In re Thao

883 N.W.2d 536 (Table)

In the Matter of the PROPERTY SEIZED FOR FORFEITURE FROM Samantha THAO and Karen Thao,

Samantha Thao and Karen Thao, Appellants.

No. 14–1936.

Court of Appeals of Iowa.

March 23, 2016.

Mark J. Rater of Rater Law Office, Council Bluffs, for appellants.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee State.

Heard by VAITHESWARAN, P.J., and DOYLE and MULLINS, JJ.

DOYLE, Judge.

The $69,000 question presented to us on appeal is: Can the State seize cash from people who have not been charged or convicted of a crime? Under Iowa's statutory forfeiture schema, we conclude the answer is, “Yes.”

Specifically, Samantha Thao and Karen Thao appeal from the district court's order forfeiting to the State $58,890.00 from Samantha and $10,700.06 from Karen following a traffic stop and subsequent vehicle search. They argue the district court erred in finding that the funds were properly subject to forfeiture as proceeds from illegal activity under Iowa Code chapter 809A (2013), among other things. We affirm.

I. Background Facts and Proceedings.

A reasonable fact-finder could find the following facts from the record in this case. On February 21, 2014, Samantha, traveling from the St. Paul, Minnesota area, was driving through Iowa in a rented Ford Explorer with New York license plates. Three passengers were in the SUV with her; Karen was in the front passenger seat, and two men were seated in the middle-row seats.

About thirteen miles from the Iowa–Nebraska state line, Pottawattamie County Deputy Sheriff Brian Miller was sitting in his patrol car in the median of I80 facing westbound traffic. He observed the SUV traveling westbound in the slow lane, and he believed the vehicle was traveling over the posted speed limit. He also observed that when the driver of the SUV saw the deputy's patrol car in the median, she “immediately dramatically slowed her speed by braking.” The deputy was unable to use radar due to the amount of traffic that was in the immediate area. He pulled out of the median onto the highway and continued westbound along I–80 until he caught up with the SUV. By that time, Deputy Miller was near the ten-mile marker, where the speed limit changes from seventy to sixty-five miles-per-hour. He got behind the SUV and, after waiting until the speed limit changed to sixty-five, used his same directional radar. He clocked the speed of the SUV at sixty-eight miles-per-hour. He did not immediately activate his patrol car's emergency lights at that time because the location on I80 was not particularly safe for a stop, due to guardrails on the sides of the road and then-entering-and-exiting traffic. He ultimately waited until around the eight-mile marker to activate his lights. He did not activate his patrol car's camera until approximately thirty seconds before he stopped the vehicle. From that point, the deputy's body microphone and his patrol car's camera recorded the stop.

The deputy approached the vehicle and spoke to its occupants. While speaking to them, he smelled the odor of marijuana coming from inside the vehicle. He had Samantha get out of the SUV and walk to the back of the vehicle, away from her passengers. He asked her where they were going, and she told him they were going to Omaha to see a sick, male cousin. The deputy told her he smelled marijuana and advised he was going to search the vehicle. Away from Samantha, he asked the vehicle's occupants where they were going and was told they were going to Omaha to visit a sick aunt.

Deputy Miller told the persons in the SUV he was going to search it, and he asked if any of them had guns or knives on them. He was initially told, “No”; however, after he went to the back of the SUV and opened its hatch, one of the men told the deputy there was a Glock 21 pistol in one of the duffle bags. The deputy found three duffle bags; one contained the gun, three fully-loaded magazines, a marijuana grinder, cigarillos, rolling papers, tips, and a cigarette roller. Another duffle bag contained a vacuum sealer, three plastic bags containing 150 to 300 pre-cut heat-seal plastic bags, and three empty outdoor duffle bags “reek[ing] of the odor of fabric softener .” Two small bags with dryer sheets in them were also found.

Additionally, the deputy found a black and white handbag containing an envelope with “10,000” written on it. Samantha confirmed it contained $10,000 and explained it was for “her uncle, because he's sick.” After other officers arrived at the scene, Samantha and her passengers were detained and taken to the Pottawattamie County Sheriff's Office. The SUV was fully searched, and in addition to the items described above, marijuana was found where one of the men had been sitting. Under the front passenger seat, the deputy found a plastic grocery bag containing two clear plastic bags full of rubber-banded bundles of currency. Another rubber-banded bundle of currency was found in Samantha's purse.

