sets aside its previous erroneous Order
       ordering the return of seized property, DENIES the Motion to Return Seized
       Property, and DENIES Defendant’s Motion to Compel.

Appellant’s Appendix at 19-20. On July 27, 2012, Hampton submitted a motion to correct

errors, in which he alleged that the trial court had erroneously found that the $146 seized

pursuant to the search warrant was buy money. He noted that the undisputed evidence

revealed that the buy money used by the C.I. consisted of four twenty-dollar bills and that the

currency seized consisted of 146 one-dollar bills. He also contended that the court erred in

refusing to return the photograph, but did not offer independent argument with respect to why

the court erred in doing so.


                                              4
       We will affirm the denial of a motion for return of property unless the decision is

clearly erroneous and cannot be sustained on any legal theory supported by the evidence.

Williams v. State, 952 N.E.2d 317 (Ind. Ct. App. 2011). “Statutes that relate to search and

seizure must be strictly construed ‘in favor of the constitutional right of the people.’” Id. at

319 (quoting Wallace v. State, 157 N.E. 657, 660 (Ind. 1927)). Under Indiana law:

       (a) All items of property seized by any law enforcement agency as a result of
       an arrest, search warrant, or warrantless search, shall be securely held by the
       law enforcement agency under the order of the court trying the cause, except as
       provided in this section.

                                          ******

       (c) Following the final disposition of the cause at trial level or any other final
       disposition the following shall be done:

              (1) Property which may be lawfully possessed shall be returned to its
              rightful owner, if known. …

Ind. Code Ann. § 35–33–5–5 (West, Westlaw current through 2012 2nd Reg. Sess.).

Pursuant to this statute, after its need for the property in question has terminated, a court has

both the jurisdiction and the duty to return seized property. Williams v. State, 952 N.E.2d

317.

       In the present case, it is undisputed that police seized the cash and photo at issue

during a search of Hampton’s residence and that final disposition of the criminal cause has

been made. Therefore, the issues that remain with respect to I.C. § 35-33-5-5 are whether

Hampton is the “rightful owner” of the cash and photo and whether these items “may be

lawfully possessed”. See I.C. § 35–33–5–5(c)(1). On the facts of this case, we conclude that

the trial court’s summary denial of Hampton’s motion for return of property was improper.

                                               5
       Although the items in question were found in Hampton’s dwelling, not on his person,

he may nonetheless be deemed to possess them under the law of constructive possession.

This concept is most often invoked in cases involving contraband, but the principle applies

equally to these items as well. In the case of illegal drugs, the law presumes that a person is

in the constructive possession of drugs when the State demonstrates that the defendant had

both the intent and the capability to maintain dominion and control over the drugs. See Gee

v. State, 810 N.E.2d 338 (Ind. 2004). Further, “ proof of a possessory interest in the premises

on which illegal drugs are found is adequate to show the capability to maintain dominion and

control over the items in question. Id. at 340. Essentially, “the law infers that the party in

possession of the premises is capable of exercising dominion and control over all items on

the premises.” Id. at 340-41.

       All of the evidence presented by the State at trial indicated that Hampton was the sole

occupant of the dwelling in which the items were found. Thus, it is clear that he had

possession of the $146 and the autographed photo at the time they were recovered from his

dwelling by police. This raises a presumption that he is the owner of the cash and the photo.

See Merlington v. State, 839 N.E.2d 260 (Ind. Ct. App. 2005). Thus, it was incumbent upon

the State to rebut this presumption, if possible, in order to deny Hampton’s request for return

of the items. Because there was no hearing at which further evidence was presented on this

question, the state of the record before the trial court at the time it ruled upon Hampton’s

motion permitted only one presumption, i.e., that the items were Hampton’s. The State failed

to request a hearing to rebut this presumption. Accordingly, Hampton was the rightful owner


                                              6
of the items within the meaning of I.C. § 35-33-5-5.

       The remaining question is whether the cash and photo are property that may lawfully

be possessed. Certainly, the photo may be lawfully possessed. This court has determined

that money itself is property that also may be lawfully possessed. See Gore v. State, 456

N.E.2d 1030 (Ind. Ct. App. 1983). Moreover, as we have previously observed with respect

to I.C. § 35-33-5-5, “‘the legislature has not stated that money, which is apparently derived

from the sale of drugs, is property which may not be lawfully possessed’”. Merlington v.

State, 839 N.E.2d at 260 (quoting Gore v. State, 456 N.E.2d at 1033 (cash found on the

defendant at the time of his arrest when he also possessed 224 grams of methamphetamine

with intent to deliver was property that could be lawfully possessed)). Further, contrary to the

State’s strong implication on appeal, the fact that Hampton was ultimately convicted of

dealing cocaine does not necessarily establish that the currency (which clearly was not used

in the controlled buy) was unlawfully possessed by him. See Merlington v. State, 839 N.E.2d

260 (cash was returned to the defendant despite his conviction for possession with intent to

deliver).

       Finally, we find no indication that the State ever instigated civil forfeiture proceedings

with respect to the money in question. The State certainly could have done so, and it is

perhaps even likely that such an endeavor would have succeeded. Be that as it may, the State

failed to pursue such a course and the deadline for doing so has long since lapsed. See Ind.

Code Ann. § 34-24-1-3(a) (West, Westlaw current through 2012 2nd Reg. Sess.). Therefore,

we reverse and remand with instructions to return the items in question to Hampton.


                                               7
     Judgment reversed and remanded.

NAJAM, J., and BRADFORD, J., concur.




                                       8
