        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-00342-COA

APOLINAR TERRERO RUIZ AND $56,000.00                                     APPELLANTS
U.S. CURRENCY

v.

STATE OF MISSISSIPPI AND HARRISON                                          APPELLEES
COUNTY SHERIFF’S OFFICE

DATE OF JUDGMENT:                         12/18/2014
TRIAL JUDGE:                              HON. LISA P. DODSON
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT,
                                          SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  TIM C. HOLLEMAN
                                          PATRICK TAYLOR GUILD
ATTORNEYS FOR APPELLEE:                   OFFICE OF DISTRICT ATTORNEY,
                                          SECOND CIRCUIT COURT DISTRICT
                                          BY: JOEL SMITH
                                               ALISON B. BAKER
                                               JASON M. JOSEF
NATURE OF THE CASE:                       CIVIL - OTHER
TRIAL COURT DISPOSITION:                  ORDERED SEIZED MONEY FORFEITED
                                          AND AWARDED MONEY TO HARRISON
                                          COUNTY SHERIFF’S OFFICE
DISPOSITION:                              REVERSED AND RENDERED - 09/27/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       ISHEE, J., FOR THE COURT:

¶1.    After being pulled over for a traffic stop by officers with the Harrison County

Sheriff’s Department in 2012, Apolinar Terrero Ruiz was found to have had $56,000 in cash

hidden in a secret compartment in his vehicle. The money was seized, and a trial took place

in the Harrison County Circuit Court regarding whether the money should be forfeited. At
the conclusion of the trial, the circuit court determined that the money was substantially

connected to illegal drug trafficking. Accordingly, the money was forfeited to the sheriff’s

department. Aggrieved, Ruiz appeals. Finding error, we reverse and render the circuit

court’s judgment.

                               STATEMENT OF FACTS

¶2.    On November 8, 2012, Sergeant Bruce Carver, an officer with the sheriff’s

department, became aware of a 2008 Mazda sedan following too closely behind a tanker

truck carrying explosive liquids in Biloxi, Mississippi. Accordingly, Sergeant Carver made

a traffic stop of the vehicle. Deputy Brandon Hendry assisted in the stop. Ruiz, a legal

United States citizen originally from the Dominican Republic, was the driver of the vehicle

detained. Sergeant Carver testified that upon approaching the vehicle, he noticed a strong

scent, and saw two new air fresheners hanging from the rearview mirror. Sergeant Carver

also observed two cell phones lying on the passenger’s seat along with a map. He further

observed that the ignition of the vehicle housed only a single key – not a set of keys. When

asked about Ruiz’s destination, Ruiz, who admittedly does not speak fluent English, stated

that he was headed to Houston, Texas, to see his pregnant daughter. Sergeant Carver stated

that these factors led him to believe that Ruiz may be involved in drug trafficking.

¶3.    Sergeant Carver returned to his vehicle and contacted the El Paso Intelligence Center

(EPIC) to request information on Ruiz. Ruiz was not listed in EPIC’s database, nor does

Ruiz have any prior legal association with any drug activity. Nonetheless, Sergeant Carver


                                             2
asked Ruiz for permission to search his vehicle.

¶4.    Ruiz was presented with a document requesting his consent to search the vehicle. The

document was written in Spanish, Ruiz’s native language. Ruiz signed the consent form, and

was asked, in English, if there were any weapons, illegal objects, or large sums of money in

the vehicle. Ruiz responded that there were not. Ruiz was then escorted to Sergeant

Carver’s vehicle while the officers searched the vehicle.

¶5.    The officers soon discovered what they termed a “hidden compartment” between the

trunk and the backseats. Although the officers were unable to completely open the

compartment at that time, they were able to pry it open widely enough to reach inside. The

officers could feel stacks of money banded together with rubber bands and wrapped in a

towel. While the officers were searching the vehicle, Ruiz was recorded in the patrol vehicle

saying in Spanish, “My God, I got myself into one,” and later, “My God, my God.”

