State v. 1978 Chevrolet Automobile

835 P.2d 1376, 17 Kan. App. 2d 144, 1992 Kan. App. LEXIS 522
CourtCourt of Appeals of Kansas
DecidedJune 19, 1992
DocketNo. 66,573
StatusPublished
Cited by11 cases

This text of 835 P.2d 1376 (State v. 1978 Chevrolet Automobile) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. 1978 Chevrolet Automobile, 835 P.2d 1376, 17 Kan. App. 2d 144, 1992 Kan. App. LEXIS 522 (kanctapp 1992).

Opinion

Lewis, J.:

This is a civil action brought by the State of Kansas to forfeit $31,550 in cash under K.S.A. 1991 Supp. 65-4135(a)(6). After trial, the trial court ordered the cash forfeited. The appellants, or claimants, are Randy Kroening and Douglas Koehler, who contend that the cash is their legitimate property and not subject to forfeiture. After a review of the record, we affirm the decision of the trial court.

The problems of the claimants began when the vehicle in which they were riding was pulled over for speeding by Trooper Alphonse Sanchez, Jr., of the Kansas Highway Patrol. The automobile in question, a 1978 Chevrolet, was owned by Kroening and was driven by Koehler. In addition to the two claimants, a third passenger in the vehicle was Annette Hays, the girlfriend of Kroening.

After the vehicle was stopped, Koehler produced his drivers’ license. However, he could not produce any proof of insurance. Kroening then spoke up and advised the trooper that the vehicle was uninsured. After ascertaining that the vehicle was not properly insured, Trooper Sanchez arrested Kroening for permitting his vehicle to be operated without insurance and Koehler for driving an uninsured vehicle.

At some point during the proceedings, the occupants were asked to exit the vehicle and did so. When Kroening got out of the car, Sanchez noted he appeared to be extremely nervous and was concealing something under his jacket. Upon further inquiry, Kroening advised Sanchez that he had $30,000 in cash under his jacket and, upon request, turned the cash over to Sanchez.

At this point, Sanchez asked for permission to search the vehicle. Permission was granted. The vehicle was searched, and no issue was raised on this appeal concerning the validity of that search.

[146]*146The search of the vehicle revealed a rather insignificant amount of marijuana. There was a total of 1.6 grams of marijuana found in the car, part of it in the front seat and part of it in a duffle bag located in the trunk.

There is evidence that traces of marijuana were found on the money seized from Kroening. The KBI examination failed to show evidence of marijuana on the money. However, a trained police dog made a “hit” on the money, which was construed to be positive for narcotics.

The money initially concealed under Kroening’s coat totaled $30,900. It was packed in a number of white envelopes sealed with duct tape. Each envelope had numbers written on it to indicate the amount of cash in the envelope. There were nine envelopes in all: four with $1,000 each in them; one with $1,900; three with $5,000 each; and one with $10,000. In addition to these amounts, $650 in cash was taken from Kroening’s wallet.

Koehler maintained that $8,000 of the cash belonged to him, while the rest was Kroening’s. Claimants insisted the money was not drug related and was to be used by them to purchase old junk cars in Oklahoma. Kroening had a business in Wisconsin in which he purchased old cars and used the parts to make various items of furniture. His uncle had advised him of an opportunity to purchase 30 old cars in Oklahoma that were about to be crushed. Kroening insists he and Koehler had gathered up their cash and set off for Oklahoma to purchase the old junk cars. On questioning, however, he could not name the salvage yards in Oklahoma that allegedly had the vehicles available.

At trial, Trooper Sanchez testified that he was trained in narcotics trafficking. In his opinion, the packaging of the money in separate envelopes, as described, was indicative of and consistent with the manner used by drug traffickers. He also indicated that the occupants of the vehicle fit the profile of drug traffickers and appeared to be on a direct trip to buy drugs and planning an immediate return. He premised this latter opinion on the limited amounts of luggage and clean clothing in the vehicle when it was stopped. He also felt it significant that the occupants of the vehicle had not bathed in some time and had not stopped to freshen up.

[147]*147David Majors, a federal drug enforcement agent, was also called as a witness for the State. He testified that the money was packaged in a manner consistent with drug trafficking.

At the completion of the evidence, the trial court ordered the $31,550 forfeited to the State. Claimants appeal that decision and raise several issues.

K.S.A. 1991 Supp. 65-4135(a)(6)

This is a civil action in which the State seeks to forfeit money allegedly related to the sale or purchase of illicit drugs. This action is provided for by K.S.A. 1991 Supp. 65-4135(a)(6), which states in pertinent part:

“(a) The following are subject to forfeiture:
“(6) everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of the uniform controlled substances act, all proceeds traceable to such an exchange, and all moneys, negotiable instruments and securities used, or intended to be used, to facilitate any violation of the uniform controlled substances act, except that no property shall be forfeited under this subsection (a)(6), to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the owner’s knowledge or consent. All moneys, coin and currency found in close proximity to forfeitable controlled substances, to forfeitable drug manufacturing or distributing paraphernalia or to forfeitable records of the importation, manufacture or disposition of controlled substances, are presumed in the manner provided in K. S.A. 60-414 and amendments thereto to be forfeitable under this subsection (a) (6). Under this subsection (a) (6), the burden of proof shall be upon claimants of the property to rebut this presumption.” (Emphasis added.)

As is highlighted, the statute provides that money found in close proximity to a controlled substance is presumed to be forfeitable. The statute contemplates a showing by the State to raise the presumption and, once that is done, the burden is shifted to the claimant to rebut the presumption. In this case, the $31,550 in question was found in “close proximity” to a quantity of marijuana. Marijuana is a forfeitable controlled substance under the statute. Thus, by proving these basic facts, the State raised a presumption that the money was forfeitable. It is not relevant that the marijuana found was insignificant in amount. The statute does not specify that any minimum amount of controlled substance is required to raise the presumption. Once the presump-

[148]*148tion comes into existence, the claimants must produce evidence to rebut it to successfully defend against forfeiture.

In this case, the trial court determined that the claimants’ evidence was not sufficient to rebut the presumption. The claimants argue this finding is not adequately supported by the evidence. We disagree.

In a case of this nature, our standard of review is that of substantial competent evidence. State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, Syl.

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Bluebook (online)
835 P.2d 1376, 17 Kan. App. 2d 144, 1992 Kan. App. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-1978-chevrolet-automobile-kanctapp-1992.