Apolinar Terrero Ruiz & $56,000.00 U.S. Currency v. State

227 So.3d 1132

Apolinar Terrero RUIZ and $56,000.00 U.S. Currency, Appellants

v.STATE of Mississippi and Harrison County Sheriff's Office, Appellees

NO. 2015-CA-00342-COA.

Court of Appeals of Mississippi.

September 27, 2016

Rehearing Denied May 23, 2017

Certiorari Denied August 31, 2017

TIM C. HOLLEMAN, PATRICK TAYLOR GUILD, ATTORNEYS FOR APPELLANT

OFFICE OF DISTRICT ATTORNEY, SECOND CIRCUIT COURT DISTRICT

BY: JOEL SMITH, ALISON B. BAKER, JASON M. JOSEF, ATTORNEYS FOR APPELLEE

EN BANC.

ISHEE, J., FOR THE COURT:

¶ 1. After being pulled over for a traffic stop by officers with the Harrison County Sheriff's Department in 2012, Apolinar Terrero Ruiz was found to have had $56,000 in cash hidden in a secret compartment in his vehicle. The money was seized, and a trial took place in the Harrison County Circuit Court regarding whether the money should be forfeited. At the conclusion of the trial, the circuit court determined that the money was substantially connected to illegal drug trafficking. Accordingly, the money was forfeited to the sheriff's department. Aggrieved, Ruiz appeals. Finding error, we reverse and render the circuit court's judgment.

STATEMENT OF FACTS

¶ 2. On November 8, 2012, Sergeant Bruce Carver, an officer with the sheriff's department, became aware of a 2008 Mazda sedan following too closely behind a tanker truck carrying explosive liquids in Biloxi, Mississippi. Accordingly, Sergeant Carver made a traffic stop of the vehicle. Deputy Brandon Hendry assisted in the stop. Ruiz, a legal United States citizen originally from the Dominican Republic, was the driver of the vehicle detained. Sergeant Carver testified that upon approaching the vehicle, he noticed a strong scent, and saw two new air fresheners hanging from the rearview mirror. Sergeant Carver also observed two cell phones lying on the passenger's seat along with a map. He further observed that the ignition of the vehicle housed only a single key—not a set of keys. When asked about Ruiz's destination, Ruiz, who admittedly does not speak fluent English, stated that he was headed to Houston, Texas, to see his pregnant daughter. Sergeant Carver stated that these factors led him to believe that Ruiz may be involved in drug trafficking.

¶ 3. Sergeant Carver returned to his vehicle and contacted the El Paso Intelligence Center (EPIC) to request information on Ruiz. Ruiz was not listed in EPIC's database, nor does Ruiz have any prior legal association with any drug activity. Nonetheless, Sergeant Carver asked Ruiz for permission to search his vehicle.

¶ 4. Ruiz was presented with a document requesting his consent to search the vehicle. The document was written in Spanish, Ruiz's native language. Ruiz signed the consent form, and was asked, in English, if there were any weapons, illegal objects, or large sums of money in the vehicle. Ruiz responded that there were not. Ruiz was then escorted to Sergeant Carver's vehicle while the officers searched the vehicle.

¶ 5. The officers soon discovered what they termed a "hidden compartment" between the trunk and the backseats. Although the officers were unable to completely open the compartment at that time, they were able to pry it open widely enough to reach inside. The officers could feel stacks of money banded together with rubber bands and wrapped in a towel. While the officers were searching the vehicle, Ruiz was recorded in the patrol vehicle saying in Spanish, "My God, I got myself into one," and later, "My God, my God."

¶ 6. The search of the vehicle was relocated to a nearby work center used by the sheriff's department. Ruiz opened the compartment for the officers. Discovered in a black bag was $56,000 in cash, along with a vacuum-sealer machine, vacuum-seal bags, and Saran Wrap, all wrapped in a towel. The officers at the work center also discovered residue in the compartment that they testified "appeared to be marijuana" debris. However, this material was not preserved, collected, or tested. Likewise, Ruiz was not questioned about or shown the residue.

¶ 7. Sergeant Carver asked Ruiz about the money and the vacuum-seal items. Ruiz stated that the money was his. He said he had been saving the money for quite some time and had plans to open a grocery store in Houston with his daughter. Ruiz said the reason for his trip from Pennsylvania to Texas was to see his daughter and discuss opening the grocery store. Sergeant Carver asked how much Ruiz had stored in the vehicle, to which he responded "fifty-six."

¶ 8. With respect to the vacuum-seal machine and bags, Ruiz stated that he was a diabetic and had planned to use the machine to seal and save diabetic-friendly food to eat during his trip. Ruiz testified that he had medication for his diabetes in his suitcase in the trunk of his vehicle at the time of the incident, but that he was not questioned about the vacuum-seal items or given an opportunity to explain their presence before the money was taken and he was released.

