State v. Benally

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:42:02 2016.03.30

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-010

Filing Date: February 25, 2016

Docket No. S-1-SC-35145

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

NORMAN BENALLY,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Grant L. Foutz, District Judge

Hector H. Balderas, Attorney General
M. Anne Kelly, Assistant Attorney General
Elizabeth Ashton, Assistant Attorney General
Santa Fe, NM
for Petitioner

Jorge A. Alvarado, Chief Public Defender
William O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Respondent

OPINION

NAKAMURA, Justice.

{1} In this case, we hold that when law enforcement officers seized, impounded, and
sealed a vehicle, under NMSA 1978, Section 31-27-5(A) (2002, amended 2015), they
“ma[de] a seizure” of the currency that the vehicle contained. On June 23, 2011, Gallup
police officers seized a vehicle. On June 29, they executed a warrant to search the vehicle
and discovered $1295 in currency. The State filed a forfeiture complaint for the $1295 on
July 27, which was within thirty days of the search but not within thirty days of the seizure
of the vehicle. A provision of the Forfeiture Act then in effect required the State to file the

1
forfeiture complaint “[w]ithin thirty days of making a seizure” of property. Section 31-27-
5(A) (2002). Based on that provision, the district court dismissed the State’s forfeiture
complaint as untimely, and the Court of Appeals affirmed.

{2} We note that in 2015 the Legislature amended the Forfeiture Act, NMSA 1978, §§
31-27-1 to -11 (2002, as amended through 2015), to require that the State file a forfeiture
complaint either “[w]ithin thirty days of making a seizure of property or simultaneously
upon filing a related criminal indictment . . . .” Section 31-27-5(A) (emphasis added). The
State filed the forfeiture complaint and the criminal indictment at the same time. Under the
current statute, the State’s forfeiture complaint may have been timely, an issue that we do
not address in this case. However, because the 2002 statute controls this case and because
the officers “ma[de] a seizure” of the money when they seized the vehicle, we affirm.

I. BACKGROUND

{3} On June 23, 2011, Norman Benally was driving a black Cadillac Escalade with a
nonoperating headlight. Officer Houston Largo stopped him alongside eastbound Highway
66 in Gallup. During the stop, Officer Largo smelled marijuana and asked Benally for
consent to search the vehicle. Benally declined. Officer Largo then called for the assistance
of the K-9 patrol unit. Officer Angelo Cellicion arrived, accompanied by his K-9, Tiko. Tiko
alerted the officers to the presence of controlled substances. Shortly thereafter, Danielle
Benally, who was the registered owner of the vehicle, arrived at the scene. She also refused
consent to the officers’ search of the vehicle. The vehicle was then seized and towed to the
Gallup Police Department’s gated and locked impound lot. There, evidence tape was placed
on the hood, the passenger and driver side doors, the rear doors, and the rear lift gate. The
vehicle was sealed so that no one but the police officers could enter it.

{4} On June 28, the State sought a warrant to search the vehicle for drugs, drug
paraphernalia, and money linked to drug transactions. A warrant was issued, and the
following day, June 29, law enforcement agents searched the vehicle. They found 586.7
grams of marijuana; a digital scale; Benally’s wallet, which contained currency, his driver’s
license, and his social security cards; and Danielle Benally’s wallet, which contained
currency, credit cards, and EBT cards. In total, law enforcement officials discovered $1295
during the search of the vehicle.

{5} On July 27, 2011, the State filed a criminal complaint against Benally, charging him
with distribution of marijuana, conspiracy to distribute marijuana, possession of marijuana,
and possession of drug paraphernalia. At the same time, the State filed a complaint for the
forfeiture of the $1295, alleged to be drug proceeds.

{6} Benally moved to dismiss the forfeiture complaint as untimely. Benally pointed to
former Section 31-27-5(A), which provided that “[w]ithin thirty days of making a seizure,
the state shall file a complaint of forfeiture or return the property to the person from whom
it was seized.” Section 31-27-5(A) (2002). Benally argued that the forfeiture complaint

2
should be dismissed because it was filed more than thirty days after the Gallup police
officers seized and sealed the vehicle containing the currency. The trial court held a hearing
on the motion and later dismissed the forfeiture complaint as untimely under former Section
31-27-5(A).

