                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2014).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A13-0445

                              Daniel Garcia-Mendoza,
                                     Appellant,

                                        vs.

                   2003 Chevy Tahoe, Vin #1GNEC13V23R143453,
                               Plate #235JBM, et al.,
                                   Respondents.

                              Filed March 2, 2015
                             Reversed and remanded
                               Rodenberg, Judge

                           Hennepin County District Court
                             File No. 27-CV-12-10889

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

Michael O. Freeman, Hennepin County Attorney, Julie K Bowman, Beverly J. Wolfe,
Assistant County Attorneys, Minneapolis, Minnesota (respondent)

      Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and

Stoneburner, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      This case is on remand from the Minnesota Supreme Court “for further

proceedings consistent with” its opinion in Garcia-Mendoza v. 2003 Chevy Tahoe, 852


 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
N.W.2d 659 (Minn. 2014). In that opinion, the supreme court concluded that appellant

Daniel Garcia-Mendoza “has standing to challenge the forfeiture of the vehicle and cash

and that the Fourth Amendment exclusionary rule applies to civil forfeiture actions.” 852

N.W.2d at 668. On remand and at our request, the parties filed supplemental briefs to

this court addressing five issues: (1) whether appellant is precluded from litigating the

constitutional validity of the seizure because he did not seek return of the seized property

and suppression under Minn. Stat. § 626.21 (2012); (2) whether respondent Hennepin

County waived the argument under section 626.21 by reason of not having raised the

issue to the district court; (3) whether appellant is collaterally estopped from relitigating

the constitutional validity of the stop and search of the vehicle; (4) whether the record is

sufficient to permit a reviewing court to consider the remaining issues; and (5) whether

summary judgment was properly granted.

       We conclude that appellant may assert a constitutional challenge to the search and

seizure without first seeking statutory relief under section 626.21. But we remand to the

district court to address collateral estoppel and to resolve factual issues that have not yet

been addressed. Should the district court determine that appellant’s claim is not barred

by collateral estoppel, the district court should address appellant’s constitutional

challenge to the stop and search of the vehicle under applicable Minnesota law, which

also involves unresolved issues of genuine and material fact.

                                          FACTS

       Appellant was stopped by police on March 19, 2012 for driving 62 to 63 miles per

hour in a 60-mile-per-hour zone. Garcia-Mendoza, 852 N.W.2d at 661. Police cited


                                             2
appellant for driving without a Minnesota driver’s license and arranged to have the

vehicle towed because neither appellant nor his passenger had a valid license to drive it,

and the vehicle created a potential traffic hazard. Id. During the inventory search that

preceded the tow, the officer found a substance that was later determined to be

methamphetamine. Id. The officer arrested appellant, searched him, and found $611 in

cash on his person. Id. Respondent Hennepin County seized the vehicle and the cash,

and appellant was charged with first-degree possession of a controlled substance. Id.

Appellant’s timely demand for judicial determination of forfeiture under Minn. Stat.

§ 609.5314, subd. 3 (2010), was stayed pending resolution of the state criminal charge.1

Id. Appellant claimed that the forfeiture was improper because the stop and search of the

vehicle were invalid. Id.

      Subsequently, “appellant was indicted in federal court on three counts alleging that

appellant distributed methamphetamine on three different occasions from November 2,

2011, to February 1, 2012; and a fourth count alleging that appellant possessed with the

intent to distribute methamphetamine from March 19, 2012,” the same incident that was

charged by Hennepin County. Id. In federal court, appellant moved to suppress the

evidence seized in the March 19 stop and search of his vehicle as violating the Fourth

Amendment, but the motion was denied. Id. at 661-62. He then “pleaded guilty to . . .

count two of the federal indictment, which involved the distribution of controlled

substances on December 22, 2011.” Id. at 662. As part of the plea agreement, the other


1
   The civil forfeiture statutes have been revised. These amendments are inapplicable to
this proceeding because they did not take effect until August 1, 2014. See id. at 665 n.6.

                                            3
three counts of the federal indictment were dismissed and appellant agreed to forfeit “any

and all property constituting” proceeds, or used in the commission of the offense. Id.

The state criminal charge of possession of methamphetamine was dismissed on March

19, 2012. Id. at 661 n.2.

