                                                                         FILED
                                                                    May 23 2019, 8:55 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David M. Seiter                                           Curtis T. Hill, Jr.
Cate, Terry & Gookins, LLC                                Attorney General of Indiana
Carmel, Indiana                                           Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Alvin L. Lewis,                                           May 23, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-MI-1869
        v.                                                Appeal from the Putnam Circuit
                                                          Court
Putnam County                                             The Honorable Matthew L.
Sheriff’s Department,                                     Headley, Judge
Appellee-Petitioner                                       Trial Court Cause No.
                                                          67C01-1808-MI-67



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019                             Page 1 of 10
[1]   Alvin Lewis was pulled over as part of a routine traffic stop. The deputy told

      Lewis he would merely get a warning but, because of some inconsistent

      answers provided by Lewis, the deputy decided to conduct a dog sniff of

      Lewis’s vehicle. After the dog alerted, the deputy searched Lewis’s vehicle and

      found over $77,000 in cash. Lewis denied that the money was his. 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. Lewis

      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. Finding that the seizure of the

      cash was unlawful and that the trial court erred by granting the motion for

      turnover, we reverse and remand.


                                                        Facts     1




[2]   On February 14, 2018, Putnam County Sheriff’s Department Deputy Dwight

      Simmons observed a vehicle driving westbound on I-74. The vehicle was

      marked with an Arizona temporary license plate. Deputy Simmons initiated a

      traffic stop, explaining to Lewis, the driver, that the temporary plate was hard

      to read, that Lewis was weaving back and forth, and that he was not

      maintaining a steady rate of speed. Lewis explained that he had purchased the

      vehicle from a friend and that he had ninety days to fix the title issues with the




      1
          We held oral argument in this case in Indianapolis on May 14, 2019.


      Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019          Page 2 of 10
      Bureau of Motor Vehicles (BMV). He also explained in detail the steps he had

      already taken in that regard.


[3]   Lewis provided all the documents requested by Deputy Simmons regarding the

      vehicle and asked if he was in trouble. Deputy Simmons responded negatively

      and invited Lewis to sit in the passenger seat of the police vehicle with him. 2

      The computer was running slowly, so it took approximately fifteen minutes to

      check Lewis’s license, which the deputy confirmed was in good standing.


[4]   Deputy Simmons then asked Lewis questions about Lewis’s wife, their

      relationship, what Lewis does for a living, what his wife does for a living, what

      hotel Lewis stayed at in Ohio, whether he owned a house, what type of gas

      mileage his car received, where his siblings live, and where he planned to stop

      on his drive back to Arizona. Lewis responded to each of the questions but

      prevaricated on certain details requested by Deputy Simmons. He stated that

      he was from Arizona and had driven to visit his brother in Akron, Ohio, after

      having a fight with his girlfriend, though later stated she was his wife of fifteen

      years. He initially said that he had purchased the vehicle from “Sergio,” and

      then clarified that he bought it from a friend who had bought it from Sergio.

      Lewis did not know any further identifying information regarding Sergio.




      2
        The in-car camera video of the traffic stop was admitted into evidence as Respondent’s Exhibit A, Parts 1
      through 4.

      Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019                                 Page 3 of 10
[5]   About twenty minutes into the stop, Deputy Simmons told Lewis, “We are

      getting there. I think you are just about good here.” Tr. Resp. Ex. A Part 1,

      File 2. Deputy Simmons told Lewis that he was going to give him a warning

      related to the basis for the traffic stop. After Deputy Simmons completed the

      warning ticket and all checks on Lewis’s license and insurance, he asked Lewis

      whether he had ever been in any trouble for narcotics-related activity. Lewis

      said that there “might have” been something in Detroit. Id. The deputy then

      asked Lewis whether there were any narcotics, guns, or large sums of currency

      in the vehicle; Lewis said that there was not. Deputy Simmons clarified, “No

      narcotics?” Lewis paused before answering, “no,” causing the deputy to note

      that “you had to think about that.” Id. Deputy Simmons asked Lewis whether

      he would consent to a search of the vehicle; Lewis refused.


