ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Andrew Ault                                                 Gregory F. Zoeller
Abshishek Chaudhary                                         Attorney General of Indiana
Indiana Legal Services, Inc.
Indianapolis, Indiana                                       David Lee Steiner
                                                            Deputy Attorney General
John F. Brengle                                             Indianapolis, Indiana
Indiana Legal Services, Inc.
New Albany, Indiana

______________________________________________________________________________

                                             In the                       Mar 24 2015, 9:38 am

                               Indiana Supreme Court
                               _________________________________

                                      No. 49S02-1312-MI-790

DETONA SARGENT,
                                                            Appellant (Defendant below),

                                                v.

STATE OF INDIANA, AND THE CONSOLIDATED
CITY OF INDIANPOLIS/MARION COUNTY, AND
THE INDIANAPOLIS METROPOLITAN POLICE
DEPARTMENT,
                                                         Appellees (Plaintiffs below).
                               _________________________________

                 Appeal from the Marion Superior Court, No. 49D07-1111-MI-44802
                                The Honorable Michael Keele, Judge
                              _________________________________

       On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-1209-MI-708
                            _________________________________


                                          March 24, 2015


Rucker, Justice.
        On cross-motions for summary judgment the trial court deemed a vehicle forfeited and
awarded the same to the Indianapolis Metropolitan Police Department. However the undisputed
facts disclose the vehicle’s owner is entitled to possession. We therefore reverse the judgment of
the trial court.


                                      Facts and Procedural History


        The State of Indiana, the City of Indianapolis, and the Indianapolis Metropolitan Police
Department (collectively “the State”) filed a complaint against Detona Sargent seeking forfeiture
of her 1996 Buick Century automobile worth approximately $1,700.00. The State’s action was
pursued under what is commonly referred to as the “Civil Forfeiture Statute.” See Ind. Code §§
34-24-1 et seq. More particularly Indiana Code section 34-24-1-1(a) provides in relevant part:


                   The following may be seized: (1) All vehicles . . . if they are used
                   or are intended for use by the person or persons in possession of
                   them to transport or in any manner to facilitate the transportation
                   of the following: . . . (B) Any stolen . . . or converted property . . .
                   if the retail or repurchase value of that property is one hundred
                   dollars ($100) or more.

        In this summary judgment action on the State’s complaint for forfeiture the undisputed
facts as shown by the materials presented to the trial court are as follows. Sargent was employed
at a Wal-Mart return-merchandise distribution center. On September 16, 2011, she drove her
1996 Buick Century to the center. After arrival Sargent allowed a co-worker to use her car
during her shift with the understanding the co-worker would return so that Sargent could drive
home. Minutes before Sargent was scheduled to leave for the day, she grabbed four iPhones in
their original packaging and stuffed them under her shirt. The phones had a retail value of
approximately $1,200.00.         As Sargent attempted to leave the center she was stopped and
detained by a store manager and was subsequently searched by a staff member, which revealed
the four iPhones. An officer of the Indianapolis Metropolitan Police Department arrived on the
scene and was present as the store manager questioned Sargent. During questioning, Sargent
told the manager “to go outside to make sure that[,] if [her co-worker] was [in Sargent’s car]
waiting, she should stop waiting and go home because [Sargent] would not be coming out.”



                                                      2
App. at 16. Based on this information the officer went to the parking lot to search for Sargent’s
vehicle. The officer located the car and found “a female in the driver’s seat[.]” Id. 27. The
vehicle was towed, and Sargent was arrested for theft. On January 10, 2012, under terms of an
agreement, Sargent pleaded guilty to theft as a Class D felony and was sentenced to 365 days in
the Department of Correction with all but four days suspended to probation.