       The stay of the state forfeiture action was dissolved and respondent Hennepin

County moved for summary judgment. Id. at 662. Respondent Hennepin County’s sole

ground for seeking forfeiture of the property was that officers had found

methamphetamine and money in the vehicle and appellant was convicted of distributing

methamphetamine in federal court. The record before the district court was sparse, and

the transcript of the argument on the motion is a mere six pages in length. Appellant

argued that there remained an unresolved and genuine issue of material fact because the

Fourth Amendment exclusionary rule applies to civil forfeiture proceedings and because

“the evidence supporting forfeiture was illegally obtained and must be suppressed.” Id.

The district court concluded that the exclusionary rule does not apply, but it “observed in

dictum that if the legality of the stop and seizure was an issue, the court would have

suppressed the evidence obtained on the ground that there was neither a reasonable or

articulable suspicion for the March 19 stop, nor a legitimate basis for the expansion of it.”

Id. (quotation omitted). The district court granted summary judgment based on federal

law and appellant’s federal plea agreement.

       On appeal from the order granting summary judgment, we affirmed the district

court’s grant of summary judgment in favor of respondent Hennepin County but on

different grounds. See Garcia-Mendoza v. 2003 Chevy Tahoe, No. A13-0445, 2013 WL


                                              4
6152304, at *4 (Minn. App. Nov. 25, 2013). Applying the rule of exclusive jurisdiction,

we reasoned that Minnesota had jurisdiction over the vehicle because the state had first

assumed jurisdiction over it. Id. at *3 (citing Strange v. 1997 Jeep Cherokee, 597

N.W.2d 355, 357 (Minn. App. 1999)).          Because the state retained jurisdiction, we

concluded that the district court should have applied state forfeiture law instead of relying

on federal law. Id. Nonetheless, we affirmed the grant of summary judgment because

appellant failed to rebut the evidentiary presumption that property in proximity to a

controlled substance and vehicles used to transport controlled substances are presumed

forfeited. Id. at *4; see Minn. Stat. § 609.5314, subd. 1(a)(1)(i), (2) (2010)).2 We

declined to extend the exclusionary rule to civil forfeiture actions, as no Minnesota case

had previously applied the exclusionary rule to civil forfeitures. Garcia-Mendoza 2013

WL 615304 at *3. We also did not “reach respondent Hennepin County’s argument that

appellant was collaterally estopped from relitigating the March 19 stop and search.” Id.

       The supreme court granted appellant’s petition for further review solely on the

issue of whether the Fourth Amendment exclusionary rule applies to civil forfeiture

actions. Garcia-Mendoza, 852 N.W.2d at 662. The supreme court denied respondent

Hennepin County’s request for conditional cross-review in which respondent Hennepin

County argued that the court of appeals erred in “(1) failing to take judicial notice of the


2
  We note that the forfeiture statute in effect at the time the property in this case was
seized did not require a conviction before the property may be forfeited. Garcia-
Mendoza, 2013 WL 615304, at *4; see also Minn. Stat. § 609.5311, subd. 2(a)(2010)).
The forfeiture statute has since been amended and now requires that “[a]n asset is subject
to forfeiture by judicial determination” only if “a person is convicted of the criminal
offense related to the action for forfeiture.” Minn. Stat. § 609.531, subd. 6a(b)(1) (2014).

                                             5
federal district court’s order that the March 19 stop and search was lawful; and (2) failing

to conclude that appellant is collaterally estopped from relitigating the legality of the

March 19 stop and search.” Id. at 622 n.3.

       Relying on One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S. Ct.

1246 (1965), the supreme court held “that the Fourth Amendment exclusionary rule

applies to civil forfeiture actions brought under Minn. Stat. §§ 609.531-.5319.” Id. at

667. The United States Supreme Court in Plymouth Sedan had granted certiorari to

resolve a split of authority on the question of whether the constitutional exclusionary rule

applies to forfeiture actions. 380 U.S. at 696, 85 S. Ct. at 1248. In concluding that the

exclusionary rule applies to civil forfeitures, the Supreme Court was persuaded by the

fact that (1) forfeiture is quasi-criminal in nature, resulting in penalties that are sometimes

greater than the criminal penalty; (2) an automobile is not contraband in the sense that it

is not illegal to possess an automobile; and (3) it is the fruit of the search that makes use

of the automobile illegal. Id. at 699-702, 85 S. Ct. at 1250-52. In concluding that the

exclusionary rule applies to civil forfeitures, the Minnesota Supreme Court held that

Plymouth Sedan “is on point and good law” and that the facts, as well as the forfeiture

statutes at issue, are similar. Garcia-Mendoza, 852 N.W.2d at 666-67.