[6]   Deputy Simmons then conducted a K-9 sweep and the K-9 officer alerted twice

      on the vehicle’s passenger side.3 The deputy called for backup and, after the

      backup deputy arrived, Deputy Simmons conducted a warrantless search of

      Lewis’s vehicle. He found a hidden compartment behind the rear seat; Lewis

      denied any knowledge of its existence or contents. Inside, the deputy found

      $77,060 in cash and two digital scales,4 but no illegal narcotics. Lewis




      3
        The K-9 must have alerted mistakenly as no evidence of drugs or contraband was found in the vehicle after
      a thorough search.
      4
       At a May 11, 2018, hearing, the State stipulated that no drug paraphernalia was found in the vehicle. In
      other words, the digital scales were not drug paraphernalia. Tr. Vol. II p. 5. The State never tested the scales
      or the cash for drug residue.

      Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019                                   Page 4 of 10
      repeatedly denied that the money was his. Deputy Simmons seized the

      currency for the purpose of turning it over to the federal government, with

      Lewis named as the respondent.5


[7]   On March 20, 2018, the State filed a motion for a turnover order to transfer the

      seized funds to the federal government pursuant to Indiana Code section 35-33-

      5-5.6 Lewis objected and asked the trial court to hold a hearing. Ultimately, the

      trial court held an evidentiary hearing on June 15, 2018, to determine whether

      the search of the vehicle was valid. On July 9, 2018, the trial court granted the

      State’s petition, finding, in pertinent part, as follows:


                 7.       . . . It is long standing law in Indiana that a “dog sniff” is
                          not a search so the only argument that [Lewis] may have is
                          that the sniff unduly delayed the stop. Here, the dog sniff
                          takes approximately 5-minutes [sic]. [The] Court finds
                          that this does not unduly delay [Lewis] as a dog sniff isn’t
                          a [s]earch, [so] the 4th Amendment to the US Constitution
                          and Article 1, Section 11 of the Indiana State Constitution
                          is [sic] inapplicable.


                 8.       Moreover, even if this was an impermissible search,
                          [Lewis] says two times that (the money) is not his on the
                          [dash camera video], when questioned by the deputy about
                          the money. [Lewis] cannot disclaim ownership of the
                          money at one instance and now claim that it is his. The
                          only claim to ownership is via [Lewis’s] attorney filing an
                          “objection”. Common sense would dictate that someone



      5
          Lewis was not arrested and is not facing any criminal charges as a result of the incident.
      6
          The federal government also notified Lewis that it intended to move for forfeiture of the money.


      Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019                                   Page 5 of 10
                        would know if he put $77,060.00 in cash in the vehicle. So
                        under this scenario, the property is abandoned property
                        due to [Lewis] disclaiming it and no other person claiming
                        ownership.


       Appealed Order p. 2 (internal citations omitted). Lewis now appeals.


                                     Discussion and Decision
                                                 I. Standing
[8]    Before addressing Lewis’s substantive arguments, the State insists that while

       Lewis has standing to challenge the stop and seizure of the vehicle that he was

       driving, he has no standing to challenge the seizure and turnover of the money

       because he explicitly disclaimed any ownership or possessory interest therein.


[9]    Fourth Amendment and Article 1, Section 11 rights are personal rights that

       may not be asserted vicariously. Allen v. State, 893 N.E.2d 1092, 1096-99 (Ind.

       Ct. App. 2008). To have standing to challenge the seizure of property, a person

       must have an interest in the property seized because he has no constitutional

       right to challenge the seizure of another person’s property—even if there was no

       probable cause for the search. Johnson v. State, 472 N.E.2d 892, 898 (Ind. 1985).


[10]   When Deputy Simmons showed Lewis the money found in the secret

       compartment in the vehicle, Lewis immediately stated, “that’s not mine,” and

       again, two seconds later, “that’s not mine.” Tr. Resp. Ex. A Part 2, File 3. A

       minute later, Lewis asserted for a third time, “that’s not mine.” Id. Because




       Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019          Page 6 of 10
       Lewis clearly and repeatedly disclaimed ownership of the cash, the State insists

       that he does not have standing to challenge the turnover order.