{7} On appeal, the State argued that the forfeiture complaint had been timely filed
because the thirty-day statutory limitations period ran from the date the property subject to
forfeiture was discovered or, alternatively, from the time the search warrant was issued.

{8} In an opinion filed January 29, 2015, the Court of Appeals affirmed the trial court’s
dismissal of the forfeiture complaint. State v. Benally, 2015-NMCA-053, ¶ 1, 348 P.3d 1039,
cert. granted, 2015-NMCERT-005 (No. 35,145, May 11, 2015). The Court of Appeals held
that, under the plain language of former Section 31-27-5(A), the thirty-day limitations period
began to run “when the officers impounded [Benally’s] car and its contents on June 23,
2011.” Id. ¶ 12. The appellate court reasoned that the limitations period began at the point
of seizure; when the vehicle was seized on June 23, its contents, including the $1295, were
also seized. Id. ¶ 9 (“[T]he contents of the vehicle were also seized by virtue of being in the
impounded car.”). The Court of Appeals concluded, “[s]ince the State failed to file a
complaint for forfeiture within thirty days of that date, the district court properly dismissed
the forfeiture action.” Id. ¶ 12. We granted the State’s petition for a writ of certiorari,
exercising our jurisdiction under Article VI, Section 3 of the New Mexico Constitution and
NMSA 1978, Section 34-5-14(B) (1972).

{9} Former Section 31-27-5(A) controls this case. See Grygorwicz v. Trujillo, 2006-
NMCA-089, ¶ 16, 140 N.M. 129, 140 P.3d 550 (“[U]nless a contrary legislative intent is
expressed, the statute of limitations in effect at the time an action is filed governs the
timeliness of the claim.” (internal quotation marks and citation omitted)). Under that statute,
the State simply had thirty days from the date of the seizure to file a forfeiture complaint.
Neither the original nor the amended version of the Forfeiture Act defines “seizure.” Thus,
we must interpret the meaning of “seizure” to decide the single issue of statutory
interpretation that this case presents: Under former Section 31-27-5(A), did the Gallup police
officers “mak[e] a seizure” of the $1295 when they seized, impounded, and sealed the
vehicle that contained the currency?

II. DISCUSSION

A. Standard of review

{10} The interpretation of a statute presents an issue of law that this Court reviews de
novo. Bank of New York v. Romero, 2014-NMSC-007, ¶ 40, 320 P.3d 1. When interpreting
a statute, this Court first looks to the text. See NMSA 1978, § 12-2A-19 (1997) (“The text
of a statute or rule is the primary, essential source of its meaning.”); see also Bank of N.Y.,
2014-NMSC-007, ¶ 40 (“[W]hen presented with a question of statutory construction, we
begin our analysis by examining the language utilized by the Legislature, as the text of the

3
statute is the primary indicator of legislative intent.” (alteration in original) (internal
quotation marks and citation omitted)). “Under the rules of statutory construction, [w]hen
a statute contains language which is clear and unambiguous, we must give effect to that
language and refrain from further statutory interpretation.” Id. (alteration in original)
(internal quotation marks and citation omitted); see also NMSA 1978, § 12-2A-2 (1997)
(“Unless a word or phrase is defined in the statute or rule being construed, its meaning is
determined by its context, the rules of grammar and common usage.”). We also construe
statutes to give effect to their object and purpose. NMSA 1978, § 12-2A-18(A)(1) (1997).
Furthermore, “it is well established in New Mexico that, ‘[f]orfeitures are not favored at law
and statutes are to be construed strictly against forfeiture.’” State v. Nunez, 2000-NMSC-
013, ¶ 75, 129 N.M. 63, 2 P.3d 264 (alteration in original) (quoting State v. Ozarek, 1978-
NMSC-001, ¶ 4, 91 N.M. 275, 573 P.2d 209).

