Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Jun 28 2010, 8:42 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DONALD E. JAMES Don James & Associates, LLC Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES: GREGORY F. ZOELLER Attorney General of Indiana KATHY BRADLEY Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MARTIN SERRANO, Appellant-Defendant, vs. STATE OF INDIANA and the CITY OF FORT WAYNE, Appellees-Plaintiffs. ) ) ) ) ) ) ) ) ) )

No. 02A03-0908-CV-362

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable David Avery, Judge Cause No. 02D01-0808-PL-422

June 28, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION KIRSCH, Judge

Martin Serrano appeals the trial courts judgment in favor of the State of Indiana and the City of Fort Wayne (collectively "the State") ordering the forfeiture of his truck, which was seized following a traffic stop. Serrano presents several issues for review, of which we find the following dispositive: whether sufficient evidence was presented to support the civil forfeiture of his truck. We reverse. FACTS AND PROCEDURAL HISTORY Serrano and his wife, Maria, worked at the El Paraiso grocery store in Fort Wayne, Indiana. Serrano was the purchasing manager. The Fort Wayne Police Department received an anonymous tip that El Paraiso was receiving shipments of drugs from Chicago and therefore placed the store under surveillance. On the evening of July 10, 2008, Fort Wayne Police Department Detective Craig Wise observed Serranos 2004 GMC silver pick-up truck parked in front of El Paraiso next to a box truck with Illinois license plates. Both trucks eventually drove to the back of the store, where they remained for approximately forty-five minutes. When the box truck drove away, the surveillance team followed and stopped the vehicle. While the box truck was stopped, Serrano drove by and "started speeding off." Tr. at 79. This aroused the suspicion of the surveillance team, and they decided to follow Serrano. They ran a check of his license plate and learned that the registered owner of the truck was named Martin Serrano, and that there was an outstanding warrant on a Martin Serrano. As police followed, Serrano weaved in and out of traffic and exceeded the speed limit. Eventually, Serrano was pulled over for speeding by an Indiana State Police Excise
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Unit and Officer Jason Fuhrman of the Fort Wayne Police Department. During the stop of Serranos vehicle, a canine unit arrived, and Canine Officer Bach conducted a sniff test of Serranos truck. Bach alerted, indicating the presence of narcotics. Serrano was placed under arrest and transported to the police station because of the outstanding warrant. His truck was towed to the police station. It was determined after several hours that the subject of the outstanding warrant was a different Martin Serrano. Thereafter, Serrano was released, but his truck was not. The next day, after obtaining a search warrant, the police searched Serranos truck and found a box of quarters worth approximately $500.00, as well as $51.00 in cash elsewhere in the truck. The box of quarters was covered in a residue that was later determined to be cocaine. The same kind of residue was found elsewhere in Serranos truck. Approximately one month later, Detective Wise interviewed Serrano. Serrano stated he was the only person who drives the 2004 GMC truck and that the quarters found in the truck with cocaine residue were his. When asked about the residue, Serrano claimed he sometimes "makes" drugs, which Serrano clarified as meaning that he used drugs. Tr. at 116. On August 20, 2008, because of the presence of cocaine in the 2004 GMC truck, the State filed a complaint for forfeiture. The complaint sought forfeiture of Serranos truck as well as $551.00 in U.S. currency. After a bench trial, the trial court entered judgment in favor of the State with respect to the truck and in favor of Serrano with respect to the currency. The trial court entered findings of fact and conclusions of law in support of its decision. Among other things, the court concluded that Serrano used his truck to transport or
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to facilitate the transportation of a controlled substance for the purpose of committing a drugrelated offense, specifically, possession of cocaine or a narcotic drug in violation of Indiana Code section 35-48-4-6. Serrano now appeals. DISCUSSION AND DECISION "Because forfeiture cases are civil in nature, we use the standard of review employed in other civil cases where an appellant questions the sufficiency of the evidence to support a verdict." $100 and A Black Cadillac v. State, 822 N.E.2d 1001, 1006 (Ind. Ct. App. 2005). We consider only the evidence most favorable to the judgment and any reasonable inferences that may be drawn therefrom. Id. We neither reweigh the evidence nor reassess the credibility of the witnesses. Id. Additionally, here, the trial court issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly erroneous. Cantrell v. Putnam County Sheriff's Dep't, 894 N.E.2d 1081, 1083 (Ind. Ct. App. 2008). Serrano argues that the trial court erred in finding that his truck was subject to forfeiture because insufficient evidence was presented to satisfy the forfeiture statute. He specifically contends that the State failed to prove that the presence of the cocaine residue in his truck was not more than incidental or fortuitous. Because no nexus between the truck and his possession of the cocaine residue was shown, Serrano claims that his truck should not have been subject to forfeiture. Forfeitures are not favored, and should be enforced "only when within both the letter and spirit of the law." United States v. One 1976 Ford Pick-up VIN F14YUB03797, 769 F.2d
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525, 527 (8th Cir. 1985). Indianas forfeiture statute states in relevant part: (a) The following may be seized: (1) All . . . vehicles if they are used or intended for use by the person . . . to transport, or in any manner to facilitate the transportation of the following: (A) A controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of the following: (vi) Possession of cocaine . . . .

Ind. Code

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