FILED
Aug 16 2017, 12:45 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Gary M. Selig Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Bowman, Tommy August 16, 2017
Maurry, and Jacob Murphy, et Court of Appeals Case No.
al., 49A02-1606-MI-1463
Appellants-Respondents, Appeal from the Marion Superior
Court
v. The Honorable Marc T.
Rothenberg, Judge
State of Indiana, Trial Court Cause Nos.
Appellee-Petitioner 49G02-1602-MI-4868
49G02-1602-MI-4926
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017 Page 1 of 8
[1] Two parcels being shipped from one state to another caught the attention of a
detective. The only articulated reasons for suspicion were: the parcels were
being shipped to California; they were sent priority overnight; they were heavily
taped; and they were each sent to the same recipient. After a K-9 unit gave
positive alerts on both parcels, a search warrant was obtained. The only thing
inside the parcels was cash, which was seized by the State as proceeds of drug
trafficking. None of the individuals have ever been investigated for or charged
with any crimes in connection with this case. The State now seeks to turn the
seized cash over to the federal government.
[2] Jacob Murphy, Robert Bowman, and Tommy Maurry (collectively, the
Appellants) appeal the trial court’s order granting the State’s motion to transfer
approximately $30,000 to the United States. The Appellants argue that the
seizure of the money exceeded the scope of the search warrants, meaning that
the seizure was unlawful and the money may not be turned over to the federal
government. We agree, and reverse and remand with instructions to order the
return of the money to the Appellants.
Facts
[3] On November 20, 2015, Indianapolis Metropolitan Police Detective Brian
Thorla was visually inspecting parcels at a local shipping company. Several
parcels came to the detective’s attention, including the two that are at issue in
this case. One parcel was sent by Bowman in Illinois to Murphy in California;
the second was sent by Maurry in Illinois to Murphy in California. Appellants’
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App. Vol. II p. 17, 23. The parcels drew Detective Thorla’s attention because
they were paid for priority overnight, heavily taped, and addressed to the same
recipient in California, which is known by law enforcement “to be a source
state for the importation/exportation of controlled substances . . . .” Id.
Detective Thorla conducted a dog sniff of the parcels; the K-9 unit gave positive
alerts on both parcels, indicating the presence of the odor of controlled
substances.
[4] Detective Thorla sought and received search warrants for both parcels. The
warrants authorized law enforcement to open and search the parcels “for
controlled substances, records of drug trafficking, and proceeds of drug
trafficking.” Id. at 20, 26. Law enforcement opened and searched both parcels.
They found no controlled substances or records of drug trafficking, but one
parcel contained currency in the amount of $15,000 and the other contained
currency in the amount of $15,300. Law enforcement seized the currency. No
criminal charges were ever brought against any of the Appellants with respect
to this matter, nor is there any indication that the Appellants have been the
subject of any criminal investigation by Indiana or federal law enforcement
authorities.
[5] On February 11, 2016, the State filed motions to transfer the currency at issue
to the United States.1 The Appellants objected, arguing that the seizure of the
1
There are two separate underlying causes below—one for each of the two parcels. The causes have been
consolidated.
Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017 Page 3 of 8
currency exceeded the scope of the search warrant. Following a hearing, on
June 7, 2016, the trial court issued an order granting the State’s motions. In
pertinent part, the trial court found as follows:
2. The appearance of the parcels, the excessive taping, the
type of shipping and payment, the multiple parcels to the
same destination in a known import state of controlled
substances, and the positive K9 alert to the presence of the
odor of controlled substances and all reasonable inferences
drawn there from is probable cause to authorize the
seizure of “proceeds of drug trafficking” located during a
search of the parcel.
3. The specificity requirement regarding the items to be
seized in a search warrant does not require an exact
description or an itemized list of items but rather must
describe the nature of the items to be seized and must be
specific enough to remove discretion from the executing
officers.
***
5. There is probable cause to justify the seizure of United
States Currency located in the parcels as proceeds of drug
trafficking within the scope of the warrant.
Appealed Order p. 4-5. The trial court stayed its order pending this appeal.
Discussion and Decision
[6] The Appellants do not argue that the search was unlawful, nor do they dispute
that, if the money was properly seized, it may properly be turned over to the
Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017 Page 4 of 8
United States. Instead, the Appellants argue that the seizure of the money went
beyond the scope of the search warrant, that the seizure was therefore unlawful,
and that, as a result, the money may not be turned over to the federal
government. This presents a question of law, to which we apply a de novo
standard of review. E.g., Membres v. State, 889 N.E.2d 265, 268 (Ind. 2008).
[7] The statute authorizing the turnover of seized property provides as follows:
Upon motion of the prosecuting attorney, the court shall order
property seized under IC 34-24-1 transferred, subject to the
perfected liens or other security interests of any person in the
property, to the appropriate federal authority for disposition
under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e)
and any related regulations adopted by the United States
Department of Justice.