B. The plain meaning of “seizure”

{11} “Seizure” is neither an obscure nor polysemic term in American law. A seizure
indicates the dispossession of an owner of his or her property. Both the Supreme Court of
the United States and the New Mexico appellate courts have explained that a seizure refers
to an interference with a person’s possessory interests in his or her property. See, e.g.,
Horton v. California, 496 U.S. 128, 134 (1990) (“A seizure of the article . . . would
obviously invade the owner’s possessory interest.”); United States v. Jacobsen, 466 U.S.
109, 113 (1984) (“A ‘seizure’ of property occurs when there is some meaningful interference
with an individual’s possessory interests in that property.” (citations omitted)); United States
v. Place, 462 U.S. 696, 705-06 (1983) (finding that a seizure amounts to an “intrusion on
possessory interests” and can even be a “brief detention[] of personal effects”); State v.
Bomboy, 2008-NMSC-029, ¶ 9, 144 N.M. 151, 184 P.3d 1045 (“[T]he seizure aspect [of the
rights guaranteed by Article II, Section 10 of the New Mexico Constitution and the Fourth
Amendment of the United States Constitution] protects notions of possession.”); State v.
Sanchez, 2005-NMCA-081, ¶ 17, 137 N.M. 759, 114 P.3d 1075 (“[T]he seizure aspect
protects notions of possession, at least insofar as it applies to objects.”). Unsurprisingly,
legal dictionaries reflect those statements. See, e.g., Seizure, Black’s Law Dictionary (10th
ed. 2014) (defining “seizure” as “[t]he act or an instance of taking possession of a person or
property by legal right or process”). This Court presumes that when the Legislature enacted
former Section 31-27-5(A), it did so with knowledge of how New Mexico’s appellate courts
and the Supreme Court of the United States define and use the term “seizure.” See Kmart
Corp. v. N.M. Taxation & Revenue Dep’t, 2006-NMSC-006, ¶ 15, 139 N.M. 172, 131 P.3d
22 (“We presume that the Legislature knows the state of the law when it enacts legislation.”).

{12} Against the weight of the case law, the State suggests that under former Section 31-
27-5(A) state officers “mak[e] a seizure” of property only when they knowingly and
intentionally seize the property for the purposes of forfeiture. According to the State, “the
Court of Appeals failed to recognize ‘seizure’ as an active verb.” The State asserts that when
the Gallup police officers impounded Benally’s vehicle, they did not knowingly seize the
currency because they were unaware of its existence. The State therefore argues that the

4
police only seized the currency after obtaining a warrant to search the vehicle, discovering
the currency pursuant to that warrant, and securing the currency after its discovery for the
purpose of forfeiture.

{13} The State’s interpretation does not sufficiently attend to the statutory text. Former
Section 31-27-5(A) uses “seizure” as an object. See § 31-27-5(A) (2002). The statute refers
to a state of affairs, not a type of activity that entails a specific mental state. It is clear that
the Legislature used the word “seizure” to refer to the dispossession of a person of his or her
property, and that meaning is wholly consistent with how the Supreme Court of the United
States and the New Mexico appellate courts have explained the concept. See, e.g., Jacobsen,
466 U.S. at 113; Bomboy, 2008-NMSC-029, ¶ 9.

{14} Contrary to the State’s suggestion, whether a law enforcement officer seizes a
person’s property does not depend on that officer’s specific intent to take control of the
property. Rather, what matters is that the officer’s actions deprive the person of his or her
possessory interests in property. See Soldal v. Cook Cty., Ill., 506 U.S. 56, 72 (1992) (“The
facts alleged suffice to constitute a ‘seizure’ within the meaning of the Fourth Amendment,
for they plainly implicate the interests protected by that provision.” (emphasis added)). The
mental state of the law enforcement official engaged in the act of dispossessing a person of
his or her property is not significant; the effect on the property right is. See id. at 69 (“What
matters is the intrusion on the people’s security from governmental interference. Therefore,
the right against unreasonable seizures would be no less transgressed if the seizure . . . was
undertaken to collect evidence . . . or on a whim, for no reason at all.”).

{15} Furthermore, in this case, attention to the mental state of the Gallup police officers
when they seized the vehicle actually weakens the State’s argument. The officers took
control of the vehicle in order to have exclusive access to its contents. In the affidavit for the
search warrant, a Gallup police officer stated his belief that the seized vehicle contained
money linked to drug transactions. By issuing the search warrant, the district court
concluded that this belief was supported by probable cause. In light of these facts, the State
is essentially arguing that an intentional taking of a vehicle with probable cause to believe
it contains contraband does not rise to a seizure of the contraband where the vehicle is not
taken with the certainty that it contains contraband. But whether contraband within a vehicle
is seized does not turn on the distinction between an officer’s justified belief that the vehicle
contains contraband and the officer’s certainty that it does. Simply put, the meaning of
“seizure” does not depend on the epistemological distinction between a justified belief and
certainty, and we refuse to impute such an odd meaning to the Legislature’s clear usage.