       After concluding that the exclusionary rule applies to civil forfeiture actions, the

supreme court reversed and remanded to this court “for further proceedings consistent

with this opinion, including for consideration of the County’s other arguments.” Id. at

668. Although respondent Hennepin County raised four issues in its brief to the supreme

court, the supreme court did not grant review concerning any of them. Id. The supreme


                                              6
court also noted that “[t]he procedural posture and merits of the County’s additional

arguments are disputed” but expressed “no opinion on whether the County forfeited its

right to raise any of these issues on appeal.” Id. at 688-89. These additional issues

include the collateral estoppel and statutory remedy issues that we directed the parties to

address in their supplemental briefs on remand.

                                      DECISION

       Summary judgment is appropriate when there are no genuine issues of material

fact and a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. We

review a grant of summary judgment to determine whether there are genuine issues of

material fact and whether the district court erred in its application of the law. Mattson

Ridge, LLC v. Clear Rock Title, LLP, 824 N.W.2d 622, 627 (Minn. 2012).

       Minnesota law provides that “[w]hen property has been used to facilitate drug

trafficking or the property represents proceeds from such trafficking, that property is

subject to forfeiture.”    Garcia-Mendoza, 852 N.W.2d at 665 (citing Minn. Stat.

§ 609.5311, subds. 2(a), 4(b) (2010)). Forfeiture is an in rem action, independent of any

criminal prosecution. Id. “The prosecuting agency seeking to forfeit property benefits

from an evidentiary presumption that money ‘found in proximity’ to controlled

substances and motor vehicles containing felony-level amounts of controlled substances

are subject to forfeiture.” Id. (citing Minn. Stat. § 609.5314, subd. 1(a)(1)(i), (2) (2010)).

A person with an interest in the property bears the burden of rebutting “this presumption

by producing sufficient evidence that (1) he or she owns the property; and (2) the

property is not connected to drug trafficking.” Id.


                                              7
       In support of the forfeiture action, respondent Hennepin County argued to the

district court that appellant’s federal guilty plea to distribution of methamphetamine

satisfied the evidentiary presumption that the 2003 Chevrolet Tahoe and cash are subject

to forfeiture. Appellant contended that there were genuine issues of material fact because

the March 19 traffic stop and search were unconstitutional, and that the items seized

could therefore not be forfeited. Although the district court suggested that the traffic stop

and expansion of the stop were illegal under Minnesota law, it nonetheless granted

summary judgment to respondent Hennepin County because the district court declined to

apply the exclusionary rule to this civil forfeiture action. The district court held that

federal law and the federal plea agreement required forfeiture of the property. Our earlier

opinion held that Minnesota law governs the forfeiture, and the supreme court held that

the legality of a stop and search is relevant to a forfeiture proceeding.         With this

procedural background in mind, we turn to the question of whether the district court’s

grant of summary judgment was proper.

       First, respondent Hennepin County contends that appellant cannot challenge the

constitutional validity of the seizure because he failed to file a motion under Minn. Stat.

§ 626.21. This argument fails.

       “A person aggrieved by an unlawful search and seizure may move the district

court for the district in which the property was seized . . . for the return of the property

and to suppress the use, as evidence, of anything so obtained.” Minn. Stat. § 626.21. The

word “may” as used in the statute signifies that it is permissive. See Agassiz & Odessa

Mut. Fire Ins. Co. v. Magnusson, 272 Minn. 156, 165, 136 N.W.2d 861, 868 (1965)


                                             8
(stating that the legislature’s use of the word “may” is ordinarily given its literal meaning

unless another intention is clear). As written, the statute does not require a person

aggrieved by a search and seizure to do anything. Moreover, our caselaw indicates that

section 626.21 is appropriate for use by persons seeking the return of property before a

criminal complaint has been filed or in cases where there is no criminal proceeding,

because otherwise the return of property would undermine a criminal prosecution. See