¶6.    The search of the vehicle was relocated to a nearby work center used by the sheriff’s

department. Ruiz opened the compartment for the officers. Discovered in a black bag was

$56,000 in cash, along with a vacuum-sealer machine, vacuum-seal bags, and Saran Wrap,

all wrapped in a towel. The officers at the work center also discovered residue in the

compartment that they testified “appeared to be marijuana” debris. However, this material

was not preserved, collected, or tested. Likewise, Ruiz was not questioned about or shown

the residue.

¶7.    Sergeant Carver asked Ruiz about the money and the vacuum-seal items. Ruiz stated


                                             3
that the money was his. He said he had been saving the money for quite some time and had

plans to open a grocery store in Houston with his daughter. Ruiz said the reason for his trip

from Pennsylvania to Texas was to see his daughter and discuss opening the grocery store.

Sergeant Carver asked how much Ruiz had stored in the vehicle, to which he responded

“fifty-six.”

¶8.    With respect to the vacuum-seal machine and bags, Ruiz stated that he was a diabetic

and had planned to use the machine to seal and save diabetic-friendly food to eat during his

trip. Ruiz testified that he had medication for his diabetes in his suitcase in the trunk of his

vehicle at the time of the incident, but that he was not questioned about the vacuum-seal

items or given an opportunity to explain their presence before the money was taken and he

was released.

¶9.    After the authorities finished questioning Ruiz and searching the vehicle, the vehicle

was returned to Ruiz and he was released without being charged with any crimes. However,

the money was confiscated for further analysis. A trial ensued in the circuit court to

determine whether or not the money was substantially connected to drug trafficking and

should be forfeited.

¶10.   At trial, Ruiz was asked how he saved up such a large sum of money in cash. He

testified that most of the money consisted of twenty-six years of savings from working in

construction and carpentry. He also stated that after refinancing a home he owned in

Massachusetts, he received $20,000 in cash from equity, which he used, in addition to $7,000


                                               4
his daughter had given him to invest, to begin making private loans and receive interest on

the loans – transactions all completed in cash. He was unable to produce the names,

addresses, or telephone numbers of people to whom he loaned money, and confessed that he

did not have any records of the alleged transactions.           Likewise, there was no tax

documentation regarding the money.

¶11.      Ruiz was also questioned about the alleged grocery-store business plan. He admitted

that he had never worked in a restaurant or grocery store. He also did not have any potential

locations in mind for the business, nor had he done any research on available commercial real

estate prior to departing for his trip to Texas.

¶12.      With regard to the hidden compartment, Ruiz stated that he had just purchased the

used vehicle in question four months prior to the stop. Ruiz said that he was unaware of the

supposed hidden compartment when he purchased the vehicle, but discovered it while

cleaning the vehicle later on. He denied having modified the vehicle in any way and stated

that the compartment was easily opened by folding down the backseats. The record

indicates, in fact, that Ruiz voluntarily opened the compartment for the officers at the work

center.

¶13.      For purposes of the trial, the money found in Ruiz’s vehicle was counted and listed

by denomination as follows: (1) $350 in $10 bills; (2) $23,700 in $20 bills; (3) $5,750 in $50

bills; and (4) $26,200 in $100 bills. At trial, Sergeant Carver and Deputy Hendry testified

that, in their professional experience with illegal-narcotics activities, large amounts of drug-


                                               5
related money most commonly consisted of $20 and $100 bills since those are the most

frequently used dollar bills in drug transactions. They also testified that it was routine to

discover large amounts of drug-related money outside the presence of drugs. They testified

that this occurred because drug suppliers wanted payment before releasing the drugs to the

traffickers.

