In the Matter of Property Seized from Jean Carlos Herrerra and Fernando Rodriguez

Docket Watch 2018

By Greg Glod

On May 25, the Iowa Supreme Court issued an opinion in the case In the Matter of Property Seized from Jean Carlos Herrerra and Fernando Rodriguez that will have major implications regarding how the state’s civil asset forfeiture procedures will be conducted and in the process strengthened the constitutional and property rights of its citizens.

Civil asset forfeiture is the process by which law enforcement can legally seize and forfeit a person’s property without charging an individual with a crime. The process is entirely civil in nature, which raises several constitutional issues, of which many came into play in this particular case.

In September 2015, an Iowa law enforcement officer spotted a car he been trained was routinely used in drug trafficking. The officer pulled the car over for speeding. Neither the driver nor passenger were the owner of the car. The officer questioned them separately and their stories did not match up on the purpose of their travel from New York to Los Angeles. The officer asked the driver if he consented to a search of the car to which the driver refused. A K-9 was already on the scene and alerted to odor of narcotics which triggered a search of the car that only found remnants of marijuana and drug paraphernalia. The car and its contents, which included some tools and an ice cream machine, were seized by law enforcement, who then executed a search warrant and a more in depth search of the vehicle, finding $44,990 in a hidden compartment.

The driver of the vehicle filed a motion to suppress and return the property. The court denied the motion because the driver and Rodriguez’s combined answer to the state in the forfeiture proceeding did not comply with statute that requires claimants to state “the nature and extent of the claimant’s interest in the property” or “the date, the identity of the transferor, and the circumstances of the claimant’s acquisition of the interest in the property.” The driver argued that he should not have to disclose this information until the motion to suppress was settled, citing the Fifth Amendment against self-incrimination. The property was forfeited to the state. The owner of the car, who was not in the vehicle at the time of the stop, Fernando Rodriguez, stated in a letter that as the innocent owner of the car, he would get attorney’s fees if he successfully challenged the forfeiture.

Rodriguez subsequently filed a motion to suppress and a return of his car. This was granted with no objection from the State and pursuant to Iowa law, Rodriguez moved for attorney’s fees as the prevailing party. The court denied the attorney’s fees as he didn’t technically win, but the State dropped the case. The Iowa Court of Appeals upheld the denial of the driver’s motion to suppress and additionally affirmed the denial of attorney’s fees, but remanded the case because the state failed to show probable cause for the forfeiture.

Upon its review of the case, the Iowa Supreme Court concluded three things. First, the court must rule on a motion to suppress if the evidence at issue is the basis for the forfeiture claim because the exclusionary rule, which does not allow law enforcement to use evidence that was unconstitutionally obtained, applies to civil asset forfeiture proceedings as well.

Second, a claimant does not have to provide information required by statute in his answer to a forfeiture complaint before a motion to suppress hearing has concluded if they are invoking their Fifth Amendment right against self-incrimination and a claim possessory interest in the property at issue. The court reasoned that it is the government’s initial burden to prove the grounds for the forfeiture. A person should not have to admit certain facts to the State that would help establish the State’s claims until a court has ruled on what evidence is available to the State. Justice Thomas Waterman stated in the opinion the current statutory scheme “… puts [the driver] to a difficult choice between asserting his privilege against self-incrimination or foregoing his claim for return of the contested property.”

Third, the term “prevailing party” includes situations where the State does not object to the return of the property. The court stressed how fee-shifting provisions are critical to highly complicated forfeiture proceedings to incentivize attorneys to take these cases to level the playing field.

This was a major victory for property owners and constitutional rights as it requires law enforcement to establish that the seizure was legal prior to attempting to forfeit someone’s property and/or compel them to answer certain questions that could incriminate them.

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