Bonynge v. City of Minneapolis, 430 N.W.2d 265, 266 (Minn. App. 1988) (holding that a

defendant has no right to appeal a section 626.21 order denying a motion to suppress and

return when criminal prosecution had commenced). Indeed, we have said that “since the

promulgation of the Rules of Criminal Procedure, the statute is superfluous for purposes

of criminal prosecutions.” Id. Here, there were criminal prosecutions commenced in

both state district court and in federal court. Appellant was not required to bring a

section 626.21 claim to seek the return of property. Because appellant is not required to

seek the return of property under section 626.21 before challenging the constitutional

validity of the seizure, he has not waived his right to challenge the validity of the seizure.

       Respondent Hennepin County next contends that appellant is collaterally estopped

from relitigating the constitutional validity of the stop and search because the federal

district court already denied his suppression motion.        “Collateral estoppel precludes

parties to an action from relitigating in subsequent actions issues that were determined in

the prior action.” State v. Lemmer, 736 N.W.2d 650, 658 (Minn. 2007) (quotation

omitted).   The supreme court has stated that collateral estoppel functions like an

evidentiary ruling: “Where collateral estoppel is applied, the party is simply precluded


                                              9
from presenting evidence that would result in the relitigation of a previously litigated

issue.” Id. “Whether collateral estoppel precludes litigation of an issue is a mixed

question of law and fact that is reviewed de novo.” Id. at 659. Collateral estoppel is

appropriate when the following four elements are met:

              (1) the issue was identical to one in a prior adjudication;
              (2) there was a final judgment on the merits;
              (3) the estopped party was a party or in privity with a party to
              the prior adjudication; and
              (4) the estopped party was given a full and fair opportunity to
              be heard on the adjudicated issue.

Ill. Farmers Ins. Co. v. Reed, 662 N.W.2d 529, 531 (Minn. 2003). But collateral estoppel

is not rigidly applied, and a court “will not apply collateral estoppel if its application

would work an injustice on the party to be estopped.” Lemmer, 736 N.W.2d at 659.

       Although appellant is the same party involved in the federal prosecution and the

state forfeiture proceeding, the issues concerning the constitutional validity of the stop

may not be identical.     Minnesota analyzes the reasonableness of each incremental

intrusion during a traffic stop under the state constitution. See, e.g., State v. Askerooth,

681 N.W.2d 353, 364 (Minn. 2004). The parties did not argue, and the district court did

not consider, whether the federal district court examined the legality of the stop under the

equivalent of the Askerooth incremental-intrusion analysis.        Moreover, a collateral-

estoppel argument must first be raised before the district court. See Beaulieu v. Minn.

Dep’t of Human Servs., 825 N.W.2d 716, 723-24 (Minn. 2013) (holding that a collateral

estoppel argument was not waived when the argument was sufficiently presented to the

district court). The record presented here reflects that respondent Hennepin County did



                                            10
not specifically raise a collateral estoppel issue in its motion for summary judgment. We

therefore conclude that remand is appropriate to permit the district court to consider

whether appellant is collaterally estopped from raising a constitutional challenge to the

stop and search of the vehicle.

       Finally, we conclude that the record is not sufficient for consideration of

appellant’s constitutional challenge to the stop and search of his vehicle. Appellant’s

challenge to the stop and search was not fully litigated before the state district court

because respondent Hennepin County dismissed its charge when appellant was indicted

in federal court. Respondent Hennepin County relied on appellant’s federal guilty plea as

the basis for the forfeiture.     The district court’s dictum concerning the perceived

infirmities of the search and seizure was not a basis for the district court’s grant of

summary judgment.       And it seems plain to us that, on this record, there remain

unresolved fact issues concerning whether the stop and the resulting search and seizure

were constitutionally permissible under applicable Minnesota law.            We therefore

conclude that remand is required to permit the district court to fully consider the validity

of the stop and search under Minnesota law, should the district court determine that

appellant is not collaterally estopped from challenging the stop and search of his vehicle.

       Reversed and remanded.




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