[11]   But the State makes this argument for the first time on appeal, which our

       Supreme Court has held is not permissible:


                Where the prosecution has failed to make any trial court
                challenge to standing, the government may not raise the issue for
                the first time on appeal. Likewise, in resolving a claim of
                unlawful search and seizure, an appellate court should not invoke
                lack of standing, sua sponte.


       Everroad v. State, 590 N.E.2d 567, 569 (Ind. 1992) (internal citations omitted).

       Not only did the State not make a standing argument below, it named Lewis as

       the one and only party in interest in the turnover proceedings. From the outset,

       therefore, the State conceded the issue of standing, and even if it had not done

       so, it has waived the argument for the purpose of appeal. 7


                                           II. Turnover Statute
[12]   At issue in this case is the State’s request to turn over the cash it seized from

       Lewis’s vehicle to the federal government. The turnover statute provides as

       follows:




       7
         We note that the State also agreed below that this Court’s opinion in Bowman v. State, which held that
       forfeiture of cash was impermissible where there was no nexus between the cash and criminal activity,
       controlled the outcome here. 81 N.E.3d 1127 (Ind. 2017), trans. denied, cert. denied. Tr. Vol. II p. 6, 20, 25-26.
       It appears that both Lewis’s counsel and the deputy prosecutor were surprised, given that they essentially
       agreed on all salient points, that the trial court found that they were both wrong and granted the turnover
       order.

       Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019                                     Page 7 of 10
                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.


       I.C. § 35-33-5-5(j) (emphasis added). Therefore, 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.8


[13]   Relevant to this case is Indiana Code section 34-24-1-1(a)(2),9 which 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.




       8
         Lewis directs our attention to Adams v. State, in which this Court found that the State must show, pursuant
       to Indiana Code section 34-24-1-2, that property subject to a turnover motion must have been seized pursuant
       to a lawful arrest or lawful search. 967 N.E.2d 568, 570 (Ind. Ct. App. 2012). Lewis seems to believe that
       the Adams Court held that to be entitled to a turnover order, the State need only satisfy Indiana Code section
       34-24-1-2. We do not believe that the Adams decision intended to imply that the State need not also satisfy
       Indiana Code section 34-24-1-1 (or, indeed, all of Indiana Code chapter 34-24-1, as explicitly stated by the
       turnover statute); instead, it was only section -2 that was at issue in Adams and, consequently, that was the
       only statute relevant to that appeal. We do not believe that Adams diverges from our analysis here.
       9
         This statute was amended in the 2019 legislative session but the portions relevant to this appeal remain the
       same.

       Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019                                   Page 8 of 10
       In other words, 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.


[14]   In this case, there is no evidence whatsoever that a crime occurred. No drugs were

       found. The State did not bother to test the scales or the cash for residue, so no

       drug residue was found. No drug paraphernalia was found. The State insisted

       at oral argument that while it is “unclear what the crime is,” there must have

       been a crime committed in the context of the possession of this much cash. We

       think this argument goes several steps too far. 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.


[15]   Under these circumstances, the State has wholly 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.


[16]   Unfortunately, Lewis’s money was prematurely turned over to the federal

       government, which is now in possession of it.10 Given the unusual

       circumstances of this case, especially the fact that there is no evidence




       10
         We note our concern that Deputy Simmons has apparently already, and prematurely, turned the currency
       over to federal law enforcement. It appears, as a result, that the currency is in federal, rather than state,
       possession at this time. We strongly encourage law enforcement officers to abide by state law with respect to
       forfeiture and turnover proceedings.

       Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019                                 Page 9 of 10
       whatsoever that a crime was committed, we do not believe that it is fair to

       require Lewis to undertake the process of retrieving his money from the federal

       government. Therefore, we reverse and remand with instructions that the State

       reimburse Lewis instanter; the State may then choose to try to recoup that

       money from the federal government.


[17]   Because we have resolved this case pursuant to the turnover and forfeiture

       statutes, we need not and will not consider the parties’ arguments regarding the

       constitutionality of the search.


[18]   The judgment of the trial court is reversed and remanded.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-MI-1869 | May 23, 2019       Page 10 of 10