        Twenty days after Sargent pleaded guilty the State moved for summary judgment on its
forfeiture complaint and Sargent responded with a cross-motion for summary judgment. After a
hearing the trial court granted the State’s motion and denied Sargent’s motion. On appeal
Sargent argued (1) there was no nexus between her attempted theft and the vehicle she used to
come to work; and (2) her vehicle was exempt from execution by operation of the Indiana
Constitution1 and Indiana’s civil exemption statute. The Court of Appeals rejected both claims
and affirmed the judgment of the trial court. See Sargent v. State, 985 N.E.2d 1108 (Ind. Ct.
App. 2013), vacated. Having previously granted transfer we now reverse the judgment of the
trial court. Additional facts are set forth below.


                                           Standard of Review


        When reviewing a grant or denial of a motion for summary judgment our standard of
review is the same as it is for the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010).
The moving party “bears the initial burden of making a prima facie showing that there are no
genuine issues of material fact and that it is entitled to judgment as a matter of law.” Gill v.
Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012) (citations omitted).
Summary judgment is improper if the movant fails to carry its burden, but if it succeeds, then the
nonmoving party must come forward with evidence establishing the existence of a genuine issue
of material fact. Id. In determining whether summary judgment is proper, the reviewing court
considers only the evidentiary matter the parties have specifically designated to the trial court.


1
  This constitutional claim, which Sargent raises for the first time on appeal, refers to Article 1, Section 22
of the Indiana Constitution and provides: “The privilege of the debtor to enjoy the necessary comforts of
life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or
sale, for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for
debt, except in case of fraud.”


                                                      3
See Ind. Trial R. 56 (C), (H). We construe all factual inferences in the non-moving party’s favor
and resolve all doubts as to the existence of a material issue against the moving party. Plonski,
930 N.E.2d at 5. “The fact that the parties have filed cross-motions for summary judgment does
not alter our standard for review, as we consider each motion separately to determine whether the
moving party is entitled to judgment as a matter of law.” Reed v. Reid, 980 N.E.2d 277, 285
(Ind. 2012).


                                             Discussion


       In support of its motion for summary judgment the State designated the probable cause
affidavit for the underlying theft charge, the charging information for theft, a certified copy of
the plea agreement, and the abstract of judgment. See App. 35-39. In support of her cross-
motion for summary judgment Sargent designated her own affidavit largely recounting the facts
as set forth above.     Separately Sargent also filed an “Affidavit and Notice of Claim of
Exemption” declaring in part that her 1996 Buick Century was valued at $1,700.00. Sargent
contended the automobile was exempt from forfeiture under the provision of Indiana’s civil
exemption statute.2 In moving for summary judgment Sargent declared in part: “The facts, as
designated by Plaintiff, are insufficient to sustain Plaintiff’s claim and Defendant should be
awarded judgment in her favor. . . .        The facts designated in Defendant’s Designation of
Evidence are sufficient to sustain her Cross Motion.” App. at 8. The State then filed the
affidavit of the arresting officer in opposition to Sargent’s cross-motion. See id. at 26-27. Both
parties agree there are no genuine issues of material fact. Id. at 6, 8.


       As recounted earlier the State sought forfeiture of Sargent’s vehicle under the provisions
of the Civil Forfeiture Statute which provides in relevant part:

               The following may be seized: (1) All vehicles . . . if they are used
               or are intended for use by the person or persons in possession of
               them to transport or in any manner to facilitate the transportation
               of the following: . . . (B) Any stolen . . . or converted property . . .


2
  The statute provides in pertinent part: “The following property of a debtor domiciled in Indiana is
exempt: . . . tangible personal property of eight thousand dollars ($8,000.)” I.C. § 34-55-10-2(c)(2).


                                                  4
               if the retail or repurchase value of that property is one hundred
               dollars ($100) or more.

