concurring in part and dissenting in part.
I agree with the majority that the $26,000 used by Tracy to purchase the marijuana was not "seized" within the meaning of IC 85-33-5-5 inasmuch as Tracy had already exchanged the money for the marijuana. Tra ey no longer possessed the money and thus was not entitled to return of the money under any legal theory. I disagree with the majority, however, with respect to the money found on Tracy's person after the arrest.
IC 85-83-5-5(a) requires that "all items of property seized by a law enforcement agency as a result of an arrest" shall be held by the agency subject to the court's authority. IC 35-38-5-5(c)(1) provides that the court alone has the jurisdiction to order disposition of the property and that this is to be done at the conclusion of the criminal proceedings. Neither mandate was observed in the instant case. It is undisputed that all of the seized money, including the money taken from Tracy's person, was given by the Indiana State Police to the DEA months in advance of the final disposition of the charges against Tracy. This was done by purchasing a money order in the amount of all of the money seized and giving the money order to the DEA. The transfer was accomplished without a court order.
The facts of the instant case are substantially similar to those in Scarabin v. Drug Enforcement Admin., 966 F.2d 989 (5th Cir.1992). In Scarabin, the defendant's house was searched pursuant to a search warrant issued by the local parish sheriffs office. The search produced "evidence of drugs and $12,360 in cash." Id. at 991. Three days after the search, the sheriffs office purchased a cashier's check using the seized money and turned the check over to the DEA for civil forfeiture under federal law. This was done "without the knowledge, much less the authority, of the state court." Id. Shortly thereafter, the DEA returned ninety percent of the money to the sheriff's office under a federal statute permitting the DEA to return forfeited property to state or local law enforcement agencies which participated in the seizure or forfeiture of the property. The Fifth Cireuit colorfully and accurately described this as "a handoff from the Sheriff s Office to the DEA, followed by the lateral back from the DEA to the Sheriff's Office, a 'flea-flicker play." Id.
*1237The court concluded that the initial transfer of the funds from the sheriffs office to the DEA was contrary to state forfeiture law requiring that disposition of seized money be determined by a state court. The court stated:
"From the moment of seizure the state district court had exelusive control over the res by virtue of issuing the search warrant that procured the seized funds and never relinquished that control to the DEA or any other agency or person. A federal agency cannot obtain jurisdiction over the res-and thus cannot find the res administratively forfeit-when a state court obtains jurisdiction first and never relinquishes that jurisdiction." Id. at 993.
In the instant case, jurisdiction over the money seized from Tracy's person vested in the state court pursuant to IC 85-33-5-5(a) because it was seized by a state law enforcement agency as a result of an arrest. I can find no indication of record that the Hamilton County court which had jurisdiction over Tracy's criminal case ever issued an order authorizing disposal of the money seized from Tracy's person. Rather, the transfers from the Indiana State Police to the DEA and from the DEA back to the Hamilton County Drug Task Force were accomplished without benefit of authorization, or perhaps even knowledge, of the court having statutory jurisdiction over the money. In addition to the lack of notification and court approval, the "flea-flicker" play transfer from the State to the DEA and back to the State is all the more unacceptable in the instant case in view of the DEA's relative lack of involvement in the sting operation resulting in Tracy's arrest. The precise nature of the DEA agent's participation is not clear, but a review of the record convinces me that the law enforcement endeavor which culminated in Tracy's arrest can only be characterized as a state operation, and not a DEA operation. The DEA agent's role seems to have been minor at best.
I am persuaded by the reasoning of courts that have set aside the transfer for federal civil forfeiture proceedings of money seized by state or local law enforcement officials if the applicable state laws regarding seized property were ignored or cireumvented. See, e.g., Scarabin, supra; United States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120 (7th Cir.1991); Johnson v. Johnson, 849 P.2d 1361 (Alaska 1993). At the time the money was transferred to the DEA, Tracy's criminal action was ongoing and jurisdiction over the money remained with the Hamilton County court before whom the matter was pending. I find the Scarabin court's conclusion equally applicable here:
"Finding that [the seized money] was never out of the legal control of the state court and thus was never in the possession of the federal government, we conclude that the DEA could not have found it forfeit. The administrative forfeiture of which the DEA informed [the defendant] is a non-entity. If the DEA still insists on bringing forfeiture proceedings against [the defendant's] funds, it must first seek a turn over order from the state court, or wait until that court relinquishes control over the res and then proceed anew...." Scarabin, supra, at 995.
1 would reverse the trial court with respect to the money found on Tracy's person upon my conclusion that federal civil forfeiture proceedings pertaining to that money were invalid because they were commenced without authority of the court then having jurisdiction over the money. 8
. Finally, I note that although we address herein the narrow question of whether forfeiture proceedings must be authorized by the state court having jurisdiction over the money, there are broader implications to the majority's holding today. The United States Supreme Court recent ly decided that forfeiture of property under 21 U.S.C. § 881 for drug offenses constitutes " 'payment to a sovereign as punishment for some offense,' [citation omitted], and, as such, is subject to the limitations of the Eight Amendment's Excessive Fines Clause." Austin v. United States (1993), - U.S. -, -, 113 S.Ct. 2801, 2812, 125 L.Ed.2d 488 (quoting Browning-Ferris In*1238dustries v. Keleo Disposal, Inc. (1989), 492 U.S. 257, 265, 109 S.Ct. 2909, 2915, 106 L.Ed.2d 219). Article I, Section 16 of the Indiana Constitution contains Indiana's equivalent of the Eighth Amendment's guarantee against excessive fines. The Eighth Amendment of the federal constitution defines the minimum threshold of protection against government action in that regard, and the state constitution may afford greater protection, but not less. Therefore, forfeitures for drug offenses in Indiana are subject to the excessive fines limitations guaranteed by both the Eighth Amendment of the United States Constitution and Article I, § 16 of the Indiana Constitution. In the instant case, the money was administratively forfeited by the DEA. It is beyond debate that a court of law is better suited than an administrative agency to make the necessary determinations regarding the constitutionality of a forfeiture under the Eighth Amendment and Article I, § 16. This is a compelling reason to require, as does IC 35-33-5-5(c)(1) in my view, that a state court oversee the disposal of property seized in conjunction with a drug arrest and subject to civil forfeiture under relevant state and federal statutes.