The four vehicle occupants were interviewed separately by other investigating officers, and each gave inconsistent stories about their travel plans and the purposes of the items and cash found in the SUV. Neither Samantha nor Karen were criminally charged; Samantha was not issued a traffic citation. However, the male passengers were criminally charged for possession of marijuana and drug paraphernalia. Cash totaling $69,590.06 was seized from the SUV.

In March 2014, the State filed in rem forfeiture complaints seeking to forfeit the currency found in the SUV. Samantha and Karen answered and requested the money be returned to them. A trial in the matter was held in July 2014.

Deputy Miller and two other officers testified, along with Samantha, Karen, Karen's husband, and one of the passengers. Deputy Miller and other officers testified that, based upon their training and experience, they believed the items found together, though legal but for the marijuana, were indicative of a drug operation and evidenced the vehicle's occupants were on their way to purchase and package drugs, which were to be transported back to the St. Paul, Minnesota area for sale.

Samantha denied she was speeding and claimed she actually had $64,000 with her in the SUV from her life savings. She testified she heard the officers say they were going to take five percent of the money found and go to dinner. Samantha stated part of her life savings was an almost $30,000 withdrawal from a 401(k) plan made at the time of her 2008 divorce. She denied telling her interviewer she had withdrawn the money in $2000 increments.

Samantha testified she did not “really understand English much,” and though she was actually going to Oklahoma, she told the officer she was going to Omaha because she thought they were the same place. She testified she was going to see her sick uncle and sick aunt, and though she did not know the address, she knew the house and had her uncle's phone number in her cell phone to call him. She testified some of the money was to help pay her sick relatives' medical bills, but the rest of the money she brought with her because she was going to “stay there like a couple of day[s to] a week.” She testified that while they were in Oklahoma, they were going to slaughter a cow and some wild pig, and they brought the vacuum sealer, precut bags for the sealer, and empty duffle bags to fill with the meat. The dryer sheets were in the bags to take away the smell of the meat.

Karen also testified and stated the seized cash came from her tax refund and her savings. She provided her and her husband's 2013 joint tax return, showing they received a refund of $5405. She also provided her husband's January 2014 bank statement for an account, showing two tax deposits of about $6200 and a subsequent withdrawal from the account of $6200. She testified her husband withdrew the money and gave it to her because she is a saver and she pays the household bills. She made him give her the money because he likes to gamble. The same bank statement shows three ATM withdrawals at a casino. Karen's husband testified he withdrew the $6200 from his bank account and gave it to Karen to save for their son's wedding. He also testified she took the money with her because she was afraid he would take it to the casino in her absence.

Finally, one of the passengers testified the marijuana was his and he did not think Samantha knew anything about it, although he agreed he thought the officer could smell marijuana in the vehicle. He told the police they were going to visit a sick aunt, Samantha's “aunt and uncles.” He also testified they were going to slaughter a cow and wild boar, so he came along for the ride.

Thereafter, the district court entered its order forfeiting to the State the cash found in the vehicle, finding “that given the totality of the circumstances, the evidence is overwhelming that [Samantha and Karen] were involved in drug trafficking.” The court expressly found Samantha was not credible, and it did not believe Samantha's testimony that the vacuum sealer and other items were going to be used to store meat. Likewise, the court did not believe Karen withdrew the funds because she was afraid her husband would spend it because it had been deposited into her husband's account, to which he had access. The court concluded, based upon the totality of the circumstances, the State proved Samantha and Karen were engaged in criminal activity involving the distribution of marijuana and the money seized was related to that activity.

Samantha and Karen now appeal.

II. Scope and Standards of Review.

Our review of forfeiture proceedings is for correction of errors at law. See In re Prop. Seized from Young, 780 N.W.2d 726, 727 (Iowa 2010). The evidence is examined in the light most favorable to the district court's judgment, and its findings are construed liberally to support the judgment; however, the findings are only binding if we determine they are supported by substantial...