{16} The meaning of “seizure” in former Section 31-27-5(A) is its common one: When
a law enforcement officer deprives a person of the possessory interests in his or her property,
the officer has seized the property.

C. The effect of Section 31-27-4

5
{17} Despite the clear and unambiguous use of “seizure” in former Section 31-27-5(A),
the State suggests that other provisions of the 2002 Forfeiture Act indicate “that the
Legislature intended the word ‘seizure’ to have a more narrow meaning than its common
meaning.” Conceding that its interpretation of “seizure” departs from the common meaning,
the State proposes that former Section 31-27-4 supports its interpretation that the Gallup
police only seized the $1295 when they discovered it pursuant to a warranted search of the
impounded vehicle.

{18} Prior to the 2015 amendments to the Forfeiture Act, Section 31-27-4 stated:

Property may be seized by a law enforcement officer:
A. pursuant to an order of seizure issued by a district court based
on a sworn application of a law enforcement officer from which a
determination is made by the court that:

(1) there is a substantial probability that:
(a) the property is subject to forfeiture;
(b) the state will prevail on the issue of forfeiture;
and
(c) failure to enter the order will result in the
property being destroyed, removed from the state or otherwise made
unavailable for forfeiture; and
(2) the need to preserve the availability of the property
through the entry of the requested order outweighs the hardship to the owner
and other parties known to be claiming interests in the property; and
B. without a prior court order, if the property alleged to be
property subject to forfeiture is not a residence or a business, when:
(1) the seizure is incident to an arrest for a crime, a search
conducted pursuant to a search warrant or an inspection conducted pursuant
to an administrative inspection warrant and the law enforcement officer
making the arrest or executing the search or inspection warrant has probable
cause to believe the property to be property subject to forfeiture and that the
subject of the arrest, search warrant or inspection warrant is an owner of the
property; or
(2) the law enforcement officer making the seizure has
probable cause to believe the property is property subject to forfeiture and
that the delay occasioned by the need to obtain a court order would frustrate
the seizure.

Section 31-27-4 (2002).

{19} In short, the State argues that the limitations period should only run from the time
that a search warrant or seizure order is executed in order to effectuate New Mexico’s
preference for a warrant. Hence, the State argues that “seizure” in former Section 31-27-5(A)

6
refers only to those instances where the State has lawfully taken control of property after
executing a warrant or seizure order, as contemplated by former Section 31-27-4. We
disagree that former Section 31-27-4 compels us to read “seizure,” as the term is employed
by former Section 31-27-5(A), as an event that necessarily takes place pursuant to a court
order.

{20} First, former Section 31-27-4 cannot mean that a seizure necessarily occurs
subsequent to a court order. The Forfeiture Act explicitly provides that, in certain
circumstances, property may be seized without a prior seizure order or search warrant.
Section 31-27-4(B) (2002). Indeed, both the original and amended provisions of the
Forfeiture Act explicitly state that a law enforcement officer is authorized to seize property
without a prior order or search warrant when the seizure is made incident to arrest or where
“the delay occasioned by the need to obtain a court order would frustrate the seizure.”
Compare § 31-27-4(B) (2002) (authorizing seizures “without a prior court order” such as
those made incident to arrest or in exigent circumstances), with § 31-27-4(E) (same). The
State’s argument that we should depart from the common meaning of seizure is undermined
by the very statute on which it relies.

{21} Second, the State’s argument suffers a logical problem. Former Section 31-27-4
provides the conditions under which state officers are permitted to seize property. See § 31-
27-4 (2002). The conditions that make seizures permissible, however, do not define what a
seizure is. If the conditions that define a seizure were the same as the conditions that make
seizures permissible, then it would make no sense to speak of impermissible or unreasonable
seizures. Obviously, that is an absurd result; courts do speak of impermissible seizures. See,
e.g., Soldal, 506 U.S. at 69 (“[T]he right against unreasonable seizures would be no less
transgressed if [an unlawful] seizure . . . was undertaken to collect evidence . . . or on a
whim, for no reason at all.”). And we do not interpret statutes to invite absurdity. Cortesy
v. Territory, 1892-NMSC-030, ¶ 4, 6 N.M. 682, 30 P. 947).

