State ex rel. Department of Public Safety v. 1985 Chevrolet Blazer, Vin No. 1G8CT18B8F825A742, TX Tag 2465TZ

CAROL M. HANSEN, Presiding Judge,

concurring in part, dissenting in part:

¶ 1 I concur with the majority that the trial court was correct in denying forfeiture of the Blazer and other property belonging to Young. However, I dissent to that part of the decision reversing the trial court’s finding as to Fritz.

¶ 2 The officer stated he stopped the two vehicles originally clocked at 70 mph in a 65 mph zone. However, the vehicles had slowed to 55 mph at the time of the actual stop. Officers called for the drug dogs who alerted on one of the vehicles, a jeep. The officers eventually found cocaine in the jeep. That jeep is not involved in this action.1

¶ 3 Officers found no cocaine in the Blazer, only a small amount of marijuana, acknowledged by State as not enough to warrant a chai’ge of intent to distribute, thus not enough to warrant forfeiture.2

¶4 State filed a notice of seizure and forfeiture of the property involved herein, alleging it was used by the occupants of the vehicles while possessing marijuana and that the Blazer was used to transport a controlled dangerous substance for the purpose of distribution. Young and Fritz, through their attorney, filed an answer and a motion to suppress claiming the stop and the resulting search and seizure were unlawful. They claimed any marijuana was not being transported with the intent to distribute, thus the vehicle was not subject to seizure and forfeiture. State did not respond to the motion.3

¶5 At the bench trial, State presented only one witness, the officer who had stopped the vehicles.4 The only other evidence submitted to prove State’s claim was the guilty plea by Fritz.

¶ 6 The officer testified he followed the two vehicles without stopping them because they were in tandem and the occupants were black. He thought they might be “gang hangers.” He personally did not search the vehicles or make an arrest.

¶ 7 Based on the testimony of the officer, the trial court found the stop was a pretext and without probable cause. It ordered both Young and Fritz have judgment for possession and return of their property. In my view the trial court clearly did not believe the officers stopped the Blazer for speeding, but rather because of the ethnic makeup of the persons in the two vehicles. The trial judge, who sees the witnesses, observes their demeanor and hears their testimony is in a better position to judge the true facts than this Court in its examination of the record. The trial judge by being confronted with the parties and the witnesses, was in a much better position to assess the credibility of the witness than is this Court from the “dry, printed words in the record.” State has not shown from the record that the trial court failed to consider all of the appropriate factors presented by the evidence. McPherson v. State (In re H.M.), 1998 OK CIV APP 176, 970 P.2d 1190.

¶ 8 Where there is any competent evidence reasonably tending to support the *1188judgment, this Court will not disturb it on appeal. King v. Halliburton Co., 1991 OK CIV APP 34, 813 P.2d 1055. Here the trial court made extensive findings of fact and law in its journal entry. I would affirm its entire order pursuant to 12 O.S.1995 Supp .Ch. 15, App.

. The jeep was previously forfeited without objection.

. Simple possession of marijuana does not trigger the forfeiture provisions of 63 O.S.1994 Supp. § 2-503. State v.1985 GMC Pickup, 1995 OK 75, 898 P.2d 1280.

. The officer called for backup and another officer was present when the vehicles were stopped.