I.C. § 34-24-1-1(a). Relying on the designated materials and seizing on the phrase “used or are
intended for use” the State contended and the trial court agreed “there is no genuine issue of
material fact and that Defendant Detona Sargent intended to use the subject 1996 Buick to
facilitate the transportation of stolen property . . . .” App. at 1. Importantly, however, in addition
to demonstrating that Sargent used or intended to use her vehicle to facilitate the transportation
of stolen property, the State also carried the burden of demonstrating Sargent was “in
possession” of the vehicle at the time. See I.C. § 34-24-1-1(a).


       Although arising in a different context our jurisprudence on the issue of “possession” is
rather straightforward: it can be either actual or constructive. Actual possession occurs when a
person has direct physical control over the item. Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004).
When the State cannot show actual possession, it may nonetheless prevail on proof of
constructive possession.     Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).              “A person
constructively possesses [an item] when the person has (1) the capability to maintain dominion
and control over the item; and (2) the intent to maintain dominion and control over it.” Id.
(citing Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g, 685 N.E.2d
698 (Ind. 1997)).


       Here based on the Rule 56 materials presented to the trial court it is apparent that Sargent
had neither actual nor constructive possession of her Buick vehicle at the time it was “used or
intended for use” to “facilitate the transportation” of stolen property. I.C. § 34-24-1-1(a). At all
relevant times Sargent was detained in the store and thus had no physical control over the
vehicle. Indeed Sargent had not been in actual possession of her car since earlier in the day
when she allowed a co-worker to use it on condition the worker would return so that Sargent
could drive home at the end of her shift. As for constructive possession, even if one might infer
that Sargent had the “intent” to maintain dominion and control over the car, the record makes
clear that her detention made it impossible for her to have the “capability” to maintain such
control.



                                                  5
        By failing to demonstrate that Sargent was “in possession” of the vehicle as contemplated
by Indiana Code section 34-24-1-1, the State was not entitled to forfeiture of the vehicle. The
trial court thus erred by entering summary judgment in the State’s favor and denying Sargent’s
motion.


                                              Conclusion


        We reverse the judgment of the trial court and remand this cause with instructions to
enter an order granting summary judgment in Sargent’s favor.3


Rush, C.J., and Dickson, J., concur.
David, J., dissents with separate opinion in which Massa, J., joins.
Massa, J., dissents with separate opinion.




3
  Because we resolve this case on other grounds we decline to address Sargent’s statutory construction or
Indiana constitutional claim.


                                                   6
David, J., dissenting.

       I respectfully dissent, as Detona Sargent had constructive possession of her 1996 Buick
Century when she stole four iPhones from her employer on September 16, 2011. This Court has
long held that, in order to prove constructive possession, the State must show that the defendant
has both the intent and capability to maintain “dominion and control” over the property in ques-
tion. See, for example, Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Though at the time of the
thefts Sargent was not physically occupying her vehicle, she exerted “dominion and control”
over the Buick, as evidenced by her instruction to her co-worker to return the vehicle by the end
of her shift so she could drive home. Thus, she constructively possessed the Buick.

       I disagree with the majority’s conclusion that “the record makes clear that her detention
made it impossible for her to have the ‘capability’ to maintain such control.” Slip. op. at *5.
Though true Sargent was detained, her detention did not terminate her constructive possession of
the Buick, as it was not until the vehicle was towed away that she lost her capability to control it.

       With the knowledge that Sargent constructively possessed her Buick at the relevant time,
I turn to Indiana Code § 34-24-1-1(a)(1)(B) (2014), which, as the majority recounts, permits the
forfeiture of a vehicle used or intended to be used by the person in possession of it to transport
stolen property with a retail value of at least one hundred dollars. Because Sargent fully intend-
ed to use the Buick to transport stolen iPhones collectively valued at a retail price of approxi-
mately $1,200, and would have done so had security not intervened, I agree with the Court of
Appeals and the trial court that § 34-24-1-1(a)(1)(B) allowed the State to seize the Buick—
however ill-advised some may find this use of official discretion.