{22} Third, the State’s reading does not attend to the purpose of the limitations period set
forth in former Section 31-27-5(A). The original Forfeiture Act provided a right for persons
whose property was unlawfully seized to have it returned. See § 31-27-6(D)(1) (2002).
Indeed, that was and remains one of the overarching purposes of the Forfeiture Act.
Compare § 31-27-2(A)(2) (2002), with § 31-27-2(A)(2), (5). The State must comply with
the Forfeiture Act. Albin v. Bakas, 2007-NMCA-076, ¶ 1, 141 N.M. 742, 160 P.3d 923. To
ensure that the State complied with the Act’s requirements, the Legislature required the State
to file a forfeiture complaint within thirty days of a seizure to establish the specific statutory
basis for the seizure or return the seized property. See § 31-27-5(A)(4) (2002). Thus, the
limitations period for filing a forfeiture complaint applies to all seizures, whether lawfully
made pursuant to former Section 31-27-4 or not. To read “seizure” in former Section 31-27-
5(A) to mean that the limitations period only applies to seizures made in compliance with
former Section 31-27-4 would undermine the Forfeiture Act’s purpose to ensure that, in
every instance, the State establish the lawfulness of the seizure or return the seized property.
In other words, the Forfeiture Act contemplates that the scope of “seizure[s]” of property,

7
under former Section 31-27-5(A), is more extensive than “property subject to forfeiture,”
under former Section 31-27-4(B).

{23} Fourth, the State’s reading of “seizure” fails to satisfy another purpose of former
Section 31-27-5(A). The Legislature created a thirty-day limitations period also to prevent
the State from holding a person’s property indefinitely. If, as the State suggests, a seizure
was not accomplished until state officials acted pursuant to a court order or warrant, then
they could retain exclusive control over a person’s property without implicating the
requirements of former Section 31-27-5(A) simply by refraining from seeking a seizure order
or search warrant.

D. Responding to policy concerns

{24} Under the plain meaning of former Section 31-27-5(A), the State must file a
forfeiture complaint “[w]ithin thirty days of making a seizure”—that is, within thirty days
of when the State first interfered with a person’s possessory interests in his or her property.
When the State impounded and sealed the vehicle on June 23, 2011, it interfered with
Benally’s property interests in the contents of the vehicle, including the money subject to the
forfeiture complaint. In short, the State seized the vehicle. See State v. Reynoso, 702 P.2d
1222, 1224 (Wash. Ct. App. 1985) (“An impoundment, because it involves the governmental
taking of a vehicle into exclusive custody, is a ‘seizure’ in the literal sense of that term.”).
When it did so, it also “ma[de] a seizure” of the contents of the vehicle because it deprived
Benally of his possessory interests in them. Section 31-27-5(A) (2002).

{25} The State suggests that this holding effectively requires law enforcement officers to
intuit the presence of forfeitable material to make a timely forfeiture filing. This argument
is not well taken. The plain reading of former Section 31-27-5(A) did not require law
enforcement officers to intuit what seized vehicles may contain. Rather, former Section 31-
27-5(A) placed a clear burden on the officers to obtain a warrant, to search the seized vehicle
and its seized contents, and, if forfeitable material was discovered, to file a forfeiture
complaint within thirty days of the seizure.

{26} The State responds that such a limitations period was unrealistic, but that contention
is inapposite. Whether thirty days from the seizure of a vehicle was sufficient time for law
enforcement officials to lawfully search the vehicle and, if proper, file a forfeiture complaint
is irrelevant to the interpretation of former Section 31-27-5(A). That is a policy question
squarely within the Legislature’s ambit. See Hartford Ins. Co. v. Cline, 2006-NMSC-033,
¶ 8, 140 N.M. 16, 139 P.3d 176 (recognizing “the unique position of the Legislature in
creating and developing public policy” (internal quotation marks and citation omitted)). This
Court will not effectively amend the requirements for filing a forfeiture complaint by
tinkering with the plain meaning of “seizure” in Section 31-27-5(A).

III. CONCLUSION

8
{27} For the foregoing reasons, the Court of Appeals correctly interpreted Section 31-27-
5(A) (2002), and its judgment is affirmed.

{28} IT IS SO ORDERED.

___________________________________
JUDITH K. NAKAMURA, Justice
WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

9