¶14.   At the close of the trial, the circuit court ruled from the bench, and ordered the funds

forfeited to the sheriff’s department. The circuit judge determined that the sheriff’s

department had met its burden of showing that the money seized was intended to be used or

had been used in connection with illegal drug sales or distribution. Ruiz now appeals the

circuit court’s judgment.

                                       DISCUSSION

¶15.   “The appropriate standard of review in forfeiture cases is the familiar substantial

evidence/clearly erroneous test.” Four Thousand Eight Hundred One Dollars v. Lafayette

Cty. Metro Narcotics Unit, 22 So. 3d 394, 396 (¶6) (Miss. Ct. App. 2009) (citing Galloway

v. City of New Albany, 735 So. 2d 407, 410 (¶15) (Miss. 1999)). The Mississippi Supreme

Court “has held that in determining whether forfeiture is appropriate, the question becomes

whether[,] given all of the evidence considered together, a rational trier of fact may have

found by a preponderance of the evidence that the funds were the product of or

instrumentalities of this state’s controlled substances act.” Evans v. City of Aberdeen, 926

So. 2d 181, 187 (¶19) (Miss. 2006) (quoting Hickman v. State, 592 So. 2d 44, 48 (Miss.


                                              6
1991)).

¶16.   In Evans, authorities with the Aberdeen Police Department in Aberdeen, Mississippi,

received a tip from a confidential informant, who stated that illegal drug transactions were

taking place in the home of James Evans. Evans v. City of Aberdeen, 925 So. 2d 850, 851

(¶1) (Miss. Ct. App. 2005). Subsequently, a search warrant was issued and executed on

Evans’s home. Id. During the search, officers discovered a brass container attached to a

scrubbing pad, a piece of aluminum foil with holes in it, several plastic bags, and a pack of

cigarettes with residue in the bottom. Id. Discovered nearby, hidden in a piece of furniture,

was $7,600 in cash. Id. The officers placed the cash in a brown paper bag that they had

retrieved from the home’s basement. Id. Later, a drug dog alerted the officers to the

presence of drugs on or in the brown paper bag. Id. The money was subsequently seized and

forfeited. Id. at (¶2).

¶17.   On appeal, this Court found that the circuit court erred in determining that the City of

Aberdeen had met its burden of proof that the money was subject to forfeiture. Id. at 855

(¶23). The supreme court granted certiorari and, while agreeing with our ultimate holding,

distinguished its ruling from that of this Court in several areas of analysis. Evans, 926 So.

2d at 183 (¶3). Specifically, the supreme court recognized that an analysis of whether money

is subject to forfeiture is grounded in a “totality of the circumstances” point of view, as seen

in United States v. Funds in the Amount of $30,670, 403 F.3d 448 (7th Cir. 2005). Evans,

926 So. 2d at 183 (¶ 3). Nonetheless, the supreme court went on to emphasize our adoption


                                               7
of the ruling of the Fifth Circuit Court of Appeals in the factually similar case of United

States v. $38,600.00 in United States Currency, 784 F.2d 694 (5th Cir. 1986),1 where the

Fifth Circuit stated:

       There seems little question that this evidence, when considered collectively,
       gives rise to a strong suspicion, perhaps even probable cause of some illegal
       activity. It is not quite so apparent, however, that these facts give rise to a
       reasonable belief, supported by more than mere suspicion, that [the defendant]
       furnished, intended to furnish, or had received the money [in question] in
       exchange for drugs.

Evans, 926 So. 2d at 187 (¶ 18) (emphasis in original) (quoting United States v. $38,600 in

United States Currency, 784 F.2d at 698). Such is the question here – whether or not the

facts, when taken as a whole, show by more than just suspicion that the money discovered

in Ruiz’s vehicle was garnered or provided to be used in exchange for drugs. We find that

the answer is no.