¶ 9. After the authorities finished questioning Ruiz and searching the vehicle, the vehicle was returned to Ruiz and he was released without being charged with any crimes. However, the money was confiscated for further analysis. A trial ensued in the circuit court to determine whether or not the money was substantially connected to drug trafficking and should be forfeited.

¶ 10. At trial, Ruiz was asked how he saved up such a large sum of money in cash. He testified that most of the money consisted of twenty-six years of savings from working in construction and carpentry. He also stated that after refinancing a home he owned in Massachusetts, he received $20,000 in cash from equity, which he used, in addition to $7,000 his daughter had given him to invest, to begin making private loans and receive interest on the loans—transactions all completed in cash. He was unable to produce the names, addresses, or telephone numbers of people to whom he loaned money, and confessed that he did not have any records of the alleged transactions. Likewise, there was no tax documentation regarding the money.

¶ 11. Ruiz was also questioned about the alleged grocery-store business plan. He admitted that he had never worked in a restaurant or grocery store. He also did not have any potential locations in mind for the business, nor had he done any research on available commercial real estate prior to departing for his trip to Texas.

¶ 12. With regard to the hidden compartment, Ruiz stated that he had just purchased the used vehicle in question four months prior to the stop. Ruiz said that he was unaware of the supposed hidden compartment when he purchased the vehicle, but discovered it while cleaning the vehicle later on. He denied having modified the vehicle in any way and stated that the compartment was easily opened by folding down the backseats. The record indicates, in fact, that Ruiz voluntarily opened the compartment for the officers at the work center.

¶ 13. For purposes of the trial, the money found in Ruiz's vehicle was counted and listed by denomination as follows: (1) $350 in $10 bills; (2) $23,700 in $20 bills; (3) $5,750 in $50 bills; and (4) $26,200 in $100 bills. At trial, Sergeant Carver and Deputy Hendry testified that, in their professional experience with illegal-narcotics activities, large amounts of drug-related money most commonly consisted of $20 and $100 bills since those are the most frequently used dollar bills in drug transactions. They also testified that it was routine to discover large amounts of drug-related money outside the presence of drugs. They testified that this occurred because drug suppliers wanted payment before releasing the drugs to the traffickers.

¶ 14. At the close of the trial, the circuit court ruled from the bench, and ordered the funds forfeited to the sheriff's department. The circuit judge determined that the sheriff's department had met its burden of showing that the money seized was intended to be used or had been used in connection with illegal drug sales or distribution. Ruiz now appeals the circuit court's judgment.

DISCUSSION

¶ 15. "The appropriate standard of review in forfeiture cases is the familiar substantial evidence/clearly erroneous test." Four Thousand Eight Hundred One Dollars v. Lafayette Cty. Metro Narcotics Unit , 22 So.3d 394, 396 (¶ 6) (Miss.Ct.App.2009) (citing Galloway v. City of New Albany , 735 So.2d 407, 410 (¶ 15) (Miss.1999) ). The Mississippi Supreme Court "has held that in determining whether forfeiture is appropriate, the question becomes whether [,] given all of the evidence considered together, a rational trier of fact may have found by a preponderance of the evidence that the funds were the product of or instrumentalities of this state's controlled substances act." Evans v. City of Aberdeen , 926 So.2d 181, 187 (¶ 19) (Miss.2006) (quoting Hickman v. State , 592 So.2d 44, 48 (Miss.1991) ).

¶ 16. In Evans , authorities with the Aberdeen Police Department in Aberdeen, Mississippi, received a tip from a confidential informant, who stated that illegal drug transactions were taking place in the home of James Evans. Evans v. City of Aberdeen , 925 So.2d 850, 851 (¶ 1) (Miss.Ct.App.2005). Subsequently, a search warrant was issued and executed on Evans's home. Id. During the search, officers discovered a brass container attached to a scrubbing pad, a piece of aluminum foil with holes in it, several plastic bags, and a pack of cigarettes with residue in the bottom. Id. Discovered nearby, hidden in a piece of furniture, was $7,600 in cash. Id. The officers placed the cash in a brown paper bag that they had retrieved from the home's basement. Id. Later, a drug dog alerted the officers to the presence of drugs on or in the brown paper bag. Id. The money was subsequently seized and forfeited. Id. at (¶ 2).

¶ 17. On appeal, this Court found that the circuit court erred in determining that the City of Aberdeen had met its burden of proof that the money was subject to forfeiture. Id. at 855 (¶ 23). The...