       Before this Court, Sargent argues that her Buick is nevertheless exempt from forfeiture
under Indiana Code § 34-55-10-2 (2014) and Article 1, § 22 of the Indiana Constitution. Article
1, § 22 provides that:

               The privilege of the debtor to enjoy the necessary comforts of life,
               shall be recognized by wholesome laws, exempting a reasonable
               amount of property from seizure or sale, for the payment of any
               debt or liability hereafter contracted: and there shall be no impris-
               onment for debt, except in case of fraud.
(Emphasis added.) Enacted to effectuate Article 1, § 22, Indiana Code § 34-55-10-2(c), in rele-
vant part, states that “[t]he following personal property of a debtor domiciled in Indiana is ex-
empt: . . . (2) [o]ther real estate or tangible personal property of eight thousand dollars ($8,000).”
(Emphasis added.) According to Sargent, her Buick valued at $1,700 falls within the protections
of § 34-55-10-2(c) and Article 1, § 22.

       Should we have reached this question, I would have also agreed with the Court of Ap-
peals that Sargent is not a “debtor” under § 34-55-10-2 or Article 1, § 22 because a “debtor” is
“[o]ne who owes an obligation to another, esp. an obligation to pay money,” and a forfeiture or-
der is not a money judgment. See BLACK’S LAW DICTIONARY (9th ed. 2009). Thus, by the plain
language of Indiana Code § 34-55-10-2(c), as well as Article 1, § 22 of the Indiana Constitution,
Sargent is not entitled to exemption from forfeiture of her vehicle under Indiana Code § 34-24-1-
1(a)(1)(B).

       For these reasons, I respectfully dissent. Because the Buick was not exempt from forfei-
ture, I would affirm the trial court’s grant of the State’s motion for summary judgment and denial
of Sargent’s motion for summary judgment.




Massa, J., joins.




                                                  2
Massa, J., dissenting.


        Notwithstanding my admiration for the majority’s desire to do justice in this case, I fully
join Justice David’s dissent. I write separately to offer an additional comment about discretion.


        As Justice David notes, Ms. Sargent drove her car to work at Wal-Mart, where she then
committed an employee theft of four cell phones. While at work, she loaned her car to a friend
to run an errand. The friend returned the car, and it was in the Wal-Mart lot when Sargent was
caught. There is, in my judgment, sufficient evidence that Sargent constructively possessed her
car and that it was “intended for use . . . to transport” the phones, and thus technically eligible for
forfeiture.


        But really? Firing Sargent and having her righteously prosecuted for felony theft was not
enough? The State had to take her car, too?


        This overreach has now, it seems, prompted our Court to grant some modest, almost
equitable, relief to the excessively punished thief via the possible return of a twenty-year-old
Buick. It brings to mind the often quoted maxim that hard cases make bad law. The more
complete quote from Baron Rolfe in 1842 applies today to Ms. Sargent’s case: “This is one of
those unfortunate cases in which . . . it is, no doubt, a hardship upon the plaintiff to be without a
remedy, but by that consideration we ought not to be influenced. Hard cases, it has frequently
been observed, are apt to introduce bad law.” Winterbottom v. Wright, (1842) 152 Eng. Rep.
402 (Exch. of Pleas) 405–06. Indeed. Stay tuned for arguments by more appropriate targets of
forfeiture laws that they didn’t “possess” their new Mercedes because they weren’t sitting in it at
the time of their arrest.
        This is not the first time in recent years that we have seen an almost comical deployment
of law enforcement Weapons of Mass Destruction against pedestrian targets. In Miller v. State,
992 N.E.2d 791 (Ind. Ct. App. 2013), trans. denied 7 N.E.3d 993 (Ind. 2014), the prosecutor used
the RICO statute1 against a common home burglar who stole a TV, computer, and credit cards,
and subsequently tried, unsuccessfully, to use the cards at department, drug, and liquor stores on
the same night. The Court of Appeals vacated the racketeering conviction, but in so doing may
have created precedent that could frustrate future applications of the statute; the Attorney
General certainly so argued without success in our Court. Oral Arg. Video Tr. at 33:34–36:38.2