¶18.   While the facts may garner suspicion that the money could have been drug related,

there is no actual tie between the money and illegal drug trafficking, even when taking the

facts as a whole. Most notably, the residue that the officers alleged appeared to be marijuana

was never collected, preserved, or tested. Ruiz was never charged with any crime relating

to possession of illegal narcotics stemming from the traffic stop, and he had no prior criminal

record or known illegal-narcotic involvement at the time of the incident. Additionally, while

the existence of a hidden compartment in a vehicle may raise suspicion, Ruiz had very


       1
         United States v. $38,600 in United States Currency was superceded in part by a
federal statue as to the government’s burden of proof in civil-forfeiture cases.

                                              8
recently purchased the vehicle second-hand, and claimed to have had no knowledge of the

compartment until weeks before his trip to Texas.              Likewise, Ruiz had a plausible

explanation for every other question asked of him by the sheriff’s department, including

issues surrounding the maps and directional information found in the passenger’s seat, the

reason for Ruiz’s trip to Texas, the existence of the vacuum-seal items, and the source and

purpose of the cash.

¶19.      The State points out two notable factors that it claims cast doubt on Ruiz’s credibility.

The first is Ruiz’s false response to Sergeant Carver’s question to Ruiz prior to the search

of Ruiz’s vehicle regarding whether there were large amounts of money located in the

vehicle. Specifically, the question was asked to Ruiz in English as to whether there were

any weapons, narcotics, or large sums of money in the vehicle. Ruiz responded that there

were not. However, Ruiz testified that he does not speak fluent English and did not fully

understand the question he was being asked. The question was, in fact, a compound

question, and Ruiz stated that he simply did not understand each element of the question at

the time it was asked. Indeed, Ruiz made mention of the money in the vehicle upon being

questioned about the hidden compartment. He responded in Spanish that there was money

inside.

¶20.      The State’s second notation regards the discrepancy between the destination address

found in Ruiz’s vehicle and his daughter’s actual address. At trial, Ruiz noted that his

daughter essentially lived in an area that was complicated to reach, and that he was meeting


                                                  9
her at an easily discoverable location for her to then lead him to her house. Ruiz stated that

he had not been to his daughter’s residence before and that she did not want him to get lost.

¶21.   The State also points to the experience of the officers conducting the search of the

vehicle in order to garner strength for the officers’ proposition that the residue discovered

in the compartment constituted marijuana. With respect to the officers’ years of experience,

the fact that the residue was not collected and scientifically tested and proven to be marijuana

leaves a vast amount of speculation as to the true nature of the residue. Ruiz cites to

Waltman v. Payne, 535 F.3d 342 (5th Cir. 2008), to support his theory that the sheriff’s

department officers could have easily been incorrect in their assertions that the residue was

marijuana given that same sheriff’s department’s prior mistakes in the identification of

marijuana. In Waltman, the Harrison County Sheriff’s Department cut down and removed

approximately 500 plants from Marion Waltman’s property, without contacting Waltman or

testing the plants first, on the premise that the sheriff’s department’s officers, along with

other authorities, believed the plants to be marijuana plants. Id. at 346. Upon learning of the

plants’ removal on the evening news, Waltman contacted the sheriff’s department and

informed them that the plants were actually kenaf plants – a plant favored by deer and other

wildlife and used by Waltman in deer-hunting activities. Id.

¶22.   Prior mistakes notwithstanding, the residue itself is the only alleged element that

directly indicates illegal narcotics were involved in any way. Failure to collect, test, and

preserve the residue for trial rendered it a rather unpersuasive piece of evidence in


                                              10
determining whether the money discovered near the residue was substantially connected to

illegal drug trafficking.

¶23.   While we recognize that many factors in Ruiz’s situation give rise to an element of

suspicion, we fail to see how the factors in play support a reasonable belief that the totality

of the circumstances shows, by a preponderance of the evidence, that the money in question

was used in exchange for drugs. The State simply did not meet its burden of proof, and the

circuit court erred in forfeiting the funds. As such, we reverse and render the circuit court’s

judgment and order the funds returned to Ruiz.