Ind. Code § 35-33-5-5(j). Our Supreme Court has held that “if the search or
seizure of . . . property was unlawful, the turnover order must be reversed.”
Membres, 889 N.E.2d at 269.
[8] What we must determine, therefore, is whether the seizure of this currency was
unlawful. A search warrant must describe “with particularity . . . the items to
be seized.” Pavey v. State, 764 N.E.2d 692, 702 (Ind. Ct. App. 2002). This
requirement “restricts the scope of the search, authorizing seizure of only those
things described in the warrant . . . .” Id. An exact description is not required,
but the items to be searched for must be described with some specificity.
Overstreet v. State, 783 N.E.2d 1140, 1158 (Ind. 2003).
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[9] Here, the search warrants authorized law enforcement to open and search the
parcels “for controlled substances, records of drug trafficking, and proceeds of
drug trafficking.” Appellants’ App. Vol. II at 20, 26. The only way in which
the seizure of the currency at issue falls under the search warrant, therefore, is if
it can reasonably be concluded to be “proceeds of drug trafficking.” Id. The
State focuses primarily on whether currency constitutes “proceeds,” but that
narrows the question too much. Instead, we must determine whether this
money was proceeds of drug trafficking. In other words, the search warrant did
not (and could not) authorize the seizure of any and all currency; instead, that
currency must be found to be “derived directly or indirectly from, produced
through, or realized through” drug trafficking. Appellants’ App. Vol. II p. 15. 2
[10] The only evidence in the record supporting such a conclusion is as follows:
• The parcels were being shipped to California.
• The parcels were being sent to the same recipient.
• The parcels were heavily taped.
• The parcels were shipped priority overnight.
• A K-9 unit alerted to the two parcels.
We can easily dispense with the first four pieces of evidence. We are confident
that a voluminous number of parcels meeting those criteria and having nothing
2
The State argues that because this case arises under the turnover statute as opposed to the forfeiture statute,
we need not consider whether there is a nexus between the seized property and any applicable offenses.
Appellee’s Br. p. 10. This argument misses the point. The language of the search warrant itself requires that we
consider whether the currency at issue was reasonably considered to be the proceeds of drug trafficking.
Therefore, we must address the relationship between the money and drug trafficking to determine the
lawfulness of the seizure.
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to do with drug trafficking are shipped in this country every day. If all money
shipped in heavily taped parcels mailed to California via priority overnight mail
could be seized as proceeds of drug trafficking, many last-minute gift recipients
at holiday and birthday time would be sorely disappointed (and surprised).
[11] So, we are left with the fact that a K-9 unit gave positive alerts on both parcels
at issue. The very most that this fact means is that at some point, someone
handling the parcels transferred an odor of controlled substances to them. It
may have been Bowman and Maurry, who sent the parcels, or it may have been
any number of individuals involved with the handling of the parcels in transit.3
And any of those individuals could conceivably have possessed and/or used the
unidentified controlled substance either legally or illegally, with or without an
intent to commit drug trafficking. But no controlled substances or evidence of
controlled substances were actually found in the parcels, so there is simply no
way to know.
[12] No drugs were found in the parcels. No drug paraphernalia was found in the
parcels. No evidence of drug trafficking or any unlawful activity was found in
the parcels. None of the Appellants have been charged with any state or federal
3
We also note that it is well accepted that a great majority of United States currency (as well as the currency
of other nations) is contaminated by drug residue, leading us to place even less credence on a positive alert
from a K-9 unit alone with absolutely no other evidence suggesting drug trafficking. See, e.g., Madison Park,
90 percent of U.S. bills carry traces of cocaine, CNN (Aug. 17, 2009),
http://www.cnn.com/2009/HEALTH/08/14/cocaine.traces.money; David Biello, Cocaine Contaminates
Majority of U.S. Currency, Scientific American (Aug. 16, 2009),
https://www.scientificamerican.com/article/cocaine-contaminates-majority-of-american-currency/.
Court of Appeals of Indiana | Opinion 49A02-1606-MI-1463 | August 16, 2017 Page 7 of 8
offenses in connection with the parcels; indeed, there is no indication that they
have even been under investigation. Under these circumstances, we find that
the seizure of the currency in the parcels exceeded the scope of the search
warrant—no reasonable person would conclude, based on these facts, that the
currency was the proceeds of drug trafficking. Because the seizure was
unlawful, the trial court’s order granting the State’s motion to turn the currency
over to the United States was erroneous, and we reverse.
[13] The judgment of the trial court is reversed and remanded with instructions to
order the return of the currency to the Appellants.
Bailey, J., and Altice, J., concur.
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