dissenting.
I respectfully dissent because I believe that the majority has erred in finding that the connection between the seized property and the drug offense was insufficient to support forfeiture.
The facts show that Katner was caught driving with .0573 gram of cocaine in his pocket. Under the forfeiture statute, a vehicle “used .. in any manner to facilitate the transportation of ... a controlled substance for the purpose of committing ... possession of cocaine” may be seized. I.C. § 34-4-30.1-l(a)(l)(A)(vi). Driving with cocaine in one’s pocket is using a car to facilitate the transportation of cocaine for the purpose of possessing it. Logically, one must first possess cocaine before one can transport cocaine; the transportation of cocaine is therefore an incident of the possession and use of cocaine. There are many reasons why an individual may transport cocaine from one place to another, and we need not speculate as to Katner’s reasons. As the majority has noted, the purpose of the forfeiture statute is to discourage “proscribed behavior by subjecting to forfeiture those items ‘traceable’ to criminal activity.” Caudill, 613 N.E.2d at 437. One kind of criminal activity included in the statute is possession of cocaine, a crime for which any identifiable amount of the drug may be sufficient to support a conviction. Individuals who break the law by possessing cocaine also transport the substance at their peril.
As the court stated in United States v. Real Estate Known as 916 Douglas Ave. (7th Cir.1990), 903 F.2d 490:
“A ‘substantial connection’ is not required between the property and the related drug offense for forfeiture of real estate under 21 U.S.C. § 881,a.7. Instead, the government must only demonstrate that the nexus is more than incidental or fortuitous. ... The loss of one’s home for the sale of a small amount of cocaine is undoubtedly a harsh penalty. But Congress has intended this harsh punishment for those who sell illegal drugs. Dura lex, sed lex.”
Id. at 494, 95.
Possession of cocaine is an offense for which our legislature has established a heavy penalty in accordance with our public policy of discouraging the use of illicit narcotics; forfeiture is a remedial and punitive measure that is a significant weapon in the law’s arsenal against drug abuse. The loss of one’s automobile for the possession of a small amount of cocaine may seem a harsh penalty, but it is a penalty that our legislature clearly has provided.