¶24. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

    LEE, C.J., IRVING, P.J., BARNES, FAIR, JAMES, WILSON AND
GREENLEE, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY GRIFFIS, P.J.

       CARLTON, J., DISSENTING:

¶25.   In applying the controlling standard of review to this case involving an action in rem,

I submit that we should affirm the circuit court’s judgment.2 See Six Thousand Dollars v.

State ex rel. Miss. Bureau of Narcotics, 179 So. 3d 7, 14 (¶19) (Miss. Ct. App. 2014)

(discussing the appropriate standard of review to apply in forfeiture cases). I therefore

dissent from the majority’s opinion.


       2
         See Jefferson v. City of Kosciusko, 111 So. 3d 1253, 1257 (¶21) (Miss. Ct. App.
2013) (“A civil forfeiture constitutes an in rem proceeding, and the action proceeds upon a
legal fiction that the property itself is guilty of wrongdoing.”).

                                              11
¶26.   As stated in Hickman v. State ex rel. Mississippi Department of Public Safety, 592 So.

2d 44, 45-46 (Miss. 1991), a civil forfeiture proceeding is not a criminal prosecution, and

Mississippi law requires the State to prove all facts requisite to the forfeiture by a

preponderance of the evidence. See also One Hundred Seven Thousand Dollars U.S.

Currency v. State ex rel. Harrison Cty. Sheriff’s Dep’t, 643 So. 2d 917, 922 (Miss. 1994)

(“[T]he State must prove that it is more likely than not that the currency was possessed by

the claimant with the intent to be used in connection with an illegal narcotics trafficking

scheme.” (citation omitted)); Saik v. State ex rel. Miss. Bureau of Narcotics, 473 So. 2d 188,

191 (Miss. 1985) (discussing that the burden is on the State to prove forfeiture by a

preponderance of the evidence); Miss. Code Ann. § 41-29-179(2) (Rev. 2013) (discussing

the burden of proof required to show that property is subject to forfeiture).

¶27.   “As in any civil action, the trier of facts may act on circumstantial as well as direct

evidence . . . .” Hickman, 592 So. 2d at 46 (quoting Reed v. State ex rel. Miss. Bureau of

Narcotics, 460 So. 2d 115, 118 (Miss. 1984)). As the supreme court stated in Hickman:

       The question is not how we would have resolved the evidentiary and ultimate
       fact disputes had we been the triers of fact, but whether, given the record, a
       reasonable factfinder may have done as was done. This standard substantially
       limits appellate review of the facts, save only where the circuit court has
       applied an erroneous legal standard to decide the question of fact.

Id. (citing McClendon v. State, 539 So. 2d 1375, 1377 (Miss. 1989)). Compare Tran v. State,

962 So. 2d 1237, 1244-47 (¶¶26, 39) (Miss. 2007) (discussing the State’s seizure of money

pursuant to a civil forfeiture action and the various unlawful activities that could result in


                                             12
money laundering and a violation of the Mississippi Uniform Controlled Substances Law).3

¶28.   Based upon a review of the record and relevant caselaw, I would affirm the circuit

court’s judgment. The record reflects sufficient evidence for a reasonable factfinder to

conclude that Ruiz and the $56,000 in United States currency violated the Mississippi

Uniform Controlled Substances Law. See Miss. Code Ann. § 41-29-101 to -191 (Rev. 2013).

As a result, I dissent from the majority’s opinion.

       GRIFFIS, P.J., JOINS THIS OPINION.




       3
        See also Six Thousand Dollars v. State ex rel. Miss. Bureau of Narcotics, 179 So.
3d 1, 4-6 (¶¶5-8) (Miss. 2015) (discussing the legal standard applicable to the innocent-
owner exception and finding that the defendant’s uncorroborated testimony that he owned
money seized by law enforcement was insufficient to establish the innocent-owner
exception).

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