        Our Constitution and statutes vest police and prosecutors with great power to initiate
proceedings that can ultimately deprive liberty and divest property where certain crimes are
proven. State and federal legislative bodies have provided the special tools of RICO and
forfeiture largely to target organized crime3 and narcotics trafficking.4 These tools are not




1
 “A person . . . who is employed by or associated with an enterprise, and who knowingly or intentionally
conducts or otherwise participates in the activities of that enterprise through a pattern of racketeering
activity[] commits corrupt business influence, a Class C felony.” Ind. Code § 35-45-6-2 (2008).
2
  We heard oral argument in Miller with the order on transfer pending. We ultimately declined to accept
jurisdiction over the appeal. Time will tell if the Attorney General’s fears—which needn’t be further
explained for the purposes of this dissent—are realized.
3
  George Robert Blakey, known for his role in drafting legislation that became the Federal Racketeer
Influenced and Corrupt Organization Act, codified at 18 U.S.C. §§ 1961–68, traces RICO’s development,
beginning with the government’s attempt to understand the Mafia and culminating with text meant to
“combat[] organized crime and other syndicated activity as well as the infiltration of legitimate entities by
criminal groups.” G. Robert Blakey, RICO: The Genesis of an Idea, Trends in Organized Crime, June
2006, at 8, 16.
4
  Although forfeiture has a long history, its use has increased substantially in the past thirty years, hailed
as an effective means of addressing drug trade. United States v. Parcel of Land & Residence at 28 Emery
St., 914 F.2d 1, 3 (1st Cir. 1990) (“One of the most powerful weapons in the government’s arsenal in the
continuing ‘war’ on drugs is its ability to obtain the civil forfeiture of property that is used for or
facilitates violations of the drug laws.”). In addition to “punishing and deterring those who engage in
illegal drug activity,” a purpose of the forfeiture statute is to “defray some of the expense incurred in the
battle against drug dealing.” Katner v. State, 655 N.E.2d 345, 347–48 (Ind. 1995).



                                                      2
without their critics, and their misuse invites further scrutiny.5 Moreover, when authorities over-
reach, the judiciary is tempted to impose remedies that do justice in a particular case but may do
harm to the law over time.


        The answer, sometimes, to Rolfe’s truism about hard cases, is to not bring them in the
first place.




5
  See, e.g., Eric Moores, Reforming the Civil Asset Forfeiture Reform Act, 51 Ariz. L. Rev. 777, 779
(2009) (“[Current] procedural safeguards are minimal and police seize property with virtually no
oversight.”); Editorial Board, When Police Play Bounty Hunter, USA Today (Nov. 20, 2014),
http://www.usatoday.com/story/opinion/2014/11/19/police-civil-asset-forfeiture-profit-drug-trafficking
-editorials-debates/19299879/ (“The programs, born in the 1970s to seize ill-gotten gains from drug
trafficking, have become unmoored from their original intent of taking the profit out of crime.”). Even
former directors of the Justice Department’s Asset Forfeiture Office have called for an end to the
initiative they worked to create, finding “it particularly painful to watch as the heavy hand of government
goes amok.” John Yoder & Brad Cates, Government Self-Interest Corrupted a Crime-Fighting Tool into
an Evil, Wash. Post (Sept. 18, 2014), http://www.washingtonpost.com/opinions/abolish-the-civil-asset-
forfeiture-program-we-helped-create/2014/09/18/72f089ac-3d02-11e4-b0ea-8141703bbf6f _story.html?
wpmk=MK0000203. Such criticism is not limited to the national stage; a recent report raised several
concerns about our state and local practices. Kristine Guerra, Seized Assets: Star Finds Cases of Cars,
Homes Taken—And Owners Not Charged, The Indianapolis Star, Feb. 22, 2015, at A1.


                                                    3
